Guardianship of a Child

Del. Code tit. 13, ch. 23
in effect

Del. Code tit. 13, § 2301 Intent and purpose.

The General Assembly hereby declares that although the Family Court has jurisdiction to grant guardianship, there does not presently exist any statutory framework for our families, our children and our Family Court judiciary as to the proper procedures and requirements for guardianship in the Family Court.

Del. Code tit. 13, § 2302 Definitions.

For the purposes of this chapter, unless the context indicates differently: (1) “Abuse” or “abused child” is as defined in § 901 of Title 10. (2) “Adult” means a person who has reached an 18th birthday. (3) “Best interests” is as defined in § 722 of this title. (4) “Child” or “children” means persons who have not reached their 18th birthday. (5) “Court” means the Family Court. (6) “Department” or “DSCYF” means the Department of Services for Children, Youth and Their Families. (7) “Dependency” or “dependent child” is as defined in § 901 of Title 10. (8) “Division” means the Division of Family Services of the Department of Services for Children, Youth and Their Families. (9) “Foster parent” means an individual or couple who has been approved by DSCYF or a licensed agency to provide foster care in exchange for foster care payments provided by DSCYF or a licensed agency. (10) “Guardian” means a nonparent or an agency charged with caring for a child during the child’s minority. (11) “Guardian ad litem” means an individual appointed by the Court to represent the best interests of a child, whether or not that reflects the wishes of the child, who by that individual’s appointment shall be a party to the child welfare proceeding. (12) “Neglect” or “neglected child” is as defined in § 901 of Title 10. (13) “Parent” is as defined by § 8-201 of this title. (14) “Parental responsibilities” means the care, support and control of the child in a manner that provides for the child’s necessary physical needs, including adequate food, clothing and shelter, and that also provides for the mental and emotional health and development of such child. (15) “Permanency” means the safe, stable, custodial environment in which a child is raised and the life-long relationship that child establishes with a nurturing caregiver. (16) “Relative” means any sibling, grandparent, uncle, aunt, first cousin, first cousin once removed, great-grandparent, grandaunt or granduncle, half sibling, stepparent, stepsibling, stepaunt or stepuncle, or stepgrandparent of the child who is the subject of a guardianship petition.

Del. Code tit. 13, § 2303 Jurisdiction and venue.

(a) The Family Court shall have jurisdiction of proceedings under this chapter to grant, modify and/or terminate guardianship. (b) A petition for guardianship under this chapter may be filed in the Family Court of any of the following counties: (1) The county in which at least 1 parent resides; (2) The county in which the organization having legal or physical care, custody or control of the child is located; or (3) The county in which the child is located.

Del. Code tit. 13, § 2320 Persons eligible to petition for guardianship.

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. Unless otherwise specified in this chapter, DSCYF, the Division, a licensed agency, the child’s attorney, the guardian ad litem or a hospital that has an interest in the health, education or welfare of a child or children may petition the Family Court for a guardianship order so long as the proposed guardian or guardians consent to the appointment.

Del. Code tit. 13, § 2321 Consent by parent.

Unless otherwise provided by this chapter, the parent or parents may voluntarily consent to the guardianship. Notwithstanding such consent, a reason for establishing the guardianship shall be provided.

Del. Code tit. 13, § 2322 Contents of petition.

Every petition for guardianship of a child filed under this chapter shall contain: (1) Name and place of residence of the petitioner or petitioners; (2) Name, sex, date of birth and place of birth of the child; (3) Relationship of the petitioner or petitioners to the child or the fact that no such relationship exists; (4) The name and address of the mother and the name and address of the father, alleged father or presumed father; (5) In addition to other pertinent information, the petition, if either the name or address of the parent or parents is not included, shall furnish detailed information concerning the efforts made to locate the parent or parents; (6) The name and last known address of the person or persons or organization holding parental rights and the name and address of the person or persons or organization having the care, control or custody of the child; (7) The name or names and residence of the person or persons to whom guardianship shall vest, if different from the petitioner or petitioners; (8) If the child is 14 years of age or older, an affidavit that the child consents to the guardianship or, if the child does not consent, just cause why the guardian should be appointed; (9) A statement regarding each parent that: a. The child is dependent, neglected or abused, and the reasons therefore; or b. The proposed guardian is a stepparent and meets the requirements of § 733 of this title; or c. The parent consents to the guardianship. Notwithstanding the parent’s consent, the petitioner must state the reason for establishing the guardianship. An affidavit shall also be filed indicating that the parent consents to the guardianship and whether the parent consents to the reason for establishing the guardianship as stated by the petitioner. The affidavit shall also include a statement that the parent understands the impact that consenting to the reason has on future rescission proceedings under § 2332 of this title; (10) Certified copies of the death certificate or such other proof as the Court may require, if 1 or more parents is deceased; and (11) A statement setting forth the reasons why the petition is in the child’s best interest.

