Delaware Guardianship Laws: Chancery, Family Court and Alternatives

In Delaware, guardianship runs through two different courts. The Court of Chancery appoints a guardian of the person, a guardian of the property, or both, for any "person with a disability," a term that covers both minors and adults who, because of mental or physical incapacity, cannot properly manage or care for their own person or property (12 Del. C. § 3901(a)). The Family Court separately handles "guardianship of a child" under Title 13, chapter 23, usually where a parent consents or the child is dependent, neglected or abused (13 Del. C. §§ 2303, 2330).

Delaware's property-side role is the "guardian of the property"; its interstate act says that "conservator" means a guardian of the property as that term is used in Title 12 (12 Del. C. § 39A-101(2)). Chapter 39 of Title 12 does not state a burden of proof for adult guardianship. A 2026 Court of Chancery decision describes the petitioner's burden as clear and convincing evidence of incapacity, together with evidence that guardianship is the least restrictive measure. For how other states handle these questions, see our guardianship laws by state overview.

Information last verified on October 20, 2026. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers Delaware state law on guardianship of minors and adults in the Court of Chancery (12 Del. C. chapters 39 and 39A), guardianship of a child in the Family Court (13 Del. C. chapter 23), the relative caregiver medical-consent affidavit (13 Del. C. § 708) and supported decision-making (16 Del. C. chapter 94A). It does not cover custody disputes between parents (see Delaware child custody laws), grandparent visitation (see Delaware grandparents' rights), adoption, emancipation, what happens to a person's estate after death (see Delaware probate), Court of Chancery and Family Court rules of procedure, or civil commitment.

Delaware guardianship terms and where the law lives

Delaware's law is spread across three titles:

• 12 Del. C. chapter 39 (Court of Chancery): guardians of the person and property of a "person with a disability," minors and adults alike, plus the Office of the Public Guardian.
• 12 Del. C. chapter 39A: Delaware's version of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, for cases that cross state lines.
• 13 Del. C. chapter 23 (Family Court): guardianship of a child, permanent guardianship and standby guardianship.

The Chancery definition does most of the work:

"'Person with a disability' means any person who: (1) By reason of being under the age of 18 is legally unable to manage their own property or make decisions concerning the care of their own person; or (2) By reason of mental or physical incapacity is unable properly to manage or care for their own person or property, or both, and, in consequence thereof, is in danger of dissipating or losing such property or of becoming the victim of designing persons or, in the case where a guardian of the person is sought, such person is in danger of substantially endangering person's own health, or of becoming subject to abuse by other persons or of becoming the victim of designing persons."

12 Del. C. § 3901(a)

For an adult, the definition requires both incapacity and, in consequence of it, one of the listed dangers.

How to get guardianship of a child in Delaware

Under 13 Del. C. § 701, parents are the joint natural guardians of their child, and the section preserves the courts' power to appoint a third person as guardian of a child's person "where the parents are unsuitable or where the child's interests would be adversely affected by remaining under the natural guardianship of such child's parents or parent" (13 Del. C. § 701(b)). Which court hears a case depends on what is being asked.

Family Court: guardianship of a child

This is the track for a grandparent, aunt, uncle or other adult who will raise a child whose parents cannot. "Unless otherwise specified in this chapter, any adult person or persons may petition the Family Court for a guardianship order regarding a child who is not the adult person's or persons' child" (13 Del. C. § 2320).

What the court must find. When one or both parents hold parental rights, the court must find, for each parent holding rights, either that the parent voluntarily consents to the guardianship, or, after a hearing on the merits, "by a preponderance of the evidence that petitioner has established: a. The child is dependent, neglected or abused and the reasons therefor; and b. It is in the best interests of the child for the guardianship to be granted" (13 Del. C. § 2330(a)). Both elements are required.

If the child is 14 or older, "the Court shall determine whether the child consents to the guardianship, and if the child opposes, whether just cause requires the guardianship be granted" (§ 2330(e)); the petition must include the child's consent affidavit or the just cause (§ 2322(8)). The order states the grounds and the reason for the guardianship, and the court sets any contact, sharing of information or visitation between parent and child by the child's best interests (§ 2330(f)). A proposed guardian who is not a relative must be assessed by DSCYF or a licensed agency (§ 2324A), and the court may in its discretion order a social report (§ 2324).

