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Delaware Guardianship and Conservatorship

When an adult can no longer manage their own care or finances, a Delaware court can appoint someone to decide for them. This guide explains the process, the alternatives to consider first, and the costs.

Based on 12 Del. C. § 3901 et seq. (Title 12, Chapter 39, Guardianship), with the interstate rules at Title 12, Chapter 39A and guardianship of the person of a child at 13 Del. C. § 2301 et seq.

By Settled Estate Editorial

What guardianship and conservatorship mean here

Delaware splits guardianship between two courts, and which court hears your case depends on who the guardianship is for. The Court of Chancery appoints guardians for adults with disabilities and for the property of minors under Title 12, Chapter 39. The Family Court appoints guardians of the person of a child under Title 13, Chapter 23. For an adult, the court does not ask only whether the person has a disability. It asks whether the disability leaves them unable to manage or care for their own person or property and, because of that, in danger of losing property, becoming the victim of designing persons, endangering their own health, or being abused. A diagnosis on its own is not enough. The petition goes to the Register in Chancery with a physician's affidavit, the court usually appoints an attorney ad litem to represent the person the case is about, and the Court of Chancery's own handbook puts an uncontested appointment at about 30 days.

Delaware does not use the word conservator for an adult guardianship. It uses guardian of the person for decisions about care, health and living arrangements, and guardian of the property for money and assets, and the court may appoint one person to both roles or split them between two people. The person the case is about is called the respondent before appointment and the protected person afterwards, and the statute calls them a person with a disability. The word conservator appears in Delaware guardianship law only in the interstate chapter, where it describes the equivalent officer appointed by another state. The clerk who receives a guardianship filing is the Register in Chancery, which is a different office from the county Register of Wills that handles probate.

Because guardianship removes legal rights, courts look first at the less-restrictive alternatives below.

Types of guardianship and conservatorship

Guardianship of the Person of an Adult (decisions about care and health)

The guardian gets the powers, rights and duties needed to protect, manage and care for the adult, and may exercise the same powers a parent has over an unemancipated minor child, including the right to approve or reject medical treatment. The guardian is entitled to custody of the person, may establish where they live inside or outside Delaware, must provide for their care, comfort and maintenance, and must take reasonable care of their clothing, furniture, vehicle and personal effects. The guardian may not waive the person's rights about involuntary commitment to a mental-health facility, and may not withhold consent to care on the basis of personal belief. A guardian of the person has no authority over money or assets unless a guardian of the property is also appointed.

12 Del. C. § 3922

Limited Guardianship of an Adult

Instead of granting everything, the court may grant limited powers based on what the adult actually needs. Where it does, the order may spell out the limits on the guardian's authority, the areas of decision-making the adult keeps for themselves, and the specific, limited purpose of the guardianship. This is the form Delaware's court says it prefers, and a guardian is expected to return to the court to narrow a guardianship when the person's situation improves.

12 Del. C. § 3901

Guardianship of the Property of an Adult (decisions about money and assets)

The guardian takes possession and management of the adult's property, files a verified inventory within 30 days, invests under Delaware's fiduciary investment rules, and may collect assets, receive additions, deposit funds, deal with securities, insure the estate, pay taxes and expenses, make ordinary repairs to a home, settle claims, and exercise fiduciary powers over digital assets, all without a further court order. The guardian may pay income or principal for the person's clothing, support, care, protection, welfare and rehabilitation without a court order, weighing the cost of care over the person's expected lifetime. Anything outside that list, including selling real estate, borrowing, prepaying burial expenses, or spending principal for another purpose, needs a separate petition.

12 Del. C. § 3923

More guardianship types11 additional arrangements courts use in specific situations, with statute cites

Plenary Guardianship of an Adult

A plenary, or full, guardianship gives the appointed guardian all the powers and duties allowed by Title 12, Chapter 39, limited only by what the law itself withholds. The Court of Chancery's handbook uses this label for the default form of the order and contrasts it with a limited guardianship. Even in a plenary guardianship the protected person keeps rights the court does not take, including the right to vote, and the court may still reserve a monthly sum the guardian has no authority over.

Del. Ct. Ch. Form CM150

Interim or Emergency Guardianship of an Adult

Where the petition shows the adult is in danger of imminent serious physical harm or substantial economic loss or expense, the court may appoint an interim guardian of the person or property without notice and without a hearing, for up to 30 days, and a hearing must then be held within those 30 days. The order must enumerate the guardian's powers, either all of subchapter II or a limited set. Where no Chancellor or Vice Chancellor is available, a Superior Court judge may make the appointment.

12 Del. C. § 3901

Separate Guardians of the Person and of the Property

Delaware lets the court appoint two or more people, one or more to care for the person and the other or others to hold and manage the property, or it may appoint a single guardian over both. Splitting the roles is common where the family member closest to the adult is not the person best placed to run the money. A guardian of the person who serves alongside a guardian of the property controls custody and care, may ask the guardian of the property to pay third parties or institutions for the adult's care, and is never required to spend their own money on the adult's support.

