Guardianship defined; different types of guardians

In Delaware, an adult is presumed to have the capacity and ability to make their own decisions.  A guardian is a person appointed by Chancery Court who makes decisions for someone who cannot make decisions for himself. Parents are not guardians of their adult children unless the Chancery Court has appointed them as guardians after their child turns 18.

In Delaware, there are two different types of guardianships for adults with disabilities:

A guardian of property has the authority to make decisions involving financial or property matters.   These guardians control property interests, including essentially anything that can be the subject of ownership.  The court has the same powers over the estate as the individual with a disability did before the onset of the incapacity, except for the power to make a will.  The court may limit which rights to allow the guardian to exercise.  A guardian of the property may be able to do such things as invest or reinvest personal property, sell stocks, and pay taxes.

A guardian of the person can make decisions controlling the care of the individual with a disability.  A guardianship of the person is one affecting personal interests, custody and care, such as where the individual with a disability lives, the ability to consent to services, education, medical treatment, and the release of confidential information.  The court/guardian has the same control over the person with a disability under this type of guardianship as a parent would.

A separate guardian may be appointed as guardian of property and as guardian of the person, or one person may be appointed for both.

When guardians can be appointed

Adults with mental or physical disabilities can have guardians appointed if due to a mental or physical disability they cannot manage or care for themselves or their property, and as a result, are in danger of:

• suffering property loss; or
• being taken advantage of by someone else; or
• being abused by someone else; or
• substantially endangering their own health.

Selecting a Guardian

Often a family member or trusted friend will serve as a guardian.  In the event that a petition is filed for an adult, and there is no particular guardian recommended or available, there are several options:

• Office of the Public Guardian– (302) 577-8990. The OPG is a statewide program which serves as guardian for adults when there is no one else willing or able to do so.

• Private Organizations. A number of private organizations will serve as guardians, or representative payees, or assist with the establishment of trusts and plans, for people who need assistance with money management or other care issues. These organizations include:
  • Senior Partner, Inc. (302) 764-7880;
  • Life Solutions, Inc. (302) 622- 8292
  • Supportive Care Services, Inc. (302) 384-9795

Legal Protections for the Person with a Disability; Contesting or changing involuntary guardianships

Protections provided by the court to the person with a disability

There are numerous protections provided by the Chancery Court to the person with a disability about whom a guardianship petition has been filed.  These include:

• appointing an attorney for the person with a disability during the guardianship proceeding (free of cost to the person with a disability);
• notifying the individual of all proceedings;
• having the individual attend the hearings and proceedings so long as the evaluating doctor does not believe it is detrimental to the person with a disability’s interests;
• allowing the individual, personally or through an attorney, to present evidence, and call and question witnesses at hearings;
• having a hearing and the right to appeal the court’s decision to the Supreme Court.

The court will hold a hearing and listen to all of the evidence.  It will only appoint a guardian if it finds that the person is “disabled” and meets the legal criteria discussed in the “When guardians can be appointed” section above.

Actions a Guardian Cannot Take, or Actions that Require Court Approval

A guardian cannot make a will, release claims, settle tort claims, or convey title to real property without court approval.   Similarly, the guardian cannot consent to the involuntary sterilization of an individual with a disability.  A guardian cannot involuntarily commit a person with a disability to an institution, without court approval.   The guardian must file an annual update and medical status report every year.

Guardianship and the right to vote

Just because someone has a guardian, does not mean she is ineligible to vote.   The only time a person with a disability will be ineligible to vote is if there is a court order which specifically restricts the right to vote.

Contesting or changing involuntary guardianships

Guardianships typically last until the death of the person with the disability, or until the court terminates it upon request of any party.  The court may terminate or make changes to a guardianship, or replace a guardian for any reason.  However, the court cannot do so without someone filing a petition to review the guardianship.   This can be done by filing an objection at the time that the guardianship is requested, or by filing a petition requesting that the court review an already existing guardianship.  The court may then order a hearing where the party challenging the guardianship presents evidence, and it will make its decision based on the evidence.