COURT OF CHANCERY OF THE STATE OF DELAWARE SELENA E MOLINA SENIOR MAGISTRATE IN CHANCERY LEONARD L. WILLIAMS JUSTICE CENTER 500 NORTH KING STREET, SUITE 11400 WILMINGTON, DE 19801-3734
January 12, 2026
M.R. Jennifer K. Ellsworth-Aults Dover, DE Poole, Mensinger, Cutrona & (Via U.S. Mail) Ellsworth-Aults, LLP 2710 Centerville Road, Suite 101 Wilmington, DE 19808 (Via File and ServeXpress)
Alexandra S. McFassel, Esquire Office of the Public Guardian 38 The Green, Suite 209 Dover DE 19901 (Via File and ServeXpress)
Re: IMO J.R.G., a person with a disability, C.M. 2484-K-SEM
Dear Counsel & Interested Parties:
This longstanding guardianship has reached an impasse, which presents an
opportunity for the Court to clarify its process and procedure for removal and
replacement of delinquent guardians. Herein, I begin with a brief background of this
action, then I explain the law and process for removing and replacing guardians, and,
finally, I turn to the unique circumstances of this case.
Ultimately, I conclude that the guardian must be removed for good cause
shown. Because there are no suitable replacements and there are less restrictive
alternatives available, this guardianship should be administratively terminated. January 12, 2026 Page 2
There is, however, one final requirement (an affidavit) that needs to be filed before
termination. The attorney ad litem shall work with the guardian to complete that
requirement. Once the required affidavit is filed, this guardianship can be terminated.
I. Background
The guardian, M.R. (the “Guardian”), was appointed guardian of the person
and property of J.R.G., her son, on November 17, 2006. The Guardian’s appointment
was plenary, and she was charged with making decisions for J.R.G. that are in his
best interest, making sure that he is receiving appropriate medical care and treatment,
that his personal needs are generally being met, and that any assets or income he
receives are spent only in his best interest and for his needs.
The only reporting requirement imposed upon the Guardian was to file an
annual update and medical statement with the Court. Given the nature of J.R.G.’s
assets, the Guardian was not required to set up a guardianship bank account or file
an inventory or accountings. Thus, absent any complications or material changes,
the Guardian’s only interaction with this Court should have been her annual update,
which was due by October 1st of every year.
Unfortunately, the Guardian failed to comply with this simple—yet
essential—requirement. This guardianship was plagued by years of missed
deadlines, which prompted numerous reminders from court staff and courtesy
extensions. Ultimately, the court was forced to issue five rules to the Guardian January 12, 2026 Page 3
requiring her to appear at hearings, explain why she failed to comply with her
appointment order, and show cause why she should not be sanctioned appropriately.
The first rule to show cause hearing, scheduled for November 4, 2016, was
cancelled when the Guardian filed her outstanding annual update. 1 The Guardian
was a no-show at the second rule to show cause hearing in March 2018, but after the
Guardianship Monitoring Program (“GMP”) got involved, she filed her outstanding
update later that year.2 The Guardian again failed to appear at a February 2021 rule
to show cause hearing; GMP was reappointed, and thereafter the Guardian filed her
update.3 But that 2021 update, filed on August 27, 2021, was the last time this Court
has heard from the Guardian.
The Guardian missed her 2022, 2023, 2024, and 2025 deadlines. 4 She also
missed two rule to show cause hearings.5 And the GMP’s magic has appeared to run
out. The GMP was reappointed in November 2023, November 2024, and August
2025. 6 Unlike earlier appointments, the GMP’s involvement did not compel the
Guardian’s compliance.