Del. Code tit. 13, § 2324 Social study and report.

(a) The Court, in its discretion, may order a social study and report (hereinafter “social report” ) for any petition filed under this chapter. The social report, if ordered, shall be prepared by a “licensed agency,” as defined in § 1101 of this title, retained by petitioner. (b) The social report shall include: (1) Information regarding the child and that child’s background; (2) Information regarding the guardian or guardians and the proposed home; (3) Information regarding the physical and mental condition of the child; (4) Information regarding the suitability of the placement; (5) A statement as to whether all requirements of this chapter have been met; and (6) A recommendation. (c) If a social report is ordered under this section, the person or persons or organization so ordered shall file the social report within 4 months, subject to such additional time as the Court shall determine is reasonably required.

Del. Code tit. 13, § 2324A Assessment.

(a) DSCYF or a “licensed agency,” as defined in § 1101 of this title, shall conduct an assessment of any person who is the proposed guardian and who is not a “relative,” as defined in § 2302 of this title. (b) Notwithstanding subsection (a) of this section, the Court has jurisdiction to hear and rule on any petition for guardianship, including granting of emergency relief, and to determine placement for a child in DSCYF custody under § 2521(1) of this title.

Del. Code tit. 13, § 2325 Hearing procedure and notice requirements.

(a) When a guardianship petition is filed, the petition shall be served upon the parent or parents, person or persons or organization holding parental rights at the respondent’s last known address. (b) If the Court finds that personal service within the State cannot be accomplished upon the parent or parents, person or persons, or organization holding parental rights, the petitioner shall cause notice to be published either on a legal notices website established by the Court or in a newspaper of general circulation in the county where the respondent is most likely to be residing. (c) Personal service at any time prior to the hearing shall be sufficient to give jurisdiction. (d) Notice provided pursuant to this section shall constitute conclusive evidence of service and a hearing will then proceed at the time and date set, with or without the appearance of the parent or parents, person or persons, or organization so notified.

Del. Code tit. 13, § 2326 Decision within 45 days.

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 social report, if applicable, being filed.

Del. Code tit. 13, § 2327 Confidentiality of proceedings.

All proceedings under this chapter shall be held before the Court privately, but for reasons appearing sufficient to the Court, the hearing may be public.

Del. Code tit. 13, § 2328 Appeals.

The petitioner, if the petition is not granted, or any person or organization who does not prevail in a petition for guardianship under this chapter, may, within 30 days after the entry of an order by the Court, take an appeal therefrom to the Supreme Court.

Del. Code tit. 13, § 2330 Grounds for guardianship of the child.

