TITLE 12

Decedents' Estates and Fiduciary Relations

Fiduciary Relations

CHAPTER 39. GUARDIANSHIP

Subchapter I. Appointment, Bond and Tenure of Guardian


(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; or

(3) By reason of § 5703(1) or (2) of Title 16 is deemed legally incapable of giving informed consent to sterilization.

(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) 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. The guardian so appointed shall have all of the powers and duties granted to guardians in subchapter II of this chapter.

(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.

Code 1852, §§ 1959, 1960; 15 Del. Laws, c. 470, § 1; 19 Del. Laws, c. 257, § 1; 22 Del. Laws, c. 451, § 1; Code 1915, §§ 3914, 3915; Code 1935, §§ 4422, 4423; 43 Del. Laws, c. 228, § 1; 48 Del. Laws, c. 234, § 1; 12 Del. C. 1953, § 3901; 57 Del. Laws, c. 402, § 3; 69 Del. Laws, c. 109, § 2; 70 Del. Laws, c. 83, § 1; 70 Del Laws, c. 186, § 1; 72 Del. Laws, c. 117, § 1; 76 Del. Laws, c. 380, §§ 1, 2; 78 Del. Laws, c. 179, §§ 83-91; 79 Del. Laws, c. 226, § 1.;

(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.

Code 1852, §§ 1489-1491, 1959-1963; 19 Del. Laws, c. 257, § 1; 22 Del. Laws, c. 452, § 1; Code 1915, §§ 3089, 3914, 3916; 33 Del. Laws, c. 231, § 1; Code 1935, §§ 3579, 4422, 4422B, 4424; 48 Del. Laws, c. 222, § 1; 48 Del. Laws, c. 365, § 1; 12 Del. C. 1953, §§ 3902, 3914; 50 Del. Laws, c. 191, § 1; 51 Del. Laws, c. 179, § 1; 57 Del. Laws, c. 402, § 3; 59 Del. Laws, c. 579, §§ 1-8; 60 Del. Laws, c. 570, §§ 1-8; 63 Del. Laws, c. 89, § 1; 64 Del. Laws, c. 245, § 1; 64 Del. Laws, c. 351, § 1; 66 Del. Laws, c. 112; 69 Del. Laws, c. 109, § 2; 70 Del Laws, c. 186, § 1; 78 Del. Laws, c. 179, § 92.;

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.

Code 1852, §§ 1492-1494; Code 1915, § 3090; 30 Del. Laws, c. 202, § 1; Code 1935, § 3580; 43 Del. Laws, c. 208, § 1; 12 Del. C. 1953, § 3903; 57 Del. Laws, c. 402, § 3; 69 Del. Laws, c. 109, § 2; 78 Del. Laws, c. 179, § 93.;

(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 Rule 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.

Code 1852, §§ 1489-1491; Code 1915, § 3089; Code 1935, § 3579; 48 Del. Laws, c. 222, § 1; 12 Del. C. 1953, § 3912; 57 Del. Laws, c. 402, §§ 3, 5; 69 Del. Laws, c. 109, § 2; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 380, §§ 3, 4; 78 Del. Laws, c. 179, § 94.;

(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.

Code 1852, §§ 1964, 1965; Code 1915, § 3917; Code 1935, § 4425; 43 Del. Laws, c. 228, § 2; 12 Del. C. 1953, § 3907; 57 Del. Laws, c. 402, § 5; 69 Del. Laws, c. 109, § 2; 70 Del Laws, c. 186, § 1; 78 Del. Laws, c. 179, § 95.;

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.

Code 1852, §§ 1966, 1967; Code 1915, § 3918; Code 1935, § 4426; 12 Del. C. 1953, § 3908; 57 Del. Laws, c. 402, § 3; 69 Del. Laws, c. 109, § 2; 70 Del Laws, c. 186, § 1.;

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.

Code 1852, § 1969; Code 1915, § 3920; Code 1935, § 4428; 12 Del. C. 1953, § 3909; 57 Del. Laws, c. 402, § 3; 69 Del. Laws, c. 109, § 2; 70 Del Laws, c. 186, § 1.;

(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.

Code 1852, § 1968; 22 Del. Laws, c. 451, § 2; Code 1915, § 3919; Code 1935, § 4427; 12 Del. C. 1953, § 3910; 57 Del. Laws, c. 402, § 3; 69 Del. Laws, c. 109, § 2; 78 Del. Laws, c. 179, §§ 96, 97.;

(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 the death of the person with a disability or until terminated by the Court of Chancery upon application of the guardian, the person with a disability, or any other interested party.

Code 1852, §§ 1959, 1960; 19 Del. Laws, c. 257, § 1; 22 Del. Laws, c. 451, § 1; Code 1915, § 3914; Code 1935, § 4422; 12 Del. C. 1953, § 3911; 58 Del. Laws, c. 511, § 67; 64 Del. Laws, c. 185, § 1; 65 Del. Laws, c. 337, § 1; 69 Del. Laws, c. 109, § 2; 78 Del. Laws, c. 179, §§ 98, 99.;

(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.

Code 1852, §§ 1970, 1986, 1987; Code 1915, §§ 3921, 3933; Code 1935, §§ 4429, 4440; 12 Del. C. 1953, § 3913; 57 Del. Laws, c. 402, § 3; 69 Del. Laws, c. 109, § 2; 70 Del Laws, c. 186, § 1.;

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