How Guardianship Works in Delaware for Children & Families

Updated

Many major companies incorporate in Delaware. Such companies as Amazon, Apple, and Uber are Delaware corporations. These companies are incorporated in Delaware to take advantage of favorable Delaware corporate laws. It is not only big companies that seek to apply Delaware law. Individuals must also apply Delaware law to their personal affairs in certain situations.

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One such situation is guardianship, which is when a child or disabled adult needs someone to take care of their person or property. This article discusses how guardianship works in Delaware for children and families. 

What Types of Guardianship Exist in Delaware?

Delaware has many different types of guardianship; the two big ones are "guardianship of the person" and "guardianship of the property."

Under the first type, a guardian takes care of another individual's personal and daily needs. Their responsibilities include:

  • Determining where the person lives
  • Providing for their care and comfort, including food, clothing, shelter, and social or family connections
  • Obtaining services to achieve the person's best possible quality of life
  • Authorizing or refusing medical treatment for the person
  • Monitoring the need for continued guardianship

Under "guardianship of property," a guardian takes care of another person's property. Their responsibilities include:

  • Locating and controlling the person's assets and income
  • Taking inventory of the person's assets and sources of income
  • Dividing any assets they own jointly
  • Protecting and ensuring the assets and income are used for the person's benefit
  • Filing required federal and state government documents, such as tax returns, and applying for available government benefits, such as Medicare, Medicaid, or Veterans Affairs benefits
  • Filing regular accountings of receipts and expenditures with the applicable court

Under Delaware law, the same person can serve as guardian of person and property.

Who Are the Default Guardians for Children, Older Adults, or Adults With Special Needs in Delaware?

In Delaware, a parent may name a guardian for their under-18 child in their will. This person can be the default guardian of both person and property. Under Delaware law, the Court of Chancery can appoint this person as guardian if there is no reason not to. 

If the parent's will did not name a guardian, or if there is a reason not to appoint a guardian and the child is between 14 and 18 years old, the child may choose a guardian.

If the child doesn't choose a guardian, but the court determines there is still a need for one, the court may appoint a guardian according to its discretion.   

What Forms Do You Need to File for Guardianship in Delaware?

The following are the principal forms you may need to file in Delaware:

  • Petition to Appoint a Guardian
  • Physician's Affidavit
  • Personal Information Sheet
  • Affidavit of Proposed Guardian's History
  • Proposed Preliminary Order
  • Proposed Final Order
  • Waivers of Notice and Consent

How Do You File for Guardianship in Delaware?

You generally can file for guardianship of a child or disabled adult with a petition in the Court of Chancery. The Court of Chancery will then schedule a hearing and ultimately issue a decision on the petition. 

You can also file for guardianship of a child in the Family Court of the county where either one parent resides, the child lives, or the organization that cares for the child is located.

Any adult person may petition the Family Court for a guardianship order regarding a child. After a hearing on the petition, the Family Court issues a decision on the petition for guardianship within 30 days.

If the Court finds a person in imminent physical or economic danger, it can appoint an interim guardian for up to 30 days.

How Do You Assign a Guardian for a Minor Child in Delaware?

Guardianship in Delaware is a judicial and litigation process. A judge ultimately assigns guardians. As described above, even if you name a guardian for your child in your will, the court can decline this nomination if it finds good reason to do so. 

How Guardianship Works for Children

In Delaware, you can petition for permanent guardianship or standby guardianship of a minor child.

Permanent guardianships for children

"Permanent guardianship" is supposed to create a permanent and self-sustaining family relationship between an under-18 child and their guardian without completely severing ties with the biological parents.

A relative, foster parent, or guardian may serve as a child's permanent guardian.

The Family Court grants a permanent guardianship if it finds clear and convincing evidence that:

  • A parent has lost their parental rights because of abandonment, criminal conviction, or abuse.
  • Arranging an adoption is not possible or appropriate.
  • The permanent guardian is emotionally, mentally, physically, and financially suitable, they are already a foster parent or guardian who has been caring for the child for at least six months, or they are a relative who has committed permanent guardianship. 
  • The child consents to guardianship, or, if the child disagrees, there is just cause why the court should still appoint a guardian.
  • If the permanent guardian is a foster parent, the child is at least 12 years old, the permanent guardian is one of the child's siblings, or if the child receives substantial governmental benefits for a severe physical and/or mental disability.

Standby guardianships for children

"Standby guardianship" is supposed to be a more efficient way to establish guardianship. It enables a parent, custodian, or guardian suffering from a chronic condition or a terminal illness to make plans for their child's permanent future care without losing their parental rights.

Any parent, custodian, or guardian may petition the Family Court for a standby guardianship. The Family Court will grant a standby guardianship if:

  1. There is a significant risk that the parent, legal custodian, or guardian will die, become incapacitated, or become debilitated due to a chronic condition or terminal illness within two years of filing the petition. 
  2. They find there is a significant risk that the child will be abused or neglected in the care of another parent, if said other parent is deceased, or had their custody of the child taken away.

How Guardianship Works for Older Adults

In Delaware, you can petition for guardianship of an adult if the adult is a person with a disability. 

The term "person with a disability" includes anyone who cannot properly manage or care for themselves or their property because of mental or physical incapacity. They may risk losing their property or falling victim to scammers or abuse. 

How Guardianship Works for Adults With Developmental Disabilities or Special Needs

Under Delaware law, people diagnosed with developmental disabilities have a right to a qualified guardian when required to protect their well-being and interests.

Frequently Asked Questions: Guardianship in Delaware

The following are a few of the frequently asked questions concerning guardianship in Delaware:

How long is temporary guardianship in Delaware?

As described above, an interim guardianship in Delaware can last up to 30 days.  

What's the difference between guardianship, conservatorship, and custody in Delaware?

In some states, a "conservatorship" is a type of guardianship. However, the term conservatorship is not used in Delaware.

"Custody" differs from guardianship in Delaware; "custody" generally only relates to minor children and personal care issues. "Guardianship" can apply to adults and financial matters.

Can you get guardianship without going to court in Delaware?

You have to go to court to get guardianship in Delaware.  

However, some alternatives can provide many benefits of guardianship without going to court. These include:

  • Health Care Surrogate or Advance Health Care Directive: These documents function as a health care power of attorney. You authorize a person to make health care decisions on your behalf if you become disabled. You can also name others to make health care decisions for you if your first choice cannot serve.
  • Durable Power of Attorney: This document functions as a property power of attorney. You authorize a person to make property decisions on your behalf if you become disabled.
  • Joint bank account: Having a joint bank account with a trusted person who can access it if you become disabled means you can provide a source of funds for your care after your disability.
  • Living Trust: A Living Trust can name a person to manage the assets if you are disabled.      

Without court, each of these alternatives to guardianship can result in avoidance of guardianship litigation costs and time delays. 

Disability Planning is Important - Both Outside of and Within Guardianship

Discussing these alternatives to guardianship shows the importance of planning for disability outside of guardianship. 

If you pursue a guardianship proceeding, planning for disability is essential. You can designate a default guardian for your child under your will and a standby guardian.

It is not pleasant to think about disability, but by engaging in disability planning outside and within guardianship, you and your family can benefit from better-intended disability results. 

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