1 Docket Item (“D.I.”) 19. 2 D.I. 25, 28. 3 D.I. 33, 36. 4 See D.I. 37–38, 42, 49. 5 D.I. 41, 47. 6 D.I. 42, 49, 53. January 12, 2026 Page 4
With the Guardian now non-responsive and recognizing other issues with the
Guardian serving in a fiduciary capacity, the GMP questioned whether the
guardianship should continue. In its most recent report, the GMP suggested that the
Court administratively terminate this guardianship in favor of allowing the Guardian
to operate as surrogate decisionmaker under Title 16 of the Delaware Code. 7
As explained further below, the GMP’s suggestion was well taken but did not
reflect the full range of options. Thus, Magistrate Wright appointed an attorney ad
litem for J.R.G. (the “AAL”). 8 The AAL investigated the situation, and on October
27, 2025, filed a report recommending that the Court appoint the Office of the Public
Guardian (“OPG”) as successor guardian.9 In her report, the AAL raised concerns
about the Guardian’s fitness to act as J.R.G.’s fiduciary and emphasized her
conclusion that J.R.G. continued to need the protection of a guardianship.
After reviewing the AAL’s recommendation, I wrote to OPG and invited a
response. 10 I also indicated my inclination, at that time, to have an in-person hearing
to further discuss the issue. OPG filed two responses. On December 2, 2025, OPG
submitted a letter providing its position that guardianship was not the least restrictive
means available to protect J.R.G. and that the Court should look to less restrictive
7 D.I. 54. 8 D.I. 55. 9 D.I. 56. 10 D.I. 58. January 12, 2026 Page 5
measures before considering appointment of OPG.11 OPG echoed GMP’s
recommendations for administrative termination, emphasizing its current caseload
and the difficulties OPG has serving individuals in the community. OPG then wrote
again on December 5, 2025, advocating that the Court should require clear and
convincing evidence that appointment of OPG is the least restrictive means to protect
J.R.G. before considering an appointment of OPG as last resort. 12
Upon review of the docket, I determined that a hearing was not necessary and
am issuing this letter ruling in lieu thereof.
II. Legal Standards
As explained above, the Guardian in this case should be removed and the
guardianship should be terminated once the required affidavit is filed. To reach that
holding, I carefully considered Delaware’s guardianship law and the Court’s
processes and procedures. I run through that first before turning to the case at hand.
A. Guardianships Generally
As aptly explained by Vice Chancellor Glasscock: “Outside of the criminal
arena, imposition of a guardianship represents the most significant deprivation of the
right to self-determination a court can impose.” 13 Thus, the Court does not take the
11 D.I. 61. 12 D.I. 62. 13 In re J.T.M., 2014 WL 7455749, at *1 (Del. Ch. Dec. 31, 2014). January 12, 2026 Page 6
prospect of appointing a guardian lightly. There are several requirements, hurdles,
and checkpoints.
Initially, the petitioner seeking guardianship must file with the petition for
guardianship a notarized physician’s affidavit, completed within the last three
months, with sufficient detail to make a prima facie showing that the person with an
alleged disability has a disability under Delaware law.14 The Court’s website has the
required physician’s affidavit form and examples of sufficient and insufficient
physician’s affidavits.
Then, only if the physician’s affidavit is sufficient will the Court’s Magistrate
Judges approve a preliminary order appointing an attorney ad litem, scheduling a
hearing, and setting notice and service requirements. 15 After the attorney ad litem’s
investigation and report and adequate notice to all interested parties, the Court hears
the petition on its merits and determines whether to appoint the proposed guardian.
14 An adult with a disability is one who “[b]y reason of mental or physical incapacity is unable properly to manage or care for their own person or property, or both, and, in consequence thereof, is in danger of dissipating or losing such property or of becoming the victim of designing persons or, in the case where a guardian of the person is sought, such person is in danger of substantially endangering person's own health, or of becoming subject to abuse by other persons or of becoming the victim of designing persons.” 12 Del. C. § 3901(a)(2). 15 Delaware’s statutory scheme does provide for emergency, interim appointments; when the person with an alleged disability “is in danger of incurring imminent serious physical harm or substantial economic loss or expense the Court may without notice and hearing appoint an interim guardian of the person or property to serve for a period of up to 30 days[.]” 12 Del. C. § 3901(d)(1). January 12, 2026 Page 7
The burden for that stage remains with the petitioner, who must demonstrate
incapacity by clear and convincing evidence. 16 “Clear and convincing evidence is
evidence that produces an abiding conviction that the truth of the contention is highly
probable.”17 In the guardianship context that requires evidence not just of incapacity
but also that guardianship is the least restrictive measure to protect the person with
a disability.18 The Court has consistently emphasized that a petition for guardianship
should only be filed as a last resort, where less restrictive options like advance
healthcare directives, powers of attorney, or surrogate or supportive decision making
are unavailable or insufficient to provide the level of support needed.
