Monitoring Adult Guardianships and Conservatorships: The National Call and Delaware’s Response

As a judicial officer who presides over adult guardianships, I know the truth is much less sensational. Day after day, I see adults who need the support and protection of guardianship. Some need total care and plenary guardianship, while others can handle certain tasks or matters on their own and need only limited support. By their sides are family and friends who step up to meet those needs, often at great personal expense. These people, these families warm my heart and give me hope. As I sit writing this article, I can think of many guardians out in the Delaware community who I can confidently say are doing their best to support, protect, and defend the persons I appointed them to represent.

But, unfortunately, not everyone can meet that call. All too often, persons with disabilities are neglected, mistreated, and abused. Typically, those bad actors are apparent by the time a petition for guardianship reaches my court. But sometimes the bad actors lie in wait. They present to the court as a caring, loving, well-meaning friend or relative, but they make an about-face once they have secured the power of a guardianship. And then there are those who start strong and mean well, but they become overburdened, overwhelmed, or disheartened. They slip and begin to slowly blur the lines, shifting their attention from the person with a disability, or giving into the temptation of using their great power to benefit themselves or other loved ones, often thinking: “What’s the harm?”

But, as they say, with great power comes great responsibility. Any act by a court-appointed fiduciary not in the best interest of the person with a disability causes harm. Their person, their property, and indeed their overall autonomy are imperiled. This range of possibilities, including the truism that all guardians are human and therefore susceptible to err, calls for robust monitoring of guardianships. This article reviews, analyzes, and critiques the basics of any guardianship monitoring system, the monitoring recommendations from the National Guardianship Association, the National Center for State Courts’ national survey on guardianship monitoring, and Delaware’s response.

Guardianship Overview

Adult guardianships are handled state-by-state in accordance with each state’s statutory regime and the rules of the probate court exercising jurisdiction over the person with a disability. Luckily, though, nearly all states have passed a version of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (save for Florida, where legislation is pending; Texas; Kansas; and Michigan). The act provides a system for resolving jurisdictional conflicts between states. For example, it addresses how to determine which state has jurisdiction over someone who may own property in multiple states or who may have recently moved from one state to another. The act also sets out a simpler process for transferring guardianship between states when the person with a disability is permanently relocated. And, finally, the act permits guardians appointed in one state to register their appointment order with another state when necessary to discharge their duties. For example, a guardian appointed in one state may need to register their order (or seek limited guardianship) in another state to sell real property in the nonresident state on behalf of the person with a disability.

Although the act provides helpful guidance and clarification on interstate issues, it does not (and was not intended to) create uniform adult guardianship systems. Thus, even states adopting the act continue to maintain their own systems, rules, and procedures for intake and monitoring of guardianships.

Take, for example, Delaware’s statutory scheme. Delaware recognizes guardianships of person and property (called in other jurisdictions conservatorships). Petitioners may apply for guardianship of either person or property, or both, and may seek a plenary guardianship or a limited guardianship, the latter of which, when appropriate, the court prefers. Delaware also has a statutory preference for less restrictive alternatives such as an advance health care directive, power of attorney, or supportive decision-making. If these alternatives are explored and guardianship is still necessary, a petition for guardianship may be filed with the Court of Chancery.

Many are surprised to learn that the Court of Chancery—known nationally for its corporate docket—is the forum for adult guardianships in Delaware. But the court is a natural fit because it serves as the state’s probate court, with jurisdiction over each county’s Register of Wills and all will, trust, and estate matters. And, by volume, the Court of Chancery’s adult guardianship docket exceeds the number of pending corporate matters. As of June 30, 2022, there were 2,091 active adult guardianship cases in Delaware, with 60 percent in New Castle County, 22 percent in Sussex County, and 18 percent in Kent County. I expect these numbers will continue to increase.

