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Rules of the Court of Chancery Pertaining to the Office of the Public Guardian


Rule 171. Briefs.

(a) Order of filing and number thereof. — Unless otherwise directed by the Court, briefs shall be served and filed in the following order: First, the main brief of those who at the particular stage of the case are the moving parties; second, the answering briefs of those who oppose the position supported by the main brief; third, the reply brief of those who have previously filed a main brief. Where, as in interpleader, will construction, and other cases, the claims or positions asserted by the defendants are mutually antagonistic, those asserting each separate claim or position shall serve and file separate briefs as moving parties; and all parties who oppose such a position or claim shall serve and file answering briefs to which reply briefs may be filed. Unless otherwise ordered, no additional briefs or letters containing argument shall be filed without first procuring Court approval.

(b) Time of filing. — The time of filing briefs shall either be fixed by the Court or fixed by the parties.

(c) Serving and filing briefs and letters. — Unless otherwise ordered the original and 1 copy of all briefs shall be mailed to or filed with the Register who shall immediately docket them and mail or deliver the original to the Judge to whom the matter has been assigned; and at the same time, a copy shall be served on each Delaware attorney, or firm of attorneys, appearing in the proceeding. If sent by mail, briefs must be posted sufficiently in advance so as to be delivered, in the ordinary course of the mails, not later than the last day for filing. A copy of every letter of counsel to the Court containing argument shall be sent to the Register for filing in the cause and another copy sent opposing counsel.

(d) Form of briefs and memoranda. —

  • (1) Content of covers. — On the front cover of each brief or memorandum of points and authorities there shall be stated the name of the Court, the caption of the case, the number assigned to the case by the Register in Chancery, a description of the nature of the brief or memorandum, the name and designation of the party for whom it is filed, and the name, address and telephone number of counsel by whom it is filed.

  • (2) Type of paper and print. — Briefs and memoranda of points and authorities may be printed or typed and may be reproduced by any duplicating or copying process which produces a clear black image on opaque, unglazed white paper. Carbon copies may not be submitted without permission of the Court. All printed matter must appear in at least 11 point type on opaque, unglazed paper.

  • (3) Binding, margins and spacing. — All briefs and memoranda shall be firmly bound either at the left margin or at the top. Printed briefs, memoranda of points and

  • authorities and appendices shall have pages approximately 7 x 9½ inches. Briefs and memoranda of points and authorities produced by any other process shall have pages not exceeding 8½ x 11 inches, with double spacing between each line of text except for quotations and footnotes. All margins of briefs and memoranda of points and authorities shall be not less than 1¼ inches.

(e) Contents. — Briefs shall contain the following (in separate divisions):

  • (1) A table of contents or index.

  • (2) A table of citations arranged in alphabetical order.

  • (3) In the main and answering briefs, a statement of the nature and stage of the proceeding.

  • (4) In the main and answering briefs, a concise statement of all relevant facts with page references to the transcript of testimony, if any, and to pleadings, exhibits, or other sources of the facts.

  • (5) In the main and answering briefs, a concise and accurate statement of the questions involved.

  • (6) An argument, divided into sections (and subsections, if need be) under appropriate headings indicating the points discussed and correlating the sections with the stated questions involved.

(f) Length. — Without express permission of the Court, no main or answering brief shall exceed 50 pages, and no reply brief shall exceed 30 pages, in each instance exclusive of tables of contents and citations.

(g) Form of citations. — Except as provided below, citations will be deemed to be in acceptable form if made in accordance with the "Uniform System of Citation" published and distributed from time to time by the Harvard Law Review Association. The style of citation of all Delaware opinions which are reported in any series of the Atlantic Reporter shall be as set forth in the following examples:

  • Melson v. Allman, Del. Supr., 244 A.2d 85 (1968)
  • Prince v. Bensinger, Del. Ch., 244 A.2d 89 (1968)
  • State v. Pennsylvania Railroad Co., Del. Super., 244 A.2d 80 (1968)

All further references to the previous State Reporter System shall be omitted. The citation of reported opinions of other jurisdictions shall similarly designate the court, the National Reporter System citation and the date, omitting reference to any state reporter system.