If a petitioner meets their requirements and overcomes these hurdles, a
guardian will be appointed and the Court will set checkpoints, allowing it to monitor
the guardian’s service. Specifically, the Court has annual reporting requirements for
all guardians, ensuring that the need for guardianship and the guardian’s fitness to
continue servings is reassessed every year. 19 For example, the Court’s annual update
and medical statement form requires the guardian to disclose various information
16 In re J.T.M., 2014 WL 7455749, at *3 (“[I]mposition of a guardianship must be supported by evidence that is clear and convincing, and not merely by a preponderance of the evidence.”). 17 In re Martin, 105 A.3d 967, 975 (Del. 2014) (citations omitted). 18 This evidentiary showing can be met “on the papers,” without an evidentiary hearing, in certain circumstances. 19 This is in addition to other reporting requirements addressed more below. January 12, 2026 Page 8
including: (1) all updated contact information; (2) any difficulty visiting or
communicating with the person with a disability or accessing services, care,
treatment, or benefits; (3) any changes in the person with a disability’s physical and
mental condition; (4) any governmental or non-profit agencies providing services,
care, treatment or other support to the person with a disability; and (5) who would
be best suited to serve as additional or successor guardian, if needed. The medical
statement portion of this annual reporting form then requires a report from a medical
provider on the person with a disability’s disability, diagnoses, procedures, and
continued medical need for guardianship.
All guardians are required to file the annual update and medical statement.
The Court reviews those forms, annually assessing the continued need for
guardianship and responding to any concerns raised. Altogether, these requirements,
hurdles, and checkpoints allow the Court to meet its responsibilities as the ultimate
fiduciary for the person with a disability.20 The expectation is that the guardian will
then serve in their court-appointed capacity until the guardianship is terminated.
Under Court of Chancery Rule 180-C, “any interested party may file a petition
alleging a sufficient reason why guardianship is no longer necessary and requesting
its termination.” Reasons why guardianship may no longer be necessary include the
20 In re Est. of Nastatos, 2023 WL 8269833, at *1 (Del. Ch. Nov. 30, 2023) (“In the guardianship context, the Court acts as ultimate fiduciary for the person with a disability[.]”). January 12, 2026 Page 9
person with a disability’s death, recovery, or ability to achieve the support necessary
through less restrictive alternatives to guardianship. 21
B. Reasons for Removing Guardians
A guardian may, however, need to be removed before a guardianship is
terminated. Under 12 Del. C. § 3908, the Court “may remove a guardian for any
sufficient cause.” This authority allows the Court to respond to changing
circumstances and ensure that the needs of the person with a disability can continue
to be met. The need to remove and replace a guardian arises in four ways, with the
current guardian’s (1) delinquency, (2) resignation, (3) death, or (4) misconduct. I
will walk briefly through these avenues before turning to the removal analysis.
1. Delinquency. Court-appointed guardians have various obligations
and deadlines they must follow. Every guardian is required to file
an annual update and medical statement. Most guardians of property
are required to file a proof of compliance with their banking
requirements, an inventory, and annual accountings. And guardians
of the person may be required to file care plans, visitation plans, or
other healthcare related updates and documents. Any deadline
imposed is reflected in an order from a Magistrate Judge and, if the
21 See Ct. Ch. R. 180-C. January 12, 2026 Page 10
guardian is self-represented, explained to the guardian personally
during a hearing. The Register in Chancery tracks guardians’
deadlines and will, typically, send delinquency letters when
deadlines are missed. When the guardian fails to respond and cure
the delinquency, the Court may need to consider removing and
replacing the guardian.
2. Resignation. Court-appointed guardians are not permitted to
unilaterally resign from their position. Guardians may, however,
request to resign, essentially requesting their removal. They may do
so in one of two ways: (1) by filing a petition for their removal and
replacement, with the consent of a qualified successor guardian(s)
or (2) through letter request explaining their interest in, or need to,
resign and the unsuccessful efforts they made to locate a successor
guardian. The Court may then need to remove and replace the
guardian.