Timing of the decision. The court "shall issue a decision and order on a petition for guardianship under this chapter within 45 days following the conclusion of the proceedings," or, if no hearing is necessary, within 45 days of the petition and any social report being filed (13 Del. C. §§ 2324 to 2326).

What the guardian may decide. A Family Court guardian's powers, listed in § 2340, include decisions about the child's right to marry or enlist in the armed forces. No bond is required from a guardian appointed under chapter 23. If the guardian proposes to relocate the child for 60 days or more, and the move is either outside Delaware or materially affects a parent's existing visitation arrangement or order, the guardian must obtain leave of court or the consent of the child's parents (13 Del. C. § 2340).

What the parents keep. While a guardianship is in effect, a parent keeps visitation, contact and information to the extent the guardianship order delineates, and inheritance by and from the child. "The parent shall have the primary responsibility to support the child financially" (13 Del. C. § 2331).

Ending it. A Family Court guardianship of a child terminates on the guardian's death, on the child's adoption, when the child reaches the age of majority, or as the court orders (13 Del. C. § 2332(a)); contact, visitation and information-sharing terms may be modified at any time if that is in the child's best interests (§ 2332(b)). A parent may seek rescission. The order may be rescinded on a preliminary showing that the guardianship is no longer necessary for the reason found when it was established, unless the guardian proves by a preponderance of the evidence that the child will be dependent, neglected or abused in the parent's care, or by clear and convincing evidence that the child will suffer physical or emotional harm if the guardianship ends (13 Del. C. § 2332(c)).

Permanent guardianship. A separate, more durable form is available. A relative, foster parent, guardian, or an individual with whom a child in DSCYF custody is placed may serve as permanent guardian and may petition for it (13 Del. C. § 2351). The court must find by clear and convincing evidence all of the elements in § 2353(a): a statutory ground for termination of parental rights under § 1103(a) is met or the parent consents; adoption is not possible or appropriate; permanent guardianship is in the child's best interests; the proposed guardian is suitable, has expressly committed to serve for the rest of the child's minority, understands the financial implications and has had the child placed with them for at least 6 months immediately before the petition (the court may waive the 6 months for a relative on just cause); a child 14 or older consents, or there is just cause; and, if the proposed guardian is not a relative or current guardian, at least one of the conditions in § 2353(a)(6) applies. "A parent may not petition the Court to rescind a permanent guardianship once granted under this chapter," and if the court rescinds one, custody does not automatically revert to the parent (§ 2359(c)).

Court of Chancery: guardian of a minor's person or property

Chancery also appoints guardians for minors, because every person under 18 is a "person with a disability" under § 3901(a). Its rules are the ones that govern parental nominations and a teenager's choice:

• Parent's nomination. "The sole surviving parent of a minor child may, by written declaration or last will, name a guardian of the person or property or both of the parent's child, who shall be appointed if there is no just cause to the contrary." Any parent may name a guardian for property the child may inherit from any person (12 Del. C. § 3902(b)).
• A child 14 or older chooses. If there is no such nomination, or there is just cause not to appoint the nominee, a minor 14 or older who lives in Delaware may choose a guardian, and the court shall appoint that person "if there is no just cause to the contrary" (§ 3902(c)).
• Younger children. If the child is under 14, lives out of state, or neglects to choose a proper guardian, the court appoints in its discretion. A child who gets a guardian before 14 may choose another at 14, unless the first guardian came from the sole surviving parent's declaration or will (§ 3902(d), (e)).
• End at 18. If minority was the only disability alleged, the guardianship ends automatically when the minor turns 18, unless the court ends it earlier or the minor dies (12 Del. C. § 3909(a)).

