✓ Verified September 2026
Delaware Elder Guardianship is the court process an adult child uses when a parent can no longer make safe decisions and no power of attorney is in place — or the one that exists is being misused. It is the most powerful tool in elder law and the last one a Delaware court wants to use, because it takes away the parent’s legal right to decide.
This guide gives the Delaware answer in plain English: which court, what medical proof is required, who must be notified, what the hearing costs, what the judge will ask you to try first, and what a guardian must do after the order. All facts are from Delaware law, verified as of September 2026.
In This Delaware Guide:
Delaware Elder Guardianship: At a Glance
Here are the Delaware facts that decide most Delaware elder guardianship cases:
| Governing statute | Delaware’s adult guardianship law is 12 Del. C. Chapter 39 (“Guardianship”), with appointment authority in 12 Del. C. § 3901. Interstate jurisdiction is governed by 12 Del. C. Chapter 39A, the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. Procedure is supplied by Court of Chancery Rules 175-180. Delaware has no separate “conservatorship” chapter for its own residents; Chapter 39A uses the word “conservator” only to describe out-of-state appointments being transferred into or out of Delaware. |
| What Delaware calls the roles | Delaware uses two roles under 12 Del. C. § 3901: “guardian of the person” and “guardian of the property.” The guardian of the person controls residence, medical and personal care decisions; the guardian of the property manages money, income, benefits, and assets under 12 Del. C. §§ 3921-3923. One person may be appointed to both roles, or the roles may be split. Delaware does not call the property fiduciary a “conservator” in domestic cases. |
| Court | Adult guardianship petitions are filed in the Delaware Court of Chancery, which has exclusive jurisdiction under 12 Del. C. § 3901(a). Delaware Family Court handles guardianship of minors only, not adults. The petition is filed with the Register in Chancery in the county where the adult resides — New Castle, Kent, or Sussex. Court of Chancery Magistrates hear most uncontested adult guardianship matters. |
| Who can file | Under 12 Del. C. § 3901(a) and Court of Chancery Rule 175, any person may file a verified petition asking the Court to appoint a guardian for an adult alleged to be a person with a disability; the petitioner need not be a relative. An adult child, spouse, other relative, friend, hospital, long-term care facility, or a public agency such as Adult Protective Services may petition. The Office of the Public Guardian, 12 Del. C. §§ 3981-3986, may petition or be appointed when no suitable private person is available. |
| Medical evidence required | Court of Chancery Rule 175 requires a verified medical report annexed to the petition, made by a physician (medical or osteopathic doctor) authorized to practice. The Chancery guardianship petition packet supplies a “Physician’s Affidavit” form for this purpose. The report must give particulars of the alleged disability, state how the condition affects the adult’s ability to make medical decisions or manage money, and state the date of the doctor’s last examination. It must also say whether personal service of the hearing notice would be meaningless or detrimental to the adult’s health. |
| Typical time to a hearing | UNVERIFIED. Delaware sets no statutory or rule-based deadline for scheduling the hearing on an ordinary adult guardianship petition; 12 Del. C. § 3901(a) states only that the Court enters an order fixing a time and place for the hearing. The one fixed deadline is for interim guardianships, where 12 Del. C. § 3914 requires a hearing within 30 days of the interim appointment. Timing otherwise varies with the county, the attorney ad litem’s investigation, and whether the petition is contested. |
| Filing fee | UNVERIFIED. The Court of Chancery fee schedule sets the guardianship deposit for costs as a sum the Register in Chancery determines sufficient to cover the office’s fees and costs, rather than one published flat petition fee. Two related amounts are fixed: a petition to transfer a guardianship into Delaware under Chapter 39A costs 60, and a petition to transfer a guardianship out of Delaware costs 50, each plus 2 per page for scanning. Petitioners who cannot pay may request an in forma pauperis waiver. |
| Supported decision-making law | YES. Delaware enacted the Supported Decision-Making Act as 16 Del. C. Chapter 94A, created by Senate Bill 230 and signed into law on September 15, 2016 — making Delaware the second state, after Texas, to adopt such a statute. An adult may appoint one or more supporters to help gather information, understand options, and communicate decisions, while the adult remains the decision maker. Under 16 Del. C. § 9404A, entering a supported decision-making agreement may not be used as evidence of incapacity. |
When Delaware Elder Guardianship Is the Right Tool
Guardianship is for a parent who lacks capacity — not one who is making choices the family disagrees with. The legal question in Delaware is whether the person can understand information, weigh it, and communicate a decision, not whether the decision is wise.
A parent who refuses to move to assisted living, keeps driving, or gives money to a new friend may be exercising bad judgment; that alone does not support Delaware elder guardianship. A parent who cannot recognize a bill, does not know what month it is, or signs whatever is put in front of them likely does.
