CHAPTER 109
FORMERLY
SENATE BILL NO. 46
AS AMENDED BY SENATE AMENDMENT NO. 1 AND HOUSE AMENDMENT NO. 1
AN ACT TO AMEND CHAPTERS 15, 37, AND 39 OF TITLE 12, DELAWARE CODE, BY REPEALING CHAPTER 37 IN ITS ENTIRETY AND BY ENACTING CERTAIN LAWS RELATING TO THE APPOINTMENT OF GUARDIANS FOR DISABLED PERSONS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Title 12, Chapter 37, of the Delaware Code by repealing Chapter 37 in its entirety. All powers, duties and functions of trustees for mentally ill persons appointed pursuant to Chapter 37 as trustees prior to the effective date of this Act henceforth shall be performed by such trustees pursuant to the provisions of Title 12, Chapter 39 of the Delaware Code relating to guardians for disabled persons.
Section 2. Amend Title 12, Chapter 39, of the Delaware Code by striking Chapter 39 in its entirety and inserting in lieu thereof a new Chapter 39 to read as follows:
"CHAPTER 39. GUARDIANSHIP
§3901. Jurisdiction to Anoint Guardians for Disabled Persons.
(a) The Court of Chancery shall have the power to appoint guardians for the person or property, or both, of any disabled person resident of this State, a guardian of the Delaware property of any nonresident disabled person owning property located in this State, and a guardian of the person of any nonresident disabled person brought into this State for care. 'Disabled person' means any person who:
(1) by reason of being under the age of eighteen (18) is legally unable to manage his property or make decisions concerning the care of his person; or
(2) by reason of mental or physical incapacity is unable properly to manage or care for his 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 his health, or of becoming subject to abuse by other persons or of becoming the victim of designing persons; or
(1) by reason of 16 Del. C. §5703(1) or (2) is deemed legally incapable of giving informed consent to sterilization.
(b) The Court of Chancery shall establish rules concerning the filing of petitions for appointment of guardians.
(c) Upon the filing of such petition, the Court shall enter an order fixing a time and place for a hearing thereon. The Court shall by rule provide for reasonable notice to the allegedly disabled person and to such others, if any, as the Court may deem desirable; provided that, in all cases where a guardian of the person or guardian of the property of an adult disabled person is sought, the allegedly disabled person shall be entitled to representation by counsel.
(d) If, upon the filing of a petition, the Court finds the allegedly disabled person 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 in accordance with §3901(c). The guardian so appointed shall have all of the powers and duties granted to guardians in Subchapter II of this Chapter.
(e) After determining at a hearing (or, for a period of up to 30 days, after determining without a hearing in the case of a disabled person who is in danger of incurring imminent serious economic loss or expense) that an individual is a disabled person within the meaning of this Section, the Court shall have the same powers of control over the disabled person's estate which the disabled person could exercise if not incapacitated, except the power to make a will. In exercising these powers the Court shall substitute its judgment for that of the disabled person to order relief from the incapacity or incapacities which the Court has found. In substituting its judgment, the Court shall act toward the property of the disabled person as it believes to be in the best interest of the disabled person and his estate. The powers of the Court over the property of the disabled person are plenary and include, but are not limited to, powers to make gifts and charitable contributions; to convey or release any contingent or expectant interest in property including marital property rights and any right of survivorship incident to joint tenancy or tenants by the entirety; to exercise or release his power as trustee, personal representative, custodian for minor, conservator, or as donee of a power of appointment; to enter into contracts; to create revocable or irrevocable trusts of property of the estate, which may extend beyond his incapacity or life; to exercise or grant options of the incapacitated person to purchase securities or other property; to exercise his right to select options; to cause his estate to become the beneficiary under insurance and annuity policies or to surrender such policies for their cash value; to exercise his right to an elective share in the estate of his deceased spouse and to renounce or disclaim any interest receivable by testate or intestate succession or by inter vivos transfer.
(f) After hearing or, for a period of up to 30 days, after determining without a hearing in the case of a disabled person who is in danger of incurring imminent serious physical harm and upon determining that a basis for appointment of a guardian of the person exists, the Court shall have the same powers, rights and duties respecting the disabled person that a parent has respecting his child, including the right to approve or reject medical treatment. In exercising these powers, the Court shall act in the best interest of the disabled person.
