How Do I Create a Guardianship for an Adult in Delaware?
Full Question:
Answer:
A guardian for a disabled adult is appointed by the court. A petition must be filed in Chancery Court. If the guardianship is terminated, a new guardian may be appointed by the court.
Please see the following DE statutes:
12 Del. C. § 3901. Appointment of guardians for disabled persons.
(a) The Court of Chancery shall have the power to appoint guardians for
the person or property, or both, of any disabled person pursuant to
Chapters 39 and 39A of Title 12. "Disabled person" means any person who:
(1) By reason of being under the age of 18 is legally unable to manage
their own property or make decisions concerning the care of their own
person; or
(2) By reason of mental or physical incapacity is unable properly to
manage or care for their own person or property, or both, and, in
consequence thereof, is in danger of dissipating or losing such property or
of becoming the victim of designing persons or, in the case where a
guardian of the person is sought, such person is in danger of substantially
endangering person's own health, or of becoming subject to abuse by other
persons or of becoming the victim of designing persons; or
(3) By reason of § 5703(1) or (2) of Title 16 is deemed legally
incapable of giving informed consent to sterilization.
(b) The Court of Chancery shall establish rules concerning the filing
of petitions for appointment of guardians.
(c) Upon the filing of such petition, the Court shall enter an order
fixing a time and place for a hearing thereon. The Court shall by rule
provide for reasonable notice to the allegedly disabled person and to such
others, if any, as the Court may deem desirable; provided that, in all
cases where a guardian of the person or guardian of the property of an
adult disabled person is sought, the allegedly disabled person shall be
entitled to representation by counsel.
(d) If, upon the filing of a petition, the Court finds the allegedly
disabled person is in danger of incurring imminent serious physical harm
or substantial economic loss or expense the Court may without notice and
hearing appoint an interim guardian of the person or property to serve
for a period of up to 30 days; provided, that a hearing shall be held
within 30 days of such appointment in accordance with subsection (c) of
this section. The guardian so appointed shall have all of the powers and
duties granted to guardians in subchapter II of this chapter.
(e) After determining at a hearing (or, for a period of up to 30 days,
after determining without a hearing in the case of a disabled person who
is in danger of incurring imminent serious economic loss or expense) that
an individual is a disabled person within the meaning of this section,
the Court shall have the same powers of control over the disabled
person's estate which the disabled person could exercise, if not
incapacitated, except the power to make a will. In exercising these
powers the Court shall substitute its judgment for that of the disabled
person to order relief from the incapacity or incapacities which the Court
has found. In substituting its judgment, the Court shall act toward the
property of the disabled person as it believes to be in the best interest
of the disabled person and the disabled person's estate. The powers of
the Court over the property of the disabled person are plenary and
include, but are not limited to, powers to make gifts and charitable
contributions; to convey or release any contingent or expectant interest
in property including marital property rights and any right of
survivorship incident to joint tenancy or tenants by the entirety; to
exercise or release the disabled person's power as trustee, personal
representative, custodian for minor, conservator or as donee of a power
of appointment; to enter into contracts; to create revocable or
irrevocable trusts of property of the estate, which may extend beyond the
disabled person's incapacity or life; to exercise or grant options of the
incapacitated person to purchase securities or other property; to
exercise incapacitated person's right to select options; to cause
incapacitated person's estate to become the beneficiary under insurance
and annuity policies or to surrender such policies for their cash value;
to exercise incapacitated person's right to an elective share in the
estate of incapacitated person's deceased spouse and to renounce or
disclaim any interest receivable by testate or intestate succession or by
inter vivos transfer.
(f) After hearing or, for a period of up to 30 days, after determining
without a hearing in the case of a disabled person who is in danger of
incurring imminent serious physical harm and upon determining that a
basis for appointment of a guardian of the person exists, the Court shall
have the same powers, rights and duties respecting the disabled person
that parent's have respecting their child, including the right to approve
or reject medical treatment. In exercising these powers, the Court shall
act in the best interest of the disabled person.
(g) The Court shall have the power to grant certificates of
guardianship of the property and certified copies of orders terminating
the guardianship, both of which may be filed or recorded to give record
notice of the authority of the guardian, subject to general statutory
requirements governing the filing or recording of documents of title to
land or other property.
(h) From the time of the Court's decree appointing a guardian of the
property, the disabled person shall be under disability to contract with
regard to the property forming the subject matter of the guardianship
during the pendency thereof.
(i) Whenever there is no Chancellor or Vice Chancellor available to
exercise the powers conferred by subsection (d) of this section, any judge
of the Superior Court may exercise such powers.
(j) Nothing in this section shall be construed to mean an adult is infirm
or incapacitated or in need of a guardian for the sole reason an adult
relies upon, or is being furnished with, treatment by spiritual means
through prayer alone in accordance with the tenets and practices of a
recognized church or religious denomination, nor shall anything in this
section be construed to authorize or require any medical care or treatment
over the implied or express objections of said person.
(k) The Superior Court or the Court of Common Pleas shall have the power
to appoint guardians for the person or property, or both, and approve
settlement in connection with a single-transaction matter arising out of a
tort claim for a disabled person. Upon entry of an order appointing a
guardian and approving a settlement, jurisdiction of the matter shall be
transferred to the Court of Chancery for administration pursuant to this
chapter.
12 Del. C. § 3908. Removal, resignation or death of guardian.
(a) The Court of Chancery may remove a guardian for any sufficient cause.
A guardian may, on petition, be allowed to resign when it appears to the
Court proper to allow the same. On every such removal or resignation and
also on the death of any guardian the Court may appoint a successor
guardian.
(b) The Court shall direct the guardian so resigning or removed to render
a full account of the guardianship before the Court and may order the
guardian to pay and deliver all the money, effects and estate in the
guardian's hands as such guardian to the guardian's successor or to a
receiver appointed by the Court, to the formerly disabled person, or to the
guardian's personal representative and may enforce such orders. The Court
may also order suit to be brought on the guardian's bond, which suit may be
prosecuted in the disabled person's name by next friend or guardian and it
shall in no way affect or impair the right of excepting to the guardian's
accounts.
12 Del. C. § 3909. Term of guardianship.
(a) If the only allegation of disability in the petition for
appointment of a guardian was that the person was a minor, unless
terminated earlier by the Court upon application of the guardian, the
minor or other interested party, or by the death of the minor, the
guardianship of such minor shall terminate automatically when the minor
attains the age of 18 years.
(b) The automatic termination of the guardianship of the property of any
minor shall not relieve the guardian of any duty to account. The guardian
may be released by the Court of Chancery upon application of the guardian
or the former minor.
(c) The guardianship of the person or property, or both, of any person
disabled for reasons other than minority shall continue until the death
of the disabled person or until terminated by the Court of Chancery upon
application of the guardian, the disabled person, or any other interested
party.