12 Del. C. § 3903

Limited Guardianship of a Minor's Property

Where a child is entitled to receive property or funds of more than $25,000, including costs and attorney fees, a petition must be filed to appoint a limited guardian of the child's property. The limited guardianship ends, and the guardian is released from the bond, once proof is filed that the funds went into an annuity or structured financial instrument that cannot pay out before the child reaches majority and cannot be encumbered, liquidated, sold or transferred before then. That proof is due within 60 days of the appointment order unless the court orders otherwise.

Del. Ct. Ch. R. 180

Plenary Guardianship of a Minor's Property

On a showing of good cause, a guardian of a child's property may be appointed for the whole term of the minority. The petition has to explain why plenary authority is necessary and why the guardian expects to need access to the funds while the child is still a minor. The guardian posts a bond, opens an account at a bank with a Delaware branch titled so that no withdrawal can be made without a court order, files proof of compliance within 30 days of the final order, and files a bank statement every year on January 15.

Del. Ct. Ch. R. 180

Guardianship of a Child (Family Court)

This is the everyday minor guardianship: a non-parent takes on the powers, rights and duties needed to protect, manage and care for a child, including custody, choice of residence, education, travel, medical treatment, the right to consent to marriage or enlistment, and representation in legal actions. The guardianship order includes a custody order, so the guardian has a parent's practical authority, but the guardian is not liable to third parties for the child's acts simply because of the relationship. No bond is required. Parental rights are not terminated: the parent keeps whatever visitation, contact and information the order allows, keeps the right to inherit from and through the child, and keeps primary responsibility for financial support.

13 Del. C. § 2340

Permanent Guardianship of a Child (Family Court)

Permanent guardianship is Delaware's route to a settled family for a child who cannot be adopted, and it is modeled on legal guardianship under the federal Adoption and Safe Families Act. The court grants it only on clear and convincing evidence of every element, including that a ground for terminating parental rights exists or the parent consents, that adoption is not possible or appropriate, and that the proposed permanent guardian is suitable, has committed to serve for the rest of the child's minority, understands the financial consequences, and has had the child placed with them for at least six months. A parent may not later petition to rescind it.

13 Del. C. § 2353

Standby Guardianship of a Child (Family Court)

A parent, custodian or guardian facing a progressive chronic condition or terminal illness can have a standby guardian appointed now whose authority switches on later, at a triggering event named in the order: the designator's death, or a written physician determination of their incapacity or debilitation, or earlier on the designator's written consent. The court must find a significant risk that the designator will die, become incapacitated or become debilitated within two years of the filing, certified by the attending physician. When the trigger occurs the standby guardian may act immediately and petitions for confirmation within 30 days. The designator may revoke it in writing at any time.

13 Del. C. § 2367

Public Guardianship (guardian of last resort)

Delaware runs a state Office of the Public Guardian that serves as guardian of last resort for adults who lack capacity and have nobody else able or willing to serve, and as representative payee of last resort for Social Security and fiduciary of last resort for Department of Veterans Affairs benefits. Last resort has a statutory meaning: either nobody suitable is willing or able, or someone is available but the court has found them unsuitable and found the Public Guardian to be in the person's best interest, or the court has found exceptional circumstances. The office may serve as plenary or limited guardian, temporary guardian, or successor guardian, of the person or property or both.

12 Del. C. § 3981; 12 Del. C. § 3982; 12 Del. C. § 3983

Fee-for-Service (Professional) Guardianship

Where no suitable family member exists but the estate can pay, the final order may appoint a court-approved business as a fee-for-service guardian of the person or property. Those guardians bill for time against a fee schedule filed with the court and incorporated into or referenced by the order, get paid only on application to the court with notice to interested parties, file a yearly accounting that shows the fees claimed, keep the protected person's money in a separate bank account, and post a bond in an amount the court fixes. The Court of Chancery publishes the current list of approved providers with each provider's own fee schedule.

Del. Ct. Ch. R. 131

Recognition of an Out-of-State Guardian

A guardian, conservator, committee or similar fiduciary appointed by a court of another jurisdiction may act in Delaware once they file a certificate of their appointment with the Register in Chancery in any Delaware county. They may then sell, buy or mortgage Delaware real estate, collect money and property located here and remove it, and care for the person of a nonresident brought into Delaware. To exercise powers beyond subchapter II they petition the Court of Chancery under Rule 178 and give whatever security the court orders. Delaware has also enacted the uniform interstate act, which supplies a transfer procedure both into and out of the state.