(a) The Court shall have the power to grant certificates of guardianship of the property and certified copies of orders terminating the guardianship, both of which may be filed or recorded to give record notice of the authority of the guardian, subject to general statutory requirements governing the filing or recording of documents of title to land or other property.
(b) From the time of the Court's decree appointing a guardian of the property, the disabled person shall be under disability to contract with regard to the property forming the subject matter of the guardianship during the pendency thereof.
(c) Whenever there is no Chancellor or Vice Chancellor available to exercise the powers conferred by subsection (d) of this Section, any Judge of the Superior Court may exercise such powers.
(d) Nothing in this Section shall be construed to mean an adult is infirm or incapacitated or in need of a guardian for the sole reason he relies upon, or is being furnished with, treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, nor shall anything in this Section be construed to authorize or require any medical care or treatment over the implied or express objections of said person.
§3902. Appointment of Guardian' Choice by Minor over 14 Years of Age: Guardian ad Litem.
(a) Except in accordance with §925(15), Title 10 and §3904 of this Chapter, no person shall have any right or authority as guardian of a disabled person unless he has been duly appointed by the Court of Chancery or admitted by a court of law or equity to defend a suit as guardian ad litem.
(a) 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 his or her child, who shall be appointed if there is no just cause to the contrary. Any parent may by written declaration or will name a guardian as to the property which his or her child may inherit from any person, who shall be appointed if there is no just cause to the contrary.
(c) When there is no designation of guardian by written declaration or last will of the minor's sole surviving parent, or there is just cause for not appointing the guardian so designated, a minor 14 years of age or over and resident in this State may choose a guardian and the Court, if there is no just cause to the contrary, shall appoint the person chosen.
(d) When there is no designation of guardian by written declaration or last will of the minor's sole surviving parent, or there is just cause for not appointing the guardian so designated, and a minor is under the age of 14 years, or is resident out of the State or neglects to choose a proper guardian, the Court may appoint a guardian according to its discretion.
(e) When a guardian is appointed for a minor under 14 years of age, unless such appointment
Is according to a written declaration or the last will of a minor's sole surviving parent, if the minor, after arriving at the age of 14 years, chooses another person for a guardian, the Court shall appoint the person so chosen, if there is no just cause to the contrary and the preceding guardianship shall be thereby superseded.
§3903. Separate Guardian of the Person and Property
The Court of Chancery may appoint 2 or more persons as guardians of the disabled person, one or more to have the care of the person of the disabled person and the other(s) to have possession and management of the property of the disabled person with all the rights and powers and subject to all the duties respecting the property of the disabled person, or the Court may appoint 1 person guardian with all the rights and powers and subject to all the duties respecting both the person and property of the disabled person.
§3904. Foreign Guardians of Nonresidents
(a) When no guardianship of the property proceeding is pending in this State, a guardian, conservator, committee or other similar fiduciary, appointed by an appropriate court of another jurisdiction to manage the property of a disabled person who is a resident of that jurisdiction may, subject to the provisions of subsection (c), exercise in this State all powers of his office, including the power to sell, purchase or mortgage real estate in the State; collect, receipt for, and take possession of money due, tangible personal property, or an instrument evidencing a debt, obligation, stock or chose in action located in this State and remove it to the other jurisdiction.
(b) When no guardianship of the person proceeding is pending in this State, a guardian of the person, or other like fiduciary, appointed by an appropriate court of another jurisdiction to care for the person of a disabled person who is a resident of that jurisdiction, whenever such disabled person is brought into the state for care and maintenance, such foreign fiduciary may, subject to the provisions of subsection (c), exercise all powers granted to him by the other jurisdiction for the care and protection of the person of such nonresident disabled person.
(c) A foreign guardian shall not be entitled to exercise the powers set forth in subsections (a) and (b) of this Section until he has filed for record in the Office of the Register in Chancery in any county of this State a certificate of his appointment from the other jurisdiction. Upon filing the certificate of appointment, the guardian will be authorized to petition the Court of Chancery of this State pursuant to court Rule 178 to exercise powers not granted by Subchapter II of this Chapter 39 upon the giving of such security as the Court of Chancery of this State may order. Upon authorization, such foreign fiduciary shall account to the Court at such times as would a fiduciary for a resident of this State appointed under this Chapter, and in the case of guardians of the property shall be Issued a certificate in accordance with §3901 of this Chapter.
