If a person ends up in a situation in which they are no longer competent to make decisions for themselves (a “potentially disabled person”) and has not signed a durable personal power of attorney (discussed previously in this article), then someone (perhaps but not necessarily a family member) must pursue guardianship. Such a proceeding is unpleasant, time-consuming and expensive.

There are two types of guardianships in Delaware: guardianship of the person and guardianship of the property.

A guardianship of the person allows the appointed guardian to make personal decisions for the potentially disabled person. Those decisions include, for instance, where the potentially disabled person will live and, in some extreme cases involving life support systems for example, whether the potentially disabled person should live (but that is a subject for another column), as well other similar determinations.

A guardianship of the property allows the guardian to spend the potentially disabled person’s money for the potentially disabled person’s benefit.

A single individual can serve as both guardian of the person and the property or the duties can be split between two different people.

Before the Court of Chancery will appoint a guardian for a potentially disabled person, all of the following things must be completed:

1. A Petition for Guardianship filed in the court
2. A Physician’s Affidavit completed by the physician reporting to the court the potentially disabled person’s mental or physical difficulties that lead the physician to believe that the potentially disabled person requires a guardian
3. Consent from the potentially disabled person’s family to the proposed guardianship
4. Interview with the potentially disabled person by the attorney ad litem and report to the court
5. Possibly a hearing before the court

The court will appoint a local attorney to serve as the attorney ad litem who must meet with the disabled person, be the court’s eyes and ears and file a written report to the court. The attorney ad litem’s fees will be borne by the potentially disabled person. The potentially disabled person will also bear the costs to prepare and file the petition for guardianship. It is not unusual to incur costs exceeding $5,000 to obtain guardianship.

A guardian of the property must file a report with the court each year that states how much money came in and went out and includes all receipts and bank statements. Filing such reports can be onerous, but it helps protect the disabled person from theft by the guardian.

As evidenced by the steps outlined above, signing a durable personal power of attorney in advance is the much easier and less costly option.

Part of our First State Fundamentals: Estates & Trusts series, providing straightforward answers to everyday legal questions that affect Delawareans. Have a question you would like to see addressed? Send it to Beth Miller at bbmiller@foxrothschild.com.

This column discusses general legal issues and is intended for educational purposes. The information presented should not be considered legal advice as to a specific fact pattern.