(h) Opinions cited in brief. — If an unreported or memorandum opinion is cited, a copy thereof shall be attached to the brief, and the case number in which it was filed shall be stated. If the opinion does not contain a sufficient statement of the facts to demonstrate its pertinency to the pending argument, a statement of the facts shall also be attached to the brief. If the citation is first made in a reply brief, the opposing party may discuss the opinion at oral argument or, upon application made at oral argument, may be given the opportunity to do so in writing.


Rule 174.1. Mandatory mediation for adult guardianship matters and probate disputes.

(a) Definitions. —

  • (1) "Mediation" means the process by which a mediator assists and facilitates two or more parties to a controversy in reaching a mutually acceptable resolution of the controversy and includes all contacts between the mediator and any party or parties, until such time as a resolution is agreed to by the parties or the parties discharge the mediator.

  • (2) "Mediator" means impartial person appointed by the Court or selected by agreement of the parties to a controversy to assist them in mediation. A person is eligible to serve as a designated mediator under this rule if he or she is eligible to serve as a mediator pursuant to the rules of Superior Court, or if he or she is eligible to serve as a mediator pursuant to the rules of this Court, or if the person has completed the Mediation Training Program established by the Delaware State Bar Association Committee on Law & Elderly. The Court shall retain a list of individuals who are eligible to serve as mediators pursuant to this rule and shall appoint a proposed mediator in all cases where the Chancellor, Vice Chancellor, or Master deems it appropriate for mandatory mediation.

  • (3) "Mediation conference" means that process, which may consist of one or more meetings or conferences, pursuant to which the mediator assists the parties in seeking a mutually acceptable resolution of their dispute through discussion and negotiation.

(b) Assignment to mediator. —

  • (1) Parties may jointly select any person to serve as mediator who has agreed to serve on a private basis, and meets the minimal requirements set out in these rules. Such stipulation must be made within twenty (20) days after the matter is referred to mediation and must include a statement signed by the mediator expressing his or her willingness to mediate under the Mediation Rules. Alternatively, the court will assign a mediator to the case.

  • (2) Mediators shall be compensated for their services at a reasonable hourly rate. Mediators shall submit an application to the Court after the conclusion of mediation for their compensation. All fees and expenses relating to the use of mediators in cases referred to mediation shall be borne equally by the parties unless otherwise ordered by the court.

(c) Authority of mediators. —

  • (1) Mediators shall work with parties to facilitate agreements on substantive and procedural matters and attempt to aid in the voluntary resolution of cases. Mediators shall terminate the mediation if the mediator believes the process is unproductive or that any party or attorney is not mediating in good faith. Mediators may recommend to the court that sanctions be imposed against a party or attorney who has failed to comply with these Mediation Rules. Mediators shall not issue decisions or make procedural or substantive recommendations about the case to the court.

(d) Participation. —

  • (1) All parties with an interest in the issue or issues to be mediated and with authority to resolve the matter must participate in the mediation conference(s). Any party may have legal counsel present to assist in the mediation.

(e) Confidentiality. —

  • (1) Mediation conferences are private proceedings such that only parties and their representatives may attend, unless all parties agree otherwise. A mediator may not be compelled to testify in any judicial or administrative proceeding concerning any matter relating to service as a mediator. All memoranda, work product, and other materials contained in the case files of a mediator are confidential. Any communication made in or in connection with the mediation that relates to the controversy being mediated, whether made to the mediator or a party, or to any person if made at a mediation conference, is confidential. Such confidential materials and communications are not subject to disclosure in any judicial or administrative proceeding with the following exceptions:
    • (a) Where all parties to the mediation agree in writing to waive the confidentiality, or

    • (b) Statements, memoranda, materials, and other tangible evidence otherwise subject to discovery, that were not prepared specifically for use in the mediation conference. A mediation agreement, however, shall not be confidential unless the parties otherwise agree in writing.