(a) Whenever it appears to the satisfaction of the Court of Chancery of this State that the disabled person is then a nonresident and the property in this State belonging to any such nonresident disabled person has been removed to the state wherein such fiduciary was duly appointed and has been accounted for by him according to the laws of the State wherein such fiduciary was duly appointed, the Court of Chancery may relieve such fiduciary from further accounting before the Court.
§3905. Guardian's Bond: Requirement: Form and Entry
(a) Every person appointed guardian shall, unless bond and/or surety is dispensed with by the Court, become bound, with surety, to the disabled person in a penal sum to be fixed by the Court, by
a joint and several obligation, to be, with the security, approved by the Court, with condition that if the guardian or his executors or administrators duly renders according to law just and true accounts of the guardianship and if the guardian, his executors or administrators, upon the termination of the guardianship, shall deliver and pay to the disabled person, his executors or administrators all the property belonging to the disabled person in the possession of the guardian and all that shall be due to the disabled person from the guardian and, if the guardian shall have in all things faithfully performed and fulfilled his duties as guardian, then the obligation shall be void.
(b) Unless bond shall be dispensed with by the Court, no certificate of guardianship shall be issued by the Register in Chancery until such bond conforming to the order of court is given and added to the guardianship docket.
(c) 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.
(d) In all cases where a public agency is the petitioner and where, In the opinion of the Court of Chancery, the resources and estate of the person for whose property a guardian is sought are insufficient to warrant the payment of costs and fees, the Court of Chancery may by order provide that the guardian so appointed need not give bond either with or without surety as otherwise required by law and may further provide that in such cases all costs and fees shall be waived.
§3906. Guardian's Bond: Additional_Securitv: Removal for_Roncompliance.
If it appears in any case that the guardian's bond is insufficient, the Court of Chancery shall order the guardian to give further security and, If such order is not complied with, shall remove him from office. Further security shall be taken in the same form as original security.
§3907. Counter Security Upon Petition of Surety.
The Court of Chancery shall, on the petition of the surety of an executor, administrator or guardian, and proof that he is in danger of suffering injury or loss from such suretyship, order such executor, administrator or guardian to give the petitioner sufficient counter security to be approved by the Court and if he neglects to obey such order, the Court may remove him from office and order him to pay and deliver all the money, effects and estate in his hands as such executor, administrator or guardian to another guardian or to a receiver appointed by the Court and may enforce obedience to such order.
§3908. Removal. Resignation or Death of Guardian
(b) The Court shall direct the guardian so resigning or removed to render a full account of the guardianship before the Court and may order him to pay and deliver all the money, effects and estate in his hands as such guardian to his successor or to a receiver appointed by
the Court, to the formerly disabled person, or to his personal representative and may enforce such orders. The Court may also order suit to be brought on the guardian's bond, which suit may be prosecuted in the disabled person's name by next friend or guardian and it shall in no way affect or impair the right of excepting to the guardian's accounts.
§3909. Term of Guardianship.
(a) If the only allegation of disability in the petition for appointment of a guardian was that the person was a minor, unless terminated earlier by the Court upon application of the guardian, the minor or other interested party, or by the death of the minor, the guardianship of such minor shall terminate automatically when the minor attains the age of 18 years.
(a) The automatic termination of the guardianship of the property of any minor shall not relieve the guardian of any duty to account. The guardian may be released by the Court of Chancery upon application of the guardian or the former minor.
(a) The guardianship of the person or property, or both, of any person disabled for reasons other than minority shall continue until the death of the disabled person or until terminated by the Court of Chancery upon application of the guardian, the disabled person, or any other interested party.
§3910. Receiver for Property of Minor: Appointment. Powers. Accounting and Bond,
(a) If a minor has real or personal property and no guardian, the Court of Chancery may appoint a receiver to take charge of such property during its pleasure and may make such regulations touching this matter, as are deemed proper. The Court may enforce any order made upon a receiver.
