GUARDIANSHIPS AND OTHER PROTECTIVE SERVICES

Representative Payee for Social Security Payments

         Social Security and Supplemental Security Income ("SSI") recipients can have their benefits deposited directly into their bank accounts by filling out a form at their bank.

        If the Social Security Administration (SSA) determines on the basis of adequate evidence that it is in the interest of the beneficiary, regardless of the person’s legal competency, it may appoint an individual or organization to serve as the beneficiary’s representative payee.  Before certifying the payee’s acceptability, the SSA is required, in a face to face interview, if possible, to verify the payee applicant’s Social Security Number, determine whether the applicant has been convicted of certain crimes under the Social Security Act, and determine whether the applicant was previously terminated or suspended as a payee.

        Various factors influence the choice of a representative payee.  The payee’s relationship to the beneficiary and the payee’s interest in and knowledge of the beneficiary are important. Priority is generally given to a legal guardian, spouse, parent, or other relative, but friends, institutions, and social agencies may also be chosen.  A beneficiary who has a preference for a payee should so inform the SSA.
Procedural standards for the appointment process do not require advance notice of the names of the persons under consideration to be payee, of the right to counsel, or of the right to a face to face interview with an SSA representative, nor do they require that the beneficiary be notified that an appointment is being considered.  After the determination, SSA notifies the beneficiary and gives him 10 days from receipt of the notice to appeal the decision to provide a representative payee or to appeal the designation of the particular person as representative payee.  20 CFR §404.2030.  Note that prior notice that the process has been initiated is not required.

          If you do not want a payee appointed, you should take steps to protect your benefits at the earliest hint of a possible payee appointment by contacting SSA to supply evidence of your capacity.

        The representative payee must use the benefit payments to promote the best interest of the beneficiary, which ordinarily include current maintenance and institutional costs.  Prior debts of the beneficiary need not be paid by the payee unless the current and reasonably foreseeable needs of the beneficiary are met.  Any surplus should be conserved and invested for the beneficiary.  The representative payee may be required to account to SSA for the benefits received and may be criminally and personally liable for misuse of benefits.   More information is available from the website of the Social Security Administration at http://www.socialsecurity.gov/payee/

Personal Power of Attorney Revised December 15, 2015

        A power of attorney is a written document in which you (known as the principal) give someone else, usually a relative or friend, the authority to act for you in managing your affairs.   It may be a broad, general power of attorney which authorizes another person (known as the attorney-in-fact or agent) to handle all of your affairs.  Or, it may be limited to a specific purpose, such as selling your home, or limited to a specific period of time, such as six months.

        In Delaware, it is possible to have a power of attorney which will authorize the attorney-in-fact to act on your behalf immediately; or, one which will only authorize the attorney-in-fact to act if and when you become disabled or incapacitated.

        You should have a durable power of attorney so that it will continue to be effective if and when you become incapacitated.   If your power of attorney is not durable or if you have no power of attorney, it may be necessary to go to court to have a guardian appointed upon your becoming incapacitated.

        A power of attorney ceases to be effective upon your death.

        The person to whom you give a power of attorney should be chosen carefully.  He or she should be trustworthy and honest because of the potential for abuse of your trust (by spending your funds other than as you would wish).  If you designate an attorney-in-fact who may have a present or future interest in your financial matters, you must make it clear in the document what authority the attorney-in-fact has for transactions which may benefit himself/herself.  To illustrate: You make gifts to your children every year.  You appoint one of the children to be your attorney-in-fact.  You become incapacitated, and the child takes over your financial matters under the power of attorney.  Can the child continue your gift-giving program even if it includes gifts to himself/herself? The document must specify limits or qualifications.

        Effective October 1, 2010, Delaware adopted a new statutory form of personal durable power of attorney set forth in new Chapter 49A of Title 12 of the Delaware Code (http://delcode.delaware.gov/title12/c049A/index.shtml).  Like the statutory form of Advance Health Care Directive, a printable pdf version of the statutory form of Durable Personal Power of Attorney is available on line at http://dhss.delaware.gov/dhss/dltcrp/poa.html.  The new statutory form is designed not only to make the form more accessible but also to provide additional protections from abuse of the personal power of attorney. To do so, the law allows the filing with the Court of Chancery of a petition to compel an accounting (among other things). Such a petition may be filed by the principal or the agent; the spouse, child or parent of the principal; a guardian, trustee or other fiduciary acting for the principal; a representative, trustee or beneficiary of the principal's estate; or any other person who is interested and can demonstrate to the Court's satisfaction that the person is interested in the welfare of the principal and has a good faith belief that the principal is incapacitated and the Court's intervention is necessary.