(a) Before granting an order for guardianship under this chapter, when parental rights are vested in 1 or more parents, the Court shall find for each parent holding parental rights 1 of the following: (1) The parent voluntarily consents to the guardianship. a. Notwithstanding the consent, if the child is in DSCYF custody, the Court shall determine whether guardianship is the appropriate permanency plan for the child and whether it is in the best interest of the child for the guardianship to be granted. b. The Court shall also determine the reason for establishing the guardianship. (2) 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. (b) When parental rights have been terminated and those rights are vested in DSCYF or a “licensed agency,” as defined in § 1101 of this title, the Court shall grant an order for guardianship upon finding both of the following: (1) Guardianship is the appropriate permanency plan for the child. (2) It is in the best interests of the child for the guardianship to be granted. (c) When more than 1 petition for guardianship regarding the same child or children has been filed, and the elements of either subsection (a) or (b) of this section are met, the Court shall determine which petition, if any, to grant based upon the best interests of the child. (d) When a guardianship petition is filed against a guardian, and the elements of either subsection (a) or (b) of this section are met, the Court shall determine whether the petition shall be granted based upon the best interests of the child. (e) If the child is 14 years of age 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. (f) If the Court determines the elements of subsection (a) or (b) of this section have been met, the Court shall issue an order stating the grounds and the reason for establishing the guardianship. The Court shall also determine by a preponderance of evidence the nature and extent, if any, of contact, sharing of information, or visitation between the parent and the child. In making such a determination, the Court shall apply the best interests of the child standard.

Del. Code tit. 13, § 2331 Duties and rights of parents.

(a) While a guardianship is in effect, the parent shall have the following rights: (1) Visitation, contact and information, to the extent delineated in the guardianship order issued by the Court. A parent may petition the Court for specific enforcement of provisions of the order relating to contact, visitation or information; and (2) Inheritance by and from the child. (b) The parent shall have the primary responsibility to support the child financially. (c) In the event the income and assets of the parent qualify the child for governmental benefits, the benefits may be conferred upon the child with payment to be made to the guardian. The provision of necessities by the guardian shall not disqualify the child for any benefit or entitlement. (d) If the child has been in the custody of DSCYF immediately prior to the granting of a guardianship order, DSCYF shall have no further duty of support or care for the child after establishment of the guardianship unless DSCYF agrees in writing to that support.

Del. Code tit. 13, § 2332 Termination, modification or rescission of guardianship order.

(a) Termination. — Except as otherwise specified in this chapter, guardianship of a child terminates: (1) Upon the guardian’s death; (2) Upon adoption of the child; (3) When the child reaches the age of majority; or (4) As otherwise ordered by the Court. (b) Modification. — Except as otherwise specified in this chapter, an order of guardianship may be modified regarding contact, visitation or sharing of information at any time if it is in the best interests of the child. (c) Rescission. — Except as otherwise specified in this chapter, an order of guardianship may be rescinded upon a judicial determination that petitioner has made a preliminary showing the guardianship is no longer necessary for the reason determined by consent or by a finding of the Court at the time the guardianship was established, unless: (1) The Court finds the guardian has established, by a preponderance of the evidence, the child will be dependent, neglected, or abused in the care of the parent or parents seeking rescission; or (2) The Court finds the guardian has established, by clear and convincing evidence, the child will suffer physical or emotional harm if the guardianship is terminated.

Del. Code tit. 13, § 2333 Subsidies.

(a) DSCYF, in its discretion, may award subsidy moneys to guardians of the child where the Court finds: (1) The grounds for guardianship have been met as set forth in this chapter; and (2) The child was in the custody of DSCYF for a period of at least 1 year. (b) The amount and duration of the subsidy shall be in the sole discretion of DSCYF.

Del. Code tit. 13, § 2340 Powers and duties of the guardian of the child.

(a) The Court shall grant to the guardian of the child such powers, rights and duties which are necessary to protect, manage and care for the child. (b) The guardian of the child may exercise the same powers, rights and duties respecting the care, maintenance and treatment of the child as a parent would, except that the guardian of the child is not liable to third persons for acts of the child solely by reason of the guardianship relationship. (c) 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) The guardian is entitled to custody of the child and may establish the child’s place of abode. a. Notwithstanding the guardian’s authority under this subsection, if there is a proposed relocation of a child for a period of 60 days or more involving either a move outside Delaware or a move that materially affects a parent’s existing visitation arrangement or order, the guardian must obtain at least 1 of the following: 1. Leave of court. 2. The consent of the child’s parents. b. When considering a guardian’s request to relocate a child, the Court shall apply the relocation factors under § 734 of this title. (2) The guardian shall provide the child with: a. A physically and emotionally healthy and safe living environment and daily care; b. Education; and c. All necessary and appropriate medical treatment, including but not limited to medical, dental and psychiatric examinations, treatment or surgery. (3) The guardian shall make decisions regarding: a. Education; b. Travel; c. All necessary and appropriate medical treatment, including but not limited to medical, dental and psychiatric examinations, treatment or surgery; d. The child’s right to marry or enlist in the armed forces; e. Representation of the child in legal actions; and f. Any other matter that involves the child’s welfare and upbringing. (4) The guardian shall: a. Be responsible for the health, education and welfare of the child; b. Comply will all terms of any Court order to provide the child’s parents with visitation, contact or information. (d) The Court, in its discretion, may expressly limit the duties and powers of the guardian as set forth in this chapter. (e) No bond shall be required from any guardian appointed under this chapter.

