Guardian of the Person vs. Guardian of the Property in Delaware: Key Differences

When an aging parent or a disabled adult child in Delaware loses the capacity to care for themselves, the court steps in to appoint a legal protector. However, not all guardianships are identical. Delaware law distinctly separates the powers over a person's physical body from the powers over their bank accounts. Understanding the crucial difference between a Guardian of the Person and a Guardian of the Property is the first step in filing your petition correctly. If you live in Wilmington, Dover, or Georgetown, we highly recommend using our directory to find a skilled Delaware guardianship attorney to help you choose the right path for your family.

What is a Guardian of the Person?

A Guardian of the Person is strictly responsible for the physical well-being, health, and daily care of the disabled individual (the ward). If the Delaware Court of Chancery, Wilmington appoints you to this role, you step into their shoes to make highly personal life choices. Your responsibilities are focused on care, not cash.

As a Guardian of the Person, you generally have the legal authority to:

• Choose where the disabled person lives (e.g., keeping them in their own home, moving them to a memory care facility in Newark, or transferring them to a nursing home).
• Consent to or refuse medical treatments, surgeries, and medications.
• Determine their daily schedule, personal care routines, and social interactions.
• Sign medical releases and speak freely with doctors under HIPAA guidelines.

What is a Guardian of the Property?

Conversely, a Guardian of the Property (sometimes called a Conservator in other states) has zero authority over medical decisions. Their sole responsibility is to protect and manage the disabled person's financial estate. Delaware courts take this role incredibly seriously, as it involves handling someone else's life savings under 12 Del. C. § 3921.

As a Guardian of the Property, your duties generally include:

• Accessing and managing bank accounts, retirement funds, and investments.
• Paying the ward's daily bills, mortgage, and medical expenses.
• Filing taxes on behalf of the disabled person.
• Managing or selling real estate (Note: Selling real estate almost always requires a separate, specific court order from a Delaware judge).
• Filing a detailed annual accounting using Form CM22, Delaware, Delaware Court of Chancery, Accounting packet for Guardians pursuant to Del. Ch. Ct. R. 116 and 12 Del. C. § 3941 to prove every penny was spent appropriately.

When Should You File for One vs. Both?

Every situation is unique. Under the landmark Delaware Court of Chancery precedent In re Gordy, 658 A.2d 613 (DE Court of Chancery 1994), the court established the core standards for evaluating whether an individual is incapable of managing their personal affairs or property under 12 Del. C. § 3901, emphasizing that judicial intervention must be tailored and rights should only be restricted to the extent strictly necessary, drawing clear boundaries between limited and plenary guardianship.

Plenary Guardianship (Filing for Both)

In cases of advanced Alzheimer's, severe dementia, or profound developmental disabilities, the person usually cannot manage their health or their wealth. In these common scenarios, you will file Form CM1, Delaware, Delaware Court of Chancery, Petition for Guardianship of the Person and Property under Del. Ch. Ct. R. 175 to become both the Guardian of the Person and the Property. This is often referred to as a "plenary" or full guardianship.

Filing for Just One Role

Sometimes, a person may have a physical condition that leaves them bedridden and unable to go to the bank, but their mind remains sharp. They might only need a Guardian of the Property to manage their bills, while they continue to make their own medical choices. Alternatively, a disabled person whose only income is a tiny Social Security check managed by a representative payee might not have enough assets to require a Guardian of the Property, meaning you only need to apply to be the Guardian of the Person.

Can Different People Hold These Roles Simultaneously?

Yes. Delaware law allows the court to appoint two different people to handle these distinct jobs. For example, a sister who is a registered nurse living in Middletown might be perfectly suited to act as the Guardian of the Person, handling all medical choices. Meanwhile, a brother who is an accountant living in Wilmington might be appointed as the Guardian of the Property to manage the complex investment portfolio. The court encourages this if it serves the best interests of the disabled adult, though the two guardians must work closely together to ensure care is properly funded.

Summary of Guardianship Roles in Delaware

Frequently Asked Questions (FAQ)