12 Del. C. § 3904

The Delaware guardianship court process

1Rule out the alternatives before you fileThe Court of Chancery's own handbook says becoming a guardian for an adult should be a last resort and should only be considered when other alternatives have failed or are no longer appropriate.
The Court of Chancery's own handbook says becoming a guardian for an adult should be a last resort and should only be considered when other alternatives have failed or are no longer appropriate. It names the alternatives directly: acting as a default surrogate decision maker, supported decision making, and having the person sign an advance health-care directive, an advance mental health-care directive, or a durable personal power of attorney naming an agent. Many people with a mental or physical disability can still understand and sign those documents, which keeps their rights intact and avoids the cost of a petition.
2Get the physician's affidavitThe petition must attach a physician's affidavit on the court's most recent form from its website, completed by a medical or osteopathic doctor authorized to practice medicine.
The petition must attach a physician's affidavit on the court's most recent form from its website, completed by a medical or osteopathic doctor authorized to practice medicine. The Court of Chancery's handbook states the currency requirement precisely: the doctor must have personally examined the respondent in the last three months, unless the court approves otherwise, and the affidavit must be notarized. It states the doctor's opinion that the respondent has a disability, names the condition or the medical event behind it, and says how the condition affects their ability to function, such as whether they can make medical decisions or manage their own money. The three-month examination window is why families usually arrange it just before filing rather than months ahead.
3File a verified petition with the Register in ChanceryThe petitioner verifies the petition under penalty of perjury and files it with the Register in Chancery for the county.
The petitioner verifies the petition under penalty of perjury and files it with the Register in Chancery for the county. It states who the petitioner is and their relationship or interest, the adult's name, age, marital status, domicile and current residence, any institution and the circumstances of admission, who is paying their expenses, any armed-forces service, any Delaware attorney who represented them in the past two years, every interested party, every power of attorney or advance directive and where it is kept, every will or trust and where it is kept, a listing of assets and their probable value, estimated income, obligations and liabilities, and a general allegation of inability to manage their person or property with the resulting danger. Where an interim guardian is sought it must also plead specific facts showing imminent serious physical harm or substantial economic loss.
4Attach the exhibits the rule requiresThe petition carries a form of preliminary order scheduling the hearing and providing for notice, a form of final order, the physician's affidavit, affidavits of the proposed guardian's history and personal information, affidavits describing efforts to locate any interested party whose contact information is missing, and, where an attorney filed it, an affidavit confirming the attorney explained a guardian's fiduciary duties to the proposed guardian.
The petition carries a form of preliminary order scheduling the hearing and providing for notice, a form of final order, the physician's affidavit, affidavits of the proposed guardian's history and personal information, affidavits describing efforts to locate any interested party whose contact information is missing, and, where an attorney filed it, an affidavit confirming the attorney explained a guardian's fiduciary duties to the proposed guardian. The form of final order has to include specific paragraphs, among them that a court order is needed to open a safe deposit box or to sell or encumber a vehicle or real property, that the guardian must pay expenses directly from the guardianship account rather than withdrawing the whole monthly allotment, and that the guardian must tell the court of the protected person's death within 10 days.
5The court appoints an attorney ad litemThe Court of Chancery may appoint a member of the Delaware Bar to represent the person the petition is about, on a party's motion, on its own motion, or routinely on the filing of a petition.
The Court of Chancery may appoint a member of the Delaware Bar to represent the person the petition is about, on a party's motion, on its own motion, or routinely on the filing of a petition. The attorney ad litem must pursue that person's best interests, investigate the allegations and the pertinent facts, explain the proceeding to them, inform them of their rights, give and receive notice on their behalf, and give them actual notice of any hearing at least 10 days in advance. Where the attorney ad litem's view of the person's best interests differs from what the person wants, the attorney must tell the court, and the court may appoint a second attorney to pursue the person's own wishes.
6Give notice of the hearingWhoever obtains a hearing notifies the other parties, any Delaware attorney who represented the person in the past two years, and all interested parties, by registered or certified mail with return receipt requested or by a courier with real-time delivery tracking, at least 10 days before the hearing date.
Whoever obtains a hearing notifies the other parties, any Delaware attorney who represented the person in the past two years, and all interested parties, by registered or certified mail with return receipt requested or by a courier with real-time delivery tracking, at least 10 days before the hearing date. The court may withhold notice from a particular interested party where notice would harm the person the case is about. Proof of timely service goes on the docket.
7Mediation, if the petition is opposedWhere the respondent, the attorney ad litem or any interested party opposes the guardianship or objects to the proposed guardian, the court may order the parties to mediation before a hearing.
Where the respondent, the attorney ad litem or any interested party opposes the guardianship or objects to the proposed guardian, the court may order the parties to mediation before a hearing. A mediation agreement can end with the petition withdrawn, the objections withdrawn, agreed limits written into the final order, or an allocation of fees and costs among the parties that the mediator reports to the court.
8The hearingThe court may hold a hearing on the petition and may require the person with an alleged disability to appear.
