16 Del. Admin. Code § 4304-4.0

Current through Register Vol. 28, No. 7, January 1, 2025

Section 4304-4.0 - Completing a DMOST form

4.1 Completing a DMOST form is always voluntary and cannot be required for any reason.

4.2 A DMOST form can only be used by a patient who is living with a serious illness or frailty whose health care practitioner would not be surprised if the patient died within the next year.

4.3 The health care practitioner must discuss the DMOST form directly with the patient, or if the patient lacks decision-making capacity, withthe patient's authorized representative, prior to completion.

4.4 A DMOST form must be signed by a health care practitioner.

4.5 Only the DMOST form in these regulations, which contains a watermark, can be recognized as a DMOST form. Copies of signed DMOST forms are legal and valid to the same extent as the original.

4.6 If any section of a DMOST form is incomplete, the full treatment described in that section shall be administered to the patient.

4.7 The patient may have decision-making capacity but be unable to communicate by speaking or writing. Federal and State laws require that a health care facility provide effective communication for people with communication impairments. In such situations:

4.7.1 The patient can make his or her health care treatment decisions known through any method by which the patient usually communicates so long as the person interpreting the communication understands the method by which the patient is communicating and the substance of the communication; and

4.7.2 The communication must be witnessed by the health care practitioner. How the communication occurred and why it is considered reliable must be documented in the patient's medical record; and

4.7.3 If a patient cannot physically sign a DMOST form but has communicated that he or she wants to sign the DMOST form, someone other than the patient can sign the DMOST form on behalf of the patient.

4.8 Delaware law presumes an adult has decision-making capacity unless a physician determines the patient does not.

4.9 If a physician determines a patient does not have decision-making capacity, this must be documented in the patient's medical record. If an adult patient does not have decision-making capacity, an authorized representative may sign a DMOST form on behalf of the patient if the authorized representative has the legal authority to do so.

4.9.1 The health care practitioner shall determine if there is an individual who is the patient's authorized representative. This is determined by referencing the documentation giving such individual the required authority under law. The documentation should establish both that the authorized representative is the person named in this role and that the authorized representative has the authority to make decisions with respect to the patient's health care preferences being made on the DMOST form on behalf of the patient.

4.9.2 The hierarchy under Delaware law to act as the authorized representative for an individual without decision-making capacity is as follows:

4.9.2.1 The court-appointed Guardian, only with the appropriate authority;

4.9.2.2 The patient's most recently appointed Agent in an Advance Health-Care Directive or Health Care Power of Attorney, only with the appropriate authority;

4.9.2.3 If the there is no Guardian or Agent or if the designated Guardian or Agent is unavailable, or if the patient revoked an Advance Health-Care Directive pursuant to 16 Del.C. § 2504, the Surrogate Statute applies and will allow either the individual named by the patient prior to losing decision-making capacity or if none, the individual recognized by the Surrogate Statute, 16 Del.C. § 2507, to make decisions with respect to the patient's health care preferences being made on the DMOST form on behalf of the patient.

4.10 If the patient is under age 18, and therefore has no decision-making capacity, the hierarchy under Delaware law to act as the authorized representative for such minor patient is as follows, in descending order:

4.10.1 In the absence of a court order to the contrary, the patient's biological or adoptive parents;

4.10.2 A court-appointed permanent guardian or guardian of the person under 13 Del.C. Ch. 23;

4.10.3 The Division of Family Services (DFS) with an order from a court of appropriate jurisdiction when the DFS holds legal custody or parental rights, after the DFS exercises reasonable efforts to contact and secure consent from the patient's biological or adoptive parents;

4.10.4 A caregiver acting under an Affidavit of Relative Caregiver under 13 Del.C. §§ 707 and 708.

16 Del. Admin. Code § 4304-4.0

19 DE Reg. 922( 4/1/2016) (Final)