Who Decides When You Cannot
16 Del. C. § 2512 — without an agent or guardian, a default surrogate in a set order of family and friends
When a person lacks capacity and has no agent or authorized guardian reasonably available, a default surrogate may decide, in this order of priority:
- An adult the person identified to decide if they could not.
- The spouse or domestic partner, unless a divorce or separation is filed or decreed, or they have deserted the person for more than 1 year.
- An adult child or a parent.
- A cohabitant.
- An adult sibling.
- An adult grandchild or grandparent.
- An adult who routinely helped with supported decision making in the preceding 6 months.
- A stepchild the person actively parented, then an adult who has shown special care and knows the person's values.
A health care professional may ask a surrogate for a written declaration. A particular situation is a question for a licensed Delaware attorney.
Sources for this section (1)
- 16 Del. C. § 2512 — Default surrogate
Legal information, not legal advice. Verified as of October 2026. Applying it to a particular situation is the work of a licensed Delaware attorney.