Probate Code
Each state’s laws set out detailed procedures which must be followed to have a guardian or conservator appointed. Although details vary, typically the process requires notice to the proposed ward and other interested parties, evaluation of the proposed ward and evidence supporting the request, a hearing, and a decision by a jury or judge.
Initiating a Proceeding – Filing a Petition:
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 another 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.
Notice of Hearing:
It is necessary to provide notice to the disabled person of the guardianship proceeding. 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 of age or older if he or she consents in writing to the Petition and waives notice.
Adjudication and Disposition:
After determining at a hearing 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 will 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.