(f) Reporting outcome of mediation services. —

  • (1) If the mediation is successful in resolving any of the dispute, a written agreement shall be submitted to the Court.

  • (2) In the event that the agreement is not reached, the mediator shall notify the Court in writing that mediation has been concluded and an agreement was not reached.

  • (3) If one or both parties fail to appear at any mediation conference, the mediator shall report the identity of each person who failed to appear to the Court. The Court may, thereafter, take whatever action it deems necessary or appropriate, including imposing sanctions.

(g) Mediation agreement. —

  • (1) If the parties involved in the mediation conference reach agreement with regard to the disputed issues, their agreement shall be reduced to writing and signed by the parties and the mediator. The agreement shall set for the terms of the resolution of the issues and the future responsibility of each party. The agreement will be binding on all parties to it and, upon filing by the mediator, will become part of the Court's record. If the parties choose to keep the terms of the agreement confidential, a Stipulation of Dismissal may be filed in the alternative.

Rule 175. Petition for appointment of guardian.

(a) Filing petition. — The petition for the appointment of a guardian for the person or property, or both, of a disabled person as defined in 12 Del. C. § 3901 shall be filed in the Court of Chancery.

(b) Proposed order annexed. — A form of preliminary order setting the matter down for hearing and providing for the giving of the required notice shall be filed with the petition.

(c) Contents of petition. — The petition for the appointment of a guardian shall be verified and shall set forth:

  • (1) The name of the person alleged to be disabled, the name and address of petitioner and the relationship of the petitioner to the person alleged to be disabled; if not related, the nature of the petitioner's interest.

  • (2) The age, marital status, domicile and place of present residence of the person alleged to be disabled; whether such person is a patient or otherwise a resident of any hospital or institution of any type whatsoever; if so, the name and address of such institution and the date and circumstances surrounding the admission or entry into such institution of the person alleged to be disabled.

  • (3) The names and addresses of the spouse, if any, and the next of kin of the person alleged to be disabled. If any such next of kin are minors, their approximate ages shall be given if known. If, after exercising due diligence, the petitioner cannot ascertain the name or address of a spouse or next of kin, if any, that fact shall be stated.

  • (4) Any information known to petitioner concerning the existence and location of any will of the person alleged to be disabled and any power of attorney executed by the person alleged to be disabled. The identity of any attorney-in-fact named in such power of attorney shall be stated.

  • (5) A list of the assets of the person alleged to be disabled, insofar as known to petitioner, the probable value thereof, the estimated rental value of any real estate; the estimated income from other sources; such person's known obligations and liabilities; any information known concerning the arrangement for paying the expenses of such person.

  • (6) If the petitioner desires authority as guardian to expend principal of the disabled person's estate for reasons other than clothing, support, care, protection, welfare and rehabilitation of the disabled person, to borrow money for the benefit of the disabled person, or to prepay burial expenses, application for such authority may be set forth in the petition. The form of application shall follow the form set forth in Rule 178 so far as applicable.

  • (7) Whether the person alleged to be disabled was ever a member of the armed services of the United States.

  • (8) Whether, to the best knowledge of petitioner, the person alleged to be disabled has been represented by a Delaware attorney within the past two years and, if so, the name of such attorney.

  • (9) A general allegation that the person alleged to be disabled is under the age of 18 or is unable properly to manage his or her person, his or her estate, or both, because of disability, and as a consequence is in danger of dissipating his or her estate or becoming the victim of designing persons and, where an interim guardian is sought, that the person alleged to be disabled is in danger of incurring imminent serious physical harm, which may occur before a hearing for the appointment of a guardian may be held;

  • (10) That the person alleged to be disabled has no guardian to take charge of and manage his or her person or estate, or both;

  • (11) Whether, in the opinion of petitioner, the giving of notice pursuant to Rule 176 is likely to result in any harm to the person alleged to be disabled; and

  • (12) A prayer that the Court appoint a guardian, and an interim guardian where necessary, to take charge of and manage the person or property, or both, of the disabled person.