A minor's money. For personal property at or under a monetary threshold set by court rule, a guardian need not be appointed if the funds go into an annuity or structured financial instrument for the minor, into a Uniform Transfers to Minors Act account, or are registered to an adult as custodian for the minor (12 Del. C. § 3901(l)(1)). The statute leaves the dollar figure to the court's rule. For a minor's tort settlement, the Superior Court or Court of Common Pleas may approve the settlement without appointing a guardian if the net funds go into a UTMA account (up to the rule threshold) or into a court-approved annuity or structured financial instrument, as § 3901(k) provides.

Can a parent name a guardian in a will in Delaware?

Yes, but only a sole surviving parent can name a guardian of the child's person. That parent may name a guardian of the person, the property, or both, by written declaration or last will, and the nominee "shall be appointed if there is no just cause to the contrary." Any parent, including one whose co-parent is alive, may name a guardian only for property the child may inherit (12 Del. C. § 3902(b)). The appointment is made by the Court of Chancery.

Letting a relative care for a child without a full guardianship

Delaware law offers narrower tools.

Relative caregiver medical-consent affidavit. Under 13 Del. C. § 708, an affidavit can establish a relative caregiver's power to consent to medical treatment of a minor without a court order. A "relative caregiver" is an adult related to the child in a degree § 707(a)(3) lists (for example a grandparent, aunt, uncle, adult brother or sister, or first cousin) with whom the child lives and who is not the child's legal custodian or guardian. "Medical treatment" has the meaning in § 707(a)(2): developmental and mental health screening and treatment, ordinary and necessary medical and dental examination and treatment, preventive care such as ordinary immunizations, and examination and treatment of an injury or condition that, if left untreated, could reasonably be expected to threaten health or life; blood testing under it excludes HIV/AIDS and controlled-substance testing (§ 707(a)(1)). The affidavit must include the names and signatures of the parents, legal custodian or guardian approving the caregiver's power, or, if one is unavailable, a statement of the caregiver's reasonable effort to locate that person, and the caregiver's signature must be notarized (§ 708(a)). A person who knowingly makes a false statement in the affidavit is subject to a civil penalty of $1,000 per child (§ 708(g)). Its limits are stated in the statute (13 Del. C. § 708):

• "The affidavit is valid for 1 year unless the minor no longer resides in the caregiver's home or a parent, custodian or guardian revokes the approval."
• "The decision of a relative caregiver to consent to or to refuse medical treatment for a minor shall be superseded by a decision of a parent, legal custodian or guardian of the minor."

The affidavit concerns medical treatment. It is not a custody or guardianship order.

Caregivers School Authorization. A child may be enrolled in a school district on a completed and notarized Caregivers School Authorization, on the Department of Health and Social Services form, if the child lives with a relative caregiver who is 18 or older, a Delaware resident and a resident of that district, for a reason the statute lists (such as the death, serious illness, incarceration or military assignment of a parent or legal guardian), and the other conditions in 14 Del. C. § 202(f) are met.

Standby guardianship (Family Court). A parent, legal custodian or guardian facing a chronic condition or terminal illness may ask the Family Court to approve a standby guardian in advance. The court must find that the standby guardianship is in the child's best interests and, where the ill person is a parent, that the other parent consents, has died or has had parental rights terminated, or that the child would be dependent, neglected or abused in the other parent's care; where the ill person is a legal custodian or guardian, the court makes the same kind of finding as to each parent (13 Del. C. § 2367(a), (b)). Before granting the order, the court "must also find ... that there is a significant risk that the parent, legal custodian, or guardian will die, become incapacitated, or become debilitated as a result of a chronic condition or terminal illness within 2 years of the filing of the petition as certified by an attending physician." Once the standby guardian assumes the duties, the standby guardian must petition the court for confirmation within 30 days, including a determination of incapacity or debilitation, or a death certificate, as appropriate (13 Del. C. §§ 2365 to 2368). The order names the triggering event: receipt of a determination of the petitioner's incapacity or debilitation or of a death certificate, or earlier on the petitioner's written consent (§ 2367(d)). Once the standby guardian's duties begin, the standby guardian shares authority with the parent, legal custodian or guardian unless the petition states otherwise, and the parent, custodian or guardian may revoke the standby guardianship by executing a written revocation, filing it with the court and promptly notifying the standby guardian (§ 2368(f), (g)).

