Health Care Planning: What Every Delaware and Maryland Family Needs to Know

When people think about estate planning, they often focus on what happens after death: wills, trusts, and who inherits what. But some of the most important planning decisions happen during life, particularly when it comes to health care.

A sudden illness. A gradual cognitive decline. A medical emergency that leaves someone unable to communicate. These are the moments when health care planning becomes essential, not theoretical.

And today, with significant legal changes in Delaware, it is more important than ever to understand how your health care decisions are made, who makes them, and whether your current documents still work the way you intend.

Why Health Care Planning Is a Critical Part of Estate Planning

Anyone over the age of 18 should have a plan for medical decision making.

Without one, decisions about your care may be left to default legal structures, or worse, to people who don’t fully understand your wishes.

At its core, health care planning is about maintaining control:

• Control over your medical treatment
• Control over who speaks for you
• Control over how decisions are made in uncertain circumstances

An advance directive is your voice when you can’t speak for yourself.

That voice becomes critical during medical crises, when emotions are high and decisions must be made quickly.

The Foundation: Advance Health Care Directives (AHCDs)

The cornerstone of health care planning is the Advance Health Care Directive (AHCD).

This document allows you to:

• Appoint a health care agent to make decisions for you
• Provide instructions about treatment preferences
• Outline your values, goals, and quality of life priorities

In legal terms, you are the principal, and the person you appoint is your agent.

What Makes a Strong AHCD?

A well-drafted directive should:

• Grant broad authority to your agent
• Address placement decisions (home care, assisted living, nursing home)
• Include living will instructions about life-sustaining treatment
• Provide guidance for situations that cannot be predicted

If authority is too limited, your family may still need to pursue guardianship through the court, which is often time-consuming, costly, and emotionally difficult.

Choosing the Right Health Care Agent

This may be the most important decision you make.

Your agent should be:

• Someone you trust deeply
• Able to advocate under pressure
• Willing to honor your wishes, even when difficult
• Familiar with your values and priorities

The law allows flexibility in how agents serve:

• Successive agents (one after another)
• Joint agents (must act together)
• Concurrent agents (each can act independently)

But legal authority alone is not enough.

Clear communication is essential.

Living Wills: Defining Your Care Preferences

Most AHCDs include a living will, which addresses end-of-life care.

This section allows you to answer difficult but important questions:

• Do you want life-sustaining treatment in certain conditions?
• What role should artificial nutrition or hydration play?
• Is comfort more important than prolonging life?

These decisions are deeply personal, and often evolve over time.

That’s why ongoing review is critical.

Medical Orders: DMOST and MOLST

In addition to legal documents like AHCDs, there are medical orders that guide real-time care.

• Delaware: DMOST (Delaware Medical Orders for Scope of Treatment)
• Maryland: MOLST (Medical Orders for Life-Sustaining Treatment)

These are typically used for individuals with serious illness or whose health is considered frail.

Unlike an AHCD:

• They are clinical orders
• They must be signed by a medical provider
• They guide immediate treatment decisions

Think of them as the bridge between your legal plan and your medical care team.

A Major Shift: Delaware’s New Health Care Law (UHCDA)

Delaware was the first state to adopt the Uniform Health-Care Decisions Act (UHCDA) (effective September 30, 2025).  This is one of the most significant changes to health care planning in decades.

Key Changes You Need to Know

1. Capacity Is Presumed

Under the new law, individuals are presumed to have decision-making capacity unless proven otherwise.

More professionals, including social workers, can now make that determination.

This creates greater flexibility, but also introduces new complexities in how capacity is evaluated.

2. Expanded Surrogate Decision-Makers

If you don’t have an AHCD, the law determines who can act for you.

The new law expands that list to include:

• Domestic partners
• Cohabitants
• Adult grandchildren
• Siblings and others

This reflects modern families, but may also increase the potential for disagreement.

3. New Optional Advance Directive Form

Delaware now offers a new optional form that allows individuals to:

• Express care priorities
• Grant specific powers to agents
• Provide more detailed guidance for decision-making

Importantly, some powers must now be explicitly stated.

Without that language, your agent may not be able to act as intended.

4. Mental Health Directives Are Now Recognized

For the first time, Delaware law allows for advance mental health care directives.

These can:

• Authorize or refuse psychiatric treatment
• Include “Ulysses clauses” (binding instructions during crisis)
• Limit the ability to revoke decisions during periods of incapacity

This is a major step forward in comprehensive planning.

5. Specific Authority Is Now Required for Key Decisions

Under the new law, your agent may need explicit permission to:

• Admit you for mental health treatment
• Place you in a nursing home for extended periods
• Access certain medical information

Without this language, your plan may fall short when it matters most.

What Happens If You Don’t Plan?

Without a valid directive:

• The law selects a default surrogate
• Multiple people may share equal authority
• Disagreements can delay care
• Your personal preferences may not be known

And critically, the default law does not address:

• End-of-life wishes
• Quality of life priorities
• Organ donation specifics

In other words, the system fills in the gaps—but it does not replace thoughtful planning.

The Role of Communication

Even the best legal documents have limitations.

Medical situations are rarely black and white.

That’s why communication is just as important as documentation.

Conversations with your loved ones should cover:

• What matters most to you
• Your fears and priorities
• How you define quality of life

These discussions give your agent the confidence to act, and reduce the burden of uncertainty.

Health Care Planning and Long Term Care

Health care decisions don’t happen in isolation.

They are often tied to broader planning questions:

• Where will care be provided?
• How will it be paid for?
• Who will coordinate decisions?

For many families, these questions arise during a health crisis, when time is limited and emotions are high.

As we often see, these moments don’t always come with warning. A diagnosis or sudden decline can change everything overnight.

That’s why integrating health care planning with long term care and asset protection planning is so important.

When Should You Update Your Documents?

Given the recent legal changes, now is the time to review your plan.

You should consider an update if:

• Your documents were created before 2025
• You have not reviewed them in several years
• Your family situation has changed
• You want to include mental health directives
• You are unsure whether your agent has sufficient authority

The new law has introduced nuances that older documents may not address.

Planning Is Not a One-Time Event

One of the most common misconceptions about estate planning is that once documents are signed, the work is done.

In reality, planning is an ongoing process.

Your:

• Health
• Relationships
• Financial situation
• Legal landscape

…will all evolve over time.

Maintaining your plan ensures that your intentions continue to align with your reality.

Taking the Next Step

Health care planning is not about preparing for the worst.

It is about creating clarity in uncertain moments.

It is about protecting your voice, your values, and your family.

And most importantly, it is about ensuring that when decisions must be made, they are made with confidence, guidance, and purpose.

If you have not yet created a health care plan, or if your existing documents may be outdated, now is the time to act.

Because the reality is simple: The best time to plan is before you need it.

We are here to help. Our process begins with a consultation, following completion of a brief worksheet. During that consultation, a trained Client Service Director will help identify your needs, explain available solutions, and outline the steps, timeline, and fixed pricing for planning.

To schedule a consultation, you may contact the firm by phone, email, or through the Contact Us section of the website.