(a) A surrogate may make a health-care decision to treat, withdraw or withhold treatment for an adult patient if the patient has been determined by the attending physician to lack capacity and there is no agent or guardian, or if the directive does not address the specific issue. This determination shall be confirmed in writing in the patient’s medical record by the attending physician. Without this determination and confirmation, the patient is presumed to have capacity and may give or revoke an advance health-care directive or disqualify a surrogate.

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(b) (1) A mentally competent patient may designate any individual to act as a surrogate by personally informing the supervising health-care provider in the presence of a witness. The designated surrogate may not act as a witness. The designation of the surrogate shall be confirmed in writing in the patient’s medical record by the supervising health-care provider and signed by the witness.

(2) In the absence of a designation or if the designee is not reasonably available, any member of the following classes of the patient’s family who is reasonably available, in the descending order of priority, may act, when permitted by this section, as a surrogate and shall be recognized as such by the supervising health-care provider:

a. The spouse, unless a petition for divorce has been filed;

b. An adult child;

c. A parent;

d. An adult sibling;

e. An adult grandchild;

f. An adult niece or nephew;

g. An adult aunt or uncle.

Individuals specified in this subsection are disqualified from acting as a surrogate if the patient has filed a petition for a Protection From Abuse order against the individual or if the individual is the subject of a civil or criminal order prohibiting contact with the patient.

(3) If an adult patient is in an acute care setting or is a client of the Department of Health and Social Services and none of the individuals eligible to act as a surrogate under subsection (b) of this section is reasonably available, an adult, other than a paid caregiver, who has exhibited special care and concern for the patient, who is familiar with the patient’s personal values and who is reasonably available may make health-care decisions to treat, withdraw or withhold treatment on behalf of the patient. Such person shall provide an affidavit to the health-care facility or to the attending or treating physician which includes statements that he or she is:

a. A close friend of the patient;

b. Is willing and able to become involved in the patient’s health care; and

c. Has maintained such regular contact with the patient as to be familiar with the patient’s activities, health, personal values and morals.

The affidavit must also recite facts and circumstances that demonstrate such person’s familiarity with the patient. End of life decisions involving the withdrawal or withholding of treatment must meet the requirements of this chapter.

(4) Nothing in this section shall be interpreted as limiting the Court of Chancery’s authority to appoint a guardian of a person to act as a surrogate under the Court’s rules and procedures.

(5) A supervising health-care provider may require an individual claiming the right to act as a surrogate for a patient to provide a written declaration under the penalty of perjury stating facts and circumstances sufficient to establish the claimed authority.

(6) A mentally competent patient may at any time disqualify a member of the patient’s family from acting as the patient’s surrogate by a signed writing or by personally informing the health-care provider of the disqualification.

(7) A surrogate may make a decision to provide, withhold or withdraw a life-sustaining procedure if the patient has a qualifying condition documented in writing with its nature and cause, if known, in the patient’s medical record by the attending physician.

(8) A surrogate’s decision on behalf of the patient to treat, withdraw or withhold treatment shall be made according to the following paragraphs and otherwise meet the requirements of this chapter:

a. Decisions shall be made in consultation with the attending physician.

b. 1. The surrogate shall make a health-care decision to treat, withdraw or withhold treatment in accordance with the patient’s individual instructions, if any, and other wishes to the extent known by the surrogate.

2. If the patient’s instructions or wishes are not known or clearly applicable, the surrogate’s decision shall conform as closely as possible to what the patient would have done or intended under the circumstances. To the extent the surrogate knows or is able to determine, the surrogate’s decision is to take into account, including, but not limited to, the following factors if applicable:

A. The patient’s personal, philosophical, religious and ethical values;

B. The patient’s likelihood of regaining decision making capacity;

C. The patient’s likelihood of death;

D. The treatment’s burdens on and benefits to the patient;

E. Reliable oral or written statements previously made by the patient, including, but not limited to, statements made to family members, friends, health care providers or religious leaders.

3. If the surrogate is unable to determine what the patient would have done or intended under the circumstances, the surrogate’s decision shall be made in the best interest of the patient. To the extent the surrogate knows and is able to determine, the surrogate’s decision is to take into account, including, but not limited to, the factors, if applicable, stated in paragraph (b)(8)b.2. of this section.

(9) In the event an individual specified in paragraph (b)(2) of this section claims that the individual has not been recognized or consulted as a surrogate or if persons with equal decision making priority under paragraph (b)(2) of this section cannot agree who shall be a surrogate or disagree about a health-care decision, and a patient who lacks capacity is receiving care in a health-care institution, the attending physician or an individual specified in paragraph (b)(2) of this section may refer the case to an appropriate committee of the health-care institution for a recommendation in compliance with this chapter, and the attending physician may act in accordance with the recommendation of the committee or transfer the patient in accordance with the provisions of § 2508(g) of this title. A physician who acts in accordance with the recommendation of the committee is not subject to civil or criminal liability or to discipline for unprofessional conduct for any claim based on lack of consent or authorization for the action.

70 Del. Laws, c. 392, § ?3; 70 Del. Laws, c. 186, § ?1; 74 Del. Laws, c. 328, §§ ?1-3; 79 Del. Laws, c. 28, § ?1;