Establishing a Guardianship in Delaware

Establishing a Guardianship in Delaware

Estate planning is important for countless reasons.  Most people understand the benefits of having a will or trust in place to direct the disposition of their assets upon their death.  However, many people fail to think about is why it is so important to have an advanced health care directive and durable power of attorney in place long before they may ever need to be utilized.  One of the most significant advantages of having an advanced health care directive and a durable power of attorney in place is that they permit a person to designate their own caretaker should they ever be unable to care for themselves. In addition to the obvious benefit of offering a person the ability to choose whom they wish to care for them if the need arises, an effective advanced health care directive and durable power of attorney also avoid the costly and often time-consuming process that must be followed in the event that such documents have not been executed.  Absent such documents, a person who finds himself in the unfortunate position of requiring a caretaker often is subject to the process of having a guardian appointed for them.  This article will focus on the steps that must be followed to obtain a guardianship over a disabled person, and, specifically, uncontested guardianships.  As will be discussed below, even an uncontested guardianship petition can be a relatively expensive and time-consuming endeavor.

In Delaware, a guardianship may be necessary when a person is unable to care for themselves or their property and is in danger of hurting themselves or becoming the victim of designing persons.  Delaware law provides for 2 types of guardianship: a “Guardian of the person”, and a “Guardian of the property.” A Guardian of the person is appointed to ensure that the daily needs of the individual are met and to make personal decisions for him or her such as those relating to health care, admittance to a nursing home, hospital or other treatment facility.  In contrast, a Guardian of property is appointed to safeguard and preserve the individual’s property and to make financial decisions for him or her.  Of course, one person may serve as Guardian of both person and property for an individual.

A guardianship action is initiated with the filing of a Petition to Appoint a Guardian (the “Petition”) with the Court of Chancery (the “Court”).  The requirements for the contents of the Petition are set forth in Chancery Court Rule 175.  Among other things, the Petition must include background information and a medical report or affidavit to the effect that the disabled person is unable to properly manage or care for his/her person and/or property.  The background information that must be provided to the Court is fairly detailed, and can often be difficult to easily gather.  A Petitioner must state the following:

  •  The disabled person’s age, marital status, and present location/residence.
  • If the disabled person is a patient or a resident of any hospital or institution, the date and circumstances surrounding the admission or entry into such institution.
  • The names and addresses of any spouse and next-of-kin.  If any of the next-of-kin are minors, their approximate ages must be obtained.
  •  Evidence of past or present military service.
  •  If the disabled person has made a will or a power of attorney, where are those documents, and who is named as attorney-in-fact?
  •  Whether or not the disabled person had been represented by a Delaware attorney within the past two years, and, if so, the name of the attorney.
  •  A list of the disabled person’s property, including, but not limited to, real estate (land, houses, farms, beach property, other buildings) in Delaware or any other location.  The Petition must also state the probable value and the estimated rental value of any real estate.   Property will also include money, stocks, bonds, furniture, antiques, coin or stamp collections, automobiles, boats, planes, or other valuable property.
  • The disabled person’s income from any source (pension, social security, dividends, mortgage payments, rents, royalties, or any other income).
  •  The disabled person’s debts and other obligations.  This is to include expenses for such items as shelter, clothing, care and comfort.

In addition to all of this information, the Petition must also include a Physician’s Affidavit in which a physician attests that the person who is the subject of the Petition has a disability that interferes with that person’s ability to make or communicate responsible decisions regarding health care, food, clothing, shelter, or administration of property.  The physician must also describe the particulars of the disability.  Getting such an affidavit is not always a simple task.  In some cases, the disabled person may not have a physician who can easily complete a Physician’s Affidavit.  If the disabled person is estranged from the petitioner and, therefore, his or her doctor is not known, additional relief may need to be requested from the Court.  Likewise, if the disabled person is refusing medical attention and, therefore, does not have a treating physician, additional relief may need to be requested.  In these cases, the petitioner may need to explain the circumstances as to why a Physician’s Affidavit is not attached to the Petition.  In addition, the petitioner may request that the attorney ad litem (which will be discussed below) be responsible for securing an appointment for the disabled person for the purpose of obtaining a Physician’s Affidavit.  These cases generally require greater administrative attention and are anything but routine.

Once a Petition has been filed, complete with Physician’s Affidavit, the Court will appoint an “attorney ad litem” to act on the disabled person’s behalf.  Once appointed, the attorney ad litem will generally meet with the disabled person and review his or her medical records, and may meet with other interested parties.  The attorney ad litem is generally considered counsel for the disabled person, and should be able to take any position in litigation which advances the best interests of the disabled person.  This would include the threshold issue of whether the disabled person needs a guardian at all, as well as the question of who that guardian should be.  After analyzing sufficient information, the attorney ad litem files a report with the Court indicating his or her findings.  In an uncontested guardianship proceeding, the attorney ad litem’s role ends here.  However, if there are extenuating circumstances or the matter is contested, the attorney ad litem may remain involved throughout the litigation.

Attorney ad litems are chosen at random from a pool of potential attorneys admitted to practice.  The attorney ad litem will generally be paid from the disabled person’s funds and will charge his or her normal hourly rate.  The Court has established a limit of $750 on fees charged by the attorney ad litem.  The attorney ad litem can request a fee in excess of $750 and the Court will make a determination of whether or not the excess fee is in the best interest of the disabled person in deciding to grant or deny the request.

It is necessary to provide notice to the disabled person of the guardianship proceeding unless the Physician’s Affidavit states that notice would be detrimental or meaningless.  It is also necessary to provide notice to next-of-kin by registered or certified mail of the time, place and purpose of the hearing.  If the disabled person had been represented by an attorney in the two years preceding the filing of the petition, that attorney must be given notice as well.  Notice need not be given to any person 18 years or age or older if he or she consents in writing to the Petition and waives notice.  Once all of the requirements described above have been met, the Court will hold a hearing on the Petition.  If the guardianship action is uncontested, then it will typically be heard and granted by the Court during its routine motion hearings.

As shown, even the most routine uncontested guardianship petition can be a complicated, involved process.  However, when faced with situation where a loved one is incapacitated, establishing a guardianship is a great option for safeguarding him or her and protecting his or her assets.

Thomas R. Riggs, Esq.
Ferry Joseph, P.A.

This article is intended to provide general information and should not be viewed as providing specific recommendation or advice.  You should consult with competent counsel for your specific questions or issues.  Ferry Joseph, P.A attorneys are experienced in Estate and Guardianship matters in Delaware.  Please feel free to contact us if you have any additional questions.