The Office of the Public Guardian accepts referrals from other State agencies, hospitals, nursing homes and other entities. Referrals are not accepted from private individuals, although these individuals are welcome to call our office with any questions they have. Below are the forms which must be filled out and submitted to us before the Office of the Public Guardian will consider consenting to the appointment, or filing on behalf of the proposed ward.
Guardianship is based on the legal definition of capacity, and the information received must assist us in making the determination based on the circumstances of the case and the law. Due to the limited resources of our office, priority is given to those cases involving abuse, neglect, exploitation, significant risk to the proposed ward in the absence of the guardianship, and cases in which higher levels of care and complicated medical decisions are required. The Public Guardian is the guardian of last resort, and will decline to serve in cases where there are suitable family members or other individuals willing and able to act as guardians, health care agents or surrogates unless there are exceptional circumstances presented as part of the referral.
Final decisions as to the appointment of a Guardian are made by the Court of Chancery after a hearing.
Frequently Asked Questions
Q. What is a Guardian?
A. A guardian is a person or institution appointed by the Court of Chancery to manage the affairs of another, called the ward. There are two types of guardianship: of the person, and of the property. A guardian of the person is given the authority to make personal decisions for the ward, like where he will live, and under what conditions, etc. A guardian of the property manages the finances of the ward. The Court may appoint either type of guardian or both person and property, or two separate guardians may be appointed. An institution, such as a bank, may be appointed guardian of the property.
Q. Who may have a guardian appointed to manage his affairs?
A. Delaware law spells out very specifically who may have a guardian appointed. If a person is aged or mentally infirm or physically incapacitated, AND as a consequence is unable to manage properly his person or property, AND as further consequence is in danger of substantially endangering his health or of becoming a victim of designing persons or of losing or dissipating his property or of becoming subject to abuse, that person may have a guardian appointed for him or her.
This is a complicated answer which needs careful study. First of all, the person must be either aged, or mentally infirm, or physically incapacitated. One or more of those three conditions is required. The precise meaning of these terms is not spelled out in the law; therefore, the Court has some discretion in applying the law in each case.
Next the person must be unable to properly manage his person and/or property, as a direct result of the condition mentioned above. Both the condition and the inability to manage must be supported by the testimony of a doctor, made in written form.
Third, as a consequence of the inability to manage, the person must be in danger of being abused, or victimized, or of losing or dissipating his property, or of substantially endangering his health. Note that a guardian is not appointed to protect others from the ward, but the ward himself.
Q. Who can be a guardian?
A. Just about anyone (except a minor) willing to take on the responsibility.
Q. How is a guardian appointed?
A. Guardianship is established by petitioning the Court of Chancery. Ordinarily the services of an attorney are used. This petition is based on a testimony of a doctor made in writing and submitted to the Court for record. It is nor necessary for the doctor to appear personally in Court. When the petition is submitted, the Court orders that all interested parties be notified, including the prospective ward, unless the doctor testifies that it would be detrimental to the person to be notified of the proceedings. At least ten days after that order, a hearing is held, and testimony is taken by the Court if necessary. The Court then decides the issue and enters an order with its decision. Only then does the guardian have legal authority to act on behalf of the ward.
Q. What are the consequences of the appointment of a guardian?
A. The ward, for all practical purposes, is reduced to legal status of a child. He loses all rights of control over his affairs.
Q. Is a guardianship permanent?
A. No. A guardianship may be terminated if the ward recovers from the condition which necessitated it. However, this rarely happens, and guardianship usually continues until the death of a ward.
Q. Is a guardian accountable to anyone?
A. Absolutely. The Court retains ultimate control over the affairs of the ward, and a guardian of the property must account periodically for his handling of the estate. At the present time, the Public Guardian is required by law to account every six months for his guardianship of the person
Q. What is the difference between guardianship and custody?
A. Custody is a legal term which generally refers to minors. The custodian of the minor has the same kinds of responsibility for health and welfare as a guardian of the person has for an adult who is his ward. A guardian of the property is identical for a minor and an adult.
Q. Who is the Public Guardian?
A. The Public Guardian is an employee of the State of Delaware who may act as a legal guardian, like any other guardian appointed by the Court of Chancery.
Q. Why was the Office of the Public Guardian created (OPG)?
A. The Office of the Public Guardian (OPG) was created by community concern over the plight of elderly persons and other adults, who are subject to abuse, neglect, or exploitation because of their loss of ability to cope with everyday problems. It was designed primarily to meet the need for a guardian of the person or property (or both) for those who are completely alone in life or whose family or friends are unable to help them in any way due to distance, advanced age or physical disability. Also, unfortunately, sometimes family members themselves have victimized or abused the proposed ward, thus creating the need for guardianship.
