What is legal guardianship?
Legal guardianship is a legal relationship that gives an adult, called the "guardian" the authority and duty to care for the personal interests of another as a result of the other’s incapacity or minority. The person who is the subject of the guardianship is referred to as the "ward." In Delaware, the general purpose of legal guardianship is to provide stability, and promote the overall health and well-being of the ward in multiple aspects of his/her life. The guardian can help make decisions regarding the ward’s overall welfare, including financial affairs, the ward’s medical decisions, or education. The guardian of the person, has the authority to make health care decisions and choose treatment. The guardian of the property can make financial and business-related decisions , including managing the ward’s assets, income, and government benefits. In addition to these general duties, the guardian also has an obligation to care for the ward’s personal belonging and maintain close, consistent interaction. The decisions that legal guardianship allows are significant, especially considering the important role they have in the life of the ward and their family. Guardianship can affect the custody and upbringing of children, and is often requested by the parents of children with disabilities after they turn age 18, to help maintain some form of parental control and protection of their female children with disabilities.
Types of guardianship in Delaware
Types of guardianship are recognized by Delaware law; the two primary types being guardianship over a minor, and "guardianship over an incapacitated adult". Each type of guardian tends to have a different set of requirements necessary to be appointed as guardian, although some requirements are the same for each.
Guardianship over a minor is addressed under 12 Del. C. § 3902. In order to obtain guardianship over a minor under 12 Del. C. § 3902, generally, one must petition to the Court where the minor is domiciled or temporarily residing. What that means is that the minor either has to live here or have some sort of connection to Delaware.
Guardianship over incapacitated adults is a result of a petition to the Court that requests the appointment of a guardian for a person alleged to be incapacitated (adult). 12 Del. C. § 3911 is the statutory authority for the appointment of such a guardian. Generally, the petitioner must show that the incapacitated adult is unable to make decisions regarding his or her health care, financial matters or personal affairs. When granted, guardianship over an incapacitated adult empowers the guardian to act on behalf of the incapacitated adult in a variety of matters.
A third option is guardianship by the Department of Health and Social Services over elderly adults who do not have family to take care of them and are found by the Court to be incapacitated. A guardian appointed under this section may not exercise the powers of a conservator under Chapter 50 of this title. The Department, however, has the ability to make health care decisions for the incapacitated adult.
How to get guardianship
The process to obtain guardianship is somewhat of a lengthy one. Once a Petition has been filed with the Court, the person petitioning must set forth a brief of the matterhearing and the legal basis of the case in order to obtain the date they are scheduled to appear. In addition, the petitioner should give notice of the hearing date according to the rules to the individual who they are claiming to be incompetent (Note that it is important to note that if the individual you are seeking guardianship for has a primary care physician, you also need to give this physician notice).
Once you have given notice of the hearing to the interested parties, you also need to have the doctor who performed the examination of the alleged incompetent prepare an Affidavit for the Court. This Affidavit should state that after meeting with the alleged incompetent, the doctor believes that the individual lacks the necessary competency to manage their own affairs.
After filing the brief and having the doctor complete the Affidavit, the petitioner is ready to attend the hearing. At the hearing, the Judge may question the proposed guardian or the doctor, as well as review the petition, the brief and the Affidavit. Assuming that the Judge finds the petition satisfies the necessary elements of the statute, they will grant the same at that time, although there are some situations where the Judge will take the matter under advisement after the hearing. Other means may be used in lieu of a hearing, such as Rules for Appointment without Hearing (Rule 86), which is another alternative to obtaining Guardianship that would not involve an actual hearing in front of the Court.