Del. Code tit. 13, § 2350 Intent.

Permanent guardianship models the requirements of “legal guardianship” under the Adoption and Safe Families Act of 1997, Public Law 105-89, § 101(b), 42 U.S.C., § 675(7). Permanent guardianship is intended to create a relationship between a child and caretaker which is permanent and self-sustaining, and which creates a permanent family for the child without complete severance of the biological bond.

Del. Code tit. 13, § 2351 Eligibility to serve as permanent guardian; eligibility to petition for permanent guardianship.

A relative, foster parent, guardian, or an individual with whom a child in DSCYF custody is placed may serve as permanent guardian of a child and may petition the Family Court for a permanent guardianship order regarding a child. DSCYF, the child attorney, a licensed agency or guardian ad litem may petition the Family Court for a permanent guardianship order so long as the proposed permanent guardian consents to the appointment.

Del. Code tit. 13, § 2352 Contents of petition for permanent guardianship.

A petition for permanent guardianship shall contain all of the information required by § 2322 of this title, and all of the following information: (1) The grounds for the granting of an order of permanent guardianship. (2) A statement outlining prior efforts to place the child for adoption, if applicable.

Del. Code tit. 13, § 2353 Standard for permanent guardianship.

(a) The Court shall grant a permanent guardianship if it finds by clear and convincing evidence all of the following: (1) One of the statutory grounds for termination of parental rights as set forth in § 1103(a) of this title has been met or the parent consents to permanent guardianship. (2) Adoption of the child is not possible or appropriate. (3) Permanent guardianship is in the best interests of the child. (4) The proposed permanent guardian meets all of the following requirements: a. Is emotionally, mentally, physically and financially suitable to become the permanent guardian. b. Is an individual with whom a child in DSCYF custody is placed, a relative, a foster parent, or a guardian. c. Has expressly committed to remain the permanent guardian and assume the rights and responsibilities for the child for the duration of the child’s minority. d. Has demonstrated an understanding of the financial implications of becoming a permanent guardian. e. Has had the child placed with them for at least 6 months immediately preceding the filing of the petition. The Court may waive this requirement if the petitioner is a relative and the Court finds just cause. (5) If the child is age 14 or over, the child consents to the permanent guardianship or, if the child does not consent, just cause why the permanent guardian should be appointed. (6) If the proposed permanent guardian is not a relative or current guardian, at least 1 of the following: a. The child is at least 12 years of age. b. The proposed permanent guardian is the permanent guardian of 1 of the child’s siblings. c. The child receives substantial governmental benefits for a serious physical or mental disability which would no longer be available to the child if parental rights were terminated or the child was adopted. d. Extraordinary circumstances that support granting the permanent guardianship exist. (b) If the Court determines that the elements of subsection (a) of this section have been met, the Court shall then also determine by a preponderance of evidence, the nature and extent, if any, of any contact, sharing of information, or visitation between the parent and the child. In making such a determination, the Court shall apply the best interests of the child standard. (c) [Repealed.]

Del. Code tit. 13, § 2354 Social report.

A social report covering the factors enumerated in § 2353 of this title shall be prepared by a licensed child-placing agency retained by the petitioner and provided to the Court no later than 1 week prior to trial.

Del. Code tit. 13, § 2355 Permanent guardianship hearing procedures and notice requirements.

