Guardianship

Del. Code tit. 12, ch. 39
in effect

Del. Code tit. 12, § 3901 Appointment of guardians for persons with disabilities.

(a) The Court of Chancery shall have the power to appoint guardians for the person or property, or both, of any person with a disability pursuant to this chapter and Chapter 39A of this title. “Person with a disability” 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. (3) [Repealed.] (b) The Court of Chancery shall establish rules concerning the filing of petitions for appointment of guardians. The monetary thresholds referenced in subsections (k) and ( l ) of this section shall be established by rule, with the concurrence of the Court of Chancery and the Superior Court and the approval of the Supreme Court. (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 person with an alleged disability 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 with a disability is sought, the person with an alleged disability shall be entitled to representation by counsel. (d) (1) If, upon the filing of a petition, the Court finds the person with an alleged disability 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. (2) The Court shall specifically enumerate the powers and duties of the guardian appointed under this subsection, granting either of the following: a. All of the powers and duties in subchapter II of this chapter. b. Limited powers based on the needs of the person with an alleged disability. A grant of limited guardianship may specify 1 or more of the following: 1. The limitations upon the authority of the guardian. 2. The areas of decision-making retained by the person with an alleged disability. 3. The specific, limited purpose of the guardianship. (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 person with a disability who is in danger of incurring imminent serious economic loss or expense) that an individual is a person with a disability within the meaning of this section, the Court shall have the same powers of control over the estate of the person with a disability which the person with a disability 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 person with a disability 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 person with a disability as it believes to be in the best interest of the person with a disability and the estate of the person with a disability. The powers of the Court over the property of the person with a disability 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 power of the person with a disability 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 incapacity or life of the person with a disability; to exercise or grant options of the person who is incapacitated to purchase securities or other property; to exercise right of the person who is incapacitated to select options; to cause estate of the person who is incapacitated to become the beneficiary under insurance and annuity policies or to surrender such policies for their cash value; to exercise right of the person who is incapacitated to an elective share in the estate of deceased spouse of the person who is incapacitated 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 person with a disability 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 person with a disability that parents 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 person with a disability. (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 person with a disability 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) (1) The Superior Court or Court of Common Pleas shall have the power to appoint a guardian for the property and approve settlement in connection with a single-transaction matter arising out of a tort claim of a person with a disability, except that no guardian need be appointed for a person under the age of 18: a. In matters involving settlement of a tort claim of an amount equal to or less than the monetary threshold established by rule pursuant to subsection (b) of this section, provided that the net settlement funds are deposited in a Uniform Transfer to Minor Act (“UTMA”) account for the benefit of the minor; b. In matters involving settlement of a tort claim of a gross amount in excess of the monetary threshold established by rule pursuant to subsection (b) of this section, provided that: 1. The net settlement funds are placed in a court-approved annuity or structured financial instrument for the benefit of the minor; or 2. No greater than the monetary threshold established by rule pursuant to subsection (b) of this section of the net settlement funds are deposited in a UTMA account, with the balance of the settlement funds placed in a court approved annuity or structured financial instrument for the benefit of the minor. (2) However, for good cause shown, the Court, in the best interests of the minor, may appoint a guardian and transfer the matter to the Court of Chancery for the purpose of administering the estate of the minor so as to protect the estate and maximize benefits available to the minor, including public benefits. ( l ) (1) The Court of Chancery may appoint a guardian with limited authority in cases where a person under the age of 18 holds or receives property and may establish rules regarding when such limited guardianship will terminate. In cases where the minor has or will receive personal property with a value equal to or less than the monetary threshold established by rule pursuant to subsection (b) of this section, a guardian need not be appointed if: a. The funds are placed in an annuity or structured financial instrument for the benefit of the minor; b. The funds are deposited into a UTMA account for the benefit of the minor; or c. The personal property is registered or titled in the name of an adult followed in substance by the words “As custodian for [name of minor] under the Delaware Uniform Transfers to Minors Act.” (2) Nothing in paragraph ( l )(1) of this section shall limit the Court’s power to appoint a guardian of the property of a minor if, for good cause shown, the Court determines that a guardian is necessary to protect the minor’s estate and maximize benefits available to the minor, including public benefits.

Del. Code tit. 12, § 3902 Appointment of guardian; choice by minor over 14 years of age; guardian ad litem.

(a) Except in accordance with § 925(15) of Title 10 and § 3904 of this title, no person shall have any right or authority as guardian of a person with a disability unless the person has been duly appointed by the Court of Chancery or admitted by a court of law or equity to defend a suit as guardian ad litem. (b) The sole surviving parent of a minor child may, by written declaration or last will, name a guardian of the person or property or both of the parent’s child, who shall be appointed if there is no just cause to the contrary. Any parent may by written declaration or will name a guardian as to the property which the parent’s child may inherit from any person, who shall be appointed if there is no just cause to the contrary. (c) When there is no designation of guardian by written declaration or last will of the minor’s sole surviving parent, or there is just cause for not appointing the guardian so designated, a minor 14 years of age or over and resident in this State may choose a guardian and the Court, if there is no just cause to the contrary, shall appoint the person chosen. (d) When there is no designation of guardian by written declaration or last will of the minor’s sole surviving parent, or there is just cause for not appointing the guardian so designated, and a minor is under the age of 14 years, or is resident out of the State or neglects to choose a proper guardian, the Court may appoint a guardian according to its discretion. (e) When a guardian is appointed for a minor under 14 years of age, unless such appointment is according to a written declaration or the last will of a minor’s sole surviving parent, if the minor, after arriving at the age of 14 years, chooses another person for a guardian, the Court shall appoint the person so chosen, if there is no just cause to the contrary and the preceding guardianship shall be thereby superseded.

