The PDF (including endnotes and footnotes) in which this article appears can be found here.
Gearing up for Election Day, voting rights are on everyone’s mind. But as we think about our own vote—for whom we will cast it, when during our busy days we will visit our polling place, and where that place is, has it changed since our last vote—and we would be remiss not to consider those we protect. For me (and I expect for many readers of this article), that is people with disabilities under a court-ordered guardianship.
Under Delaware law, the Delaware Court of Chancery is the ultimate fiduciary for individuals under guardianship within our state. We have implemented tools to ensure guardianships are only imposed with clear and convincing evidence of incapacity and that we monitor our appointed guardians, checking in frequently to ensure individuals subject to guardianship are protected and provided for. But the Court relies on others to suggest the more nuanced protections—what rights can and should be retained by the person with a disability and how can the guardianship be limited to permit the greatest extent of autonomy to the individual?
Those proposals should come first from the petitioner seeking guardianship and second from our appointed attorney ad litem. In practice, the weight bears heaviest on the latter. That is because the majority of those petitioning for guardianship in Delaware are self-represented. When presented with a court form that asks what rights can the person with an alleged disability retain, many individuals instinctively answer: none. But, once the attorney ad litem is appointed, they must take a closer look and make more nuanced recommendations to the Court.