The court may hold a hearing on the petition and may require the person with an alleged disability to appear. It may take evidence or adjourn for cause, but where nobody at the hearing objects to the relief sought it may grant it without a further showing, and it may skip the hearing entirely where all interested parties consent, the petitioner has counsel, and it decides a hearing is unnecessary. The handbook notes that hearings are typically held by telephone and that an unrepresented petitioner will be taken through a guardian's duties at the hearing.
9Sign the bondEvery appointed guardian becomes bound, with surety, to the person with a disability in a penal sum the court fixes, unless the court dispenses with bond or surety, and no certificate of guardianship issues until the bond is filed.
Every appointed guardian becomes bound, with surety, to the person with a disability in a penal sum the court fixes, unless the court dispenses with bond or surety, and no certificate of guardianship issues until the bond is filed. The handbook puts the amount at roughly the value of the protected person's assets plus one year of their income, gives the guardian seven days from the hearing to sign it, and notes that surety is typically not required where the bond is set below $1 million. Where a public agency is the petitioner and the person's resources are too small to warrant the costs, the court may order that no bond is needed and waive all costs and fees.
10The final order and the certified copyOnce the bond is filed the Register in Chancery releases the final order and gives the guardian one certified copy without charge; duplicates carry a fee.
Once the bond is filed the Register in Chancery releases the final order and gives the guardian one certified copy without charge; duplicates carry a fee. The final order is what proves the guardian's authority, and without it medical providers and financial institutions may refuse to deal with the guardian at all. From the date of the decree appointing a guardian of the property, the protected person is under a disability to contract about the property in the guardianship.
11File the proof of compliance and the inventoryWhere the final order requires a guardianship bank account, the guardian files a Proof of Compliance within 30 days of the order, completed by an official at a bank with a Delaware branch.
Where the final order requires a guardianship bank account, the guardian files a Proof of Compliance within 30 days of the order, completed by an official at a bank with a Delaware branch. Where the order requires an inventory, that is due within 30 days too, and the statute independently requires a guardian of the property to file a verified inventory within 30 days of appointment listing the fair market value of everything the guardian knows of after diligent inquiry, plus a supplemental inventory within 30 days of finding or acquiring anything else. Where the actual value beats the value assumed when the bond was set, the court may order a new bond.
12File the annual update and medical statementEvery guardian of the person or of the property files a status report with the Register in Chancery each year, due no later than the first business day of the quarter in which the guardian was appointed, so a guardian appointed between January 1 and March 31 files every January 1, one appointed between April 1 and June 30 files every April 1, and so on.
Every guardian of the person or of the property files a status report with the Register in Chancery each year, due no later than the first business day of the quarter in which the guardian was appointed, so a guardian appointed between January 1 and March 31 files every January 1, one appointed between April 1 and June 30 files every April 1, and so on. The report gives the current mailing address of both the protected person and the guardian and a current medical statement from an approved practitioner on the person's medical status and whether the guardianship is still needed. The Register sends an email reminder about a month ahead if you give it an address, and the handbook warns that missing the deadline risks escalating fines, penalties and removal.
13Account for the moneyA guardian of the property must fully account for everything received; a guardian of the person has no duty to account unless the court orders one.
A guardian of the property must fully account for everything received; a guardian of the person has no duty to account unless the court orders one. The first account covers the year from appointment, and after that the court sets the frequency but may not require one more often than once in two years unless there is a special occasion. Accounts are filed with, adjusted by and settled by the Court of Chancery that made the appointment. The court may excuse accounts for cause or on the waiver of everyone who would take the estate, and where no account is required no inventory need be filed either. A guardian who fails to account when due is cited, and the court may compel the filing by attachment or imprisonment.
14Come back for anything outside the standing powersSelling real estate, borrowing money for the person's benefit, prepaying burial expenses, or spending principal for anything other than support, care, protection, welfare, clothing and rehabilitation all need a separate verified petition.
Selling real estate, borrowing money for the person's benefit, prepaying burial expenses, or spending principal for anything other than support, care, protection, welfare, clothing and rehabilitation all need a separate verified petition. The petition names the guardian, the appointment date, the bond amount and surety, summarizes the guardianship assets where property is involved, lists the interested parties entitled to notice, and asks for leave. Unless the court orders otherwise it is served on all interested parties and held at least 13 days for a response.
15Ending the guardianshipThe guardian, the protected person, or any interested party may petition to terminate, alleging a sufficient reason why the guardianship is no longer necessary, with notice to the guardian and the interested parties if a hearing is held.
The guardian, the protected person, or any interested party may petition to terminate, alleging a sufficient reason why the guardianship is no longer necessary, with notice to the guardian and the interested parties if a hearing is held. Where the court finds capacity has returned it orders termination, restores the person and the property, provides for the costs of the guardianship and requires a full accounting. Where it finds the guardianship is no longer necessary because other measures are available and in the person's best interest, it may close the matter administratively without prejudice on an affidavit naming the substitute decision-making method and the consent of whoever will use it. A guardianship whose only basis was minority ends automatically at 18, though the duty to account survives. On removal, resignation or termination the guardian renders a final accounting within 30 days unless the court orders otherwise.