Del. Code tit. 12, § 3903 Separate guardian of the person and property.

The Court of Chancery may appoint 2 or more persons as guardians of the person with a disability, 1 or more to have the care of the person of the person with a disability and the other or others to have possession and management of the property of the person with a disability with all the rights and powers and subject to all the duties respecting the property of the person with a disability, or the Court may appoint 1 person guardian with all the rights and powers and subject to all the duties respecting both the person and property of the person with a disability.

Del. Code tit. 12, § 3904 Foreign guardians of nonresidents.

(a) A guardian, conservator, committee or other similar fiduciary, appointed by an appropriate court of another jurisdiction to manage the property of a person with a disability may, subject to the provisions of subsection (c) of this section, exercise in this State all powers of office, including the power to sell, purchase or mortgage real estate in the State; collect, receipt for and take possession of money due, tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action located in this State and remove it to the other jurisdiction. (b) A guardian of the person, or other like fiduciary, appointed by an appropriate court of another jurisdiction to care for the person of a person with a disability, whenever such person with a disability is brought into the State for care and maintenance, such foreign fiduciary may, subject to the provisions of subsection (c) of this section, exercise all powers granted by the other jurisdiction for the care and protection of the person of such nonresident person with a disability. (c) A foreign guardian shall not be entitled to exercise the powers set forth in subsections (a) and (b) of this section until the foreign guardian has filed for record in the Office of the Register in Chancery in any county of this State a certificate of the guardian’s appointment from the other jurisdiction. Upon filing the certificate of appointment, the guardian will be authorized to petition the Court of Chancery of this State pursuant to court Ch. Ct. R. 178 to exercise powers not granted by subchapter II of this chapter upon the giving of such security as the Court of Chancery of this State may order. Upon authorization, such foreign fiduciary shall account to the Court at such times as would a fiduciary for a resident of this State appointed under this chapter, and in the case of guardians of the property shall be issued a certificate in accordance with § 3901 of this title. (d) Whenever it appears to the satisfaction of the Court of Chancery of this State that the person with a disability is then a nonresident and the property in this State belonging to any such nonresident person with a disability has been removed to the state wherein such fiduciary was duly appointed and has been accounted for by the fiduciary according to the laws of the state wherein such fiduciary was duly appointed, the Court of Chancery may relieve such fiduciary from further accounting before the Court.

Del. Code tit. 12, § 3905 Guardian’s bond; requirement; form and entry.

(a) Every person appointed guardian shall, unless bond and/or surety is dispensed with by the Court, become bound, with surety, to the person with a disability in a penal sum to be fixed by the Court, by a joint and several obligation, to be, with the security, approved by the Court, with condition that if the guardian or the guardian’s executors or administrators duly renders according to law just and true accounts of the guardianship and if the guardian, or the guardian’s executors or administrators, upon the termination of the guardianship, shall deliver and pay to the person with a disability, or the executors or administrators of the person with a disability all the property belonging to the person with a disability in the possession of the guardian and all that shall be due to the person with a disability from the guardian and, if the guardian shall have in all things faithfully performed and fulfilled the guardian’s duties as guardian, then the obligation shall be void. (b) Unless bond shall be dispensed with by the Court, no certificate of guardianship shall be issued by the Register in Chancery until such bond conforming to the order of court is given and added to the guardianship docket. (c) The Court may, at any time for good cause, waive the requirements of bond and/or surety, or reduce surety in any case where bond is required. (d) In all cases where a public agency is the petitioner and where, in the opinion of the Court of Chancery, the resources and estate of the person for whose property a guardian is sought are insufficient to warrant the payment of costs and fees, the Court of Chancery may by order provide that the guardian so appointed need not give bond either with or without surety as otherwise required by law and may further provide that in such cases all costs and fees shall be waived.

Del. Code tit. 12, § 3906 Guardian’s bond; additional security; removal for noncompliance.

If it appears in any case that the guardian’s bond is insufficient, the Court of Chancery shall order the guardian to give further security and, if such order is not complied with, shall remove the guardian from office. Further security shall be taken in the same form as original security.

Del. Code tit. 12, § 3907 Counter security upon petition of surety.

The Court of Chancery shall, on the petition of the surety of an executor, administrator or guardian, and proof that the executor, administrator or guardian is in danger of suffering injury or loss from such suretyship, order such executor, administrator or guardian to give the petitioner sufficient counter security to be approved by the Court and if neglecting to obey such order, the Court may remove the executor, administrator or guardian from office and order the executor, administrator or guardian to pay and deliver all the money, effects and estate in the executor’s, administrator’s, or guardian’s hands as such executor, administrator or guardian to another guardian or to a receiver appointed by the Court and may enforce obedience to such order.