(d) Annexed medical report. — There shall be annexed to the petition for the appointment of a guardian of a person who is alleged to be mentally or physically disabled a verified medical report which shall be made by a medical or osteopathic doctor authorized to practice. The report shall give particulars as to the alleged disabilities and shall state the date of the last examination by the doctor of the person alleged to be disabled. It shall also state whether in the doctor's opinion it would be meaningless or detrimental to the health of the person alleged to be disabled to serve notice of the hearing upon such person, and if the opinion is that such service would be detrimental, the report shall set forth with particularity the facts which led to that conclusion.


Rule 176. Appointment of attorney ad litem upon petition for appointment of guardian; service and notice of hearing.

(a) Appointment of attorney ad litem. — Upon the filing of the petition, the Court shall appoint a member of the Delaware Bar to represent the adult person alleged to be disabled if such person is not otherwise represented by counsel, to receive notice on behalf of such person and to give actual notice to such person, explain his or her rights, and the nature of the proceeding. The attorney ad litem shall represent the person alleged to be disabled as if engaged by such person. The Court, in its discretion, may appoint an attorney ad litem to represent a minor disabled person.

(b) Appointment of fact finder. — The Court may also appoint an impartial fact finder to report to the Court concerning the matter.

(c) Service on person alleged to be disabled. — Upon the filing of a petition for the appointment of a guardian for a disabled person, a show cause order and a copy of the petition shall be forthwith delivered by the Register in Chancery to the sheriff of the county of the office of the attorney ad litem appointed by the Court, or the county of the residence of the person alleged to be disabled, or to a person especially appointed by the Court to serve such papers. Notice of the hearing shall be served on the attorney ad litem appointed by the Court or on counsel for the adult person alleged to be disabled, and/or on the adult person alleged to be disabled, at least 10 days before the hearing date unless, for cause shown, the Court shortens the time. Notice of the hearing shall be personally served on an attorney ad litem appointed by the Court in its discretion to represent a minor disabled person or on the minor disabled person, or on an adult with whom the minor resides in the case of minors under the age of 14 years.

(d) Notice to others. — Notice by registered or certified mail, return receipt requested, of the time, place and purpose of the hearing shall be given by or on behalf of the petitioner, to the spouse, if any, to the next of kin who are 18 years of age or older, to the attorney-in-fact of the person alleged to be disabled, and to any attorney identified in Rule 175(c)(8) who has not been appointed attorney ad litem unless, for cause shown, the Court concludes that any such notice is likely to result in physical harm to the person alleged to be disabled. Notice need not be given to any person 18 years of age or over who has consented in writing to the granting of the prayer of the petition or has waived such notice. If the petition recommends that someone other than the petitioner be appointed as guardian, notice shall be given to the proposed guardian by delivering or mailing to the proposed guardian a copy of the petition at least 10 days before the scheduled hearing on the petition, unless the proposed guardian has expressly consented in writing to serving or the Court for good cause shortens the time for giving such notice.

(e) Proof of service and notice. — Proof of service and of notice shall be filed with the Register in Chancery prior to the hearing or shall be presented at the hearing.


Rule 177. Hearing upon petition for appointment of guardian.

The hearing upon the petition for the appointment of a guardian for a person alleged to be disabled shall be by the Court. The Court, in its discretion, may require that the person alleged to be disabled be produced at the time of such hearing. If there is no objection to the petition, the Court may grant it without requiring the petitioner to present other evidence. If there is objection to the petition, the Court will receive evidence at the hearing or, for good cause, adjourn the hearing to another date for the reception of evidence.


Rule 178. Petition to exercise powers not granted by Subchapter II of Chapter 39 of Title 12 of the Delaware Code or by the Court.

