This chapter shall be known and may be cited as the “Delaware Portable Orders for Life-Sustaining Treatment Act” or “Delaware POLST Act.”

80 Del. Laws, c. 18, §  1;  85 Del. Laws, c. 485, § 1; 

(a) An adult individual who has decision-making capacity has the right to refuse medical or surgical treatment in order to allow natural death if such refusal is not contrary to existing public health laws.

(b) An adult individual with decision-making capacity has the right to plan ahead for health-care decisions through an advance health-care directive under Chapter 25 of this title, or through a POLST form under this chapter or both, and to have the wishes expressed in those documents respected, subject to certain limitations, in order to ensure that the right to control decisions about one’s own health care is not lost if a patient loses decision-making capacity and is not able to participate actively in making the patient’s own decisions, either temporarily or permanently.

(c) An advance health-care directive is recommended for every adult whether or not the individual anticipates a period of incapacity.

(d) The POLST form is separate from and is not an advance health-care directive. It expresses an individual’s wishes regarding scope of treatment through medical orders. The POLST form does not require an advance health-care directive.

(e) Data shows that many individuals may reside or be situated in multiple locations such as home, acute care, and post-acute care settings near the end of life. Changes in such settings require that an easily understood, standardized, portable document be available to communicate the individual’s care preferences. A POLST form provides such a document.

80 Del. Laws, c. 18, §  1;  70 Del. Laws, c. 186, §  1;  84 Del. Laws, c. 42, § 1;  85 Del. Laws, c. 485, § 1; 

For purposes of this chapter:

(1) “Advance health-care directive” means as defined under § 2502 of this title or any individual instruction or power of attorney for health care valid in the state where such document was executed or where the individual executing such document was a resident at the time that such document was executed that appoints an agent. Said document must have been executed by the individual authorizing the appointed agent to make decisions about the individual’s health care when such individual no longer has decision-making capacity.

(2) “Decision-making capacity” means a patient’s ability to understand and appreciate the nature and consequences of a particular health-care decision, including the benefits and risks of that decision and alternatives to any proposed health care, and to reach an informed health-care decision.

(3) “Delaware Portable Orders for Life-Sustaining Treatment” or “POLST” means a clinical process to facilitate communication between health-care professionals and patients living with serious illness or frailty whose health-care practitioner would not be surprised if they died within the next year or, if the patient lacks decision-making capacity, the patient’s authorized representative. The process encourages shared, informed medical decision-making. The result is a POLST form, which contains portable medical orders that respect the patient’s goals for care in regard to the use of CPR and other medical interventions. The POLST form is applicable across health-care settings, is reviewable, and is revocable.

(4) “Department” means the Department of Health and Social Services.

(5) “Emergency-care provider” means an emergency medical technician, paramedic, or first responder authorized under Chapter 97 of this title.

(6) “Health-care institution” means an institution, facility, or agency licensed, certified or otherwise authorized or permitted by law to provide health care in the ordinary course of business.

(7) “Health-care practitioner” means a physician or an individual licensed and authorized to write medical orders under Title 24 who is providing care for the patient or overseeing the health care provided to a patient and has completed all training required by the Department for individuals participating in the completion of a POLST form. Over time, a patient’s health-care practitioner may change.

(8) “Health-care provider” means an individual licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession. A health-care practitioner is also a health-care provider.

(9) “Life-sustaining treatment” includes any medical intervention, including procedures, administration of medication, or use of a medical device, that maintains life by sustaining, restoring, or supplanting a vital function. It does not include care provided for the purpose of keeping a patient comfortable.

(10) “Patient” means the individual who is under the care of the health-care practitioner or health-care provider.

(11) “Patient’s authorized representative” or “authorized representative” means the individual signing a POLST form on behalf of a patient without decision-making capacity, who has the highest priority to act for the patient under law, and who has the authority to make decisions with respect to the patient’s health-care preferences being made on the POLST form such individual is executing on behalf of the patient. The health-care practitioner shall determine the individual who is the patient’s authorized representative by referencing the documentation giving such individual the required authority under law. The regulations implementing this chapter shall explain the priority set by law regarding who can act as an authorized representative. Based on the documentation provided by such individual as evidence of that individual’s authority, the patient’s authorized representative could be an agent designated by a patient under an advance health-care directive, a guardian of the person appointed pursuant to Chapters 39 and 39A of Title 12, in accordance with the authority granted by the appointing court, a default surrogate under Chapter 25 of this title, or an individual who is otherwise authorized under applicable law to make the health-care decisions being made by execution of the POLST form on the patient’s behalf, if the patient lacks decision-making capacity.