Del. Code tit. 12, § 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 former person with a disability, 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 name of the person with a disability by next friend or guardian and it shall in no way affect or impair the right of excepting to the guardian’s accounts.

Del. Code tit. 12, § 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 with a disability for reasons other than minority shall continue until 1 of the following occur: (1) The death of the person with a disability. (2) Termination by the Court of Chancery upon application of the guardian, the person with a disability, or another interested party.

Del. Code tit. 12, § 3910 Receiver for property of minor; appointment, powers, accounting and bond.

(a) If a minor has real or personal property and no guardian, the Court of Chancery may appoint a receiver to take charge of such property during its pleasure and may make such regulations touching this matter, as are deemed proper. The Court may enforce any order made upon a receiver. (b) The receiver shall be required to account annually or oftener and shall deposit any balance, appearing in the receiver’s hands, to be invested or otherwise disposed of for the minor’s benefit. (c) A receiver, appointed under this section, shall become bound, with sufficient surety, to the State in a joint and several obligation, to be approved by the Court, with condition, in substance, to account for all money, effects and estate which shall come to the receiver’s hands pursuant to the receiver’s appointment and to pay and deliver the same as the Court orders and to well and faithfully execute the trusts and duties of the office of receiver.

Del. Code tit. 12, § 3921 Powers and duties of guardian; general.

(a) A guardian shall have either the care of the person or the possession and management of all the property of the person with a disability or both the care of the person and the possession and management of the property, except to the extent the Court of Chancery may otherwise direct. (b) Every guardian of the property shall file with the Court within 30 days after appointment a verified inventory of the property of the person with a disability with respect to which the guardian acts. Said inventory shall include the fair market value of all property of which the guardian has knowledge after diligent inquiry. If, after filing an inventory, a guardian shall acquire or discover other such property not described therein, except property received from the executor to be paid by a trustee pursuant to § 3525 [repealed] of this title, the guardian shall file a verified supplemental inventory describing such property within 30 days after acquiring or discovering such property. (c) The guardian of the property shall, in the name of the person with a disability, do whatever is necessary for the care, preservation and increase of the property of the person with a disability, and shall invest the property in accordance with Chapter 33 of this title, unless investments are restricted by the Court. (d) The guardian may petition the Court for instructions concerning the guardian’s fiduciary responsibility. (e) The guardian may employ, retain or consult accountants, investment counsel, attorneys-at-law and other professional advisers and pay their reasonable fees and expenses.

Del. Code tit. 12, § 3922 General powers and duties of the guardian of the person.

(a) The Court shall grant to the guardian of the person such powers, rights and duties which are necessary to protect, manage and care for the person with a disability. The Court may at any time change the powers of the guardian of the person. (b) The guardian of the person may exercise the same powers, rights and duties respecting the care, maintenance and treatment of the person with a disability that a parent has respecting the parent’s own unemancipated minor child, except that the guardian of the person is not liable to third persons for acts of the person with a disability solely by reason of the guardianship relationship. Except as modified by the order of guardianship and without qualifying the foregoing, a guardian of the person has the following powers and duties: (1) To the extent that it is consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the person with a disability, the guardian is entitled to custody of the person with a disability and may establish the place of abode for the person with a disability within or without this State. The guardian may not waive any right of the person with a disability respecting involuntary commitment to any facility for the treatment of mental illness or deficiency. (2) If entitled to custody of the person with a disability, the guardian shall make provision for the care, comfort and maintenance of the person with a disability and, if appropriate, arrange for the training and education of the person with the disability. Without regard to custodial rights of the person with a disability, the guardian shall take reasonable care of the clothing, furniture, vehicle and other personal effects in the immediate possession of the person with a disability and commence guardianship of the property proceedings if other property of the person with a disability is in need of protection. (3) The guardian may give such consent or approval as may be necessary to enable the person with a disability to receive medical or other professional care, counsel, treatment or service and shall have power to authorize release of medical records. The guardian shall not unreasonably withhold such consent or approval nor withhold such consent or approval on account of personal beliefs held by the guardian or the person with a disability, but shall take such action as the guardian objectively believes to be in the best interest of the person with a disability. (c) A guardian of the person of a person with a disability for whom a guardian of the property also has been appointed shall control the custody and care of the person with a disability and is entitled to receive reasonable compensation for the guardian’s services and for room and board furnished to the person with a disability as approved by the Court. Compensation of the public guardian shall be governed by § 3984 of this title. The guardian of the person may request the guardian of the property to make payment to third parties or institutions for the care and maintenance of the person with a disability. (d) The guardian of the person shall not be required to expend the guardian’s own money for the support or care of the person with a disability.

Del. Code tit. 12, § 3923 Powers of the guardian of the property.