3. Death. If a court-appointed guardian dies during their appointment,
the Court will need to remove them and appoint a successor. Other
than final accounting requirements imposed on the administrator of
the guardian’s estate (12 Del. C. §§ 1510, 3941), the guardian’s
duties and authority do not automatically transfer to their estate, January 12, 2026 Page 11
successors, or heirs, and, rather, die with them, requiring the Court
to get a new fiduciary in place expeditiously.
4. Misconduct. Finally, the Court, unfortunately, must remove
guardians who have breached their duties, misappropriated the
person with a disability’s assets, or otherwise engaged in
misconduct.
C. Process for Removing Guardians
When a guardianship becomes complicated by a guardian’s delinquency,
request to resign, death, or misconduct, the Court has several guiding principles and
tools. The Court’s primary focus is keenly on the person with a disability; ensuring
they remain protected under the guardianship. But the Court is also careful to give
the guardian and other interested parties adequate notice of the circumstances and
the opportunity to be heard in connection with any changes. These twin interests are
pursued through several avenues: (1) rule to show cause hearings, (2) appointment
of the GMP, (3) appointment of an attorney ad litem, and (4) direct inquiries to
interested parties.
1. Rules to Show Cause. The Court will issue rules to delinquent and
misbehaving guardians, directing them to appear at a hearing,
explain their conduct, and show cause why they should not be
sanctioned appropriately, up to and including removal. January 12, 2026 Page 12
2. Appointment of the GMP. The GMP operates within the OPG and
is responsible for monitoring the Court’s guardianship docket.22
This responsibility has two prongs: (1) routine audits of active cases
and (2) review and investigation when specifically appointed by the
Court. But, in addition to these Court-related duties, GMP handles
responsibilities assigned by OPG, including direct case work for
cases in which OPG serves as guardian. GMP providing this direct
work helps with OPG’s growing caseload, which OPG represents is
currently over 60 cases per case manager.23 GMP’s position within
OPG and involvement in case work does, however, create the
appearance of, and potential for, a conflict of interest if GMP is
appointed to a case where OPG may be the guardian of last resort.
Nonetheless, GMP will be appointed by the Court when appropriate
to investigate and file a report with recommendations. Following the
report and recommendation, the Court may adopt the order or
schedule further proceedings.
3. Appointment of an attorney ad litem. The Court appoints
attorneys ad litem for persons with alleged disabilities as a matter of
22 Ct. Ch. R. 180-D(a). 23 D.I. 61. January 12, 2026 Page 13
course.24 But, once a guardianship is established, the attorney ad
litem is typically discharged. When issues arise with the guardian,
the Court may reappoint an attorney ad litem to represent the person
with a disability in connection with those issues and provide
recommendations to the Court. Like with the GMP, following the
4. Direct Inquiries. When guardians pass, the Court will directly
contact interested parties about successor guardianship. As
explained above, the guardian is required to identify potential
successor guardians in each annual update. The Court then uses that
information and the larger interested party list to attempt to secure a
successor guardian.
The Magistrate Judges act with discretion, choosing the avenue best suited to the
unique circumstances at hand.
D. Determining a Successor Guardian
If, after going down the most appropriate avenue, the Court must appoint a
successor guardian, there is a statutorily supported priority scheme. First, the Court
24 See Ct. Ch. R. 176. January 12, 2026 Page 14
looks to the person with a disability’s next of kin or chosen family. If there is no one
(or those individuals are unwilling, unable, or unqualified to serve), the Court will
go to option two: a professional guardian. The Court has a process to vet, approve,
and oversee professional guardians; only approved and compliant professional
guardians will be appointed in that capacity. One important difference between
private and professional guardians is that the latter bill for their time and submit fee
requests which, if approved by the Court, are paid from the person with a disability’s
funds. These fees render professional guardians ill-suited for guardianships with
minimal assets or income.