Q. Is the Office of the Public Guardian the protective service agency for adults in Delaware?
A. No—not in the sense in which protective services in ordinarily used, e.g., the Division of Social Service does protective services for children. The Office of the Public Guardian is not authorized or funded to intervene in all cases of alleged neglect, abuse, inadequate functioning, or unusual behavior of adults. Its mandate is very specific, and that is to act as a legal guardian in those cases which meet the criteria of the law and the intent of this office. The Office of the Public Guardian is part of a larger adult protective service effort. The State of Delaware established an Adult Protective Service Program (A.P.S.) under Title 31, Chapter 39 of the Delaware Code. This statute became effective on July 1, 1982 and applies to all adults age 18 and over. Many cases, but especially emergency cases, should be referred directly to Adult Protective Services which is administered by the Division of Aging.
Q. What can the Public Guardian do about emergency or crisis situations involving adults?
A. Very little—legal guardianship is not the best way to deal with a crisis, since it takes a minimum of three weeks for the Court proceedings. These cases should be referred directly to Adult Protective Services by calling the Division of Aging. Guardianship is not needed for a person requiring emergency surgery (i.e. life or death) since the physician is permitted to perform such surgery as described in the Medical Practice Act.
Guardianship may not be a help at all if the real problem is mental illness, emergency housing, lack of money, etc.
Q. Can guardianship be used as a protective measure?
A. Yes. Guardianship is meant to protect the person and property of those who can no longer manage for themselves. But it must be used with caution. Guardianship is an extreme form of intervention in the life of a client, because full control over the person and property of the ward is transferred to someone else for an indefinite period, often permanent. The right to determine one's own life is paramount, and should be taken away only for the gravest cause.
Q. Is the Public Guardian an advocate and defender of anyone who has been victimized in any way?
A. No. The Public Guardian is not the same as an ombudsman, patient advocate, or legal aid attorney. To qualify for service from the Public Guardian, a person must be genuinely incapacitated and in need of someone else to take over completely the management of his affairs, either permanently or for a relatively long period.
Q. When is a referral to the Office of the Public Guardian for guardianship appropriate as a protective measure?
A. Guardianship is appropriate only when a person is unable to manage his person or property and consequently is in danger of abuse, victimization, or substantial danger to health. If these elements can be proved in court, the person may need a guardian appointed to make his decisions for him. There must be solid evidence that a client is genuinely unable to manage and requires Court action to remove his decision-making rights and give them to someone else. On the average, only one case in ten referred to the Public Guardian requires guardianship. When in doubt a referral should be made to this office.
When there is no one else to assume the responsibility of guardianship; that is, when there are no family, friends, relatives, or anyone else interested in acting a a guardian. Also, where an impartial or neutral guardian is required.
Q. Once a guardianship of property is established how are the financial needs of the ward met?
A. It is important to know that the only funds available for the care of the ward are those of the individual ward. For example, if the ward has several sources of income such as a pension, stocks, etc. then these funds can be utilized for his or her care. On the other hand, if his or her only source of income is Social Security (SSI) then the office is limited to these funds alone for that particular ward.
All accounts are kept in separate checking accounts and monies cannot be interchanged.
Q. Is referral to the Public Guardian appropriate for person who are being discharged from hospitals or state institutions such as Delaware State Hospital, and have no family or friends to look after them and nowhere to go?
A. This question is answered by rephrasing it: "Is guardianship appropriate for this case?" The office of the Public Guardian does not do post-hospital or post-institutional planning or placement. This is the responsibility of the social services department of the facility in question. However, if a plan is worked out and a patient refuses to cooperate with it, and it is clear that the lack of cooperation is obviously caused by the age, mental infirmity or physical incapacity of the patient, guardianship may be appropriate to prevent abuse or danger to health. Family or relatives should then be approached to assume responsibility for the patient. If there is no family, the Public Guardian may be contacted.
It should be remembered that guardianship proceedings require a minimum of three weeks from the time that the physician's affidavit is received in this office. This time delay makes it difficult, if not impossible, for the Public Guardian to assume responsibility for a patient when he is ready for discharge, unless the necessary preparations have been made well in advance and the guardianship appointment finalized before the discharge.
Q. What steps should be taken before considering referral to the Public Guardian?
A. All possibilities for solution of the clients problem should be exhausted. This includes referral to other agencies for appropriate services.
