Delaware: Adult Guardianship and Conservatorship Petition Requirements
The short answer
Delaware uses one Court of Chancery petition to seek a guardian of the person, a guardian of the property, or both; Chapter 39A's word “conservator” means a guardian of the property, not a separate Delaware appointment track. The verified petition must describe the adult, interested parties, agency and estate documents, finances, functional inability and resulting danger, attach a recent physician affidavit and proposed orders, and provide at least 10 days' notice unless the court orders otherwise; the adult is entitled to counsel.
Ask Ezel about your situation
This is the general rule in Delaware. Ezel applies current Delaware law to your specific facts and answers with citations to the statutes.
| Proceeding and state terminology | One Chancery petition may seek guardian of person, property, or both; “conservator” means guardian of property (12 Del. C. §§ 3901, 39A-101). |
|---|---|
| Who may file and where | Petitioner states the relationship or, if unrelated, the nature of the interest in the adult's health and wellbeing; file in the Court of Chancery; no county-venue rule appears in § 3901 or Rule 175. |
| What the petition must contain | Verified under penalty of perjury; adult and residence/institution; interested parties; agency and estate documents; finances; incapacity and danger; special authority; proposed orders; physician and proposed-guardian affidavits (Del. Ch. Ct. R. 175). |
| Proof required for appointment | Mental or physical incapacity must cause inability to manage person/property plus the specified danger; § 3901 and Rule 177 name no burden, and unopposed relief may be granted without a further showing. |
| Alternatives the court must address | No express appointment prerequisite in § 3901 or Rule 175; current Form CM1 calls guardianship a last resort and asks what decision areas the adult can continue to handle. |
| Notice, service, and hearing timing | At least 10 days' notice to parties, recent Delaware counsel, and interested parties by certified mail or tracked courier unless the court orders otherwise; attorney ad litem gives the adult actual notice (Rules 176-177). |
| Counsel and hearing rights | Adult is entitled to counsel (§ 3901(c)); attorney ad litem may be appointed routinely; court may require the adult to appear; objections trigger evidence; no jury provision in Chapter 39 or Rules 175-177. |
| Medical evidence or court evaluator | Physician affidavit required; current packet requires an examination within 3 months; court may appoint an attorney ad litem and court representative to investigate and report (Rules 175-176; Form CM1). |
| Limits on the order | Person powers must be necessary; property power may be limited or asset-specific; interim order up to 30 days must enumerate full or limited powers and retained decisions (12 Del. C. §§ 3901(d), 3922-3923). |
Compare this rule across all 50 states + DC →
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).
Source links
Every statute quoted above, linked, with the date we checked it.
Get the answer for your situation
You just read how Delaware handles this in general. Ezel applies current Delaware law to your facts and answers your specific question, with citations.
Opens in Ezel Pro. Every answer cites the authority it relies on.