(a) The Court may limit the power of the guardian of the property as conferred on the guardian herein, or may confer any additional power which the Court itself could exercise under § 3901 of this title. (b) The Court may, at the time of the appointment of the guardian of the property, or later, transfer custodial control over all the estate of the person with a disability to such guardian or the Court may transfer only certain specified assets of the estate of the person with a disability to the guardian of the property for protection. (c) Unless restricted by the Court, a guardian of the property has power without Court authority or confirmation to invest and reinvest personal property of the estate as provided by Chapter 33 of this title governing fiduciary relationships. (d) Except as modified by the order of guardianship, the guardian of the property may act without Court authorization or confirmation to reasonably accomplish the purpose for which the guardian is appointed to: (1) Collect, hold and retain assets in the estate until, in the guardian’s judgment, disposition of the assets should be made. Assets may be retained even though they include an asset in which the guardian is personally interested; (2) Receive additions to the estate; (3) Invest and reinvest estate assets in accordance with subsection (c) of this section; (4) Deposit estate funds in a bank, including a bank operated by the guardian of the property; (5) Sell or exercise stock, subscription or conversion rights or consent directly or through a committee or other agent to the reorganization, consolidation, merger, dissolution or liquidation of a corporation or other business enterprise; (6) Vote directly or by proxy in any election or stockholder’s meeting any share of stock in the estate including power to vote shares issued by the guardian of the property; (7) Insure the assets of the estate against damage or loss and the guardian against liability with respect to third persons; (8) Pay taxes, assessments, compensation of the guardian and other expenses incurred in the collection, care, administration and protection of the estate; (9) Make payment for ordinary repairs to a dwelling owned by the person with a disability and to the furniture and appliances therein; (10) Allocate items of income or expenses to either estate income or principal as provided by law; (11) Prosecute, defend, compromise or settle actions, claims or proceedings in any jurisdiction for the protection of estate assets; (12) Execute and deliver all instruments which will accomplish or facilitate the exercise of powers vested in the guardian; (13) Hold a security in the name of the nominee or other forms without disclosure of guardianships so that title to the security may pass by delivery, but the guardian is liable for any acts of the nominee in connection with the stock so held; and (14) Exercise all rights and powers granted to a fiduciary under the Fiduciary Access to Digital Assets and Accounts Act, Chapter 50 of this title. (e) The guardian of the property may, without court authorization or confirmation, pay or apply income or principal from the estate as needed for the clothing, support, care, protection, welfare and rehabilitation of the person with a disability, as requested by the person with a disability or the guardian of the person, if any. In exercising this power, the guardian of the property shall consider the cost of support and care of the person with a disability for the expected life of the person with a disability and the needs of any persons dependent upon the person with a disability as may be reasonably anticipated. (f) The guardian of the property shall not be required to expend the guardian’s own money for the support or care of the property or person.

Del. Code tit. 12, § 3924 Estoppel to dispute the right to property of a person with a disability.

Neither a guardian nor the representatives of the guardian shall dispute the right to property of a person with a disability which comes to the guardian’s possession, unless such property has been recovered from the guardian or there is a personal action pending on account of it.

Del. Code tit. 12, § 3925 Transfer by guardian of corporate securities.

Upon the transfer by a guardian of a person with a disability of the stocks, bonds or other securities of any corporation, the certificate of the Register in Chancery in which such guardian was appointed, or other proper public official, shall be sufficient authority to the officers of such corporation to transfer or reissue such stocks, bonds or other securities to such person as such guardian may in writing direct.

Del. Code tit. 12, § 3926 Exercise of rights belonging to a person with a disability.

No person dealing with the receiver of a minor or with a guardian of a person with a disability shall be entitled to rely on the authority of such receiver or guardian to: (1) Release claims; (2) Settle tort claims; or (3) Convey title to real property without prior court approval of such act.

Del. Code tit. 12, § 3927 Compensation of guardian of the property.

(a) As used in this section, the term “qualified guardian” means any person who is a “qualified trustee” as defined in § 3561 of this title. (b) All persons who serve as guardian of the property of a person with a disability shall be entitled to reasonable compensation for their services. (c) Each qualified guardian shall file with the Register in Chancery for every county in this State, a copy of a schedule or a formula by which its allowance as compensation for serving as guardian of the property of a person with a disability shall be computed. Such schedule or formula may be based upon or reflect the following factors: (1) The time spent or likely to be spent in administering a guardianship of the property. (2) The risks and responsibilities involved. (3) The novelty and difficulty of the tasks required of the guardian. (4) The skill and experience of the guardian. (5) Comparable charges for similar services. (6) The character of the guardianship assets. (7) The time constraints imposed upon the guardian in administering the trust. The schedule or formula pursuant to this subsection shall result in a fee no greater than that filed by the qualified guardian pursuant to § 3561 of this title with respect to its fees as trustee, for a trust of comparable size. (d) Each qualified guardian shall provide a copy of its current guardianship fee schedule or formula as filed or upon any filing pursuant to subsection (c) of this section to such persons as the Court of Chancery may require by rule of the court or by the order of the Court of Chancery appointing the qualified guardian. (e) For other persons serving as guardian of the property of a person with a disability, the Court of Chancery shall from time to time promulgate a rule fixing the method by which guardians of the property other than qualified guardians may be allowed compensation for their services. (f) Upon proper showing, the Court of Chancery may fix or allow greater compensation than that set forth in the fee schedule of a qualified guardian or that allowed by rule of the Court of Chancery, whichever is applicable, where the compensation provided in the fee schedule of a qualified guardian or that allowed by rule of the Court of Chancery, whichever is applicable, is inadequate because the duties of the guardianship are substantially greater than those for a typical guardianship of its size or under extraordinary circumstances.