How to become guardian of an adult in Delaware

Adult guardianship is a Court of Chancery matter under 12 Del. C. chapter 39. The court may appoint a guardian of the person, a guardian of the property, or one guardian for both, and may appoint two or more people to split the roles (12 Del. C. § 3903).

Who is covered. An adult who, because of mental or physical incapacity, cannot properly manage or care for their person or property and, as a result, faces the dangers listed in § 3901(a), such as dissipating property, becoming the victim of designing persons, or, where a guardian of the person is sought, substantially endangering their own health or becoming subject to abuse.

Notice and counsel. The statute leaves notice to court rule, with one fixed guarantee: "in all cases where a guardian of the person or guardian of the property of an adult with a disability is sought, the person with an alleged disability shall be entitled to representation by counsel" (12 Del. C. § 3901(c)). The notice periods and petition contents are set in the Court of Chancery's rules, which this page does not cover.

Burden of proof. Chapter 39 does not state one. In In re J.R.G. (Del. Ch. Jan. 12, 2026), a Court of Chancery letter decision, the court wrote that the burden "remains with the petitioner, who must demonstrate incapacity by clear and convincing evidence," and that "[i]n the guardianship context that requires evidence not just of incapacity but also that guardianship is the least restrictive measure to protect the person with a disability." The same decision said the court has consistently emphasized that a petition "should only be filed as a last resort, where less restrictive options like advance healthcare directives, powers of attorney, or surrogate or supportive decision making are unavailable or insufficient."

Tailored powers. For a guardian of the person, the court grants the powers, rights and duties "necessary to protect, manage and care for the person with a disability" and "may at any time change the powers of the guardian of the person" (12 Del. C. § 3922(a)). The court may also limit the powers of a guardian of the property (§ 3923(a)).

Guardian of last resort. Delaware's Office of the Public Guardian serves as "the guardian of last resort for the citizens of Delaware who have been determined to lack capacity to make decisions regarding their persons, their property, or both" (12 Del. C. §§ 3981 to 3983).

What a Delaware guardian of the person can decide

A guardian of the person "may exercise the same powers, rights and duties respecting the care, maintenance and treatment of the person with a disability that a parent has respecting the parent's own unemancipated minor child," within the powers the court grants. The guardian is entitled to custody of the person and "may establish the place of abode for the person with a disability within or without this State" (12 Del. C. § 3922(b)).

One limit is written into the section: "The guardian may not waive any right of the person with a disability respecting involuntary commitment to any facility for the treatment of mental illness or deficiency" (§ 3922(b)).

Reports. By statute, "a guardian of the person shall have no duty to account or otherwise report to the Court, except as provided by order of the Court" (12 Del. C. § 3941(a)). In practice, the J.R.G. decision states, "All guardians are required to file the annual update and medical statement. The Court reviews those forms, annually assessing the continued need for guardianship and responding to any concerns raised."

Guardian of the property: bond and accounts

Inventory. "Every guardian of the property shall file with the Court within 30 days after appointment a verified inventory of the property of the person with a disability with respect to which the guardian acts," and must file a supplemental inventory within 30 days after acquiring or discovering other property (12 Del. C. § 3921(b)).

Bond. Every guardian must give bond with surety in a sum the court fixes, unless the court dispenses with bond or surety (12 Del. C. § 3905(a)), and "The Court may, at any time for good cause, waive the requirements of bond and/or surety, or reduce surety in any case where bond is required" (§ 3905(c)).

Court approval. To sell the person's real estate, a guardian of the property must apply to the Court of Chancery and give notice to potentially interested parties; if there appears preliminarily to be good cause, the court appoints an independent licensed appraiser and then decides in its discretion whether the sale is in the person's best interest (12 Del. C. § 3951). No person dealing with a guardian may rely on the guardian's authority to release claims, settle tort claims or convey title to real property without prior court approval (§ 3926).

Accounts. "Every guardian of the property shall render an account of the guardianship at the end of 1 year from the guardian's appointment and afterwards as the Court of Chancery in which such guardian was appointed requires, but not more often than once in 2 years, unless there is a special occasion" (12 Del. C. § 3943).

