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Delaware Standby Guardian Law

In Delaware, a petition for appointment of a standby guardian can be filed in the Family Court by any parent, custodian, or guardian of a child for whom they have been given legal responsibility.

The petition for standby guardianship may be filed in the family court of any of the following counties:

  • The county in which one natural parent resides
  • The county in which a legal guardian of the child resides
  • The county in which one child resides

Prior to the granting of an order for standby guardianship, the court will look into whether there is a significant risk that the parent, legal custodian, or guardian will die, become incapacitated, or become debilitated within 2 years of the filing of the petition as certified by an attending physician.  The order appointing the standby guardianship shall also determine the triggering event for the standby guardianship by specifying whether:

  • 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.
  • That the authority of the standby guardian may become effective earlier on written consent of the petitioner.

The standby guardian can assume the duties on the occurrence of a triggering event set forth in an order appointing a standby guardian.  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.

Within 30 days of assumption of duties by the guardian, the standby guardian shall petition the court for confirmation.  The confirmation petition should include a determination of incapacity or debilitation or a death certificate.  Unless found unfit by the court, the standby guardian’s power and authority shall commence immediately upon the occurrence of the triggering event and shall continue until such time as the court may hear the standby guardian’s petition for confirmation.

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.

The law of Delaware also lays out the extent of involvement that the non custodial parent has in the matter of appointment of the standby guardian.

In case where the parent is suffering from 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:

  • The child would be dependent, neglected, or abused in the care of the other parent.
  • The other parent of the child is deceased.
  • The other parent’s parental rights have been terminated.
  • The other parent consents to the appointment of a standby guardian.

When the legal custodian or guardian is the person suffering from 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:

  • The child remains dependent, neglected, or abused in the parent’s care.
  • The parent of the child is deceased.
  • The parent’s parental rights have been terminated.
  • The parent consents to the appointment of a standby guardian.

A standby guardianship therefore enables 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.

At any time before commencing the duties, the standby guardian may decline appointment.  This can be done by filing a written statement to that effect with the court.  In such case, notice should be given to the petitioner and to the minor child if the latter is age 14 or older.

A parent, legal custodian, or guardian may revoke a standby guardianship by executing a written revocation.  Such revocation is to be filed in the court where the petition was filed, and the appointed standby guardian should be promptly notified of the revocation.

The standby guardian may at any time renounce the appointment by:

  • Executing a written renunciation
  • Filing the renunciation with the court
  • Promptly notifying in writing the parent, legal custodian, or legal guardian of the renunciation

Inside Delaware Standby Guardian Law