Del. Code tit. 12, § 3941 Guardian’s duty to account.

(a) A guardian of the property shall fully account, in accordance with this subchapter, for all the money, effects and property of the person with a disability which the guardian has received, but a guardian of the person shall have no duty to account or otherwise report to the Court, except as provided by order of the Court. (b) The personal representative of a guardian who dies in office shall, upon appointment as personal representative, advise the Court of Chancery and the next of kin of the person with a disability of the death of the guardian and thereafter assume the duties of the guardian until a successor guardian is appointed. The personal representative shall file a petition for the appointment of an appropriate successor guardian within 60 days of being appointed personal representative if no other interested party has filed such a petition. The personal representative shall render to the Court an account of the decedent’s guardianship (including such period of time the personal representative performed the duties of the guardian prior to appointment of a successor guardian) within 3 months of the grant of letters testamentary or letters of administration.

Del. Code tit. 12, § 3942 Filing, adjusting and settling guardian’s accounts.

All guardians’ accounts shall be filed with and be adjusted and settled by the Court of Chancery by which such guardians were appointed.

Del. Code tit. 12, § 3943 Time of filing guardian’s accounts.

Every guardian of the property shall render an account of the guardianship at the end of 1 year from the guardian’s appointment and afterwards as the Court of Chancery in which such guardian was appointed requires, but not more often than once in 2 years, unless there is a special occasion.

Del. Code tit. 12, § 3944 Failure to file account; extension of time for filing.

(a) The Court may excuse the filing of an account or accounts required under § 3941 of this title for cause shown or if waived by: (1) If the person with a disability has a will, all of those persons who would be entitled to the residue of the estate of the person with a disability if the person with a disability died at the time any such accounting would otherwise be required or was required to be filed; or (2) If the person with a disability has no will, all of those persons who would be entitled to the real and personal property of the person with a disability if the person with a disability died at the time any such accounting would otherwise be required or was required to be filed, intestate and a resident of the State. The Court may also, for cause shown, extend the time for the guardian to file an account or accounts. If no account is required of the guardian pursuant to this subsection, no inventory of the guardianship estate need be filed by the guardian. (b) If a guardian fails to account when due, the Court shall cite such guardian therefore and may compel the filing of the account by process of attachment or by imprisonment.

Del. Code tit. 12, § 3945 Appeals from orders adjusting and settling guardian’s accounts.

Appeals from orders of the Court of Chancery adjusting or settling guardian’s accounts shall be received, heard and determined by the Supreme Court.

Del. Code tit. 12, § 3946 Settlement with ward at termination of guardianship.

The Court of Chancery may order that any property in the guardian’s possession, as such, at the close of the guardianship, shall be delivered to the former person with a disability or the representatives of the person with a disability and enforce obedience to such order.

Del. Code tit. 12, § 3947 Absence of person with a disability from State; settlement of account.

(a) If in any case a guardian of the property shall not be able to settle with and pay to the person with a disability, on the termination of the guardianship, the money due from the guardian to the person with a disability, in consequence of the absence of the person with a disability from this State and the place of residence of the person with a disability being unknown to the guardian, the guardian may settle and pay the money into the Court of Chancery for the county in which the guardian was appointed. (b) The Court in which such settlement and payment shall be made shall invest the money for the use and benefit of the person with a disability. (c) Upon payment of the money into Court the guardian and the guardian’s surety or sureties shall be discharged from all liability for or on account of the money so paid into Court and of any interest thereon from the date of the payment into Court.

Del. Code tit. 12, § 3951 Sale of real estate owned by a person with a disability.

(a) If the guardian of the property of a person with a disability wishes to sell real estate owned by the person with a disability, then the guardian shall apply to the Court of Chancery for the authority to sell the property. For purposes of this section, the term “real estate” shall encompass any ownership interest in real estate, including, but not limited to real estate held in fee simple, in severalty, as a joint tenancy, as a tenant in common, as a tenant in possession, or as a reversionary or remainder interest. (b) The guardian shall give notice of the application to all potentially interested parties, including those identified in the Petition for the Appointment of a Guardian. The notice shall inform the interested parties that they may appear and object to the application or otherwise participate in the proceeding. Any party who does not appear or object within 20 days after the date of the notice will be deemed to have waived any objection to the disposition of the application as determined by the Court. (c) If there appears preliminarily to be good cause to sell the real estate, then the Court shall enter an order appointing an appraiser of real estate, licensed and certified pursuant to Delaware law, to perform an appraisal of the real property to be sold. The appraiser shall be independent of the parties to the sale and disinterested as to any proposed transaction. (d) Based on the appraisal and all other relevant information, the Court shall determine in its discretion whether the requested sale is in the best interest of the person with a disability. The appraised value shall be considered by the Court as a guideline and is not determinative of the outcome of the application or the fairness of the price. (e) If the Court approves a sale, then the guardian shall be authorized to make a deed for the benefit of the purchaser which may convey as full a title to the land as the person with a disability had at the time of sale, unless the Court determines it is in the interest of the person with a disability to convey a lesser estate. (f) The Court may order that the real estate be sold free and clear of any lien or encumbrance existing at the time of sale created by or against the person with a disability. Any such order may be entered only if reasonable notice of the application and the sale has been given to the holder of the affected lien or encumbrance. The lien or encumbrance shall, without change of priority, be transferred to the proceeds of sale. (g) If the Court approves a sale, the guardian shall submit a return of sale within 30 days after the sale of the property or as otherwise directed by the Court. (h) The Court may appoint a trustee to conduct the sale in lieu of the guardian. (i) The Court may rule on the application in whole or part after holding a hearing or based on the documents submitted.