Removal. "The Court of Chancery may remove a guardian for any sufficient cause," and a guardian may be allowed to resign on petition (12 Del. C. § 3908(a)).

Interim guardian in an emergency

"If, upon the filing of a petition, the Court finds the person with an alleged disability is in danger of incurring imminent serious physical harm or substantial economic loss or expense the Court may without notice and hearing appoint an interim guardian of the person or property to serve for a period of up to 30 days; provided, that a hearing shall be held within 30 days of such appointment" (12 Del. C. § 3901(d)). The hearing follows § 3901(c), including the adult's right to counsel. The court must list the interim guardian's powers and duties, granting either all of the powers in subchapter II of chapter 39 or limited powers based on the person's needs; a limited grant may specify the limits on the guardian's authority, "the areas of decision-making retained by the person with an alleged disability," and the specific, limited purpose of the guardianship (§ 3901(d)(2)).

How an adult guardianship ends

A guardianship of an adult continues until the person dies or the Court of Chancery terminates it "upon application of the guardian, the person with a disability, or another interested party" (12 Del. C. § 3909(c)). The statute does not state a standard for termination. According to In re J.R.G., the court reviews each guardian's annual update and medical statement, "annually assessing the continued need for guardianship."

Alternatives to guardianship in Delaware

Supported decision-making. Delaware's Supported Decision-Making Act, 16 Del. C. chapter 94A (enacted by 80 Del. Laws c. 427), begins from a presumption: "All adults are presumed to be capable of managing their affairs and to have capacity unless otherwise determined by the Court of Chancery" (§ 9404A(a)). Key rules:

• The agreement is valid only if it is in a writing containing the elements of the Department of Health and Social Services form, is dated, and each party signs in the presence of 2 adult witnesses (§ 9405A(d)).
• The 2 witnesses may not be a supporter or an employee or agent of a supporter named in the agreement, and the agreement must contain a separate declaration signed by each supporter (§ 9405A(e), (f)).
• "A principal or a supporter may revoke a supported decision-making agreement at any time in writing and with notice to the other parties to the agreement" (§ 9405A(h)).
• "Execution of a supported decision-making agreement may not be used as evidence of incapacity and does not preclude the ability of the adult who has entered into such an agreement to act independently of the agreement" (§ 9404A(c)).
• A decision or request made or communicated with a supporter's assistance under the chapter "shall be recognized for the purposes of any provision of law as the decision or request of the principal" (§ 9407A).
• A court may later limit or end an authorization in the agreement by determining that the person lacks capacity to make specific decisions covered by it, despite a supporter's assistance (§ 9405A(i)).

Powers of attorney and advance directives. A power of attorney or advance health-care directive is signed while a person still has capacity. Signing rules are covered on our Delaware power of attorney laws page. Free drafting tools are available for a Delaware power of attorney and a Delaware advance directive; a tool is not legal advice, and any document must be signed under the Delaware rules on the power of attorney page.

Health-care default surrogates. When an adult cannot make a health-care decision and has no advance directive that says otherwise, Delaware's health-care decisions law names classes of people who may act as a default surrogate, "in descending order of priority," starting with "an adult the individual has identified, other than in a power of attorney for health care, to make a health-care decision for the individual if the individual cannot make the decision" (16 Del. C. § 2512(b)). A surrogate must be reasonably available and not disqualified under § 2514.

Federal benefits. The Social Security Administration decides for itself whether representative payment is in a beneficiary's interest and appoints its own payee; a legal guardian is one person it may choose, not an automatic payee (20 C.F.R. § 404.2001). The guardianship hub covers the federal layer.

Moving to or from Delaware with a guardianship

Delaware adopted the interstate jurisdiction act as 12 Del. C. chapter 39A, which applies to guardianship and protective proceedings begun on or after January 1, 2009 (§ 39A-402). "A guardian or conservator appointed in this State may petition the Court to transfer the guardianship or conservatorship to another state" (§ 39A-301(a)). Guardians appointed in other states for nonresidents are addressed in 12 Del. C. § 3904.

