Delaware Guardianship Capacity Determination: Evaluations and the Physician Affidavit

What "Incapacity" Actually Means in Delaware

Delaware doesn't use a single, simple test for incapacity. The Court of Chancery looks at whether a person has a physical or mental disability that significantly interferes with their ability to make or communicate responsible decisions about specific life domains — healthcare, nutrition, clothing, shelter, or finances.

That word "significantly" does a lot of work. A person who makes unconventional choices isn't incapacitated. A person who needs help understanding complex medical information isn't necessarily incapacitated either. The standard asks whether the disability prevents the person from making responsible decisions even with available support.

The Physician's Affidavit: The Clinical Foundation

No guardianship petition moves forward without a notarized Physician's Affidavit (Form CM2). This document carries more weight than almost any other filing in the case because it provides the clinical evidence the court needs to assess incapacity.

The examining physician must have personally examined the individual within three months of the petition's filing date. The affidavit must address:

• The specific nature of the disability (diagnosis, duration, prognosis)
• How the disability affects the individual's ability to make decisions in each relevant domain
• Whether the condition is static, improving, or degenerating
• What the individual can do independently versus what requires assistance

Generic statements like "patient is unable to care for themselves" won't satisfy the court. The affidavit needs clinical specificity — how the disability manifests in daily life, which decision-making abilities are impaired, and which remain intact.

Choosing the Right Evaluator

The physician who completes the affidavit doesn't need to be a psychiatrist or neuropsychologist, but they must be qualified to assess the specific disability. For intellectual and developmental disabilities, a physician who has treated the individual over time provides the most credible evaluation because they can describe the person's functional abilities from direct clinical experience rather than a single-visit snapshot.

If the existing treating physician hasn't seen the individual recently, schedule the guardianship-specific evaluation well in advance. The affidavit must be based on an examination within the three months before filing unless the Court approves otherwise; if that period expires, arrange a new affidavit or seek court approval.

The IEP Capacity Determination Is a Separate Process

Families navigating both the special education transition and guardianship sometimes confuse the IEP team's capacity evaluation with the court's. These are completely distinct:

• The IEP team evaluates whether the student can provide informed consent to educational decisions, following standards in 14 Del. C. § 3132 and 14 DE Admin. Code 925-7.3
• The Court of Chancery evaluates whether the individual lacks capacity to make responsible decisions across life domains, under 12 Del. C. § 3901 et seq.

Delaware law explicitly states that the IEP team's finding is inadmissible as evidence in any non-educational judicial proceeding, including guardianship cases. A school finding that a student lacks educational decision-making capacity cannot be used to support a guardianship petition, and a finding that the student has educational capacity doesn't prevent one.

What Happens at the Hearing

At the guardianship hearing, the petitioner must prove incapacity by clear and convincing evidence. This standard requires the court to develop an "abiding conviction" that the allegations are highly probable — more than a preponderance of evidence but less than beyond a reasonable doubt.

The Attorney Ad Litem appointed by the court conducts an independent investigation: visiting the individual, interviewing family members and caregivers, and reviewing the medical evidence. The AAL files a report with a recommendation on whether guardianship is warranted and, if so, whether limited or plenary.

The individual has the right to attend the hearing, testify, and present their own evidence — including independent medical evaluations that contradict the petitioner's physician affidavit.

When the Evaluation Supports Alternatives Instead

Sometimes the capacity evaluation reveals that the individual can function with support in most or all areas. In that case, the physician's affidavit actually becomes evidence against a plenary guardianship and in favor of alternatives — a Supported Decision-Making Agreement, Durable Power of Attorney, or limited guardianship covering only the specific areas where the individual truly cannot function.

The Delaware Adult Guardianship & Alternatives Guide walks families through interpreting capacity evaluation results and matching them to the least restrictive legal mechanism that genuinely meets the individual's needs.

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