How to Get Guardianship of a Disabled Adult in Delaware

Before You File: Delaware Requires You to Consider Alternatives First

Delaware's Court of Chancery treats guardianship as a remedy of last resort. A petitioner must demonstrate by clear and convincing evidence that less restrictive alternatives — Supported Decision-Making Agreements, Durable Powers of Attorney, Advance Health-Care Directives — cannot adequately protect the young adult. If you have not explored these options, the court will ask why.

This is not a formality. In the 2026 case In re J.R.G., the Court of Chancery emphasized its obligation to impose only the least restrictive form of intervention necessary. Families who file without documenting why alternatives are insufficient risk delays, additional attorney fees, and a court-ordered evaluation of those alternatives before the case proceeds.

Step 1: Get the Physician's Affidavit (3 Months Before Filing)

The physician's affidavit is the foundation of every guardianship petition. The examining doctor must have personally examined the young adult within three months of the petition's filing date — not three months before the hearing, three months before you file.

The affidavit (Form CM2 for cognitive impairment) must provide clinical detail proving a physical or mental disability that significantly interferes with the individual's ability to make or communicate responsible decisions about healthcare, nutrition, clothing, shelter, or finances. A diagnosis alone is not enough. The doctor must connect the diagnosis to specific functional limitations.

Schedule this examination strategically. If you get the affidavit too early and the filing process takes longer than expected, you will need a new examination.

Step 2: File the Verified Petition

Adult guardianship petitions in Delaware are filed with the Register in Chancery in the county where the young adult lives. You will need:

• Form CM1 (guardianship of person and property) or Form CM13 (person only)
• The notarized Physician's Affidavit
• A personal information sheet listing the young adult's assets, income, and liabilities
• Names and addresses of all interested parties — spouse, next of kin, and any agents named in existing POA or healthcare directive documents
• An affidavit describing your efforts to locate any interested party whose address you cannot determine

The petition itself is filed under penalty of perjury. Filing fees start at $135, plus a $2 per-page scanning fee for all documents filed. An optional $100 administrative deposit covers additional court costs.

Step 3: The Attorney Ad Litem Investigation

After filing, the court appoints an Attorney Ad Litem (AAL) to independently represent the young adult's interests. The AAL does not work for you — they work for the person you are seeking guardianship over.

The AAL must conduct at least one in-person or secure remote visit with the young adult, advise them of the petition's contents and their rights, and run an Adult Protective Services background check on both the young adult and the proposed guardian through the Department of Justice. The AAL then files a written report recommending whether guardianship is appropriate and whether limited guardianship would be sufficient.

Standard AAL fees run up to $750 for uncontested cases. Contested cases with dueling attorneys cost significantly more, and those fees are typically assessed against the petitioner or the young adult's estate.

Step 4: Notice to Interested Parties

Every interested party who has not signed a formal Waiver of Notice and Consent must receive a copy of the preliminary order and hearing notice at least 10 days before the hearing date. Delaware now allows notice via registered mail, certified mail, or commercial courier services with real-time tracking — a change made in the September 2025 rule amendments.

If everyone who matters has signed a waiver, this step is straightforward. If any family members object or cannot be located, this is where cases get complicated and expensive.

Step 5: The Hearing

For uncontested cases where the AAL's report supports the petition, the Court of Chancery may issue an order without an in-person hearing. A Magistrate reviews the petition, the physician's affidavit, and the AAL report, then signs the Final Order of Appointment.

For contested cases — where the young adult objects, family members disagree, or the AAL raises concerns — Rule 174.1, which addressed mandatory mediation, has been repealed. The case proceeds under the Court's current scheduling and hearing procedures.

The evidentiary standard is clear and convincing evidence — higher than the preponderance standard used in most civil cases. The petitioner must produce evidence that creates an abiding conviction that incapacity is highly probable.

Step 6: Post-Appointment Obligations

Getting the guardianship order is not the end — it is the beginning of ongoing court-supervised responsibilities.

If the order requires a fiduciary bond, it must be executed and filed with the Register in Chancery within seven days of entry; the court will not provide a copy of the final order until the bond is filed. Property guardians managing significant unrestricted assets need a Bond With Surety. You must open a restricted "Court of Chancery Guardianship Account" at a Delaware bank, close any pre-existing accounts in the ward's name, and file proof of compliance within 30 days.

Annually, every guardian files an Annual Update and Medical Statement (Form CM21) on the first business day of the calendar quarter of their original appointment. Property guardians also file detailed financial accountings. Cash withdrawals are prohibited — every payment must be by check or debit with receipts retained.

The Realistic Timeline

For an uncontested case with cooperative family members and complete paperwork: expect 7 to 10 weeks from filing to the appointment order. Contested cases with mediation or trial can take several months and cost thousands in legal fees.

If you are weighing whether guardianship is genuinely necessary or whether alternatives could meet your family's needs, the Delaware Adult Guardianship & Alternatives Guide provides the diagnostic tools and step-by-step filing instructions for both paths.

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