Counseling with the client himself to mobilize his own resources, or to help him to accept the services which are available. Often this step is sufficient, as the client may accept difficult changes in his life if someone takes time an effort to show care and attention.
If the client appears genuinely unable to manage, contact family or relatives to help them see the need to accept responsibility for the client.
Q. How is a referral made to the Office of the Public Guardian?
A. The office can be called between 8:30a.m. and 4:30p.m., Monday through Friday and an initial referral can be faxed to the requestor. If the referral seems appropriate for guardianship, additional information will be required. The Public Guardian may visit the proposed ward to determine if court proceedings should be initiated.
Q. What is expected of a person or agency after initial referral?
A. In some cases the referring person is asked to fill out a detailed initial referral form giving data required for the Court proceedings. Most importantly, he is expected to obtain the physician's affidavit which is needed before the request for an appointment of a guardian can be presented to the Court. The form for the affidavit will be supplied by this office via fax addressed to the physician.
Q. Does the referral of a client to the Office of the Public Guardian mean that the client now becomes the Public Guardian's responsibility?
A. No. The first task of the Public Guardian is to determine if guardianship is necessary at all, and whether this need can be proved in Court. In the meantime, the client may require services which cannot be supplied by this office.
Only when the Public Guardian is actually appointed legal guardian of a person is he responsible for the welfare of that person. Prior to that, referring persons and agencies remain ethically responsible for the well being of their clients who are referred to the Public Guardian.
Q. Are the criteria for the appointment of the Public Guardian different from those for other guardians?
A. No. The prospective ward of the Public Guardian must meet the same conditions set out in the law for the appointment of any other guardian, and the conditions must be proved in Court in exactly the same way. The Public Guardian does not get less stringent application of the law because he is an employee of the Court.
Q. Are there cases where the Public Guardian is unable to serve as guardian of the property?
A. Yes. In some cases the assets of the proposed ward are too large for the Office of the Public Guardian to administer properly. The office has a very small staff and in these instances the Court should be asked to appoint a bank guardian of the property. The Office of the Public Guardian was not intended, designed nor funded to manage this type of property guardianship.
Guardianship should not be sought solely for the purpose of selling property.
Q. Can the Pubic Guardian be called if there are other family members?
A. The Public Guardian should be considered only as a last resort. In most instances, family members and relatives have primary responsibility when a person becomes disabled physically or mentally. They may be referred to the Office of the Public Guardian for information on the alternatives which are open to them, but it should be clearly explained that the responsibility for the person remains with them.
Q. What does the Public Guardian do for the wards after being appointed guardian?
A. The Public Guardian does exactly what any other guardian does: make decisions about the person and property of the ward and does whatever is necessary to prevent the abuse, victimization, loss of property, or danger to health which made a guardian necessary in the first place. One of the first things the office tries to do in each case is to formulate a full casework plan within the scope of the individual ward's assets, e.g. the office staff determines whether the ward has a burial plot or life insurance. If none exists, an attempt is made from the beginning to set aside funds to provide appropriate funeral arrangements.
Q. Does the Public Guardian advocate on behalf of the wards?
A. Yes. The Public Guardian, like any other guardian, has a responsibility before the Court to seek the best interests of the ward. This may mean dealing with individuals or institutions, public or private, to defend the rights of a ward or to obtain services which are due.
Q. Is there a cost for service from the Office of the Public Guardian?
A. There is no charge involved in making a referral. If proceedings for the appointment of a guardian are begun in Court, the Court costs may be levied against the assets of the ward. However, the Court may waive these costs, especially if the assets of the proposed ward are insignificant.
Administrative fees may be charged by the Office of the Public Guardian with the approval of the Court.
Q. If the client needs a rep-payee, can he or she be referred to the Public Guardian?
A. No, if this is the sole purpose for the referral.
Q. Can a ward remain in his home after the appointment of guardian?
A. Generally speaking, it is preferable to have a ward remain in his home than be institutionalized, providing adequate services are available.
Q. Do you need a guardian to have Social Security or pension checks deposited directly to the bank?
A. No. This can be accomplished by signing the proper forms at the bank.
Q. Does the Office of the Public Guardian make funeral arrangements for poor people or those who have no family?
A. No. The Office of the Medical Examiner should be contacted.
Q. Does the Office of the Public Guardian give legal advice or representation?
A. No. We do not have an attorney on the staff. Contact any attorney, the Lawyers Reference Service, or the Community Legal Aid Society, Inc. (CLASI) for legal advice or representation.