Del. Code tit. 12, § 3952 Trustee’s bond.

If a trustee is appointed to sell real estate of the person with a disability, the trustee may be required to give security in such sum as the Court directs.

Del. Code tit. 12, § 3953 Sale on credit; security for purchase price.

In any order granted by the Court of Chancery for the sale of real estate owned by a person with a disability, the Court may direct such sale to be made upon credit, either as to the whole or part of the purchase money, the payment of the purchase money to be at such time or times and to be secured in such manner as the Court by the order of sale or otherwise prescribes. The Court may order and direct all such acts and proceedings touching the premises as it deems necessary to better effectuate the object of this section.

Del. Code tit. 12, § 3954 Proceeds of sale; payment.

The proceeds of the sale shall be personal property. Such proceeds, after deducting all expenses allowed by the Court, may be ordered to be paid to the guardian of the property to be accounted for as personal property of the person with a disability in the regular course of the guardianship or such proceeds may be ordered to be deposited in a bank to the credit of the person with a disability, to be invested, loaned or disposed of for the benefit of the person with a disability.

Del. Code tit. 12, § 3955 Guardian’s bond.

(a) When the proceeds shall be ordered to be paid to or shall otherwise come to the hands of a guardian they shall be within the condition of the guardian’s bond and the guardian and the guardian’s sureties, both in the original bond and in any additional bond which may be taken, shall be liable for the proceeds in the same manner as for other property of the person with a disability. (b) In every case of the sale of the real estate of a person with a disability and in every case where the guardian’s liability is or may be increased, the Court of Chancery may require the guardian to give such additional security as may be deemed necessary, by obligation, with surety or sureties, in the same manner and form as original security.

Del. Code tit. 12, § 3971 Investment power of Court of Chancery; general requirements.

(a) The Court of Chancery shall have control of money paid into the Court to the credit of any minor who cannot be located, and may invest such money in bank deposits as the Court shall approve, and may change, renew, extend, call in or collect any such investment. (b) The investment shall be in the name of the minor or minors entitled to the money, either personally or by designation as children, legatees, heirs or representatives of another and the Court may, at any time, apportion and divide the same among them. (c) At such time as the minor for whom money is held or invested under this subchapter is located, the Court may direct the evidence of such investments to be delivered to the former minor, the guardian of the property of the minor, or in case of death of the minor, to the minor’s executors or administrators and may by order direct the bank to pay to the person entitled or to the person’s agent or representative the evidences of ownership of the money. Such order shall vest in such person full power over such investment or all unpaid interest which may have accrued thereon.

Del. Code tit. 12, § 3981 Office established; appointment [For application of this section, see 85 Del. Laws, c. 137, § 12].

(a) There is established an Office of the Public Guardian, with a Public Guardian who shall serve as follows: (1) The guardian of last resort for the citizens of Delaware who have been determined to lack capacity to make decisions regarding their persons, their property, or both. (2) The representative payee of last resort for Social Security benefits. (3) The VA fiduciary of last resort for U.S. Department of Veterans Affairs benefits. (b) The Public Guardian shall advocate and provide services under subsection (a) of this section, work with advocacy groups and state agencies to promote systemic reform and recommend changes in the law, procedure and policy necessary to enhance the provision of services for substituted and supported decision-making, and act as an informational resource for the public. The Public Guardian shall serve as Executive Director of the Delaware Guardianship Commission and promote the purposes of the Commission, and shall represent the Office of the Public Guardian in matters in which the appointment of the Public Guardian is sought. (c) To bring about these goals, the Public Guardian must be an attorney duly licensed to practice law in Delaware, selected by the Governor, and shall serve for a term of 6 years from the date of swearing in.

Del. Code tit. 12, § 3982 Definitions [For application of this section, see 85 Del. Laws, c. 137, § 12].