The final option, if there are no individual or professional guardians able to
serve, is the Office of the Public Guardian. Under 12 Del. C. § 3983(4), the Office
of the Public Guardian, “[w]hen appointed as guardian by court order, shall serve as
guardian of last resort, either plenary or limited; temporary guardian; or successor
guardian; of the person or property, or both, of persons who are determined to be
incapacitated for reasons other than minority.” “Last resort” includes:
a. [c]ircumstances in which there is no other suitable person willing or able to serve as surrogate decision maker, guardian, representative payee, or VA fiduciary[;] b. [c]ircumstances in which a person willing or able to serve, or already serving, as a validly appointed agent of a durable power of attorney, a surrogate decision maker, representative payee, VA fiduciary, or a guardian, is available but sufficient cause has been found by the court that the individual available or so acting is not suitable to serve and that the appointment of the Public Guardian is in the best interest of the person who is incapacitated[;] and c. [e]xceptional circumstances . . . found by the court to establish that January 12, 2026 Page 15
appointment of the Public Guardian is in the best interest of the person who is incapacitated. 25
In its letter submissions, OPG advocates for an even more heightened bar
before its appointment as guardian of last resort. In doing so, OPG conflates the
successor appointment process with the initial appointment process. Those are
materially different. When the Court needs to appoint a successor guardian, it is
doing so because it has already determined that there is clear and convincing
evidence of incapacity, and that guardianship is necessary. OPG’s argument that
there are due process implications in replacing that guardian without another
showing of such incapacity and necessity is misplaced and unpersuasive. Once the
Court has determined that a guardian should be appointed, the question of replacing
that guardian does not require re-litigation of the need therefor. Again, the question
depends on the priority scheme, looking to who is available and best suited to serve.
When that scheme leads to OPG, the “last resort” statutory definition controls. With
clear guidelines already in place in Delaware, OPG’s appeal to outside authorities is
unpersuasive.
III. Application
Here, I have no difficulty concluding that the Guardian should be removed.
But, working through the replacement priority scheme, I find I do not have a
25 12 Del. C. § 3982(4). January 12, 2026 Page 16
successor guardian to appoint. Family and friends have gone silent, there are
insufficient funds to pay a professional guardian, and this case falls outside the “last
resort” category because there are less restrictive alternatives. With that finding, I
will, sua sponte, work to terminate the guardianship in favor of less restrictive
alternatives. That requires more from the AAL and the Guardian as explained herein.
A. The Guardian should be removed, but there is no available replacement.
As explained above, there are two separate avenues for termination and
removal. Here, I begin in the removal scheme and must start with the good cause
standard for removing the Guardian. The Guardian’s years-long delinquency is
sufficient good cause for her removal.26
That brings me to replacement and the priority scheme. Despite notice and
opportunity to do so, J.R.G.’s family and friends have failed to step up and request
their appointment as successor fiduciaries. Option one is, thus, unavailable. Then we
have option two: a professional guardian. J.R.G.’s assets and income are not,
however, sufficient to support the fees of a professional guardian while still meeting
his needs. It would not be in his best interest to impose that financial responsibility
upon him. That means, as the AAL recognized, the only successor option is OPG.
26 See In re J.H.C., 2025 WL 819864, at *4 (Del. Ch. Feb. 21, 2025). January 12, 2026 Page 17
Appointment of OPG requires more, however, than a finding that other
options are unavailable. OPG must truly be the “last resort” as that is defined by
statute. Here, it is not. There is, as reflected in the reports from the GMP and AAL,
an alternative to OPG. The Guardian is willing and able to serve as surrogate
decision maker. The primary question, and the concern raised by the AAL is whether
she is “suitable” as required in Title 12.
What renders someone “suitable” is not defined in the statutory scheme nor
elsewhere in Title 12. I must, nonetheless, “attempt to ascertain and give effect to
the General Assembly's intent[,]” by construing such undefined term according to
its common and approved usage.27 For that I look to a few places: (1) other sections
within Title 12, (2) Delaware case law, and (3) Black’s Law Dictionary.