(a) The receiver shall be required to account annually or oftener and shall deposit any balance, appearing in his hands, to be invested or otherwise disposed of for the minor's benefit.
(a) A receiver, appointed under this Section, shall become bound, with sufficient surety, to the State in a joint and several obligation, to be approved by the Court, with condition, in substance, to account for all money, effects and estate which shall come to his hands pursuant to his appointment and to pay and deliver the same as the Court orders and to well and faithfully execute the trusts and duties of his office of receiver.
Subchapter II. Powers and Duties of Guardian
§3921. Powers and Duties of Guardian. General.
(a) A guardian shall have either the care of the disabled person's person or the possession and management of all the disabled person's real and personal property or both the care of the person and the possession and management of the property, except to the extent the Court of Chancery may otherwise direct.
(b) Every guardian of the property shall file with the Court within 30 days after appointment a verified inventory of the disabled person's property with respect to which the guardian acts. Said inventory shall include the fair market value of all property of which the guardian has knowledge after diligent inquiry. If, after filing an inventory, a guardian shall acquire or discover other such property not described therein, except property received from the executor to be paid by a trustee pursuant to 12 Del. C. §3525, the guardian shall file a verified supplemental inventory describing such property within 30 days after acquiring or discovering such property.
(c) The guardian of the property shall, in the name of the disabled person, do whatever is necessary for the care, preservation and increase of the disabled person's property, and shall invest the property in accordance with Chapter 33 of this Title, unless investments are restricted by the Court.
(d) The guardian may petition the Court for instructions concerning his fiduciary responsibility.
(e) The guardian may employ, retain or consult accountants, investment counsel, attorneys-at-law, and other professional advisers and pay their reasonable fees and expenses.
§3922. General Powers and Duties of the Guardian of the Person
(a) The Court shall grant to the guardian of the person such powers, rights and duties which are necessary to protect, manage and care for the disabled person. The Court may at any time change the powers of the guardian of the person.
(b) The guardian of the person may exercise the same powers, rights and duties respecting the care, maintenance and treatment of the disabled person that a parent has respecting his unemancipated minor child, except that the guardian of the person is not liable to third persons for acts of the disabled person solely by reason of the guardianship relationship. Except as modified by the order of guardianship and without qualifying the foregoing, a guardian of the person has the following powers and duties:
(1) To the extent that it is consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the disabled person, the guardian is entitled to custody of the disabled person and may establish the disabled person's place of abode within or without this state. The guardian may not waive any right of the disabled person respecting involuntary commitment to any facility for the treatment of mental Illness or deficiency.
(1) If entitled to custody of the disabled person, the guardian shall make provision for the care, comfort, and maintenance of the disabled person and, if appropriate, arrange for the disabled person's training and education. Without regard to custodial rights of the disabled person, the guardian shall take reasonable care of the disabled person's clothing, furniture, vehicle and other personal effects in the immediate possession of the disabled person and commence guardianship of the property proceedings If other property of the disabled person is in need of protection.
(2) The guardian may give such consent or approval as may be necessary to enable the disabled person to receive medical or other professional care, counsel, treatment or service and shall have power to authorize release of medical records. The guardian shall not unreasonably withhold such consent or approval nor withhold such consent or approval on account of personal beliefs held by the guardian or the disabled person, but shall take such action as he objectively believes to be in the best interest of the disabled person.
(c) A guardian of the person of a disabled person for whom a guardian of the property also has been appointed shall control the custody and care of the disabled person and is entitled to receive reasonable compensation for his services and for room and board furnished to the disabled person as approved by the Court. Compensation of the public guardian shall be governed by 12 Del. C, §3991. The guardian of the person may request the guardian of the property to make payment to third parties or institutions for the disabled person's care and maintenance.
(d) The guardian of the person shall not be required to expend his own money for the support or care of the disabled person.
§3923. Power; of the Guardian of the Property
(a) The Court may limit the power of the guardian of the property as conferred on him herein, or may confer any additional power which the Court itself could exercise under §3901.
