Probate Code
Each state’s laws enumerate certain duties and limitations for guardians and conservators. These laws tend to be lengthy and detailed. For a comprehensive understanding of them, including relevant exceptions and requirements, the statutes themselves should be reviewed. Additionally, state laws must be read in conjunction with the order of appointment of a guardian or conservator by the judge which may further limit the guardian’s powers and responsibilities.
In Delaware, a guardian of the person may exercise the same powers, rights and duties respecting the care, maintenance and treatment of the disabled person 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 disabled person 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:
- 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 disabled person, the guardian is entitled to custody of the disabled person and may establish the disabled person’s place of abode within or without Delaware. The guardian may not waive any right of the disabled person respecting involuntary commitment to any facility for the treatment of mental illness or deficiency.
- If entitled to custody of the disabled person, the guardian shall make provision for the care, comfort and maintenance of the disabled person and, if appropriate, arrange for the disabled person’s training and education. Without regard to custodial rights of the disabled person, the guardian shall take reasonable care of the disabled person’s clothing, furniture, vehicle and other personal effects in the immediate possession of the disabled person and commence guardianship of the property proceedings if other property of the disabled person is in need of protection.
- The guardian may give such consent or approval as may be necessary to enable the disabled person 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 disabled person, but shall take such action as the guardian objectively believes to be in the best interest of the disabled person.
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:
- 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;
- Receive additions to the estate;
- Invest and reinvest estate assets;
- Deposit estate funds in a bank, including a bank operated by the guardian of the property;
- 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;
- 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;
- Insure the assets of the estate against damage or loss and the guardian against liability with respect to third persons;
- Pay taxes, assessments, compensation of the guardian and other expenses incurred in the collection, care, administration and protection of the estate;
- Make payment for ordinary repairs to a dwelling owned by the person with a disability and to the furniture and appliances therein;
- Allocate items of income or expenses to either estate income or principal as provided by law;
- Prosecute, defend, compromise or settle actions, claims or proceedings in any jurisdiction for the protection of estate assets;
- Execute and deliver all instruments which will accomplish or facilitate the exercise of powers vested in the guardian;
- 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
- Exercise all rights and powers granted to a fiduciary under the Fiduciary Access to Digital Assets and Accounts Act.
Del. Code Ann. tit. 12, § 3922
Del. Code Ann. tit. 12, § 3923