Delaware Surrogate Decision Maker Lookup

Who can make medical and money decisions for an adult in Delaware who cannot decide: an agent, a guardian, or Delaware's default surrogate order. Runs in your browser; nothing is stored.

Delaware law checked against official sources on October 26, 2026.

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What needs deciding?
Can the person understand this decision and make it, with help if needed?
Which of these exist? (tick all that apply)

Who has authority in Delaware

  1. With no agent and no guardian, this state's default surrogate law lets a family member or other listed person make health-care decisions, in the order below.
  2. If nobody is available or the family disagrees, a court can appoint a guardian. That is slower and costs more than documents signed in advance.

Delaware's default surrogate order

  1. An adult the patient identified to make decisions, outside a power of attorney
  2. Spouse or domestic partner (Not if annulment, divorce, separation or termination is filed or decreed, a separation is agreed in a record, or desertion for more than 1 year)
  3. An adult child or a parent (same class)
  4. Cohabitant
  5. An adult sibling
  6. An adult grandchild or a grandparent (same class)
  7. An adult who routinely helped with supported decision-making in the past 6 months
  8. An adult stepchild the patient actively parented, with an ongoing relationship
  9. Any other adult who has shown special care and concern and knows the patient's values
What it covers
A default surrogate may make health care decisions for an adult who lacks capacity when no agent or authorized guardian is appointed or reasonably available.
If more than one person is in the same group
If members of the top class disagree, the professional follows the majority of those who have spoken. If evenly split, the professional asks the others in that class; if still split, the decision goes by other Delaware law on incapacity.
If nobody on the list is available
A still-tied class is resolved under other Delaware law (for example a court process). The chapter names no clinician fallback.
Who decides the person cannot decide
Capacity is presumed. It can be rebutted by a finding after a contemporaneous examination by a physician, psychologist, physician associate, APRN or licensed clinical social worker, or by a court.
Limits
  • Disqualified: someone a court finds dangerous to the patient, a nursing-home owner, operator, employee or contractor who is not family, anyone refusing the sworn declaration, and anyone subject to a protection-from-abuse petition or order or a no-contact order.
  • A patient can disqualify someone in writing, verbally or nonverbally, even after losing capacity if the wish is clear.
  • For a person with a long-term disability who routinely uses tube feeding or ventilation without objection, a surrogate cannot stop it except in listed circumstances.
  • A default surrogate cannot make a decision that a guardian could not make, or could make only with specific court authority.
  • The professional may require a sworn declaration establishing authority.

Source: 16 Del. C. 2512 · Checked October 26, 2026

Next steps

Who decides in Delaware without a power of attorney?

Delaware's default surrogate law (16 Del. C. 2512) covers health-care decisions generally. Without a health-care agent or guardian, the first person in line under the statute is: An adult the patient identified to make decisions, outside a power of attorney; the first relative listed is: Spouse or domestic partner.

Delaware's default surrogate law in full

Delaware's default surrogate order

  1. An adult the patient identified to make decisions, outside a power of attorney
  2. Spouse or domestic partner (Not if annulment, divorce, separation or termination is filed or decreed, a separation is agreed in a record, or desertion for more than 1 year)
  3. An adult child or a parent (same class)
  4. Cohabitant
  5. An adult sibling
  6. An adult grandchild or a grandparent (same class)
  7. An adult who routinely helped with supported decision-making in the past 6 months
  8. An adult stepchild the patient actively parented, with an ongoing relationship
  9. Any other adult who has shown special care and concern and knows the patient's values
What it covers
A default surrogate may make health care decisions for an adult who lacks capacity when no agent or authorized guardian is appointed or reasonably available.
If more than one person is in the same group
If members of the top class disagree, the professional follows the majority of those who have spoken. If evenly split, the professional asks the others in that class; if still split, the decision goes by other Delaware law on incapacity.
If nobody on the list is available
A still-tied class is resolved under other Delaware law (for example a court process). The chapter names no clinician fallback.
Who decides the person cannot decide
Capacity is presumed. It can be rebutted by a finding after a contemporaneous examination by a physician, psychologist, physician associate, APRN or licensed clinical social worker, or by a court.
Limits
  • Disqualified: someone a court finds dangerous to the patient, a nursing-home owner, operator, employee or contractor who is not family, anyone refusing the sworn declaration, and anyone subject to a protection-from-abuse petition or order or a no-contact order.
  • A patient can disqualify someone in writing, verbally or nonverbally, even after losing capacity if the wish is clear.
  • For a person with a long-term disability who routinely uses tube feeding or ventilation without objection, a surrogate cannot stop it except in listed circumstances.
  • A default surrogate cannot make a decision that a guardian could not make, or could make only with specific court authority.
  • The professional may require a sworn declaration establishing authority.

Source: 16 Del. C. 2512 · Checked October 26, 2026

How authority works when someone cannot decide

An adult who can understand a decision makes it, even when family disagrees. Authority passes to someone else only when the person cannot decide, and the source of that authority matters.

The strongest source is a document the person signed while able: a health-care power of attorney or advance directive naming an agent for medical decisions, and a durable power of attorney for money and property. A court appointment (a guardian, or in some states a conservator for money) comes next, and it is slower and more expensive.

For health-care decisions only, most states also have a default surrogate law, sometimes called a family consent law. It lists who may decide when there is no agent and no guardian, usually starting with a spouse, then adult children, then parents and siblings. Doctors and hospitals apply it at the bedside.

There is no "next of kin" list for money

Default surrogate laws cover health care, not bank accounts, bills or property. Being a spouse, child or next of kin does not by itself let you sign checks or sell a house for another adult. Without a durable power of attorney, managing someone else's money usually needs a court appointment.

Federal benefits follow their own rules. Social Security says a power of attorney, an authorized representative or a joint account is not the same as being a payee; SSA appoints a representative payee. VA appoints a fiduciary for a beneficiary who cannot manage VA benefits.

What this tool does not do

  • It reports what each state's statute says. It does not decide whether a person has capacity; the treating doctor does.
  • It does not decide disputes between family members or replace a court order. A guardianship order or a power of attorney can change who decides.
  • Hospitals, nursing homes and other states' laws can add steps. Ask the facility's patient-relations or legal office which law it applies.
  • It is general legal information, not legal advice for your situation.

Frequently Asked Questions

Who makes medical decisions in Delaware if there is no power of attorney?

Delaware's default surrogate law (16 Del. C. 2512) covers health-care decisions generally. Without a health-care agent or guardian, the first person in line under the statute is: An adult the patient identified to make decisions, outside a power of attorney; the first relative listed is: Spouse or domestic partner. The full order, tie rule and limits are in 16 Del. C. 2512.

Does next of kin in Delaware have authority over money?

No default surrogate law covers money. In Delaware, as everywhere, managing another adult's accounts or property takes a durable power of attorney or a court appointment.

Sources

Delaware law checked against the official text on October 26, 2026.

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