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    February 26, 2025

    When State Guardianships Go International

    By Hon. Selena E. Molina/Magistrate in Chancery; Court of Chancery - Delaware Courts

    The PDF, which includes any endnotes and footnotes,  in which this article appears can be found here: /content/dam/aba/administrative/law_aging/vol46issue3.pdf

    Since joining the Court of Chancery, I have presided over thousands of guardianships for adults with disabilities. My aging-related cases often present with familiar familial disputes: which child is best suited to take over their parent’s decision making, how to balance allowing as fulfilling a life as possible while preserving assets for future medical needs, who should be permitted visitation and in what manner, and how can we craft a limited guardianship that allows the greatest amount of autonomy, while providing sufficient support as someone ages and declines.  These themes weave together Delaware’s growing docket of guardianship cases, allowing myself, and my fellow Magistrate Judges, to develop subject matter expertise. But no two guardianship cases are the same. And those that are especially dissimilar are the ones that cross international boundaries.

    During my time with the Court, I have had to consider how a state-issued guardianship order may (or may not) be respected internationally. I have had families with dual citizenship advocate for a Delaware guardianship, over guardianship in foreign jurisdiction, based on true (or perceived) advantages or additional protections in the states. I have had to wrestle with identifying a home “state” or significant connection “state” when presented with those who split their time between the states and abroad. I have entertained creative requests on how to “transfer” a Delaware guardianship to a foreign country with a very different system than our own.

    With these types of issues, Delaware has two helpful tools. The first is Delaware’s version of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. That statutory scheme sets tests for determining the home or significant connection “state” and allows the Court to treat a foreign country as a “state” when applying those tests. The second tool is the Court’s bench of attorneys ad litem. Any Delaware attorney who has seen me at an Inn of Court or Delaware State Bar Association meeting has heard my pitch for folks to volunteer their time as attorneys ad litem. Usually that means representing a person allegedly in need of a guardianship. But I will often tap our experienced attorneys ad litem to come into an established guardianship and represent a person with a disability in connection with these types of international issues. Those attorneys have been essential in, for example, marshalling and liquidating (when necessary) international assets and reconnecting a person with a disability with family members in other countries. They have also helped craft ways in which to ensure a plan is in place to protect and care for the person with a disability when they move outside our borders.  

    These tools have helped the Delaware Court of Chancery, a statewide court, navigate international issues. And we have been lucky that our tools have enabled us to find appropriate solutions in the best interests of those we serve. But as we proceed ad hoc, I would be remiss not to mention the efforts to federalize or globalize greater protection. For example, 25 years ago, the Hague Convention on the International Protection of Adults was completed. It is meant to protect adults with disabilities in international situations. There are 16 signatories, but the U.S. is not one of them. And over 10 years ago now, the U.S. and Canadian Uniform Law Commissions created the Uniform Recognition of Substitute Decision-Making Documents Act. Although Canada has signed on, very few states have adopted the act, including Delaware. And finally, I think of the Vienna Convention and the obligations imposed on governments to assist their citizens abroad. How might that interplay with state-level guardianships over visitors, residents, or undocumented immigrants? These questions remain, in my understanding, largely unanswered. I commend the Commission on Law & Aging’s focus on international issues and look forward to their important work to come.

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