How long it takes

The Court of Chancery's own handbook puts an uncontested adult guardianship at about 30 days from filing to appointment, and uses that figure as the benchmark an emergency petition has to beat: an interim guardian is for danger that cannot wait the time it would typically take to appoint a guardian in an uncontested case, about 30 days. Nothing in Title 12, Chapter 39 sets an outer deadline for the hearing, so a contested case, a case where an interested party cannot be located, or a case sent to mediation runs longer. The fixed dates that do bind are the notice period (at least 10 days before the hearing), the currency of the physician's affidavit (executed within the last three months), the bond (signed within seven days of the hearing), and the post-appointment filings (proof of compliance and inventory within 30 days of the final order). A Family Court guardianship of a child has a real statutory clock: the court must issue its decision and order within 45 days after the proceedings conclude, or within 45 days of the petition and social report being filed where no hearing is needed.

Uncontested adult appointment
About 30 days from filing, per the Court of Chancery's own Handbook for Guardians of Adults with Disabilities
Outer deadline for a hearing
None. Title 12, Chapter 39 sets no maximum, so a contested case or one where an interested party cannot be found runs longer
Physician affidavit currency
The examining doctor must have personally examined the respondent within the last 3 months, unless the court approves otherwise; the affidavit is on the court's current form, by a medical or osteopathic doctor authorized to practice medicine, and notarized
Notice before a hearing
At least 10 days, by registered or certified mail with return receipt requested or by a courier with real-time delivery tracking, unless the court orders otherwise
Attorney ad litem notice to the person
At least 10 days of actual notice of any hearing, unless the court directs otherwise
Interim or emergency guardian maximum
30 days, with a hearing held within those 30 days
Bond signed after appointment
Within 7 days of the hearing, and no certificate of guardianship issues until it is filed
Proof of compliance and inventory after the final order
Within 30 days of the date of the final order
Statutory inventory
Within 30 days after appointment, plus a supplemental inventory within 30 days of acquiring or discovering further property
Annual update and medical statement
Every year, no later than the first business day of the quarter in which the guardian was appointed
First guardian account
At the end of 1 year from appointment, then as the court requires but not more often than once in 2 years unless there is a special occasion
Notice of the protected persons death
Within 10 days
Final accounting after removal resignation or termination
Within 30 days, unless the court orders otherwise
Petition for powers not granted by subchapter II
Held at least 13 days after service on interested parties, unless the court orders otherwise
Objection window on a sale of real estate
20 days after the date of the notice, after which an objection is deemed waived
Return of sale of real estate
Within 30 days after the sale, or as the court directs
Successor petition after a guardians death
Within 60 days of the personal representative's appointment, if no other interested party has filed
Account for a guardian who died in office
Within 3 months of the grant of letters to the personal representative
Annuity proof in a minors limited property guardianship
Within 60 days of the order appointing the limited guardian, unless otherwise ordered
Bank statement in a minors plenary property guardianship
Every year on January 15
Attorney ad litem fee motion
Not later than 20 days after the court resolves the merits, with payment due within 30 days of the approving order
Family court decision on a guardianship of a child
Within 45 days after the proceedings conclude, or within 45 days of the petition and social report being filed where no hearing is needed
Family court social study and report
Within 4 months where the court orders one, subject to extra time the court finds reasonably required
Permanent guardianship social report
No later than 1 week before trial
Permanent guardianship order
Within 45 days of the final day of trial, or of the filing of the petition and social report in a consent case
Permanent guardianship placement requirement
The child must have been placed with the proposed permanent guardian for at least 6 months immediately before the petition, waivable for a relative on just cause
Standby guardian risk window
A significant risk that the designator will die, become incapacitated or become debilitated within 2 years of the filing, certified by the attending physician
Standby guardian confirmation petition
Within 30 days after the standby guardian assumes the duties
Appeal from a family court guardianship order
Within 30 days after the entry of the order, to the Delaware Supreme Court

Alternatives to consider before guardianship

Durable Personal Power of Attorney

The main way to keep money decisions out of court, and the only Delaware document that also carries weight if a guardianship is filed anyway. Under Title 12, Chapter 49A an adult names an agent to handle property and financial affairs, and the authority survives incapacity. If a court later appoints a guardian, the personal power of attorney terminates only to the extent the court gives the guardian the powers the agent held, the agent stays accountable to the guardian as well as to the principal for whatever authority they keep, and a guardian may revoke or amend the agent's powers only as far as the court allows. Most importantly, the agent shall, on their own request and absent cause to the contrary, be appointed the guardian in the Chapter 39 proceeding.