(12) “Physician” means an individual authorized to practice medicine under subchapter III, Chapter 17 of Title 24.

(13) “POLST form” means a standardized document created or approved by the Department that is uniquely identifiable, has a uniform format or color, and is all of the following:

a. Used on a voluntary basis by patients living with serious illness or frailty whose health-care practitioner would not be surprised if they died within the next year.

b. Not an advance health-care directive.

c. Not valid unless it meets the requirements for a POLST form under this chapter.

d. A medical order that provides directions to emergency care personnel regarding the use of emergency care and to health-care providers regarding the use of life-sustaining treatment by indicating the patient’s preference concerning the scope of treatment, the use of specified interventions, and the intensity of treatment for each intervention.

e. Intended to accompany the patient, and to be honored by all personnel attending the patient, across the full range of possible health-care settings, including the patient’s home, a health-care institution, at the scene of a medical emergency, or during transport.

f. Reviewable or voidable at any time by a patient with decision-making capacity or, if the patient lacks decision-making capacity, the patient’s representative.

g. Signed by a health-care practitioner.

(14) “Scope of treatment” means those medical interventions, procedures, medications, and treatments that a patient, in consultation with a health-care practitioner, has determined are appropriate, necessary and desired by and for the patient and that a patient has determined to refuse or to allow. Scope of treatment always respects the patient and includes the provision of comfort measures. A patient may decline life-sustaining treatment.

(15) “Secretary” means the Secretary of the Department of Health and Social Services.

80 Del. Laws, c. 18, §  1;  70 Del. Laws, c. 186, §  1;  84 Del. Laws, c. 42, § 1;  84 Del. Laws, c. 440, § 1;  85 Del. Laws, c. 91, § 6;  85 Del. Laws, c. 485, § 1; 

(a) At such time as a patient lacks decision-making capacity, the patient’s authorized representative shall make a health-care decision to treat, withdraw, or withhold treatment in accordance with the patient’s individual instructions as expressed in an advance health-care directive or POLST form, if any, and other wishes to the extent known, or, if a guardian appointed under Chapters 39 and 39A of Title 12, in accordance with the authority granted by the appointing court. The patient’s authorized representative shall have the power to make any health-care decision authorized under this chapter unless limited by the order of a court of competent jurisdiction or limited in the document provided by the authorized representative as evidence of that authorized representative’s authority.

(b) If the patient’s instructions or wishes are not known or clearly applicable, the authorized representative’s decision shall conform as closely as possible to what the patient would have done or intended under the circumstances. To the extent the authorized representative knows or is able to determine, the authorized representative’s decision shall take into account the following nonexclusive list of factors, if applicable:

(1) The patient’s personal, philosophical, religious, and ethical values.

(2) The patient’s likelihood of regaining decision-making capacity.

(3) The patient’s likelihood of death.

(4) The treatment’s burdens on and benefits to the patient.

(5) 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.

(c) The decision of an authorized representative regarding whether life-sustaining procedures should be provided, withheld, or withdrawn shall not be based on a patient’s status either as an individual with a preexisting long-term mental or physical disability, or as an individual who is economically disadvantaged.

80 Del. Laws, c. 18, §  1;  70 Del. Laws, c. 186, §  1;  84 Del. Laws, c. 42, § 1;  85 Del. Laws, c. 485, § 1; 

(a) The Secretary is authorized to promulgate regulations and develop protocols to fulfill the following responsibilities:

(1) Promulgation of a POLST form and development of the process for completion, modification, and revocation of the POLST form including training requirements.

(2) Promotion of awareness through outreach and education, including a website, to health-care practitioners, health-care providers, emergency-care providers, and the general public about the option to complete a POLST form.

(3) Training of emergency-care providers about the use and application of a POLST form.

(4) Development of additional requirements for the completion of a POLST form that may be applicable in the case of a patient with mental illness or a developmental disability in consultation with organizations that represent individuals with mental illness or development disabilities, respectively.

(5) Ongoing evaluation of the design and use of POLST forms.

(6) Collect data on the use of POLST forms, including impact on different groups of stakeholders.

(b) In addition to the penalties under § 2517A of this title, the Department may impose civil monetary penalties under this chapter.

(c) The Department shall maintain a POLST program to effectively implement this chapter. In addition to the responsibilities under subsection (a) of this section, the POLST program must do all of the following:

(1) Work with the Delaware Health Information Network to maintain the electronic registry under § 2507A of this title.

