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    September 06, 2024

    End-of-Life Decisions in Delaware: Emergency Guardianships

    Hon. Selena E. Molina
    The PDF, which includes endnotes and footnotes, in which this article appears can be found in Bifocal, Vol. 45 Issue 6.

    Under Delaware law, the Delaware Court of Chancery may appoint an interim guardian for an adult with an alleged disability on an emergency basis when a person is in danger of incurring imminent serious physical harm absent the appointment of a guardian. These requests come to the Court’s magistrate judges, who review them expeditiously and, if there is sufficient support, appoint interim guardians without the full due process protections typically afforded (e.g., notice to the person with an alleged disability and the right to be heard in response). The goal—as I have always seen it—is to protect and stabilize the person with an alleged disability, whereafter the normal process can play out. That process, in Delaware, includes the appointment of an attorney ad litem, notice to all next of kin, and an opportunity for all those interested to be heard. Absent an objection or complications, the Court’s magistrate judges hear adult guardianship petitions on their merits within approximately 30 days.

    But what if the claimed imminent harm is from life-sustaining treatment? What if there is no stabilizing the person with an alleged disability? What if 30 days of continued resuscitative efforts is 30 days too long? The Court of Chancery has spent countless hours exploring these difficult questions and ultimately devised a system meant to balance the protective nature of emergency guardianships with the reality that artificially sustaining life, in extreme circumstances, can border on cruel. In these limited situations, equity may support permitting an emergency guardian to withdraw life-sustaining treatment in advance of (and likely mooting) the merits hearing 30 days out.  

    To work this balance, we start at preservation. Our default, absent an express request and greater showing, is that an interim guardian appointed on an emergency basis will not be authorized to withdraw life-sustaining treatment. Our form interim appointment order expressly excludes that authority and reflects a preference toward preserving life, stabilizing the individual, and allowing the normal process to play out.

    But an interim guardian or petitioner for interim guardianship may apply for express authority to withdraw life-sustaining treatment. Those requests should be supported by at least two physician’s affidavits and are immediately elevated from the magistrate level to our Chancellor (our chief judge) for review or assignment to a Vice Chancellor (our “constitutional judges”). The assigned constitutional judge then has discretion to hear the request “on the papers” or schedule an expedited hearing to further consider whether equity compels the authority sought. If more information is needed, the judge has tools she can employ, such as an expedited investigation by an attorney ad litem or fact finder. Armed with the record she finds sufficient under the circumstances, the judge may grant an interim guardian permission to withdraw life-sustaining treatment.

    These requests are decidedly expedited, even for the Court of Chancery, which is nationally recognized for its alacrity in addressing complex corporate matters. I would be remiss not to note that the Court’s alacrity comes at great personal expense to its judicial officers. Our dockets, both on the corporate side and on the traditional equity side, continue to grow exponentially. As do the number of requests we receive for expedition. And the complexity and “touch” required of the cases filed in our Court has never been greater. Nevertheless, when emergency guardianships are filed, all of Chancery’s judges, bar none, will put aside all other matters, prioritize the best interest of the person with an alleged disability, and resolve the matter before them with deliberate speed, yet unwaning care and attention to detail. The personal, sensitive, and life-or-death nature of these matters is not lost on any of the Court’s judges and these matters weigh heavily on all of us.  

    As a judicial officer for the Court, I am proud of our service and pleased with the way in which our emergency appointment process is working.  The Court of Chancery is, at its core, a court of equity; it will not suffer a wrong without a remedy and its judicial officers are charged with protecting and serving the best interests of Delaware’s most vulnerable adults through our honed equitable lens. We will continue to do so.

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