What Options Exist for Establishing Authority Over an Elderly Heir’s Personal and Financial Decisions in Delaware?

Understanding Power of Attorney in Delaware

A power of attorney (POA) lets an individual (the principal) appoint a trusted agent to make decisions on their behalf. Under Delaware’s Durable Power of Attorney Act (12 Del. C. § 49-101 et seq.), you can grant authority over financial, legal, and certain personal matters. A durable POA remains effective if the principal becomes incapacitated. You can tailor it to grant broad or limited powers, such as paying bills, managing investments, or handling real estate transactions.

Understanding Guardianship Under Delaware Law

If an elderly heir lacks capacity to grant a POA or faces undue influence, you can petition for guardianship through Delaware’s protective proceedings (12 Del. C. § 38-101 et seq.). The Court of Chancery appoints a guardian of the person, a guardian of the property, or both. A guardian makes personal decisions—like medical care and living arrangements—and financial decisions—like investing assets and paying taxes. The court oversees the guardian, requiring periodic reports and limiting powers to protect the ward’s interests.

Key Differences Between Power of Attorney and Guardianship

• Voluntary vs. Court-Ordered: A POA arises by choice; guardianship requires a court hearing.
• Cost and Time: POA is quick and cost-effective. Guardianship involves legal fees, court costs, and may take months.
• Supervision: POA agents act with minimal oversight. Guardians report to the court and face stricter controls.
• Flexibility: You can customize a POA. Guardianship sticks to court-approved powers.

How to Establish Each Option

1. Setting Up a Power of Attorney

1. Choose a reliable agent who understands the heir’s wishes.
2. Use Delaware’s statutory durable POA form or consult an attorney.
3. Have the document signed by the principal in the presence of two adult witnesses and a notary public (12 Del. C. § 49-108).
4. Distribute copies to the agent, relevant financial institutions, and health care providers.
5. Review and update the document if circumstances or preferences change.

2. Establishing a Guardianship

1. File a petition in the Delaware Court of Chancery under Title 12, Chapter 38.
2. Provide notice to the proposed ward and close family members.
3. Undergo a court-appointed evaluation and investigation.
4. Attend a hearing where the court determines capacity and need for guardianship.
5. If approved, serve as guardian under court-defined powers and file annual reports.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. You should consult a qualified attorney to address your specific situation.

Helpful Hints

• Discuss wishes with the elderly heir early to avoid conflicts.
• Keep POA documents in a safe but accessible place.
• Consider limited or springing POAs that activate only upon incapacity.
• Review guardianship alternatives like supported decision-making agreements.
• Consult an elder law attorney to navigate complex situations.