TITLE 12

Decedents' Estates and Fiduciary Relations

Fiduciary Relations

CHAPTER 39. GUARDIANSHIP

Subchapter II. Powers and Duties of Guardian


(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property not described therein, except property received from the executor to be paid by a trustee pursuant to § 3525 [repealed] of this title, the guardian shall file a verified supplemental inventory describing such property within 30 days after acquiring or discovering such property.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.

Code 1852, §§ 1492-1494; Code 1915, § 3090; 30 Del. Laws, c. 202, § 1; Code 1935, § 80; 43 Del. Laws, c. 208, § 1; 12 Del. C. 1953, § 3921; 56 Del. Laws, c. 321; 57 Del. Laws, c. 402, § 3; 69 Del. Laws, c. 109, § 2; 70 Del Laws, c. 186, § 1; 78 Del. Laws, c. 179, § 100.;

(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.

69 Del. Laws, c. 109, § 2; 70 Del Laws, c. 186, § 1; 78 Del. Laws, c. 40, § 1; 79 Del. Laws, c. 371, § 11.;

(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; and

(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.

(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.

Code 1852, §§ 1499, 1500, 1976, 1977; Code 1915, §§ 3099, 3100, 3925; Code 1935, §§ 3589, 3590, 4433; 45 Del. Laws, c. 243, § 1; 12 Del. C. 1953, §§ 3923, 3927, 3928; 56 Del. Laws, c. 320; 57 Del. Laws, c. 402, § 3; 69 Del. Laws, c. 109, § 2; 70 Del Laws, c. 186, § 1; 78 Del. Laws, c. 179, § 101.;

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.

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, § 3922; 69 Del. Laws, c. 109, § 2; 70 Del Laws, c. 186, § 1; 78 Del. Laws, c. 179, §§ 102, 103.;

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.

20 Del. Laws, c. 115, § 5; Code 1915, § 3098; Code 1935, § 3588; 12 Del. C. 1953, § 3926; 57 Del. Laws, c. 402, § 5; 69 Del. Laws, c. 109, § 2; 78 Del. Laws, c. 179, § 104.;

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.

69 Del. Laws, c. 109, § 2; 78 Del. Laws, c. 179, §§ 105, 106.;

(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 (c) 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.

76 Del. Laws, c. 90, § 11; 78 Del. Laws, c. 179, § 107.;

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