Two situations account for most petitions. The first is a parent with advancing dementia who never signed a durable power of attorney or health care directive, so nobody has authority to act. The second is a parent who did sign one, but the agent is missing, incapable, or — most often — taking the money.
In that second case the guardianship petition is the tool that replaces the agent, and the Delaware power of attorney abuse guide linked below covers the steps that usually come first.
Alternatives the Delaware Court Will Ask About First
Delaware treats guardianship as a last resort. The Office of the Public Guardian’s adult guardianship materials and the Court of Chancery Handbook for Guardians of Adults direct petitioners to first consider a durable personal power of attorney under 12 Del. C. Chapter 49A, an advance health care directive and health care agent under 16 Del. C. Chapter 25, the health care surrogate provisions of 16 Del.
C. § 2507, a Social Security representative payee, joint accounts or a trust, and a supported decision-making agreement under 16 Del. C. Chapter 94A. The Court may also grant a limited guardianship tailored to specific powers rather than full authority.
Supported decision-making in Delaware: YES. Delaware enacted the Supported Decision-Making Act as 16 Del. C. Chapter 94A, created by Senate Bill 230 and signed into law on September 15, 2016 — making Delaware the second state, after Texas, to adopt such a statute. An adult may appoint one or more supporters to help gather information, understand options, and communicate decisions, while the adult remains the decision maker. Under 16 Del.
C. § 9404A, entering a supported decision-making agreement may not be used as evidence of incapacity.
Filing for Delaware Elder Guardianship: The Steps
Who must be notified: Court of Chancery Rule 176 requires notice of the hearing to be served at least 10 days before the hearing date, unless the Court shortens the time for cause shown. Notice goes to the attorney ad litem appointed for the adult, to the adult personally, and to counsel if separately retained.
The petition must list the name and address of the spouse and the next of kin under Rule 175, and the Court directs notice to those interested persons; 12 Del. C. § 3901(a) requires reasonable notice to the person with an alleged disability and to others the Court deems desirable.
The proposed ward’s own voice: Under 12 Del. C. § 3901(a), an adult for whom a guardian of the person or property is sought is entitled to representation by counsel.
Court of Chancery Rule 176 directs the Court, on the filing of the petition, to appoint a member of the Delaware Bar as attorney ad litem if the adult is not already represented, to receive notice, give the adult actual notice, explain the adult’s rights, and explain the nature of the proceeding. The petitioner pays the attorney ad litem’s fee.
Attendance may be excused where the physician’s affidavit states appearance would be detrimental.
Who the court prefers as guardian: Delaware’s guardianship chapter does not set a fixed family priority list; the Court of Chancery selects the guardian it finds is in the adult’s best interest. The strongest statutory preference comes from the power of attorney act: under 12 Del.
C. § 49A-108, a person already serving as the principal’s agent under a durable personal power of attorney shall, on that agent’s request and absent cause to the contrary, be appointed guardian in a Chapter 39 proceeding. The Office of the Public Guardian, 12 Del. C. §§ 3981-3986, serves as guardian of last resort when no suitable private guardian exists.
Bond: Bond is discretionary rather than automatic. Court of Chancery Rule 109 provides that if bond, with or without surety, is required in the order appointing a guardian or trustee, the guardian must give bond in the amount the Court fixes, and the Court may waive bond or surety.
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Bond is commonly waived for a family guardian of a modest estate and is more likely required for larger estates or where a guardian of the property is not a close relative. Under 12 Del. C. § 3951 the Court may require additional security when the adult’s real estate is sold or the guardian’s liability increases, and 12 Del.
C. § 3914 lets the Court waive bond and costs where a public agency petitions and the estate is insufficient.
Emergency Guardianship in Delaware
Under 12 Del. C. § 3914, if the Court of Chancery finds on a verified petition, affidavit, or other evidentiary materials that the adult is in danger of imminent serious physical harm or substantial economic loss before a regular hearing can be held, it may appoint an interim guardian of the person or property without prior notice or hearing.
The interim appointment lasts up to 30 days, and the Court must fix a hearing date no later than 30 days from the appointment. The interim guardian has the powers of a guardian appointed under § 3914. Court of Chancery Rule 178 supplies the application form.
What a Delaware Guardian Must Do Every Year
Under 12 Del. C. § 3921 a guardian of the property must file a verified inventory with the Court within 30 days of appointment, plus a supplemental inventory within 30 days of discovering additional property, and must account for all money and property received; accounts are filed, adjusted, and settled by the Court of Chancery under 12 Del. C. § 3942.
An annual accounting is filed using the Court’s Guardianship Accounting Packet unless waived in the final order. Every guardian, of the person or property, files an Annual Update and Medical Statement. Selling the adult’s real estate requires a separate application to the Court under 12 Del. C. § 3951, and the Court may appoint a trustee to conduct the sale.