12 Del. C. § 49A-108

Advance Health-Care Directive and Power of Attorney for Health Care

An adult may create a power of attorney for health care appointing an agent to make health-care decisions, and may pair it with a health-care instruction in the same document. Delaware disqualifies certain agents by statute, including an owner, operator, employee or contractor of a nursing home or long-term care facility where the person lives or receives care unless they are family, a cohabitant or a cohabitant's descendant, anyone a court has found to pose a danger to the person's wellbeing, and anyone the person has a protection from abuse order or pending petition against. Once a guardian is appointed, the agent's health-care decision still prevails over the guardian's unless a court orders otherwise.

16 Del. C. § 2508

Health-Care Instruction, including a Nomination of Guardian

Separate from naming an agent, an adult may create a health-care instruction expressing preferences for future care: which professionals or institutions they want, how a decision should be made and communicated, who should and should not be consulted, a person to serve as guardian if one is ever appointed, and an individual to serve as default surrogate. The state's optional form carries a Nomination of Guardian part with plain-language warnings that filling it in does not mean you want or need a guardian and that the court is not guaranteed to appoint the person named. A professional given the instruction must document it and its date in the medical record.

16 Del. C. § 2507

Default Surrogate Decision Maker

Delaware supplies a decision maker automatically where an adult lacks capacity and has no agent and no guardian authorized to make health-care decisions, so many families never need to go to court for medical decisions at all. The statute ranks the classes: an adult the person identified outside a power of attorney, then a spouse or domestic partner (with exclusions for a filed or completed divorce or separation and for a year's desertion), then an adult child or parent, then a cohabitant, then an adult sibling, then an adult grandchild or grandparent, then an adult who has routinely assisted the person with supported decision making in the preceding six months, then an adult stepchild the person actively parented, then an adult who has shown special care and concern and knows the person's values.

16 Del. C. § 2512

Supported Decision-Making Agreement

Delaware's Supported Decision-Making Act lets an adult who does not need a substitute decision maker name supporters to help them gather and understand information, weigh options and communicate their own decisions, while keeping every legal right. A decision made or communicated with a supporter's help counts in law as the adult's own. The agreement is a witnessed writing containing the elements of the Department of Health and Social Services form, naming what the supporter may and may not help with, revocable at any time by either side, and it can extend to deciding whether to consent to care under the Health-Care Decisions Act.

16 Del. C. § 9405A

Named Supporters Who Can Get Records

One practical reason to sign a supported decision-making agreement rather than rely on informal help: a supporter may assist the adult in obtaining any information the adult is entitled to, including protected health information under HIPAA and educational records under FERPA, with a signed and dated specific consent, and must keep that information confidential and dispose of it properly. Supporters are also protected in law, and a person who in good faith honours or in good faith declines to honour an authorization in an agreement is shielded from civil and criminal liability and professional discipline.

16 Del. C. § 9406A

Uniform Transfers to Minors Act Account

For a child who inherits or receives money, a custodial account under Delaware's Uniform Transfers to Minors Act usually replaces a guardianship of the property entirely. A will or trust may direct a transfer to a custodian, a personal representative or trustee may make one even where the instrument is silent, and the Court of Chancery's own rule says no petition to appoint a guardian of a minor's property is required where the child will receive $25,000 or less including costs and fees and the money goes into a custodial account. Custodial property transferred by gift or under a will or trust goes to the child at 21; property transferred by a fiduciary without such authority, or by an obligor, goes at 18.

12 Del. C. § 4505; 12 Del. C. § 4520

Annuity or Structured Financial Instrument for a Minor

Where a child is entitled to more than $25,000, Delaware's answer is usually not an open-ended guardianship but a limited one that closes itself. The limited guardian's job is to place the net funds into a court-approved annuity or structured financial instrument that cannot pay out before the child reaches majority and cannot be encumbered, liquidated, sold or transferred before then. Filing proof of that placement ends the limited guardianship and releases the bond, and the proof is due within 60 days of the appointment order.

Del. Ct. Ch. R. 180

Standby Guardianship for a Child

For a parent, custodian or guardian with a progressive chronic condition or terminal illness, a Family Court standby guardianship arranges the child's future care now without terminating anyone's rights. The order names the triggering event, the standby guardian may act the moment it happens, and the designator may revoke the arrangement in writing at any time before it triggers. It exists precisely so a seriously ill parent does not have to choose between doing nothing and giving up parental rights.