(2) Staff and work with the POLST Steering Committee under § 2521A of this title to evaluate and improve the use of POLST forms.

(3) Liaison with the National Physician Orders for Life-Sustaining Treatment Coalition regarding ongoing best practices and research.

80 Del. Laws, c. 18, §  1;  84 Del. Laws, c. 440, § 2;  85 Del. Laws, c. 485, § 1; 

The Secretary of State is authorized to promulgate regulations and develop protocols for the education of all health-care providers under its licensing or certification jurisdiction.

80 Del. Laws, c. 18, §  1; 

The Delaware Health Information Network (DHIN) shall maintain an electronic registry to maintain and store executed POLST forms and make them available to emergency-care providers, health-care providers, and health-care institutions.

80 Del. Laws, c. 18, §  1;  84 Del. Laws, c. 440, § 3;  85 Del. Laws, c. 485, § 1; 

A health-care practitioner, health-care provider, health-care institution, or emergency-care provider shall treat a patient who has a POLST form in accordance with the directions and options indicated in such POLST form, except as otherwise provided under this chapter.

80 Del. Laws, c. 18, §  1;  85 Del. Laws, c. 485, § 1; 

A POLST form shall be deemed to be valid for the purposes of this chapter if it complies with all of the following:

(1) Contains information indicating the patient’s health-care preferences and directions.

(2) Has been voluntarily signed, after discussion with a health-care practitioner, by the patient or by another individual subscribing the patient’s name in the patient’s presence and at the patient’s express direction, or, if the patient does not have decision-making capacity, by the patient’s authorized representative.

(3) Contains a statement that the POLST form is being signed by the patient, or the patient’s authorized representative, after discussion with a health-care provider.

(4) Includes the signature of the patient’s health-care practitioner and the date of the health-care practitioner’s signature.

(5) If the POLST form is not signed by the heath-care practitioner in the presence of the patient, the POLST form will be signed by the individual in whose presence the patient or the patient’s authorized representative signed the POLST form.

(6) The POLST form shall include a statement that the patient or, if the patient does not have decision-making capacity, the patient’s authorized representative, has been provided with a plain language statement explaining the POLST form and the consequences of executing the POLST form.

(7) Meets any other requirements established by regulations to implement or administer this chapter.

80 Del. Laws, c. 18, §  1;  85 Del. Laws, c. 485, § 1; 

A document executed in another state is valid for the purposes of this chapter to the same extent as a POLST form that is valid under this chapter, if the document meets any of the following:

(1) The requirements under this chapter for a POLST form.

(2) The requirements of the state where the document was executed.

(3) The requirements of the state where the patient was a resident at the time the document was executed.

80 Del. Laws, c. 18, §  1;  85 Del. Laws, c. 485, § 1; 

(a) A patient with decision-making capacity, may, at any time, void that patient’s own POLST form or otherwise request alternative treatment to the treatment that was ordered on the POLST form.

(b) If the orders in a patient’s POLST form regarding the use of any intervention specified therein conflict with the patient’s more recent oral or written directive to the patient’s health-care practitioner, the health-care practitioner shall honor the more recent directive from the patient under subsection (d) of this section.

(c) The patient’s authorized representative may, at any time after the patient loses decision-making capacity and after consultation with the patient’s health-care practitioner, request that the health-care practitioner do any of the following, as the patient’s authorized representative deems necessary to reflect the patient’s health status or goals of care:

(1) Modify the POLST form.

(2) Void the POLST form.

(3) Request alternative treatment to the treatment that was ordered on the POLST form.

(d) A POLST form may only be modified in consultation with the patient’s health-care practitioner in accordance with the provisions of the applicable regulations.

80 Del. Laws, c. 18, §  1;  70 Del. Laws, c. 186, §  1;  84 Del. Laws, c. 42, § 1;  85 Del. Laws, c. 485, § 1; 

(a) In the event of a disagreement between the patient’s authorized representative and the patient’s health-care practitioner concerning the patient’s decision-making capacity or the appropriate interpretation and application of the terms of a POLST form regarding the patient’s course of treatment, the parties may do either of the following:

(1) Seek to resolve the disagreement by means of procedures and practices established by the health-care institution, including consultation with an institutional ethics committee, or with an individual designated by the health-care institution for this purpose.

(2) Seek resolution by a court of competent jurisdiction.

(b) A health-care provider involved in the patient’s care or an administrator of a health-care institution may seek to resolve a disagreement concerning the appropriate interpretation and application of the terms of a POLST form to the patient’s course of treatment in the same manner as under subsection (a) of this section.

