Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a licensed attorney to address your specific situation.
Detailed Answer
Under Delaware law, petitions for guardianship (personal care) and conservatorship (estate management) for an incapacitated adult proceed under Title 12, Chapter 39 of the Delaware Code (12 Del. C. § 3901 et seq.).
1. Determine Incapacity
Incapacity means an individual cannot manage personal or financial affairs due to mental or physical impairment. Start by obtaining medical records and a certificate from a qualified physician or psychologist stating the relative’s limitations (12 Del. C. § 3906).
2. File a Petition
File a written petition in the Delaware Court of Chancery. The petition must identify the proposed ward, describe the nature of the incapacity, and state the relief sought (guardianship, conservatorship, or both). Include supporting medical certification and any available financial and personal background information (12 Del. C. § 3903).
3. Provide Notice and Serve Interested Parties
You must notify the alleged incapacitated person and close family members or prior legal representatives. Serve them with a copy of the petition and notice of hearing at least 15 days before the hearing date (12 Del. C. § 3905).
4. Attend a Capacity Hearing
The Court holds a hearing to evaluate evidence of incapacity. The proposed ward has the right to attend, be represented by counsel, and present evidence. The court may appoint an independent examiner to assess capacity and report findings.
5. Court Appointment
If the Court determines incapacity, it issues letters appointing a guardian and/or conservator. The appointment order will define the scope of authority (health care decisions, living arrangements, financial control) and any limitations (12 Del. C. § 3909).
6. Comply with Bond and Reporting Requirements
Conservators typically must post a bond to safeguard assets. Guardians may also need a bond if ordered by the court. Both must file annual accounts and reports detailing care and financial transactions (12 Del. C. § 3929).
Helpful Hints
- Gather clear medical documentation early.
- Consult probate or elder law counsel for complex estates.
- Consider temporary guardianship in emergencies.
- Maintain organized financial records for reporting.
- Be prepared for potential family objections and mediation.