13 Del. C. § 2361

Representative Payee or VA Fiduciary

Where the only money involved is a Social Security, SSI or Department of Veterans Affairs benefit, a representative payee or VA fiduciary appointed by the paying agency handles it without any court case. Delaware's guardianship statute recognises both roles by name, and the Office of the Public Guardian serves as representative payee and VA fiduciary of last resort. The Public Guardian may also consent to act as payee or fiduciary for someone in an acute care setting or a client of the Department of Health and Social Services, which avoids a guardianship in some of the cases most likely to produce one.

12 Del. C. § 3982

Advice from the Public Guardian Without a Court Case

The Office of the Public Guardian is charged by statute with acting as an informational resource for the public, and may offer advice and guidance without any court appointment to people who ask for help or on whose behalf help is requested, for the purpose of encouraging maximum self-reliance and independence and avoiding the need for a guardian. Where it receives a referral it evaluates the person's situation, asks whether alternatives exist, and may recommend a suitable individual, refer the case to a private or nonprofit entity, or file for someone else's appointment where that avoids public guardianship.

12 Del. C. § 3983

Petition to Determine Capacity

Where the real dispute is whether the person has capacity rather than who should decide for them, Delaware added a narrower petition in 2025. The person, a responsible health-care professional, the health-care institution, or anyone interested in the person's welfare may ask the Court of Chancery to determine capacity after a professional has found a lack of it. The court appoints an attorney ad litem, hears it expeditiously, and may find a lack of capacity only on clear and convincing evidence. It settles the question without appointing a guardian.

16 Del. C. § 2506

Planning ahead: naming a guardian in advance

Naming a guardian in advance: Delaware gives you three ways to say in advance who should decide for you, and the strongest of them is the durable personal power of attorney. If a court later appoints a guardian anyway, the agent you already named shall, on the agent's request and absent cause to the contrary, be appointed the guardian or other fiduciary in the Chapter 39 case. Separately, a health-care instruction may name a person to serve as guardian if one is ever appointed, and the state's optional advance health-care directive form carries a Nomination of Guardian part for exactly that purpose, with the form itself warning that filling it in does not mean you want or need a guardian and that the court is not bound to appoint your choice. For a child, the sole surviving parent may name a guardian of the person or property, or both, by written declaration or last will, and the court shall appoint that person if there is no just cause to the contrary; any parent may name a guardian for property the child inherits.

Guardianship costs

Court filing fee
$125. That is the Court of Chancery's fee for filing a petition to appoint a guardian for a person without capacity, and the schedule states it is inclusive of all initial filing fees. Delaware assesses it through the Register in Chancery under Court of Chancery Rule 3(e), on the Schedule of Fees and Charges marked Effective June 14, 2024. Do not confuse it with a probate filing fee: probate runs through the county Register of Wills, whose fees each county sets separately.
Later petitions in the same case
$35 to $50 for the common ones. Approval to expend funds, to start or raise a monthly allotment, or to reinvest is $35 each; removing a guardian, appointing a successor, selling real estate, accepting a foreign guardianship or transferring the guardianship is $50 each; an exception to a guardianship accounting is $100.
Attorney ad litem
Capped by court rule rather than left to the market. The award may not exceed $750 in an uncontested case, $1,000 where the court orders the attorney to address an objection and the case does not become contested, or $3,500 in a contested case, except that the court may allow a different amount for cause. The petitioner pays within 30 days of the approving order unless the court apportions it differently, the court may authorize payment from the protected person's assets, and where the petitioner has an approved in forma pauperis application the court may pay the attorney from court funds.
Attorney fees for the petition
$2,500 to $8,000 nationally for an uncontested adult guardianship, and materially more if it is contested. Delaware publishes no figure of its own, and the state does not require the petitioner to have a lawyer, though the Court of Chancery reviews a guardian's duties at the hearing where the petitioner is unrepresented.
Medical or capacity evaluation
$300 to $2,000 nationally, depending on the clinician and the depth of the assessment. Delaware does not set a price, but it does set a currency window: the physician's affidavit has to be completed by a medical or osteopathic doctor authorized to practice medicine who personally examined the respondent in the last three months, unless the court approves otherwise, so an old evaluation cannot be reused.
Bond premium
Often nothing. The Court of Chancery's handbook states that surety is typically not required where the bond is set for less than $1 million, and a bond without surety costs the guardian no premium. The court may also waive bond or surety for good cause at any time, and must consider doing so where a public agency petitions and the person's resources will not support the costs. Where surety IS required, the premium is a percentage of a penal sum set at roughly the value of the assets plus a year of income.
Guardian compensation
$250 for a six-month accounting period and $500 for a one-year accounting period for an individual guardian, with court approval, charged against guardianship income so far as it is collectible. More is possible only on petition and only for unusual and extraordinary services. An individual guardian may not pay themselves without the court's permission first.
Professional fee for service guardian
Set per provider rather than statewide. The Court of Chancery approves a fee-for-service guardian's own schedule, publishes the current list of providers with each one's schedule, and pays only on application with notice to interested parties.
Annual reporting
Little beyond the guardian's own time where the guardian prepares the annual update and medical statement, plus whatever the approved practitioner charges for the current medical statement it must contain. An accountant or attorney preparing a guardianship accounting typically runs $500 to $2,000 a year nationally. Delaware charges its own filing fee on the account itself, tiered from $10 to $60 by the size of the account with $15 for each additional $1,000 above $15,000, plus $1 per page and $10 for electronic filing.
Mediation
$1,500 for each full or partial day where the court supplies a judicial mediator, which covers preparation, the mediation and follow-up. A non-judicial mediator is paid at the rate the participants agree. A judicial mediator may waive, modify or allocate court costs on the participants' economic circumstances or for other good cause.
Minor guardianship family court filing fee
A filing fee is charged for each petition. The Guardianship Instruction Packet says so in terms but prints no amount, and the judiciary's Fees and Filings index publishes schedules for the Supreme, Chancery, Superior, Common Pleas and Justice of the Peace courts and none for the Family Court, so no figure is stated here rather than guessed. There are additional costs where notice of the action has to be published.
Fee waiver
Three routes in the Family Court, on top of an in forma pauperis application: an administrative waiver on Form 680 where the petitioner has or had a protection from abuse order against a respondent, or files with a letter of support from the Division of Family Services, or where the petitioner or an immediate household member receives means-tested assistance such as TANF, SNAP, SSI or subsidised housing; Form 681 where a qualified legal services provider represents the petitioner; and Form 257P, the affidavit in support of proceeding in forma pauperis, for everyone else. In the Court of Chancery, costs and fees are waived where the Public Guardian is involved and the estate cannot bear them, and no costs are charged against the person's income or estate at all in a Public Guardian case unless the court finds it can support them.