80 Del. Laws, c. 18, §  1;  85 Del. Laws, c. 485, § 1; 

(a) The patient’s scope of treatment is governed by the latest directive available.

(b) If the treatment directives of a later advance health-care directive conflict with the patient’s directives on a POLST form, a health-care practitioner shall be informed so that the POLST form can be modified or voided in order to reflect that patient’s later directive.

(c) If there is a conflict between the patient’s expressed oral or written directives, the POLST form, or the decisions of the patient’s authorized representative, the patient’s last expressed oral or written directives must be followed and, if necessary, a new POLST form must be prepared and executed.

80 Del. Laws, c. 18, §  1;  85 Del. Laws, c. 485, § 1; 

Any individual or entity may petition the Court of Chancery for appointment of a guardian of the person of a patient if that individual or entity has good reason to believe that the withdrawal or withholding of health care in a particular case is any of the following:

(1) Contrary to the most recent expressed directions of the patient.

(2) Predicated on an incorrect assessment of the patient’s decision-making capacity.

(3) Proposed under a POLST form that has been falsified, forged, or coerced.

(4) Being considered without knowledge that the POLST form has been revoked because that revocation has been unlawfully concealed, destroyed, altered, or cancelled.

(5) Is based on a patient’s status either as an individual with a preexisting long-term mental or physical disability, or as an individual who is economically disadvantaged.

80 Del. Laws, c. 18, §  1;  85 Del. Laws, c. 485, § 1; 

A health-care institution, health-care practitioner, or health-care provider acting in good faith and in accordance with generally accepted health-care standards applicable to the health-care institution, health-care practitioner, or health-care provider is not subject to civil or criminal liability or to discipline for unprofessional conduct for any of the following:

(1) Complying with a POLST form signed by a health-care practitioner apparently having authority to make a POLST for a patient, including a decision to withhold or withdraw health care.

(2) Declining to comply with a POLST form based on a belief that the health-care practitioner lacked authority to sign the POLST form.

(3) Complying with a POLST form and assuming that the POLST form was valid when made and has not been modified or voided.

(4) Providing life-sustaining treatment in an emergency situation when the existence of a POLST form is unknown.

(5) Declining to comply with a POLST form because the POLST form is contrary to the conscience or good faith medical judgment of the health-care practitioner or the written policies of the health-care institution.

80 Del. Laws, c. 18, §  1;  85 Del. Laws, c. 485, § 1; 

(a) Neither the execution of a POLST form under this chapter nor the fact that health care is withheld or withdrawn from a patient in accordance therewith shall, for any purpose, constitute a suicide.

(b) The completion of a POLST form under this chapter shall not be deemed or presumed to modify the terms of an existing insurance policy. No policy of insurance shall be legally impaired or invalidated in any manner by the withholding or withdrawal of health care from an insured patient, notwithstanding any term of the policy to the contrary.

(c) No health-care institution, health-care provider, health-care service plan, insurer issuing disability insurance, self-insured employee welfare benefit plan, nonprofit hospital service plan, or any other type of direct or indirect provider of health-care benefits or services, shall require any individual to execute a POLST form as a condition to being insured, to receiving care, or to being admitted to a health-care institution in order to receiving health-care services.

80 Del. Laws, c. 18, §  1;  85 Del. Laws, c. 485, § 1; 

(a) A health-care provider who fails to act in accordance with the requirements of this chapter is subject to discipline for professional misconduct.

(b) A health-care institution that intentionally fails to act in accordance with the requirements of this chapter shall be liable for a civil penalty of not more than $1,000 for each offense. For the purposes of this subsection, each violation shall constitute a separate offense.

(c) An emergency-care provider subject to regulation by the Department who intentionally fails to act in accordance with the requirements of this chapter is subject to such disciplinary measures as the Secretary of Department deems necessary and consistent with the Department’s statutory authority.

(d) An individual who intentionally or knowingly commits any of the following acts is guilty of a class G felony:

(1) Concealing, canceling, defacing, obliterating, or withholding personal knowledge of a POLST form or a modification or revocation thereof, without the patient’s consent, or if the patient lacks decision-making capacity, without the consent of the patient’s authorized representative.

(2) Falsifying or forging a POLST form or a modification or revocation of a POLST form.

(3) Coercing or fraudulently inducing the completion of a POLST form or a modification or revocation of a POLST form by a patient or, if a patient lacks decision-making capacity, by a patient’s authorized representative.