The concept of a “suitable person” exists within various other sections in Title
12. Most tellingly, it appears in Section 3983, which sets forth the duties of the
Public Guardian, and provides that OPG may “[m]ake a recommendation as to a
suitable individual who is available and willing to serve as guardian or default
surrogate decision maker[.]” 28 Again, what may make someone suitable, or not, is
27 DeMatteis v. RiseDelaware Inc., 315 A.3d 499, 513 (Del. 2024). 28 Other sections in Title 12 require suitability. For example, in Section 4102, the Register of Wills is authorized to “appoint any suitable person as conservator[.]” Likewise, in Section 1709, this Court may “appoint a suitable person or corporation as trustee” in connection with distributing the assets of the estate of a presumed decedent. January 12, 2026 Page 18
not defined, but the plain language of this section appears to give some level of
credence to OPG’s expertise and discretion in determining suitability.
Delaware case law reflects that suitability is context specific. For example, in
Bailey v. Bailey, the Court was called upon to interpret a will which authorized the
appointment of “a suitable person” as trustee. 29 This Court determined that
suitability needed to be interpreted through considering “the object and design of the
testator . . . and also the reason why the power of appointing a trustee was conferred”
on the individual. 30 In Bailey, the suitability limiter was meant to protect and
preserve the trust assets from the testator’s son, who had outstanding debts. The
testator gave his son a limited power of appointment, requiring that he only appoint
someone “suitable.” The testator’s son sought to exercise his power to appoint his
own son, then a young man who did not own any significant property and was, to
some extent, dependent on and beholden to his father. The Court concluded that
person was not suitable, because his appointment would not achieve the goal of
protecting and preserving the trust outside the testator’s son’s influence.
In the guardianship context, a good cause removal of a guardian may mean
the guardian is also not suitable to support the person with a disability. For example,
in In re B.W., then-Master Glasscock removed a guardian and, implicitly, found her
29 Bailey v. Bailey, 1843 WL 854, at *3 (Del. Ch. Sept. 1, 1843). 30 Id. January 12, 2026 Page 19
not suitable, requiring the appointment of OPG.31 Therein, the guardian had
threatened the person with a disability’s primary care physician, refused to allow the
person with a disability to receive medication, refused recommended testing, and
refused to consent to other treatment. The guardian did not deny this conduct, but
gave various explanations and excuses, which then-Master Glasscock found “not
rational in light of the facts.” 32 Although acknowledging the guardian’s love for the
person with a disability, then-Master Glasscock removed her and appointed OPG as
successor, implicitly finding the guardian not suitable and inviting OPG to propose
“a suitable family member” should it discover one.33
That brings me, finally, to Black’s Law Dictionary. Delaware courts
“regularly refers to dictionaries in defining code terms.” 34 Black’s Law Dictionary
defines suitable as “fit and appropriate for their intended purpose.” 35
Here, the Guardian is suitable. The suitability requirement in 12 Del. C. §
3982(4) is a protective device. It ensures that vulnerable Delawareans are not left
without a “last resort” option if, for example, the only other persons willing to serve
as surrogate, guardian, representative payee, or VA fiduciary, are not suitable or fit
31 In re B.W., 2011 WL 2448373, at *1 (Del. Ch. June 3, 2011). 32 Id. at *4. 33 Id. at *5. 34 DeMatteis, 315 A.3d at 513. 35 Suitable, BLACK'S LAW DICTIONARY (12th ed. 2024). January 12, 2026 Page 20
to so serve the person with a disability. This requires more than just the existence of
a willing family member; the Court must determine that they are suitable.
A removed guardian may, however, still be “suitable.” By removing the
Guardian, however, I did not effectively declare her not suitable. Unlike the guardian
in In Re B.W., the guardian here was removed for delinquencies, not misconduct.
Guardians who fail to meet court deadlines are delinquent and unfitting for continued
service as court-appointed fiduciaries but not, necessarily, for service outside the
judicial context.
The question is, thus, whether the guardian is suitable (fit and appropriate) to
serve as default surrogate decision maker. Suitability, thus, looks to whether the
guardian qualifies as a default surrogate under Title 16.
