Presumption of capacity; overcoming presumption [For application of this section, see 85 Del. Laws, c. 253, § 23].
Del. Code tit. 16, § 2504
in effect(a) An individual is presumed to have capacity to make or revoke a health-care decision, health-care instruction, and power of attorney for health care unless either of the following:
(1) A court has found the individual lacks capacity to do so.
(2) The presumption is rebutted under subsection (b) of this section.
(b) Subject to §§ 2505 and 2506 of this title and subsection (c) of this section, a presumption under subsection (a) of this section may be rebutted by a finding that the individual lacks capacity:
(1) Made on the basis of a contemporaneous examination by any of the following individuals who must be licensed or otherwise authorized to practice in this State and must have training and expertise in the finding of lack of capacity:
a. A physician.
b. A psychologist.
c. A physician associate.
d. An advanced practice registered nurse.
e. A licensed clinical social worker.
f. A responsible health-care professional not described in paragraphs (b)(1)a. through (b)(1)e. of this section if both of the following:
1. The individual about whom the finding is to be made is experiencing a health condition requiring a decision regarding health-care treatment to be made promptly to avoid loss of life or serious harm to the health of the individual.
2. An individual listed in paragraphs (b)(1)a. through (b)(1)e. of this section is not reasonably available.
(2) Made in accordance with accepted standards of the profession and the scope of practice of the individual making the finding and to a reasonable degree of certainty; and
(3) Documented in a record signed by the individual making the finding that includes an opinion of the cause, nature, extent, and probable duration of the lack of capacity.
(c) The finding under subsection (b) of this section may not be made by any of the following:
(1) A family member of the individual presumed to have capacity.
(2) The cohabitant of the individual or a descendant of the cohabitant.
(3) The individual’s surrogate, a family member of the surrogate, or a descendant of the surrogate.
(d) If the finding under subsection (b) of this section was based on a condition the individual no longer has or a responsible health-care professional subsequently has good cause to believe the individual has capacity, the individual is presumed to have capacity unless a court finds the individual lacks capacity or the presumption is rebutted under subsection (b) of this section.
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title16/c025/index.htmlFetched: 6/28/2026
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title16/c025/index.htmlFetched: 10/4/2026