(b) The Court may, at the time of the appointment of the guardian of the property, or later, transfer custodial control over all the estate of the disabled person to such guardian or the Court may transfer only certain specified assets of the estate of the disabled person to the guardian of the property for protection.
(c) Unless restricted by the Court, a guardian of the property has power without Court authority or confirmation to invest and reinvest personal property of the estate as provided by Chapter 33 of this Title governing fiduciary relationships.
(d) Except as modified by the order of guardianship, the guardian of the property may act without Court authorization or confirmation to reasonably accomplish the purpose for which he is appointed to:
(1) Collect, hold, and retain assets in the estate until, in his judgment, disposition of the assets should be made. Assets may be
retained even though they include an asset in which the guardian is personally interested;
(2) Receive additions to the estate;
(1) Invest and reinvest estate assets in accordance with
subsection (c);
(2) Deposit estate funds in a bank, including a bank operated by the guardian of the property;
(3) Sell or exercise stock, subscription or conversion rights or consent directly or through a committee or other agent to the reorganization, consolidation, merger, dissolution or liquidation of a corporation or other business enterprise;
(4) Vote directly or by proxy in any election or stockholder's meeting any share of stock in the estate including power to vote shares issued by the guardian of the property;
(5) Insure the assets of the estate against damage or loss and the guardian against liability with respect to third persons;
(6) Pay taxes, assessments, compensation of the guardian and other expenses incurred in the collection, care, administration and protection of the estate;
(7) Make payment for ordinary repairs to a dwelling owned by the disabled person and to the furniture and appliances therein;
(8) Allocate items of income or expenses to either estate income or principal as provided by law;
(1) Prosecute, defend, compromise or settle actions, claims or proceedings in any jurisdiction for the protection of estate assets;
(2) Execute and deliver all instruments which will accomplish or facilitate the exercise of powers vested in the guardian; and
(3) Hold a security in the name of the nominee or other forms without disclosure of guardianships so that title to the security may pass by delivery, but the guardian is liable for any acts of the nominee in connection with the stock so held.
(e) The guardian of the property may, without court authorization or confirmation, pay or apply income or principal from the estate as needed for the clothing, support, care, protection, welfare and rehabilitation of the disabled person, as requested by the disabled
person or the guardian of the person, if any. In exercising this
power, the guardian of the property shall consider the cost of support and care of the disabled person for the expected life of the disabled person and the needs of any persons dependent upon the disabled person as may be reasonably anticipated.
(f) The guardian of the property shall not be required to expend his own money for the support or care of the property or person.
§3924. Estoppel to Dispute Disabled Person's Right to Property.
Neither a guardian nor the representatives of the guardian shall dispute the disabled person's right to any property which comes to the guardian's possession unless such property has been recovered from him or there is a personal action pending on account of it.
§3925. Transfer by Guardian of Corporate Securities.
Upon the transfer by a guardian of a disabled person of the stocks, bonds or other securities of any corporation, the certificate of the Register in Chancery in which such guardian was appointed, or other proper public official, shall be sufficient authority to the officers of such corporation to transfer or reissue such stocks, bonds or other securities to such person as such guardian may in writing direct.
§3926. Exercise of Rights Belonging to a Disabled Person.
No person dealing with the receiver of a minor or with a guardian of a disabled person shall be entitled to rely on the authority of such receiver or guardian to (a) release claims; (b) settle tort claims; or (c) convey title to real property without prior court approval of such act.
Subchapter III. Accounting and Settlement
§3941. Guardian's duty to account.
(a) A guardian of the property shall fully account, in accordance with this Subchapter III of this chapter, for all the money, effects and property of the disabled person which he has received, but 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.
(b) The personal representative of a guardian who dies in office shall, upon appointment as personal representative, advise the Court of Chancery and the next of kin of the disabled person of the death of the guardian and thereafter assume the duties of the guardian until a successor guardian is appointed. The personal representative shall file a petition for the appointment of an appropriate successor guardian within 60 days of being appointed personal representative if no other interested party has filed such a petition. The personal representative shall render to the Court an account of the decedent's guardianship (including such period of time the personal representative performed the duties of the guardian prior to appointment of a successor guardian) within three months of the grant of letters testamentary or letters of administration.