(e) Any organization that is a health-care provider, health-care institution, or “person” as defined in § 102 of Title 18 who intentionally or knowingly requires or prohibits the completion of a POLST form or a modification or revocation thereof as a condition of coverage under any policy of health or life insurance, or an annuity, or a public benefits program, or as a condition of the provision of health care is guilty of a class A misdemeanor for each and every act or violation, and may be subject to suspension or revocation of such person’s authority to do business in Delaware.

(f) The provisions of this section shall not be construed to repeal any sanctions applicable under any other law.

(g) The Superior Court shall have jurisdiction over all civil monetary penalties and offenses under this chapter.

80 Del. Laws, c. 18, §  1;  85 Del. Laws, c. 485, § 1; 

(a) An adult individual is presumed to have capacity to make a health-care decision and to execute, modify, or void a POLST form.

(b) (1) The presumption under subsection (a) of this section may be rebutted by a health-care practitioner who makes a finding that the patient lacks decision-making capacity based on a contemporaneous examination and in accordance with accepted standards of the profession and the scope of practice of the health-care practitioner making the finding.

(2) A health-care practitioner must document a finding under paragraph (b)(1) of this section in the patient’s medical record.

(c) A patient’s authorized representative may not execute a POLST form for a patient unless the documentation required under paragraph (b)(2) of this section is in the patient’s medical record.

80 Del. Laws, c. 18, §  1;  85 Del. Laws, c. 485, § 1; 

The provisions of this chapter are severable, and if any word, phrase, clause, sentence, section, or provision of this chapter is for any reason held to be unconstitutional, the decision of the court shall not affect or impair any of the remaining provisions of this chapter. It is hereby declared as the legislative intent that this chapter would have been adopted had such unconstitutional word, phrase, clause, sentence, section or provision thereof not been included herein.

80 Del. Laws, c. 18, §  1; 

A copy of a POLST form or revocation of a POLST form has the same effect as the original.

80 Del. Laws, c. 18, §  1;  85 Del. Laws, c. 485, § 1; 

(a) The Delaware POLST Steering Committee (Committee) is established to support the implementation of the POLST program and make recommendations regarding the implementation of this chapter.

(b) The Committee is comprised of the following members, or a designee selected by the member serving by virtue of position:

(1) The President, Delaware Quality of Life Coalition, who serves as chair.

(2) The Secretary.

(3) Chief Executive Officer, Delaware Health Information Network.

(4) The Delaware representative to the National Physician Orders for Life-Sustaining Treatment Coalition.

(5) The Long-Term Care Ombudsperson under subchapter VI of Chapter 11 of this title.

(6) The Executive Director, Delaware State Fire Prevention Commission.

(7) The Chief Executive Officer, Delaware Healthcare Association.

(8) The Executive Director, Delaware Health Care Facilities Association.

(9) The Chair, Elder Law Section, Delaware State Bar Association.

(10) One member representing a health-care insurance provider, appointed by the Secretary.

(11) One member of the public, appointed by the Secretary.

(c) (1) A quorum of the Committee is a majority of its current members. Official action by the Committee, including making findings and recommendations, requires the approval of a quorum of the Committee.

(2) The Committee shall meet no less than 1 time every 4 months.

(3) The Committee shall adopt rules or procedures governing the work of the Committee.

(4) A member of the Committee with the ability to designate another individual to attend a Committee meeting must provide the designation in writing to the chair. An individual attending a meeting for a member as a designee has the same duties and rights as the member.

(5) The chair of the Committee may invite individuals with relevant expertise to participate in Committee discussions.

(d) The Committee shall produce an annual report, published on the POLST program website, that includes all of the following:

(1) Data regarding all of the following:

a. The number of POLST forms in the electronic registry.

b. How often the electronic registry is consulted by health-care providers.

c. Use of POLST forms by emergency-care providers.

(2) Information about trainings provided to health-care practitioners, health-care providers, and emergency-care providers.

(3) Public education and outreach efforts.

(4) Current challenges and recommendations to improve the POLST program and the use of POLST forms.

84 Del. Laws, c. 440, § 4;  85 Del. Laws, c. 485, § 1; 

(a) For purposes of this section, “Delaware Medical Orders for Scope of Treatment” or “DMOST form” means a DMOST form created under this chapter before the names changed to “Delaware Portable Orders for Life-Sustaining Treatment” and “POLST form” on September 8, 2026.

(b) A DMOST form is valid if it complies with this chapter or complied at the time of creation with the law of the state in which it was created.

(c) This chapter does not affect the validity or effect of an act done before September 8, 2026.

(d) This chapter applies to a DMOST form executed before, on, or after September 8, 2026.

85 Del. Laws, c. 485, § 1;