Legal guidelines and eligibility
In Delaware, there are specific legal requirements that one must meet to qualify to serve as a guardian. The most fundamental requirement is that the proposed guardian must be at least 18 years of age and be a resident of the State of Delaware, or a corporation authorized to act in a fiduciary capacity in Delaware. This disqualifies individuals who are not legal age in the eyes of the law, as well as those who live in other states. While it is within the discretion of the Court to appoint an out-of-state individual as guardian , such an appointment is generally rare. It is also important that a proposed guardian is of sound mind and capable of handling the affairs of both the grantor and themselves. Lastly, while a criminal background does not necessarily disqualify an individual, Delaware statutes do prohibit certain individuals from serving as guardians in order to preemptively eliminate those whose criminal backgrounds may put an incapacitated individual at risk of abuse, neglect, or exploitation. Under 12 Del. C. § 3933(a), the following individuals are disqualified from serving as a guardian:
A guardian’s responsibilities in Delaware
Assuming the role of a guardian requires significant responsibility and understanding of the duties that accompany the role. Generally speaking, a legal guardian’s responsibilities extend to both financial management and personal welfare of the ward. A guardian’s authority is both broad and limited, and it is important to consult with an attorney regarding the scope of a guardian’s responsibilities.
Financial Management
Once a guardian is appointed, the assets of the ward generally become available for the guardian to use in managing the financial affairs of the ward, which may include paying for medical expenses, housing, living expenses, and any other expenses incurred by or on behalf of the ward. A guardian has a fiduciary duty to manage the financial affairs of the ward in the best interest of the ward. The authority of a guardian is granted by Court Order.
A guardian may be required to make annual financial accounting reports to the Court, which detail how funds were managed and what funds were used in the course of managing the financial affairs of the ward. If a guardian fails to manage funds using the utmost diligence and fails to make appropriate accounting to the Court, the Court can remove a guardian from his or her role, and appoint a new guardian, which can include an institution, such as a bank or trust company.
Personal Welfare Duries
A guardian is also responsible for the personal well-being of the ward. A primary duty is to insure the person under the guardianship is provided with food, shelter, health care, safety, and comfort.
If a ward is incapable of executing a Financial Power of Attorney, the guardian may be required to file a petition to the Court seeking authority to gift the ward’s funds to reimburse a third party for past expenses or to pay a third party for future expenses. The Court will be required to review the facts and circumstances (including the opinions of a physician regarding the competency of the ward) before granting a guardian the authority to make gifts of the ward’s funds.
In general, the powers of a guardian will be set forth in the Order appointing said guardian and in the guardian’s bond consent, which is filed and recorded in the Clerk’s Office of the Register in Chancery.
Commonly asked questions about guardianship
What does the word ‘Ward’ mean in the context of guardianship?
The word ‘ward’ refers to a person over whom a guardianship has been established. The term is gender-neutral and can refer to both a male or female.
Can you terminate or remove a guardianship?
A guardianship can be terminated when the ward regains capacity, where the ward dies, or if the guardianship is found to be no longer necessary. In such a case, the guardian can make an oral or written request to terminate the guardianship with the Register of Wills once this need is established.
Can a guardian give the ward’s property away?
No. The guardian is a fiduciary, which means that they have a duty to protect the ward’s assets and not give them away to others. Any unauthorized gifts can be tallied up on the Guardian’s accounting and will be represent an amount that will eventually be paid back to the ward.
What does ‘jurisdiction’ mean in guardianship terms?
In order for the Court of Chancery to have ‘jurisdiction’ over the guardianship matter , the ward must reside in Delaware at the time the petition is filed, and then continually reside in Delaware during and after filing. If the ward is deemed to lack capacity, then the guardian must be a resident in Delaware for the duration of the guardianship.
Does a guardian in Delaware also have to file an accounting in another state if the ward moves?
Not necessarily. A guardian is only required to file for an accounting in this State, unless there are property located in another State, then an accounting may also be needed in that jurisdiction. Check with legal counsel in that jurisdiction for specific accounting requirements.
What happens if the guardian fails to file an accounting on time?
An interim accounting will be ordered by the Register of Wills. This means that the guardian will be required to file an accounting up through the date in which the accounting lapse occurred. The Register of Wills may also file a motion to have the guardian removed from his/her duties upon their failure to file an accounting, especially if the guardian has repeated issues with their accountings.