§3942. Filing. Adjusting and Settling Guardian's Accounts.
All guardians' accounts shall be filed with and be adjusted and settled by the Court of Chancery by which such guardians were appointed.
§3943. Time of Filing Guardian's Accounts.
Every guardian of the property shall render an account of the guardianship at the end of 1 year from his 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.
§3944. failure to File Account: Extension of Time for Filing.
(a) If a guardian fails to account at the end of a year, the Court shall cite him to appear, for that purpose, at such day as shall be appointed and shall enforce obedience by attachment for contempt and imprisonment, but the Court may, for cause, extend the time, not to exceed 6 months.
(b) The Court may order guardians to render accounts and enforce obedience by attachment for contempt and imprisonment.
§3945. Appeals from Orders Adjusting and Settling Guardian's Accounts.
Appeals from orders of the Court of Chancery adjusting or settling guardian's accounts shall be received, heard and determined by the Supreme Court.
§3946. Settlement with bard at Termination of Guardianship.
The Court of Chancery may order that any property in the guardian's possession, as such, at the close of the guardianship, shall be delivered to the formerly disabled person or his representatives and enforce obedience to such order.
§3947. Absence of Disabled Person from State: Settlement of Account.
(a) If in any case a guardian of the property shall not be able to settle with and pay to the disabled person, on the termination of the guardianship, the money due from the guardian to the disabled person, in consequence of the absence of the disabled person from this State and the place of the disabled person's residence being unknown to the guardian, the guardian may settle and pay the money into the Court of Chancery for the county in which he was appointed such guardian.
(b) The Court in which such settlement and payment shall be made shall invest the money for the use and benefit of the disabled person.
(c) Upon payment of the money into Court the guardian and his surety or sureties shall be discharged from all liability for or on account of the money so paid into Court and of any interest thereon from the date of the payment into Court.
Subchapter IV. Sale of Disabled Person's Real Estate
§3951. Sale of Disabled Person's Real Estate.
(a) If it appears to the Court of Chancery that it is proper to sell any real estate of a disabled person, whether the real estate is held in severalty, joint tenancy, coparcenary or in common or in possession, reversion or remainder or any part of it, the Court may order it to be sold by the guardian of the property or by a trustee to be appointed for that purpose.
(a) On any application for such sale the Court may require an appraisal of the property by an independent qualified appraiser of real estate.
(b) Upon any such sale, the guardian or trustee shall make a deed to the purchaser which shall convey as full a title to the land as the disabled person had at the time of sale.
(c) The Court may order that the real estate be sold clear and discharged of any lien or incumbrance thereon at the time of sale created by or recovered against the disabled person and in such case the Court shall direct in the order of sale that reasonable notice of the sale be given to the holders of such lien or incumbrance by newspaper advertisement or otherwise. The lien or incumbrance shall, without change of priority, be transferred to the proceeds of sale.
§3952. Trustee's Bond.
If a trustee is appointed to sell the disabled person's real estate, the trustee may be required to give security in such sum as the Court directs.
Section 3953. Sale on Credit' Security for Purchase Price.
In any order granted by the Court of Chancery for the sale of real estate owned by a disabled person, the Court may direct such sale to be made upon credit, either as to the whole or part of the purchase money, the payment of the purchase money to be at such time or times and to be secured in such manner as the Court by the order of sale or otherwise prescribes. The Court may order and direct all such acts and proceedings touching the premises as it deems necessary to better effectuate the object of this section.
§3954. Proceeds of Sale: Payment.
The proceeds of the sale shall be personal property. Such proceeds, after deducting all expenses allowed by the Court, may be ordered to be paid to the guardian of the property to be accounted for as personal property of the disabled person in the regular course of the guardianship or such proceeds may be ordered to be deposited in a bank to the credit of the disabled person, to be invested, loaned or disposed of for the disabled person's benefit.
§3955. Guardian's Bond.
(a) When the proceeds shall be ordered to be paid to or shall otherwise come to the hands of a guardian they shall be within the condition of the guardian's bond and the guardian and his sureties, both in the original bond and in any additional bond which may be taken, shall be liable for the proceeds in the same manner as for other property of the disabled person.