Recent changes in Delaware guardianship law

Senate Bill 93 of the 153rd General Assembly (85 Del. Laws c. 91, approved July 21, 2025, effective September 30, 2025) amended Titles 12, 16, 21 and 31 of the Delaware Code relating to third-party decision making. In the Office of the Public Guardian sections, it added agents under a power of attorney (including a power of attorney for health care) to the circumstances that make the Public Guardian the guardian of last resort, alongside the surrogate decision makers, guardians, representative payees and VA fiduciaries already listed, and it changed "surrogate decision maker" to "default surrogate decision maker" in that definition and in the Public Guardian's existing power to recommend a suitable guardian or surrogate or refer to an entity willing to serve (12 Del. C. §§ 3982, 3983).

Official forms and help

The Court of Chancery guardianship page carries the court's guardianship forms and handbook. The statutes are on the Delaware Code site for Title 12, chapter 39 and Title 13, chapter 23.

Delaware guardianship at a glance

Related Delaware pages

• Guardianship laws by state
• Delaware power of attorney laws
• Delaware child custody laws
• Delaware grandparents' rights
• Delaware probate

This article provides general legal information about Delaware guardianship law, not legal advice. Guardianship cases turn on their facts and on court rules and practice. For advice about a specific situation, contact a lawyer licensed in Delaware, or the Court of Chancery or Family Court.

Last updated: October 20, 2026.

Frequently Asked Questions

Which court handles guardianship in Delaware?

The Court of Chancery appoints guardians of the person or property for adults and for minors (12 Del. C. § 3901(a)). The Family Court handles guardianship of a child under 13 Del. C. chapter 23, the usual route when a nonparent will raise a child (13 Del. C. §§ 2303, 2320).

How do I get guardianship of my grandchild in Delaware?

Any adult may petition the Family Court for guardianship of a child who is not their own (13 Del. C. § 2320). For each parent holding parental rights, the court must find either that the parent consents or, after a hearing, by a preponderance of the evidence that the child is dependent, neglected or abused and that guardianship is in the child's best interests (§ 2330(a)). If the child is 14 or older, the court also determines whether the child consents and, if the child opposes, whether just cause requires the guardianship (§ 2330(e)).

What is the burden of proof for adult guardianship in Delaware?

12 Del. C. chapter 39 does not state one. A January 2026 Court of Chancery letter decision, In re J.R.G., says the petitioner must demonstrate incapacity by clear and convincing evidence, along with evidence that guardianship is the least restrictive measure.

Does the adult get a lawyer in a Delaware guardianship case?

In every case where a guardian of the person or property of an adult is sought, the person with an alleged disability is entitled to representation by counsel (12 Del. C. § 3901(c)).

How long does an emergency guardianship last in Delaware?

If the court finds the adult is in danger of imminent serious physical harm or substantial economic loss or expense, it may appoint an interim guardian without notice and hearing for up to 30 days, and a hearing must be held within 30 days of the appointment (12 Del. C. § 3901(d)).

Can a relative consent to a child's medical care in Delaware without a court order?

Yes, through a relative caregiver medical-consent affidavit under 13 Del. C. § 708, for a relative listed in § 707(a)(3) with whom the child lives and who is not the child's custodian or guardian. It covers medical treatment as § 707(a)(2) defines it, needs the parents' approval signatures or a statement of reasonable effort to locate them, and the caregiver's signature must be notarized. It is valid for 1 year unless the child no longer lives in the caregiver's home or the approval is revoked, and a parent's, legal custodian's or guardian's decision supersedes the caregiver's.

Does Delaware have a supported decision-making law?

Yes. 16 Del. C. chapter 94A lets an adult sign a dated written agreement with one or more supporters before 2 adult witnesses, and signing it may not be used as evidence of incapacity (§§ 9404A, 9405A).

Can a parent end a Family Court guardianship in Delaware?

A parent may seek rescission. The order may be rescinded on a preliminary showing that the guardianship is no longer necessary for the reason it was established, unless the guardian proves by a preponderance of the evidence that the child will be dependent, neglected or abused with the parent, or by clear and convincing evidence that the child will suffer physical or emotional harm if it ends (13 Del. C. § 2332(c)).