Costs vary by county and case. Verify current court fees with the local court.

Frequently asked questions

What is guardianship in Delaware?
Delaware splits guardianship between two courts, and which court hears your case depends on who the guardianship is for. The Court of Chancery appoints guardians for adults with disabilities and for the property of minors under Title 12, Chapter 39. The Family Court appoints guardians of the person of a child under Title 13, Chapter 23. For an adult, the court does not ask only whether the person has a disability. It asks whether the disability leaves them unable to manage or care for their own person or property and, because of that, in danger of losing property, becoming the victim of designing persons, endangering their own health, or being abused. A diagnosis on its own is not enough. The petition goes to the Register in Chancery with a physician's affidavit, the court usually appoints an attorney ad litem to represent the person the case is about, and the Court of Chancery's own handbook puts an uncontested appointment at about 30 days.
What are the alternatives to guardianship in Delaware?
Less restrictive alternatives in Delaware include Durable Personal Power of Attorney, Advance Health-Care Directive and Power of Attorney for Health Care, Health-Care Instruction, including a Nomination of Guardian, Default Surrogate Decision Maker. Courts generally must consider these options before appointing a guardian, because guardianship removes legal rights.
How long does the Delaware guardianship process take?
The Court of Chancery's own handbook puts an uncontested adult guardianship at about 30 days from filing to appointment, and uses that figure as the benchmark an emergency petition has to beat: an interim guardian is for danger that cannot wait the time it would typically take to appoint a guardian in an uncontested case, about 30 days. Nothing in Title 12, Chapter 39 sets an outer deadline for the hearing, so a contested case, a case where an interested party cannot be located, or a case sent to mediation runs longer. The fixed dates that do bind are the notice period (at least 10 days before the hearing), the currency of the physician's affidavit (executed within the last three months), the bond (signed within seven days of the hearing), and the post-appointment filings (proof of compliance and inventory within 30 days of the final order). A Family Court guardianship of a child has a real statutory clock: the court must issue its decision and order within 45 days after the proceedings conclude, or within 45 days of the petition and social report being filed where no hearing is needed.
Do I need a lawyer to file for guardianship in Delaware?
Guardianship is a court proceeding that removes a person's legal rights, and it usually requires a medical or capacity evaluation and a formal hearing. Many families consult an elder-law or probate attorney before filing. Some Delaware courts publish self-help resources, but the evaluation and hearing rules make professional guidance worth discussing early, even for straightforward cases.
Guardian vs. conservator in Delaware: what is the difference?
Delaware does not use the word conservator for an adult guardianship. It uses guardian of the person for decisions about care, health and living arrangements, and guardian of the property for money and assets, and the court may appoint one person to both roles or split them between two people. The person the case is about is called the respondent before appointment and the protected person afterwards, and the statute calls them a person with a disability. The word conservator appears in Delaware guardianship law only in the interstate chapter, where it describes the equivalent officer appointed by another state. The clerk who receives a guardianship filing is the Register in Chancery, which is a different office from the county Register of Wills that handles probate.
Statutes and sourcesOfficial references used for this page
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Information current as of September 9, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Delaware can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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