IMO P.M., a person with a disability

• Court: Court of Chancery of Delaware
• Decided: January 31, 2024
• Docket: C.M. 19860-K
• Status: Published

Opinion

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN THE MATTER OF: : : P.M., : C.M. # 19860-K A person with a disability : (now deceased) :

ORDER DENYING PETITION TO EXPEND

WHEREAS, on February 25, 2022, T.G. and D.M. (the “Co-Guardians”) were

appointed as co-guardians of the person and property of P.M. (the “Decedent”); 1

WHEREAS, on January 8, 2024, D.M. informed the Register in Chancery that

the Decedent passed on January 6, 2024; 2 D.M. was provided a petition to terminate

and an accounting packet for the third and final accounting; 3

WHEREAS, on or around January 16, 2024, D.M. spoke with the Register in

Chancery again and was advised to go to the Register of Wills and open an estate

and then file a petition to terminate, together with the third and final accounting; 4

WHEREAS, to date, the Co-Guardians have not submitted proof that an estate

has been opened for the Decedent, nor have they filed a petition to terminate or the

third and final accounting;

1 Docket Item (“D.I.”) 5. 2 D.I. 45. 3 Id. 4 D.I. 46.

1 WHEREAS, on or around January 25, 2024, the Co-Guardians filed a petition

seeking to expend funds from the guardianship assets to pay for the Decedent’s

burial expenses, the family luncheon after the Decedent’s burial, and a wheelchair

pad replacement purchased for the Decedent (the “Petition to Expend”); 5

WHEREAS, as recognized by Chancellor Seitz in In re Bohnstedt, a guardian

appointed by this Court derives their power to act from the living person with a

disability; 6 thus, “after the death of the [person with a disability] the [guardian],

absent statutory authority, has no power to pay existing obligations. The creditors

must file their claims in the estate proceedings[;]”7

WHEREAS, as recognized most recently by Vice Chancellor Zurn in In re

A.N., Delaware’s statutory scheme provides no such post-death, pre-estate power for

guardians to pay the person with a disability’s unpaid debts and liabilities; 8 the

guardian’s responsibilities after death and before termination of the guardianship

action are limited to (1) being candid with and responsive to the Court as it works to

close the guardianship action, (2) safeguarding the late person with a disability’s

5 D.I. 47. 6 In re Bohnstedt, 125 A.2d 580, 582 (Del. Ch. 1956). 7 Id. (citations omitted). 8 In re A.N., 2020 WL 7040079, at *11 (Del. Ch. Nov. 30, 2020).

2 assets for transfer to their estate, and (3) accounting for the guardian’s remaining

unaccounted for pre-death service; 9

IT IS HEREBY ORDERED, this 31st day of January, 2024, as follows:

1. The Petition to Expend is DENIED, without prejudice to any creditor’s

right to file a claim against the person with a disability’s estate for unpaid debts or

expenses.

2. The Co-Guardians shall promptly file a petition with the Register of

Wills to open the Decedent’s estate and, within thirty (30) days, file with this Court

a petition to terminate and the third and final accounting for the period of September

9, 2023 to January 6, 2024.

3. This is a final report and exceptions may be filed under Court of

Chancery Rule 144.

/s/ Selena E. Molina Magistrate in Chancery

9 Id. at *12, *14.