Attorney ad litem – Judicial review of finding of incapacity

In September 2024, Delaware enacted SB 309, relating to mental capacity for purposes of healthcare decision-making.  The law provides that “[a]n individual is presumed to have capacity to make or revoke a health-care decision, health-care instruction, and power of attorney for health care…” Del. Code tit. 16, § 2504(a).  This is true unless either of the following apply:  “(1) A court has found the individual lacks capacity to do so. (2) The presumption is rebutted under subsection (b) of this section.” Id.  Subsection (b) indicates that “individuals … licensed or otherwise authorized to practice … [and with] training and expertise in the finding of lack of capacity” may rebut the presumption by making a finding based on “a contemporaneous examination”. § 2504(b).

The individual about whom the finding is made has the right to object, § 2505, and may request judicial review of the finding. § 2506. In such matters, the court must appoint an attorney ad litem.  § 2506(b) (“The court in which a petition under subsection (a) of this section is filed shall appoint an attorney ad litem. The court shall hear the petition on an expedited basis. The court shall determine whether the individual lacks capacity on an expedited basis. The court may determine the individual lacks capacity only if the court finds by clear and convincing evidence that the individual lacks capacity.”).