Other Delaware rules: Delaware has a statutory Office of the Public Guardian, 12 Del. C. §§ 3981-3986, led by a Delaware attorney appointed by the Governor to a 6-year term, serving as guardian of last resort and required to obtain and maintain national guardianship certification. Delaware also has a Guardianship Monitoring Program and a 13-member Delaware Guardianship Commission under 12 Del. C.
Chapter 39, Subchapter VII, which reviews guardianship policy and reform. Proposed guardians must consent to a State of Delaware criminal background check both while the petition is pending and throughout the guardianship, and the petition asks about prior convictions and bankruptcy.
Mistakes That Slow Down Delaware Elder Guardianship
The first mistake is filing without the medical evaluation. Every Delaware petition needs a physician’s or psychologist’s statement about capacity, and the court will not set a hearing without it; families lose weeks getting an appointment after they file instead of before. The second is skipping notice.
The parent, the spouse, the other adult children, and any agent under an existing power of attorney are entitled to know about the hearing, and a missed notice is the most common reason a Delaware elder guardianship hearing is continued.
The third mistake is asking for more than the situation needs. A judge who sees a petition for full guardianship of a parent who can still manage a checkbook will either deny it or trim it, and the family has spent a filing fee to learn what a limited petition would have avoided. The last mistake is treating the order as the end.
A guardian in Delaware owes the court an inventory, a report, and usually an annual accounting; guardians who miss them face removal, and the parent loses the protection the family fought for.
What to Expect from Delaware Elder Guardianship
A Delaware elder guardianship case runs in a fixed order: the petition and the medical evaluation are filed together, notice goes to the parent and the family, the court appoints someone to speak for the parent, and a hearing is held where the judge decides whether capacity is lacking and whether anything less than guardianship would do.
Uncontested cases move in weeks; a contested one — usually a parent who objects, or siblings who each want the role — takes months and looks like a trial.
Two things surprise families. The first is that the parent is entitled to fight it, with a lawyer, and often does. The second is that the order is not the end of the court’s involvement: a Delaware elder guardianship order comes with reporting duties every year for the rest of the parent’s life, and the guardian who treats it as a one-time filing is the one the court removes.
When it is time to call an elder-law attorney
When money is already missing or a bank has frozen an account in Delaware, a lawyer can get an accounting order and an emergency freeze faster than a family can. Many offer a free first call, and the state bar’s lawyer referral service and free legal-aid offices are the no-cost starting points.
Key Takeaways: Delaware Elder Guardianship
- Capacity, not judgment: Delaware elder guardianship is granted when a parent cannot understand or communicate decisions, never because the family disagrees with them.
- Alternatives come first: the court will ask why a power of attorney, a payee, or a limited order will not do before it grants Delaware elder guardianship.
- The evaluation goes in with the petition: every Delaware elder guardianship filing needs a recent physician’s statement, and the hearing waits until it is there.
- Everyone gets notice: the parent, spouse, adult children, and any current agent must be told before Delaware elder guardianship is decided.
- The parent gets a voice: in most states the court appoints counsel or a visitor, and the parent may contest Delaware elder guardianship.
- Limited beats full: a Delaware elder guardianship order covering only the decisions the parent cannot make is easier to get and easier to live with.
- Emergency orders are short: temporary Delaware elder guardianship lasts weeks, not years, and must be followed by the full petition.
- The order starts the duties: Delaware elder guardianship comes with an inventory, an annual report, and usually an accounting for life.
- Nomination matters: a parent who named a guardian in a power of attorney usually gets that person in a Delaware elder guardianship case.
You May Also Like
Official Delaware Sources & Resources
- Delaware Court Guardianship Forms: https://courts.delaware.gov/chancery/guardianship/forms.aspx
- Delaware Guardianship Statute: https://delcode.delaware.gov/title12/c039/sc01/index.shtml
- Internal Revenue Service — Estate Tax: irs.gov
- Cornell Legal Information Institute: law.cornell.edu/wex
This Delaware guide was last verified against official sources in September 2026. Laws change — verify with your state court or a licensed attorney.
More Delaware Estate Guides
- Delaware Power of Attorney Abuse (when an agent already exists)
- Delaware Wills & Estate Planning
- Delaware Living Trust
- Power of Attorney vs Guardianship
- All State Guides
Disclaimer: This guide is informational only and is not legal or tax advice. Estate, probate, and tax laws change and vary by state and county. Verify current rules and dollar figures with your state’s court, statute, or a licensed attorney or tax professional before acting. For urgent matters like an active probate or a tax deadline, consult a licensed professional in your state right away.