Although Delaware’s adult guardianship system serves Delawareans at all stages of life, including those with lifelong disabilities or those who suffer a traumatic injury, many of Delaware’s wards are members of the elderly population. That population is growing. As of 2019, there were approximately 52 million Americans, or 16.3 percent of the population, age 65 or older. It is estimated there will be 73 million Americans, or one in five Americans, age 65 or older in 2030. Drilling down into Delaware’s population, in 2020, 213,674 Delawareans were 65 years or older, and an estimated 238,398 Delawareans will be 65 years or older in 2030, representing a 12.6 percent increase. Thus, I expect the number of adults under guardianship will continue to rise with the aging population.

Presiding over these heavy dockets in the Court of Chancery are the court’s Masters in Chancery. We review all initial petitions for guardianship to ensure petitioners have alleged a prima facie claim of disability under Delaware law. If the petitioner pleads such a claim and provides all the documentation required under our rules—including a physician’s affidavit and the proposed guardian’s consent to a background check—the Master in Chancery will issue a preliminary order.

Through the preliminary order, a hearing will be set about one month out and an attorney ad litem (AAL) will be appointed to investigate the allegations in the petition and, at the conclusion of their investigation, provide a report with recommendations. Through the preliminary order, the AAL is authorized to review the medical and financial records of the person with an alleged disability. The AAL is also charged with completing the AAL checklist, which requires the AAL to (1) visit with the person with an alleged disability, (2) provide notice to the person with an alleged disability (and any facility in which they are currently residing) of the petition and scheduled hearing, (3) investigate the person with an alleged disability’s circumstances, (4) review medical records, (5) contact Adult Protective Services regarding the person with an alleged disability and the proposed guardian, (6) interview the prospective guardian and other interested parties, and (7) provide the court with a written report on the person with an alleged disability’s best interests and wishes, if known.

In Delaware, we are lucky to have a pool of dedicated, diligent, and thorough attorneys available to serve as the AAL. This essential role protects the due process rights of someone alleged to have a disability, giving them notice of and the opportunity to respond to a petition for guardianship. The AAL also provides the court with an unbiased account of the totality of the circumstances and recommends how a guardianship petition should be handled. Much like the Court of Chancery’s reputation for breakneck pace in time-sensitive corporate matters, the court also expedites consideration of guardianship matters, including requests for emergency guardianships where the person with an alleged disability is in danger of incurring imminent serious physical harm or substantial economic loss or expense absent the appointment of a guardian.

Ultimately, if the petitioner for guardianship demonstrates by clear and convincing evidence that an adult Delawarean has a disability and needs the protection and support of a guardianship, the Court of Chancery will assume jurisdiction over that adult and appoint an appropriate fiduciary as guardian. This jurisdiction continues unless the matter is transferred to another state under the act or until the person with a disability dies, they recover, or the court finds guardianship is no longer necessary. As you might expect, this means guardianship cases can last for very long periods of time. The oldest guardianship action pending in the Court of Chancery was initiated over 40 years ago. And currently, there are more than 60 cases that have been pending in the Court of Chancery for 30 or more years.

This means there is often a significant amount of time between the appointment of a guardian and termination of the guardianship. This is the time when the guardian is expected to act in the best interests of the person with a disability, to discharge fully and in good faith the duties and responsibilities of a guardian, and to comply and work cooperatively with the Court of Chancery.

But the Court of Chancery cannot—and does not—solely trust guardians to act appropriately. It monitors all guardianships to ensure the person with a disability is protected, provided for, and safe under the guardianship. Before we get to Delaware’s method, let us first look at the National Guardianship Association’s recommendations for monitoring and the National Center for State Courts’ recent survey of monitoring in other jurisdictions.

The National Guardianship Association Recommendations

In May 2021, the National Guardianship Network hosted the Fourth National Guardianship Summit, which produced 22 recommendations “to improve and reform the adult guardianship system in the United States.” The recommendations fall within six categories: (1) Rights-Based Guardianships—Enhancing Rights of Persons Subject to Guardianship; (2) Supporting Decision-Making; (3) Limited Guardianship, Protective Arrangements and Diverting Pipelines; (4) Rethinking Guardianship Monitoring and Addressing Abuse; (5) Addressing Fiduciary Responsibilities and Tensions; and (6) Guardianship Court Improvement Programs.