Under 16 Del. C. § 2512, “[a] default surrogate may make a health-care
decision for an individual who lacks capacity to make health-care decisions and for
whom an agent, or guardian authorized to make health-care decisions, has not been
appointed or is not reasonably available.” 36 A default surrogate is, however,
disqualified from acting as default surrogate if any of the following apply:
(1) A court finds that the potential default surrogate poses a danger to the individual’s well-being, even if the court does not issue a protection from abuse order against the potential default surrogate. (2) The potential default surrogate is an owner, operator, employee, or contractor of a nursing home or long-term care facility in which the
36 16 Del. C. § 2512(a). January 12, 2026 Page 21
individual is residing or receiving care unless the owner, operator, employee, or contractor is a family member of the individual, the cohabitant of the individual, or a descendant of the cohabitant. (3) The potential default surrogate refuses to provide a timely declaration under § 2512(c) of [Title 16]. (4) The individual has a pending protection from abuse petition against the potential default surrogate. (5) The individual has a protection from abuse order against the potential default surrogate. (6) The potential default surrogate is the subject of a civil or criminal order prohibiting or limiting contact with the individual. 37
Here, there is no dispute that the Guardian, as J.R.G.’s mother, is his default
under the statutory priority scheme.38 And there is no basis on which to declare her
disqualified from acting as default. Subparts (2)-(6) simply do not apply and there is
nothing in the record before me that would support a finding that the Guardian poses
a danger to J.R.G.’s well-being under (1). Both the GMP and AAL investigations
uncovered that the Guardian, J.R.G.’s mother, continues to assist him in the
community and is familiar with his needs and has some amount of support in place.
Although she has been unresponsive throughout this guardianship and has what
could be termed a checkered record, neither disqualify her from serving as default
surrogate. She is, thus, a “suitable person willing or able to serve as surrogate
decision maker,” which leaves me unable to appoint OPG as guardian of last resort.
B. This guardianship should be administratively terminated.
37 16 Del. C. § 2514(b). 38 16 Del. C. § 2512(b). January 12, 2026 Page 22
Because I have concluded that there is good cause to remove the Guardian,
but no available successor, I must consider termination. To be clear, this Court will
not terminate a guardianship solely because a guardian wants or needs to be
removed, and replacement proves difficult. When this Court appoints a guardian, it
takes jurisdiction over the person with a disability and serves as ultimate fiduciary.
It will not abdicate that responsibility when things get tough. Delaware law
commands as much, and the statutory scheme for appointment of OPG as last resort
is a powerful tool; OPG is an essential state agency which serves as guardian when
guardianship is necessary but there is not an available guardian in the community.
Here, however, there is protection available short of guardianship. Thus,
under Court of Chancery Rule 180-C, I must consider termination in favor of less
restrictive alternatives. Rule 180-C(b)(2) provides:
If the Court finds that guardianship is no longer necessary due to availability of other measures and such measures are in the best interest of the person with a disability, the matter may be administratively closed without prejudice. An affidavit shall be filed with the Court specifying the means of substitute decision making to be used, and the consent of the individual responsible for utilizing it.
For the reasons explained above, I find guardianship is no longer necessary due to
the availability of other measures. I further find those measures are in J.R.G.’s best
interest. From the GMP and AAL, I have learned that J.R.G. is doing relatively well,
despite the deficiencies in this guardianship action. Imposing more restrictions or a
new decisionmaker on him would not be in his best interest; he is best served through January 12, 2026 Page 23
maintenance of the status quo. Before I can terminate, however, I need “[a]n
affidavit . . . specifying the means of substitute decision making to be used, and the
consent of the individual responsible for utilizing it.” That requirement is mandatory,
given the “shall” qualifier.
IV. Conclusion
As explained herein, I find the Guardian should be removed but the priority
scheme does not lead to an available successor to appoint. Administrative
termination, thus, appears appropriate, but the Guardian has not filed the required
affidavit. The Guardian has 30 days to execute and file the required affidavit. The
AAL shall assist the Guardian in this exercise and shall submit a report within 30
days on such efforts. If the Guardian fails to file the required affidavit, I will need to
reconsider whether she remains a “suitable person” for purposes of the last resort
analysis. This is a report under Court of Chancery Rule 144, but exceptions are
stayed pending the above submissions and a final ruling on replacement or
termination.
Respectfully,
/s/ Selena E. Molina Senior Magistrate Judge
cc: M.R. (via U.S. Mail) F.R. (via U.S. Mail)