The provisions of § 1107 of this title shall apply to hearings on permanent guardianship petitions, with references to termination of parental rights being replaced by reference to permanent guardianship where appropriate.

Del. Code tit. 13, § 2356 Order granting permanent guardianship.

(a) The Court shall issue an order regarding permanent guardianship within 45 days of 1 of the following: (1) The final day of trial. (2) The filing of the petition and social report in cases based upon the consent of all parties. (b) If the Court grants permanent guardianship, it shall include in that order provisions regarding visitation by the child with the child’s parents, contact by the child with the child’s parents, and the sharing of information to be provided to the parents about the child, all based upon the child’s best interests. (c) The order granting permanent guardianship may prohibit visitation, contact or information if such prohibition is in the child’s best interests. (d) The order granting permanent guardianship may incorporate an agreement reached by the parties.

Del. Code tit. 13, § 2357 Powers and duties of the permanent guardian.

A permanent guardian shall have the same powers and duties as set forth in § 2340 of this title.

Del. Code tit. 13, § 2358 Duties and rights of parents.

(a) While a permanent guardianship is in effect, the parent shall have the following rights: (1) Visitation, contact and information, to the extent delineated in the permanent guardianship order issued by the Court. A parent may petition the Court for specific enforcement of provisions of the order granting permanent guardianship relating to contact, visitation or information. (2) Inheritance by and from the child. (3) Right to consent to termination of parental rights or adoption of the child. (b) The parent shall have the primary responsibility to support the child financially. (c) In the event the income and assets of the parent qualify the child for governmental benefits, the benefits may be conferred upon the child with payment to be made to the permanent guardian. The provision of necessities by the permanent guardian shall not disqualify the child for any benefit or entitlement. (d) If the child has been in the custody of DSCYF immediately prior to the entry of an order for a permanent guardianship, DSCYF shall have no further duty of support or care for the child after establishment of the permanent guardianship unless DSCYF agrees in writing to that support.

Del. Code tit. 13, § 2359 Termination, modification or rescission of permanent guardianship order.

(a) Termination. — Except as otherwise specified in this chapter, permanent guardianship of a child terminates upon at least 1 of the following conditions: (1) The permanent guardian’s death. (2) Adoption of the child. (3) The child reaches the age of majority. (4) The Court otherwise orders termination of the permanent guardianship. (b) Modification. — Except as otherwise specified in this chapter, an order of permanent guardianship may be modified regarding contact, visitation or sharing of information only upon finding both of the following: (1) There has been a substantial change in material circumstances. (2) Modification is in the best interests of the child. (c) Rescission. — (1) An order of permanent guardianship may be rescinded only upon finding both of the following: a. There has been a substantial change in material circumstances. b. Rescission is in the best interests of the child. (2) A parent may not petition the Court to rescind a permanent guardianship once granted under this chapter. (3) Where the permanent guardianship is rescinded by the Court, custody of the child shall not automatically revert to the parent. At any subsequent hearing, the parent shall be considered with no greater priority than any other person or agency, and in entering any further order regarding the child the Court shall apply the best interests of the child standard. (4) If the permanent guardianship is rescinded, and DSCYF held custody immediately prior to the entry of the order, custody shall revert to DSCYF. (d) Upon a showing by affidavit of immediate harm to a child, the Court may do any of the following temporarily: (1) Stay a permanent guardianship order on an ex parte basis pending a hearing and grant temporary custody of the child to DSCYF or temporary guardianship to petitioner. (2) Stay the visitation, contact or information provisions of a permanent guardianship order on an ex parte basis pending a hearing.

Del. Code tit. 13, § 2361 Legislative intent, findings and purpose.

The General Assembly hereby declares that there is a need to create an expeditious manner of establishing a guardianship known as standby guardianship, in order to enable a parent, custodian, or guardian suffering from a progressive chronic condition or a terminal illness to make plans for the permanent future care or the interim care of a child without terminating parental or legal rights.

Del. Code tit. 13, § 2362 Definitions.