This article focuses on section 4, Rethinking Guardianship Monitoring and Addressing Abuse, which contains four recommendations. The first, Recommendation 4.1, recommends each state’s highest court require the ongoing collection of guardianship data through developing (1) multidisciplinary user groups and (2) technology to “validate reports, flag potential problems, and track monitoring.” Recommendation 4.2 suggests the use of a “person-centered monitoring system” that includes statewide forms in multiple languages, written care and financial management plans, periodic in-person visits, and regular review of reports and the status of the guardianship to ensure the less restrictive option is in place. Recommendation 4.2 also recommends the implementation of an independent statewide entity to investigate guardian conduct.

Recommendation 4.3 calls for appropriate funding to conduct annual judicial in-person reviews; continuing representation of the court-appointed guardian; an accessible, transparent, and effective complaint process; and a volunteer advocacy program “to visit and advocate for the adult’s rights and preferences throughout the case, similar to the Court-Appointed Special Advocate Program (CASA) for children, but which does not supplant the right to a lawyer.” The final recommendation in the fourth section calls on the U.S. Department of Health and Human Services Administration for Community Living to take the lead on national policies and protocols.

The National Center for State Courts’ Survey

Also in May 2021, the National Center for State Courts issued “Adult Guardianship Monitoring: A National Survey of Court Practices.” Utilizing a grant from the State Justice Institute, the National Center for State Courts conducted a survey of guardians, judges, and other stakeholders through an online questionnaire issued in 2020. It was the third such survey conducted—with earlier reports issued in 1991 and 2006. This time, the National Center for State Courts received over 500 responses from 46 states and Washington, D.C. Unfortunately, “the majority of responses came from a handful of states, making [the] report informative but not nationally representative.”

Limitations aside, the report contains helpful and important findings. For example, guardianship monitoring continues to vary greatly between jurisdictions. The variables include “how expectations are communicated to guardians, what resources are made available, what happens when required reports are late or missing, how cases are reviewed, and what measures are taken in response to suspected malfeasance.” And, although the survey is largely positive, it echoes the above recommendations regarding the need for additional resources and more involved monitoring of ongoing guardianships.

In addition to collecting and comparing responses, the National Center for State Courts’ survey compared the responses received to the National Probate Court Standards. Deficiencies were noted in a few places. The first relates to annual reporting. The National Probate Court Standards 3.3.14–15 call for annual updates and reports on both the person with a disability’s person and property. But the survey indicated some jurisdictions may be requiring reports less than annually or not at all; for example, some respondents noted annual accountings were waived for smaller estates. Further, only a few responders indicated their system required future care or financial management plans and highlighted “there tends to be less of a focus on future planning of guardianships compared to simply providing status reports.”

When it came to informing and reminding guardians of their duties, judges and court administrators were more likely to respond that such expectations and reminders were communicated regularly. Judges and court administrators were also more likely to respond that the court provides written instructions for guardians. Similarly, judges and court administrators reported a strict process for handling delinquencies, including frequent status hearings and the potential removal and replacement of any offending guardian. The court’s perspective in these three areas differed from that of guardians and other stakeholders, who noted information deficits and lax monitoring.

But all responders were consistent regarding annual visitation, which, in most jurisdictions, is not occurring. “Overall, [the] responses demonstrate that there does not appear to be regular visits or contacts occurring with people in guardianships.” Likewise, most respondents indicated hearings were only held on request or when deemed necessary rather than annually as recommended by the national standards. Limited state-specific information was disclosed: “Respondents stated that hearings are held annually (California), every three years (Nevada), every five years (North Dakota), or every ten years (New Mexico). In Maryland, a review board of volunteers reviews the public guardianships every two years.”

Ultimately, the surveyors concluded courts continue to struggle with monitoring guardianships. To assist courts, the report recommends improved data collection, more routine touchpoints (including in-person visitation, reassessment of the continued need for guardianship and appropriateness of the appointed guardian(s), and annual reporting), and additional funding and resources.

