1.  When does the need for a legal guardianship arise?

       When an adult has a mental or physical condition that makes it impossible for the individual to adequately care for his own person or for his property and that adult does not have a durable power of attorney authorizing someone to act on his behalf, the Court of Chancery may appoint a guardianship of the person or or the property or both for the disabled person (Here we will call that person the "ward").  A guardian of the person generally will make health care decisions as well as decisions concerning the living arrangements.  A guardian of the property is responsible for the safe-keeping of the ward's property.  A need for a guardianship can arise when an individual with lower income and few assets needs nursing home care but must deal with those assets and income in order to qualify for Medicaid so that the nursing home can be paid.  If the individual is not able to act on his own behalf a guardian must be appointed.

2. Who can be a guardian?

        A petition must be filed with the Court of Chancery seeking the appointment of a guardian.  Most frequently the petition is filed by a family member who is seeking to be appointed the guardian.  If there is no appropriate family member, a professional guardian may agree to become the guardian in exchange for a fee which is paid from the ward's assets.  In cases where there are no family members available nor sufficient assets to allow payment of a fee to a professional guardian, the Office of Public Guardian is charged with the responsibility of providing guardianship services.  The website of the Office of Public Guardian is http://www.casa.courts.delaware.gov/publicguardian/index.htm.  Effective March 2010, all petitioners must file an Affidavit of Petitioner's History stating whether they have ever declared bankruptcy or been found guilty of a criminal offense and agreeing to a background check at any time during the proceeding.

3. How is a guardianship established?

        A petition must be filed with the Court of Chancery.  The petition must include detailed information concerning the proposed ward including the proposed ward's name, age, address, and spouse's and children's names and addresses; doctor's name and address; if the proposed ward is in a nursing home or other insitution, the name and address and circumstances of entry; was the proposed ward in the military, does s/he have a will, an advance health-care directive (or living will); has s/he dealt with an attorney in the last two years, if so the name and address of that attorney.  A petition for guardianship of the property must also include a detailed listing of the person's property, income sources and debt and other obligations and whether they are sole or jointly held with someone else.  But most importantly the petition must be accompanied by an affidavit by a doctor detailing his history with the patient and stating that in the opinion of the doctor the proposed ward has a disablility that renders /her him unable to make or communicate responsible decisions regarding helath care, food, clothing, shelter, or administration of property.

        There are forms available on line and from the Registrar of Chancery for low-income individuals who wish to file a peition without using an attorney (http://courts.delaware.gov/forms/list.aspx?ag=court of chancery) or call 302-255-0544), but Delaware Volunteer Legal Services may also be able to locate a volunteer attorney to handle the peition for low income individuals.  Where there are sufficient assets and income belonging to the proposed ward, the attorney's fees will be paid out of the proposed ward's assets.

4.  What happens after the filing of the petition?

        The Court will first issue a preliminary order setting a date and time for a hearing and appointing an attorney ad litem to represent the proposed ward. Any "next of kin" who have not filed a waiver of notice and consent to the proposed guardianship must be sent notice of the proposed hearing by registered mail. The attorney ad litem will meet with the proposed ward to see if the alleged disabled person is capable of expressing an opinion as to the guardianship and if the proposed ward is so able, whether the ward is opposed to the guardianship. In most cases the attorney ad litem simply files a report with his findings with the court. However, if the ward opposes the guardianship, the attorney ad litem would represent the proposed ward at the hearing to oppose the guardianship.

5. What happens at the hearing?

         If there is no opposition to the proposed guardianship and the petitioner has been represented by an attorney who has explained all the duties of a guardian to the petitioner, a hearing may not be required. If there are next of kin who have not filed a waiver of the hearing and a consent to the guardianship who were advised of the hearing, the hearing will be held to give those next of kin an opportunity to speak. If there is opposition, the hearing will allow all parties to be heard. If there is no opposition and the petitioner is not represented by counsel, the court may review the duties of guardian as part of the hearing.

6. What are the duties of a guardian of the property and person?

        A guardian of the property must use the income and assets of the ward solely for the benefit of the ward. No property may be sold without express permission of the court and the guardian of the property must file an annual accounting on-line unless the requirement has been waived by the Court.

        It is the duty of the guardian of the person to see to medical care, living arrangements and all the personal care needs of the disabled person. The cost of care is paid from the income and assets of the ward not by the guardian, so if the guardian of the property is not also guardian of the person, the two guardians must confer and co-operte. In most instances, if there is a guardianship of both the property and person, there is a single guardian fulfilling both rolls. If the ward cannot afford care, the guardian would apply for governmental assistance on behalf of the ward. The standard that applies to the decisions of a guardian of the person is that the guardian should aact in the manner the ward would have wanted so long as the wishes of the ward are known or can be discovered and so long as abiding by those wishes would not result in harm or detriment to the ward. So the people the ward would like to see need to be allowed visitation even if the guardian does not particularly care for the visitor -- unless there is a danger of harm or detriment. Also, a guardian of the person must also file an annual update with the court that includes a doctor's certificate.

For more information on the duties of the guardian, visit the website of the Office of Public Guardian, http://www.casa.courts.delaware.gov/publicguardian/index.htm or download the "Handbook for Guardians" from the website of the Delaware Court of Chancery http://courts.delaware.gov/Chancery/guardianship/HandbookforGuardians.pdr