(a) In every case of the sale of a disabled person's real estate and in every case where the guardian's liability is or may be increased, the Court of Chancery may require the guardian to give such additional security as may be deemed necessary, by obligation, with surety or sureties, in the same manner and form as original security.
Subchapter V. Investment by Court of Chancery of Fund of Minors.
§3971. Investment Power of Court of Chancery: General Requirements.
(a) The Court of Chancery shall have control of money paid into Court to the credit of any minor who cannot be located, and may invest such money in bank deposits as the Court shall approve, and may change, renew, extend, call in or collect any such investment.
(a) The investment shall be in the name of the minor or minors
entitled to the money, either personally or by designation as children, legatees, heirs or representatives of another and the Court may, at any time, apportion and divide the same among them.
(b) At such time as the minor for whom money is held or invested under this subchapter is located, the Court may direct the evidence of such investments to be delivered to the former minor, the guardian of the property of the minor, or in case of death of the minor, to his executors or administrators and may by order direct the bank to pay to the person entitled or to his agent or representative the evidences of ownership of the money. Such order shall vest in such person full power over such
investment or all unpaid interest which may have accrued thereon.
Subchapter VI. Public Guardian
§3991. Office Established: Appointment: Term: Salary: Bond.
There is established the office of the Public Guardian. The Chancellor shall appoint the Public Guardian, who shall serve at his pleasure. The salary of the Public Guardian shall be set by the General Assembly, to be paid from the General Fund. The Chancellor, in his discretion, may require the Public Guardian to post bond.
§3992 Powers and Duties.
The Public Guardian, when appointed as guardian by Court order, shall serve as a guardian of the person or property, or both, of persons who are disabled for reasons other than minority.
§3993 Allocation of Costs.
(a) If a Public Guardian has been appointed guardian of the person or of the property, administrative costs and all costs incurred in the appointment procedure shall not be charged against the income or estate of the disabled person. However, if at any time the Court determines that the income or the estate of the disabled person can support the payment of any part of those costs, the Court may enter an order charging that part of the payment of cost against the income or the estate.
(b) If a Public Guardian has been appointed guardian of the person or of the property, all administrative costs and all costs incurred in the appointment procedure shall be paid initially from the General Fund. If the Court enters an order charging any part of those costs against the income or estate of the disabled person, the Public Guardian shall reimburse the General Fund from the income or estate.
§3994. Court Costs.
In any proceeding for appointment of a Public Guardian, or in any proceeding involving the estate of a disabled person for whom a Public Guardian has been appointed guardian of the person or of the property, the Court may waive any court costs or filing fees.
§3995. Staff: Budgeting and Finance.
(a) The Public Guardian may appoint subordinates to assist in carrying out the purposes of this subchapter. Subordinates shall include, but not be limited to, such nonprofit organizations as the Public Guardian shall deem to be qualified in carrying out the duties as a subordinate guardian.
(b) The Public Guardian shall prepare an annual fiscal budget for the operation of the office of Public Guardian for the consideration of the General Assembly. The office of Public Guardian shall be operated within limitation of the annual appropriation and any other funds appropriated by the General Assembly or designated for that purpose from the estate of the disabled person by the Court. Special funds may be used in accordance with approved programs, grants and appropriations.
§3996. Periodic Review
Beginning 6 months from the date of any guardianship order, the Court shall review the case and status of such person every 6 months thereafter to determine whether or not such guardianship should be continued.
§3997. Annual Report.
The Public Guardian shall make an annual report to the Chancellor and the General Assembly of the operations of the office, and render such other reports as the Chancellor or General Assembly may from time to time request or as may be required by law."
Section 3. Amend Title 12, Chapter 15, of the Delaware Code by adding a new section 1510 to read as follows:
§1510. Personal Representatives of Deceased Guardians.
"Upon appointment, every executor or administrator of the estate of a guardian who dies in office shall notify the Court of Chancery of the guardian's death and thereafter perform the duties of the guardian as specified in section 3941 of this title."
Section 4. The Act with respect to Chapter 39 of Title 12 shall apply to all trusts and guardianships created under former chapters 37 or 39 existing as of the enactment of this Act and to all guardianships created on or after enactment of this Act.
Approved July 8, 1993.