Adult Guardianship and Conservatorship Petition Requirements in Delaware

At a glance

Requirements one by one

Proceeding and state terminology

Delaware's Chapter 39 proceeding can appoint a guardian of the person, a guardian of the property, or both. Under § 3903, one person may hold both roles or different people to divide personal care from property management. Section 39A-101 uses “guardian” for the person role and “conservator” for the property role when applying the interstate jurisdiction act; it does not create a second Delaware conservatorship petition.

Who may file and where

Rule 175 requires a related petitioner to state the relationship. An unrelated petitioner must state the nature of the petitioner's interest in the adult's health and wellbeing. The petition is filed in the Court of Chancery. Neither § 3901 nor Rule 175 assigns an ordinary case to a particular county.

What the petition must contain

Current Rule 175 requires verification under penalty of perjury. The filing identifies the adult's age, marital status, domicile, current residence and any institutional placement; interested family members, agents, fiduciaries, caregivers and recent Delaware counsel; agency and estate-planning documents; assets, income, debts and liabilities; the functional inability and resulting danger; and any special property authority requested. It also includes proposed preliminary and final orders, the physician affidavit, proposed-guardian history and personal-information affidavits, and location-effort affidavits when an interested party's contact information is missing.

Proof required for appointment

Under § 3901(a)(2), the statute requires a causal chain. Mental or physical incapacity must make the adult unable properly to manage or care for the person, property, or both; that inability must then create the specified danger of property loss or exploitation, substantial self-endangerment, abuse, or exploitation.

Neither § 3901 nor current Rule 177 labels the ordinary burden as clear and convincing or preponderance. Rule 177 instead distinguishes the evidence process: if someone objects, the court receives evidence; if no one at the hearing objects, the court may grant relief without requiring a further showing. Filing alone still does not establish the statutory incapacity and danger elements.

Alternatives the court must address

Chapter 39 and Rule 175 do not make failure of every less restrictive alternative an express appointment prerequisite. The current Form CM1 packet, however, says guardianship should be filed only as a last resort and points to advance health-care directives, durable powers of attorney, surrogate decision-making and supported decision-making. Its petition also asks whether there are decision areas the adult can continue to handle. Those form prompts should not be rewritten as a statutory finding that § 3901 does not contain.

Notice, service, and hearing timing

Under Rule 177, the party obtaining a hearing gives at least 10 days' notice of the date, time, place and purpose unless the court orders otherwise. Notice goes to the parties, any Delaware attorney who represented the adult within the past two years, and all interested parties unless notice to a particular person would harm the adult. The permitted methods are registered or certified mail, return receipt requested, or a courier with real-time delivery tracking.

An attorney ad litem ordinarily gives the adult actual hearing notice at least 10 days in advance under Rule 176. Under § 3901(b)-(c), the court sets the hearing after filing and provides reasonable notice through its rules.

Counsel and hearing rights

Section 3901(c) entitles every adult facing a person or property guardianship to representation by counsel. Rule 176 allows appointment of a Delaware lawyer on motion, on the court's initiative, or routinely at filing. The attorney ad litem investigates, explains the case and rights, and pursues the adult's best interests. If that view conflicts with the adult's wishes, the lawyer reports the conflict and the court may appoint a second attorney to pursue those wishes.

Rule 177 lets the court require the adult's appearance and requires an evidentiary response to an objection. Chapter 39 and Rules 175 through 177 do not state a jury-trial procedure for the appointment petition.

Medical evidence or court evaluator

Rule 175 requires the court's current physician-affidavit form with the petition. Form CM1 states that the physician must have seen the adult within the previous three months and that the detailed affidavit must be notarized. The medical filing supports the case, but the court still applies § 3901's functional inability and resulting-danger standard.

Rule 176 also permits a court representative to investigate the petition and pertinent facts. The attorney ad litem independently has an investigation duty, and the court may direct either appointee to file a report and recommendation.

Limits on the order

For person authority, § 3922 directs the court to grant powers that are necessary to protect, manage and care for the adult and preserves the adult's involuntary-commitment rights. For property authority, § 3923 lets the court limit powers and transfer either the whole estate or only specified assets. Section 3921 likewise makes the guardian's otherwise broad role subject to what the court directs. Delaware does not state that a limited order is the automatic default, so the final order's actual powers matter.

Interim relief is separate under § 3901(d). Imminent serious physical harm or substantial economic loss or expense can support an appointment without prior notice and hearing for up to 30 days, but a hearing must occur within that period. The interim order must enumerate either all Chapter 39 powers or limited powers, including any retained decision areas and the specific limited purpose.

What trips people up

“Conservator” does not identify a parallel Delaware merits track. Chapter 39A uses that word for a guardian of property when addressing interstate jurisdiction and transfers. The ordinary Delaware filing under Chapter 39 and Rule 175 may request person authority, property authority, or both.

The current court rules changed in 2025. Rule 175's petition checklist and Rules 176-177's attorney, hearing and notice provisions were rewritten effective September 30, 2025. The June 2026 Form CM1 packet matches that newer framework; older online summaries of the prior rules may list a narrower set of interested parties or an older attorney-ad-litem structure.

Common questions

Must the petition attach a physician affidavit?

Yes. Rule 175 requires the court's current physician-affidavit form, and Form CM1 requires the physician to have seen the adult within the last three months.

Is the adult guaranteed a lawyer?

The adult is entitled to representation by counsel under § 3901(c). Rule 176 permits the court to appoint an attorney ad litem routinely when the petition is filed, and the current Form CM1 packet tells petitioners that the court will appoint one.

Does Delaware require the petitioner to prove that every alternative failed?

Not as an express element in § 3901 or Rule 175. The current court packet still calls guardianship a last resort, identifies common alternatives, and asks which decisions the adult can retain.

Can an uncontested petition be granted without live evidence?

Rule 177 says the court may grant relief without a further showing if no one at the hearing objects. That procedural option does not change the incapacity and danger standard in § 3901.

Statutes and sources

• 12 Del. C. § 39A-101: Delaware's guardian and conservator terminology. Official text (accessed 2026-07-19).
• 12 Del. C. § 3901: appointment standard, counsel, hearing, notice and interim boundary. Official text (accessed 2026-07-19).
• 12 Del. C. § 3903: one or separate person and property guardians. Official text (accessed 2026-07-19).
• 12 Del. C. § 3921: general appointment scope subject to court direction. Official text (accessed 2026-07-19).
• 12 Del. C. § 3922: necessary person powers and retained commitment rights. Official text (accessed 2026-07-19).
• 12 Del. C. § 3923: limited property powers and specified-asset control. Official text (accessed 2026-07-19).
• Delaware Court of Chancery Rule 175: current verified petition and exhibits. Official rule amendment (accessed 2026-07-19).
• Delaware Court of Chancery Rule 176: attorney ad litem and court representative. Official rule amendment (accessed 2026-07-19).
• Delaware Court of Chancery Rule 177: hearing, notice and proof of service. Official rule amendment (accessed 2026-07-19).
• Delaware Court of Chancery Form CM1, revised June 2026: current filing packet and physician form requirements. Official form (accessed 2026-07-19).