In addition to the definitions provided for in this chapter, as used in this subchapter: (1) “Appointed standby guardian” means a person appointed pursuant to this subchapter to assume the powers and duties of guardianship of a child upon the death or determination of incapacity or debilitation of the parent, custodian, or guardian. (2) “Attending physician” means the physician who has primary responsibility for the treatment and care of the parent, custodian or guardian. Where more than 1 physician shares such responsibility, or where a physician is acting on the attending physician’s behalf, any such physician may act as the attending physician. If no physician has responsibility for the care and treatment of the parent, custodian, or guardian, any physician who is familiar with the parent’s, custodian’s, or guardian’s medical condition may act as the attending physician. (3) “Custodian” means a nonparent who has been awarded custody of a child by order of the Family Court, but excludes the Department of Services for Children, Youth and Their Families when it or any of its divisions have been awarded custody by order of the Family Court. (4) “Debilitation” means a person’s chronic and substantial inability, as a result of a terminal illness, disease or injury, to care for a child. “Debilitated” means a person’s state of chronic and substantial inability, as a result of a terminal illness, disease or injury to care for a child. (5) “Designated standby guardian” means a person designated pursuant to this subchapter to assume temporarily the duties of guardianship of a child upon the death or a determination of incapacity or debilitation of the parent, custodian or guardian. (6) “Designator” means a parent, custodian or guardian who makes a designation of a standby guardian. (7) “Determination of debilitation” means a written determination made by the attending physician which contains the physician’s opinion to a reasonable degree of medical certainty regarding the nature, cause, extent and probable duration of the parent’s, custodian’s or guardian’s debilitation. (8) “Determination of incapacity” means a written determination made by the attending physician which contains the physician’s opinion to a reasonable degree of medical certainty regarding the nature, cause, extent and probable duration of the parent’s, custodian’s or guardian’s incapacity. (9) “Incapacity” means a person’s chronic and substantial inability, as a result of mental impairment, to understand the nature and consequences of decisions concerning the care of the child, and a consequent inability to care for the child. “’Incapacitated” means a state of chronic and substantial inability, as a result of mental impairment, to understand the nature and consequences of decisions concerning the care of the child, and a consequent inability to care for the child. (10) “Triggering event” means an event in the designation, petition or decree which empowers the standby guardian to assume the duties of the office, which event may be the death, incapacity, or debilitation of the parent, custodian, or guardian, whichever occurs first.

Del. Code tit. 13, § 2363 Jurisdiction and venue.

(a) The Family Court shall have jurisdiction over proceedings under this chapter to grant, modify and/or terminate standby guardianship. (b) A petition for standby guardianship under this chapter may be filed in the Family Court of any of the following counties: (1) The county in which 1 natural parent resides; (2) The county in which a legal guardian of the child resides; or (3) The county in which 1 child resides.

Del. Code tit. 13, § 2364 Hearing procedure and notice requirements.

The procedure and notice requirements set forth in § 2325 of this title shall apply. However, upon motion and good cause shown, the parent, custodian or guardian who has become incapacitated or debilitated need not personally appear for such noticed hearings.

Del. Code tit. 13, § 2365 Persons eligible to petition for guardianship.

Any parent, custodian or guardian may petition the Family Court for a standby guardianship order regarding a child for whom they have been given legal responsibility.

Del. Code tit. 13, § 2366 Contents of standby guardianship petition.

A petition for standby guardianship shall contain all of the information required by § 2322 of this title, as well as the following information: (1) Name and address of the custodian or guardian of the child, if not otherwise provided for in the petition; (2) In addition to the name and address of the proposed standby guardian; (3) Which triggering event or events shall cause the authority of the appointed standby guardian to become effective; (4) That there is a significant risk that the parent, custodian or guardian will die, become incapacitated or become debilitated within 2 years of the filing of the petition, supported by documentation from the attending physician; and (5) If applicable, the name, address, of the proposed alternate standby guardian.

Del. Code tit. 13, § 2367 Grounds for standby guardianship.