For the purposes of this chapter: (1) “Court” means the Court of Chancery or the court which has jurisdiction for the appointment of guardians for the person, or property, or both, pursuant to this chapter. (2) “Guardian” means a court-appointed guardian. (3) “Guardianship Commission” means the Delaware Guardianship Commission. (4) The term “last resort” includes any of the following: a. Circumstances in which there is no other suitable person willing or able to serve as an agent under a durable power of attorney, an agent under a power of attorney for health care, a default surrogate decision maker, guardian, representative payee, or VA fiduciary. b. Circumstances in which a person willing or able to serve, or already serving, as a validly appointed agent under a durable power of attorney, an agent appointed under a power of attorney for health care, a default surrogate decision maker, representative payee, VA fiduciary, or a guardian, is available but sufficient cause has been found by the court that the individual available or so acting is not suitable to serve and that the appointment of the Public Guardian is in the best interest of the person who is incapacitated. c. Exceptional circumstances have been found by the court to establish that appointment of the Public Guardian is in the best interest of the person who is incapacitated. (5) “Person who is incapacitated’' means a “person with a disability’' as that term is defined under § 3901(a)(2) of this title. (6) “Representative payee” means a person appointed by the Social Security Administration to receive Social Security or SSI benefits for an individual who cannot manage or direct the management of the individual’s Social Security or SSI benefits. (7) “VA fiduciary” means a person appointed by the U.S. Department of Veterans Affairs (VA) to receive VA benefits for an individual who is unable to manage the individual’s VA benefits.

Del. Code tit. 12, § 3983 Duties of the Public Guardian.

The Public Guardian: (1) Shall establish case acceptance priorities and other administrative policies and procedures in consultation with the Guardianship Commission. (2) Shall receive referrals and recommendations regarding individuals who may be in need of services under § 3981(a) of this title and independently evaluate the referral to make a determination as to the physical, social, and financial conditions of the individual, whether there are alternatives to public services under § 3981(a) of this title, and whether the individual is at risk of abuse, neglect, or exploitation. (3) After evaluation of the conditions of the individual and in consideration of the established case acceptance priorities, may do any of the following: a. Make a recommendation as to a suitable individual who is available and willing to serve as guardian or default surrogate decision maker or refer to an appropriate private, nonprofit, or other entity willing to serve as guardian, representative payee, or VA fiduciary. b. File a petition for its own appointment as guardian, or file for the appointment of any other individual as guardian where it is determined that the filing of a petition on behalf of another may avoid the need for public guardianship. c. Consent to serve as guardian where another entity or individual files a petition for the appointment of the Public Guardian. d. Consent to appointment as representative payee or VA fiduciary for an individual in an acute care setting or who is a client of the Department of Health and Social Services. (4) When appointed as guardian by court order, shall serve as guardian of last resort, either plenary or limited; temporary guardian; or successor guardian; of the person or property, or both, of persons who are determined to be incapacitated for reasons other than minority. The Public Guardian shall have the same powers and duties as a private guardian as set out by this chapter and as defined by the court upon appointment. (5) Shall acquire recognized certification as a guardian where available in a timely manner upon appointment and maintain certification while acting as Public Guardian, and promote and act in accordance with nationally recognized standards of guardianship and those developed in cooperation with the Delaware Guardianship Commission. (6) a. May offer advice and guidance, without court appointment as guardian, to persons who request assistance or to those on whose behalf such assistance is requested for the purpose of encouraging maximum self-reliance and independence and avoiding the need for appointment of a guardian. b. May take all necessary action, including programs of public education and legislative advocacy, to secure and ensure the legal, civil, and special rights of those determined by the court to be incapacitated. (7) Shall submit an annual report on the efforts of the Office that shall be provided to the Guardianship Commission and included in the annual report of the Guardianship Commission. (8) May coordinate volunteer legal representation for wards of the Office to assist with needed representation before administrative agencies and courts to pursue the legal rights and remedies of the ward and a volunteer legal community outreach program to assist the Office of the Public Guardian in educating the community about guardianship and alternatives to guardianship. (9) May apply for and accept grants, gifts and bequests of funds from other state, federal and interstate agencies, as well as private firms, individuals and foundations, for the purpose of carrying out the lawful responsibilities of the Office of the Public Guardian and the Guardianship Commission. The funds must be deposited with the State Treasurer in a restricted receipt account established to permit funds to be expended in accordance with the provision of the grant, gift, or bequest. (10) Shall take whatever actions are necessary to help the Guardianship Commission accomplish its goals.

Del. Code tit. 12, § 3984 Staff; budgeting; finance.

The Public Guardian may appoint subordinates and delegate the appointed authority to subordinates to assist in carrying out the purposes of this subchapter. Subordinates may include such nonprofit organizations as the Public Guardian shall deem to be qualified in carrying out the duties as a subordinate guardian. The Public Guardian shall prepare an annual fiscal budget for the operation of the Office of the Public Guardian. The General Assembly may annually appropriate such sums as it may deem necessary for the payment of the salary of the Public Guardian, the staff, and for the payment of actual expenses incurred by the Office of the Public Guardian. The Office of the Public Guardian shall be operated within limitation of the annual appropriation and any other funds appropriated by the General Assembly or designated for that purpose from the estate of the person with a disability by the court. Special funds may be used in accordance with approved programs, grants, and appropriations.

Del. Code tit. 12, § 3985 Court costs and allocation of costs.

