Adult Guardianship / Conservatorship Petition Packet

DELAWARE ADULT GUARDIANSHIP PETITION PACKET (GUARDIAN OF THE PERSON AND/OR PROPERTY)

PART 0 — PRE-PETITION CHECKLIST AND TRIAGE

0.1 Type of Guardianship Sought (12 Del. C. § 3901(a))

☐ Guardian of the Person — manages care of the person of an adult with a disability
☐ Guardian of the Property — manages property/financial affairs (the "conservator" function)
☐ Both Person and Property
☐ Limited Guardianship (§ 3901(d)(2)b.) — specify limited powers / areas retained
☐ Interim Guardian (§ 3901(d)(1)) — imminent serious physical harm or substantial economic loss; up to 30 days

0.2 Less Restrictive Alternatives Reviewed

☐ Durable Personal Power of Attorney (12 Del. C. ch. 49A) reviewed and found insufficient / not in force / abused
☐ Advance Health-Care Directive (16 Del. C. ch. 25) reviewed and found insufficient
☐ Delaware Medical Orders for Scope of Treatment (DMOST) considered
☐ Representative Payee (SSA / VA) considered
☐ Trust / supplemental needs planning considered
☐ Supported decision-making considered
☐ Capacity to execute new planning documents assessed — INSUFFICIENT

0.3 Pre-Filing Diligence

☐ Petition to be filed in the Court of Chancery for the county of the person's residence
☐ Physician's affidavit / certification of disability obtained
☐ Court will set hearing and provide reasonable notice (§ 3901(c))
☐ Adult subject is entitled to representation by counsel (§ 3901(c)); attorney ad litem may be appointed
☐ Bond for guardian of property estimated or waiver justification prepared
☐ Filing fee or fee waiver prepared

PART 1 — PETITION FOR APPOINTMENT OF GUARDIAN

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

1. PETITIONER

Petitioner is [FULL NAME OF PETITIONER], of [________________________________].

Relationship to / interest in the person with an alleged disability: ☐ Spouse ☐ Adult child ☐ Parent ☐ Adult sibling ☐ Other relative ☐ Interested person ☐ Office of the Public Guardian ☐ Other [____________________].

2. PERSON WITH AN ALLEGED DISABILITY

3. RELIEF REQUESTED

Petitioner requests that the Court appoint:

☐ [NAME] as Guardian of the PERSON of the person with a disability
☐ [NAME] as Guardian of the PROPERTY of the person with a disability
☐ Both
☐ Limited Guardian (§ 3901(d)(2)b.) with the powers/limitations stated in Part 1.6
☐ Interim Guardian (§ 3901(d)(1)) — facts of imminent harm stated in Part 1.7

4. GROUNDS — PERSON WITH A DISABILITY (12 Del. C. § 3901(a)(2))

The person is, by reason of mental or physical incapacity, unable properly to manage or care for their own ☐ person ☐ property ☐ both, and in consequence is in danger of one or more of the following:

☐ Dissipating or losing property
☐ Becoming the victim of designing persons
☐ (Guardian of person sought) Substantially endangering own health
☐ (Guardian of person sought) Becoming subject to abuse by other persons or the victim of designing persons

Facts supporting the disability and danger:

[________________________________]
[________________________________]
[________________________________]

5. CHARACTER AND VALUE OF PROPERTY (if guardian of property sought)

6. LIMITED GUARDIANSHIP DETAIL (§ 3901(d)(2)b.) — if applicable

7. INTERIM GUARDIAN (§ 3901(d)(1)) — if requested

Facts showing the person is in danger of incurring imminent serious physical harm or substantial economic loss or expense (hearing to be held within 30 days): [________________________________]

8. LESS RESTRICTIVE ALTERNATIVES

VERIFICATION

I, [PETITIONER NAME], declare under penalty of perjury under the laws of the State of Delaware that the foregoing is true and correct to the best of my knowledge and belief.

Executed on [__/__/____] at [____________________], Delaware.

[____________________________]
Petitioner

PART 2 — INTERESTED PERSONS / NEXT OF KIN

List the spouse, adult children, parents, siblings, and other interested persons entitled to notice under the Court of Chancery rules:

PART 3 — NOTICE OF HEARING (12 Del. C. § 3901(c))

NOTICE OF FILING OF GUARDIANSHIP PETITION AND HEARING

NOTICE IS GIVEN that a Petition for the Appointment of a Guardian of the Person and/or Property of [NAME], a person with an alleged disability, has been filed in the Court of Chancery of the State of Delaware, and the Court has fixed a hearing on:

The person with an alleged disability is entitled to representation by counsel. You may appear and be heard.

PART 4 — STATEMENT OF RIGHTS OF THE PERSON WITH AN ALLEGED DISABILITY (12 Del. C. § 3901(c))

TO: [NAME] — A petition has been filed asking the Court of Chancery to appoint a guardian of your person and/or property. You have the following rights:

• The right to representation by counsel; the Court may appoint an attorney ad litem to represent you.
• The right to receive reasonable notice of the petition and hearing.
• The right to attend the hearing and to oppose the petition.
• The right to present evidence and to cross-examine witnesses, including any physician or evaluator.
• The right to have the Court consider less restrictive alternatives and to grant only limited guardianship powers tailored to your needs (§ 3901(d)(2)b.).
• If a guardian is appointed, you may lose the right to make decisions about your person and/or property, as specified in the Court's order.

PART 5 — PHYSICIAN'S AFFIDAVIT / CERTIFICATION OF DISABILITY (Placeholder)

I affirm under penalty of perjury that the foregoing is true and correct.

Physician signature: [____________________________] Date: [__/__/____]

PART 6 — BOND (Guardian of Property)

☐ Bond requested in the amount of $[____________]
☐ Bond waived because [________________________________]
☐ Assets to be placed in a restricted account; receipts to be filed

PART 7 — PROPOSED ORDER

ORDER APPOINTING GUARDIAN

This matter came before the Court on the Petition for Appointment of a Guardian. Having considered the petition, the physician's affidavit, the report of the attorney ad litem (if any), the notice given, and the evidence, the Court FINDS:

1. ☐ Reasonable notice was given as required by 12 Del. C. § 3901(c).
2. ☐ The person is a "person with a disability" within the meaning of 12 Del. C. § 3901(a)(2).
3. ☐ Appointment of a guardian is necessary, and limited powers ☐ are ☐ are not sufficient.
4. ☐ The proposed guardian is suitable and willing to serve.

IT IS ORDERED:

• [NAME] is appointed ☐ Guardian of the Person ☐ Guardian of the Property ☐ Both of [NAME], a person with a disability.
• The guardianship is ☐ general ☐ limited; limited powers/areas retained: [________________________________]
• Guardian of property shall file bond of $[____________] or bond is waived; assets ☐ restricted.
• Guardian of property shall file an inventory and periodic accountings as required by the Court of Chancery rules.
• Letters of guardianship shall issue upon qualification.
• Review/report date: [__/__/____].

Dated: [__/__/____] [____________________________]
Judge / Magistrate, Court of Chancery

SOURCES AND REFERENCES

• 12 Del. C. § 3901 (Appointment of guardians for persons with disabilities) — https://delcode.delaware.gov/title12/c039/sc01/index.html
• 12 Del. C. ch. 39 (Guardianship); 12 Del. C. ch. 39A (Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act)
• Court of Chancery Rules 175–180 (guardianship petitions, attorney ad litem, procedure)
• Delaware Office of the Public Guardian
• Justia: https://law.justia.com/codes/delaware/title-12/chapter-39/subchapter-i/section-3901/

END OF PACKET