(a) Where the parent is the person suffering from a progressive chronic condition or terminal illness, prior to granting an order for standby guardianship, the Court shall find that the standby guardianship is in the child’s best interests; and: (1) The child would be dependent, neglected or abused in the care of the other parent; or (2) The other parent of the child is deceased; or (3) The other parent’s parental rights have been terminated; or (4) The other parent consents to the appointment of a standby guardian. (b) Where the legal custodian or guardian is the person suffering from a progressive chronic condition or terminal illness, prior to granting an order for standby guardianship, the Court shall find that the standby guardianship is in the child’s best interests; and as to each parent: (1) That the child remains dependent, neglected or abused in the parent’s care; or (2) The parent of the child is deceased; or (3) The parent’s parental rights have been terminated; or (4) The parent consents to the appointment of a standby guardian. (c) The Court must also find, prior to the granting of an order for standby guardianship 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. (d) If an order for standby guardianship is granted, the order shall determine the triggering event for the standby guardianship by specifying whether: (1) The authority of the standby guardian is effective on the receipt of a determination of the petitioner’s incapacity or debilitation, or on the receipt of the certificate of the petitioner’s death; or (2) That the authority of the standby guardian may become effective earlier on written consent of the petitioner. If at any time before the beginning of the authority of the standby guardian the Court finds that the requirements of this subchapter are no longer satisfied, the Court may rescind the order.

Del. Code tit. 13, § 2368 Occurrence of event triggering appointment of standby guardian; confirmation petition.

(a) Upon the occurrence of a triggering event set forth in an order appointing a standby guardian, the appointed standby guardian shall be empowered to assume the standby guardian duties immediately. (b) If the triggering event is the incapacity or debilitation of the parent, legal custodian or guardian, the attending physician shall provide a copy of that physician’s determination to the appointed standby guardian if the guardian’s identity is known to the attending physician. (c) Within 30 days following the assumption of guardianship duties, the appointed standby guardian shall petition the Court for confirmation. The confirmation petition shall include a determination of incapacity or debilitation, or a death certificate, as appropriate. If the petition is by an alternate appointed standby guardian, the petition shall include a statement that the appointed standby guardian is unable or unwilling to act, as the basis for the statement. Absent a judicial finding or determination of unfitness, the standby guardian’s power and authority shall commence immediately upon the occurrence of the triggering event and shall continue unimpeded until such time as the Court may hear the standby guardian’s petition for confirmation. (d) The Court shall confirm an appointed standby guardian previously named and otherwise qualified to serve as guardian unless there is a judicial determination of unfitness with regard to the appointed standby guardian. (e) A standby guardian may decline appointment at any time before the assumption of that standby guardian’s duties by filing a written statement to that effect with the Court, with notice to be provided to the petitioner and to the minor child if the latter is 14 years of age or older. (f) Commencement of the duties of the standby guardian shall confer upon the appointed standby guardian shared authority with the parent, legal custodian, or guardian of the minor child unless the petition states otherwise. (g) A parent, legal custodian, or guardian may revoke a standby guardianship by executing a written revocation, filing it with the Court where the petition was filed, and promptly notifying the appointed standby guardian of the revocation. (h) A person who is judicially appointed as a standby guardian under this subchapter may at any time renounce the appointment by: (1) Executing a written renunciation; (2) Filing the renunciation with the Court; and (3) Promptly notifying in writing the parent, legal custodian, or legal guardian of the renunciation.

Del. Code tit. 13, § 2369 Powers and duties of the standby guardian of the child.

Except as modified by order of the Court, the standby guardian shall have the same powers and duties as enumerated in § 2340 of this title.

Del. Code tit. 13, § 2370 Termination or modification.

Except as modified by order of the Court, standby guardianship shall be terminated or modified as enumerated under § 2332 of this title.

Del. Code tit. 13, § 2371 Appointment of standby guardian as permanent guardian.

Except as modified by order of the Court, should the standby guardian wish to be appointed as the permanent guardian of the child, permanent guardianship shall be determined under §§ 2350-2359 of this title.

Del. Code tit. 13, § 2372 Subsidies.

Except as modified by order of the Court, DSCYF shall have the power and authority to award subsidy money to the standby guardian as determined under § 2333 of this title.
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title13/c023/sc01/index.htmlFetched: 10/4/2026

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