In any proceeding for appointment of the Office of the Public Guardian, or in any proceeding involving the estate of a person with a disability for whom the Public Guardian has been appointed guardian of the person or of the property, the court may waive any court costs or filing fees. If the Public Guardian has been appointed guardian of the person or of the property, administrative costs and all costs incurred in the appointment procedure shall not be charged against the income or estate of the person. If at any time the court determines that the income or the estate of the person can support the payment of any part of these costs, the court may enter an order charging that part of the payment of cost against the income or estate.

Del. Code tit. 12, § 3986 Collection of guardianship fees

(a) The Public Guardian may collect fees for the provision of its services from the income or resources of any person for which it has been appointed guardian of the person or property or for whom it acts as representative payee. (b) A person receiving services from the Office of the Public Guardian whose financial resources are deemed sufficient, pursuant to standards to be established by the Guardianship Commission and to be approved by the Court, shall be required to pay compensation for services related to guardianship or representative payee duties in accordance with such established standards. The Court may, in its discretion, alter or amend any financial obligation imposed under this section. (c) Fees collected shall not go into the General Fund but shall be held in a special fund to be expended by the Office of the Public Guardian in furtherance of its purpose and to support the Guardianship Commission.

Del. Code tit. 12, § 3987 Indemnification from liability.

No attorney, director, investigator, social worker, or other person employed by, contracted by, or volunteering for the Office of the Public Guardian shall be subject to suit directly, derivatively, or by way of contribution or indemnification for any civil damages under the laws of Delaware resulting from any act or omission performed during or in connection with the discharge of his or her duties with the Office within the scope of his or her appointment or employment, unless the act or omission was done with gross or wanton negligence, or maliciously, or in bad faith.

Del. Code tit. 12, § 3988 Bond.

The Public Guardian shall post bond as required by the court upon the appointment of the office. The Office of the Public Guardian shall apply for and maintain bond sufficient to insure the assets managed by the office.

Del. Code tit. 12, § 3991 The Guardianship Commission.

(a) The Delaware Guardianship Commission is hereby established and shall be known as the “Guardianship Commission.” The Commission shall consist of 13 members and shall be staffed by the Office of the Public Guardian. The Guardianship Commission shall be comprised of the following: (1) One member from the Court of Chancery, designated by the Chancellor. (2) A representative from the Department of Justice, designated by the Attorney General. (3) The Director of the Guardianship Monitoring Program, or the Director’s designee. (4) One member of the House of Representatives, designated by the Speaker of the House. (5) One member of the Senate, designated by the President Pro Tempore of the Senate. (6) The Director of the Division of Services for Aging and Adults with Physical Disabilities, or the Director’s designee. (7) The Director of the Division of Substance Abuse and Mental Health, or the Director’s designee. (8) The Director of the Division of Developmental Disabilities Services, or the Director’s designee. (9) The Secretary of the Department of Health and Social Services, or the Secretary’s designee. (10) A representative from the Disability Community, designated by the Secretary of Health and Social Services. (11) A representative from the Senior Citizen Community, designated by the Secretary of Health and Social Services. (12) A representative from the hospital community, designated by the Delaware Healthcare Association. (13) The Chair of the Elder Law Section of the Delaware State Bar Association, or the Chair’s designee. (b) The Public Guardian shall serve as the Executive Director of the Commission to effectuate its purposes. The Public Guardian may, with the concurrence of the members, invite other individuals to participate in the Commission to advance its work.

Del. Code tit. 12, § 3992 Duties of the Commission.

The Commission shall advocate for the welfare of individuals who are incapacitated; shall work with advocacy groups and state agencies to promote systemic reform; recommend changes in the law, procedure and policy necessary to enhance the provision of guardianship services and the protection of those unable to protect themselves; and act as an informational resource for the public. To that end, the Commission shall meet on a quarterly basis and shall: (1) Act in an advisory capacity to the Office of the Public Guardian, providing assistance to the Public Guardian in establishing administrative policies and procedures in the Office of the Public Guardian, and assistance in developing case acceptance priorities for the Office of the Public Guardian; (2) Examine and evaluate the policies, procedures and effectiveness of the guardianship system, and make recommendations for changes therein, including establishing statewide standards and regulation of public and private guardianships; (3) Conduct an annual statewide needs assessment relating to the number of individuals currently and predicted to be in need of a decision maker due to incapacity, the resources available or needed to meet that need, and to the processes utilized to meet the need; (4) Advocate for legislation and make legislative recommendations to the Governor and the General Assembly; (5) Develop public and professional education programs on issues relating to guardianship, alternatives to guardianship, and concerns relating to the abuse, neglect, and exploitation of individuals who are incapacitated; and (6) Provide an annual summary of the work and recommendations of the Guardianship Commission, including the work of the Office of the Public Guardian to the Governor, the General Assembly, and the court.

Del. Code tit. 12, § 3993 Compensation.

Members of the Commission shall serve without compensation; however, they may be reimbursed, upon request, for reasonable and necessary expenses incident to their duties as members of the Commission to the extent funds are available through the Office of the Public Guardian. Members may be removed at the discretion of their appointing authority.
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title12/c039/sc01/index.htmlFetched: 10/4/2026

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