Delaware’s System

The Court of Chancery continues to try to answer the call of the recommendations and survey. To that end, the court has annual reporting and accounting requirements in place. All guardians are required to file an annual update and medical statement by the date specified in their appointment order. The annual update is a form on the court’s website that contains several questions about the person with a disability, the services they are receiving, and how the guardianship is progressing. There, the guardian can raise concerns and seek relief or assistance from the court. The guardian is also required to submit a medical statement, on the form provided, from a medical professional, confirming the person with a disability still needs a guardian. If the person with a disability has recovered in whole or in part, proceedings will be initiated to limit or terminate the guardianship.

On the property side, guardians are also typically required to file annual accountings. But, as reported by those responding to the above survey, the court will waive those requirements in certain circumstances. For example, if the only income of a person with a disability is social security and there is a representative payee appointed, the court will defer to the oversight of the Social Security Administration and not require guardianship accountings. Where, however, the guardian handles other income and assets of the person with a disability, annual accountings will be required.

Unlike some of the jurisdictions represented in the survey, Delaware has a robust accounting review process. Guardians are required to prepare accountings using the court’s form accounting packet, which includes several schedules to identify income, expenditures, and appreciation or depreciation of assets. Guardians are required to submit with accountings full monthly statements for all bank accounts and receipts or invoices for all expenditures. If any of this documentation is missing, the accounting clerk will send a letter identifying the deficiency and setting a deadline to fix it. If the deficiency is not resolved, a rule to show cause will be issued and a hearing held. At the hearing, the presiding Master in Chancery will consider an appropriate extension or sanction up to judgment or removal and replacement as guardian.

If the accounting packet has all the required documentation, it is then audited by the accounting clerk to ensure all the schedules were completed accurately and to match the receipts and invoices to expenditures. The accounting clerk will then provide the audited accounting to a Master in Chancery, who will determine whether to approve the accounting or take further action. If, for example, the accounting reflects charges appearing not to have been made for the sole benefit of the person with a disability, the Master in Chancery may issue a rule to show cause or otherwise schedule a hearing. If the guardian cannot support all expenditures, the Master in Chancery may enter judgment for the missing or misappropriated funds or remove and replace the guardian.

All of this assumes the guardian meets their deadlines to file their annual update and accounting. That is not always the case. The Register in Chancery, the Court of Chancery’s version of a prothonotary’s office, provides reminders to file the annual update one month in advance by email and closely tracks all annual filing deadlines; should a guardian miss their deadline, the guardian will be contacted and given a warning and brief extension. A missed extended deadline will trigger the issuance of a rule to show cause and a hearing before a Master in Chancery. At the hearing, the Master in Chancery may provide a brief extension or impose sanctions, including removal and replacement of the guardian.

Another tool available to the Masters in Chancery considering delinquent, incomplete, or concerning reports is the Guardianship Monitoring Program (GMP). The GMP, established in 2008, operates under the Office of the Public Guardian of the State of Delaware. The GMP conducts random periodic reviews of guardianships and is a tool available to the Court of Chancery when there is concern about a guardian or person with a disability. The GMP investigates and reports findings and recommendations to the Court of Chancery. Currently, the GMP’s important monitoring and investigation duties are performed by two extremely dedicated, compassionate, and diligent professionals. Those staff act as the court’s boots on the ground to provide the court with necessary insight into pending guardianships. When it appears guardians are not acting appropriately, the court may also appoint an attorney ad litem to investigate and provide a recommendation to the court regarding whether the guardianship continues to serve the best interests of the person with a disability.

Conclusion

The National Guardianship Association and National Center for State Courts are right—more needs to be done to monitor adult guardianships. As the ultimate fiduciary of Delawareans with disabilities, the Court of Chancery is dedicated to ensuring their protection and care. Staff in the Register in Chancery’s office, the Court’s Masters in Chancery, and the GMP will continue to monitor adult guardianships within our jurisdiction. Although Delaware’s current system holds up well when viewed under Recommendations 4.1–4.3 and the survey’s findings, we continue to work toward improved systems to serve Delawareans in need. I invite my sister jurisdictions to do the same.