(a) Petition needed. — If the guardian desires authority to exercise powers not granted by Subchapter II of Chapter 39 of Title 12 of the Delaware Code or by the Court (such as the power to expend principal of the disabled person's estate for reasons other than the support, care, protection, welfare, clothing and rehabilitation of the disabled person, the power to sell real property belonging to the disabled person, the power to borrow money for the benefit of the disabled person or the power to prepay burial expenses), the guardian shall make application therefor to the Court by a petition.

(b) Proposed order annexed. — A form of order shall be filed with the petition.

(c) Contents of petition. — The petition shall be verified and shall set forth:

  • (1) The name of the guardian, the date of the guardian's appointment, the amount of any bond and the name of the guardian's surety, if any;

  • (2) If the petition concerns the disabled person's property,
    • (i) A list of the guardianship assets in summary form, estimated annual receipts of income, estimated annual receipts from benefits, and estimated annual administration expenses, including income taxes;

    • (ii) A list of all claims of the disabled person's creditors, an estimate of the amount to be paid annually for the disabled person's care and maintenance and a statement of the persons or institutions to which such amounts are to be paid;

    • (iii) Whether the disabled person has a will, and if so, the name of its custodian and whether the granting of the requested authority will, to petitioner's knowledge, result in the sale or pledge of property which is the subject of a specific devise or bequest in the disabled person's will. The prospective devisee or legatee need not be identified in the petition;
  • (3) A prayer for leave to take the requested actions.

Rule 179. Property subject of specific devise or bequest.

Where guardianship property which is the subject of a specific devise or bequest is sold or pledged, the devise or bequest shall not be adeemed, but the proceeds of such sale or loan shall be pro rata substituted for the property sold or pledged and shall be separately accounted for.


Rule 180-B. Powers and duties of guardian.

All references to guardians in these Rules shall be applicable to guardians for disabled persons appointed under Chapter 39 of Title 12 after July 8, 1993 and to trustees and guardians appointed under former statutes 12 Del. C. Chapter 37 and Chapter 39. All guardians of the person and/or property of any disabled person shall file a status report with the Register in Chancery each year on the anniversary of the guardian's appointment. This report shall inform the Court of the current mailing address of both the disabled person and the guardian, and shall provide to the Court a current medical statement from the attending physician setting forth the current medical status of the ward and addressing the need for a continued guardianship.


Rule 180-C. Termination of guardianship upon recovery of disabled person.

(a) Petition to terminate guardianship. — Any person for whom a guardian has been appointed by the Court may at any time file a petition alleging a sufficient recovery of health to enable him or her to care properly for his or her person, or to enable him or her to manage properly and care for his or her property, or both as the case may be, and asking for a termination of the guardianship of the person, or termination of the guardianship of the property, or both as the case may be. The Court may make an order for the ascertainment of the truth of the allegation, whether by an examination in open Court, or otherwise, as the Court shall direct. If a hearing is to be held, notice thereof, in such form and manner as the Court shall direct, shall be given to such of the guardian, spouse, and next of kin of the petitioner as the Court shall direct. Such a petition may also be filed by other parties in interest.

(b) Discharge of guardian upon recovery of the disabled person. — If the Court finds that the formerly disabled person has been restored to such a condition of health that he or she is capable of caring for his or her person, or properly managing and caring for his or her property, or both as the case may be, the Court will make an order terminating the guardianship, restoring to the formerly disabled person the care of his or her person or restoring to him or her the property and estate in the custody, possession and control of the guardian, or both, providing for the payment of costs and expenses incurred during the guardianship, and requiring a full accounting from the former guardian of the formerly disabled person's property.

(c) Restoration of property of minor upon attaining majority. — If the only allegation of disability in the petition for appointment of a guardian was that the person was a minor, the guardianship shall terminate automatically in accordance with 12 Del. C. § 3909 when the formerly disabled person attains the age of 18 years, but such automatic termination of the guardianship of the property shall not relieve the guardian of the duty to account to the Court.