        You can revoke a power of attorney by signing and dating a written statement which says “I revoke the power of attorney I gave to ...” and sending or giving it to your attorney-in-fact.  You also must notify everyone who might have done business with your former attorney-in-fact or allowed your former attorney-in-fact to access your financial accounts, while he/she was using the now-revoked power of attorney.  This is necessary to protect you from unauthorized use of the power of attorney.

        A power of attorney is an important and powerful document.   You should consult an attorney to assist you with creating a power of attorney.

Guardianship

         Delaware has provided a method for the appointment of a person to manage the property and/or make personal decisions for an incapacitated person when that person has failed to execute a power of attorney.  Property includes all assets including bank accounts,  real estate, personal property, income and expenses.

        The person appointed by the court is called a guardian.  The person for whom a guardian is appointed is called a disabled person.  The guardian may be appointed to manage the personal decisions for the disabled person, or the property of the disabled person, or both.

        A guardian of the person may be necessary when someone is incapable of caring for himself/herself, or is unable to consent to medical treatment or make other personal decisions about his or her life.  These decisions may include such things as where a person will live and how meals will be provided.

        A guardian of the property may become necessary when someone is not able to manage his or her financial affairs.  This may include such things as paying bills, depositing funds, and taking care of real estate.  A guardian of the property may also be appointed when there is a risk that the disabled person may be exploited.  A guardian of the property must post a bond, usually without surety, maintain a guardianship bank account, and use the disabled person’s income and property exclusively for the disabled person’s benefit.  The guardian must file financial reports with the Court, including an inventory within thirty days of the appointment as guardian and, generally, an initial accounting one year after the appointment of the guardian and each year thereafter.

        The guardianship process is begun when a person seeking the guardianship files a petition in the Court of Chancery. The alleged disabled person must be represented by an attorney known as an “attorney ad litem” who may be retained by the alleged disabled person or, otherwise, is appointed by the Court of Chancery for the duration of the petition.

        The petition for guardianship must include an affidavit from the alleged disabled person’s doctor stating the diagnosis of the person and the opinion of the doctor as to whether the person is able to manage his or her affairs.  Notice of the petition for guardianship must be provided to, among others, the alleged disabled person (unless it would be meaningless or harmful), his or her spouse, and his/her adult next of kin.

        A number of different people may file a petition for guardianship.  The person him/herself may ask the Court to appoint a guardian.  More often, a relative or close friend will file a petition to become guardian of a person when necessary.  In other cases, Adult Protective Services, a unit of the DSAAPD discussed in the next section of this Handbook, or a facility in which the disabled person resides may file a petition for appointment of a guardian.  Upon petition, the Court may change the guardian to a different guardian if appropriate.
If you learn that a petition for guardianship has been filed to obtain guardianship over you and/or your property, you may challenge the petition if you do not want a guardian.  You have the right to be represented by an attorney of your own choosing, and to present witnesses and evidence on your behalf.  Or, if there is a guardianship of your person and/or property which you believe is not necessary, you may file a petition to terminate the guardianship.  To terminate the guardianship, it is necessary to prove that you are capable of managing your own affairs and caring for yourself.  You will need a physician’s affidavit stating that a guardian is not needed.
Unless the Court limits the authority of the guardian, a guardian may make all decisions regarding the disabled person’s affairs.  Because the Court has determined that a person is not capable of caring for him/herself when a guardian is appointed, the disabled person is deprived of almost all of his or her civil rights.  Therefore, guardianship is an action which should be taken only when absolutely necessary.

        The Court of Chancery oversees the actions of the guardian.  The guardian has to obtain approval of the Court before undertaking every major transaction on behalf of the disabled person.  Many minor transactions can be lumped into a general authorization to expend funds. For example, the guardian may be given the authority to spend a monthly amount of money to pay the expense of the disabled person’s day-to-day care.  Other transactions, such as the sale of real estate, need greater safeguards, such as the Court requiring an independent appraisal and Court review of the proposed contract before approving the sale.
It is prudent to consult an attorney before undertaking any guardianship action.

        Forms to petition for guardianship may be obtained from the Delaware State Court website www.courts.state.de.us under “Forms.”


Adult Protective Services


If any person is in immediate danger, call 911 immediately.

         In other instances, if you have reasonable cause to believe an adult person is infirm or incapacitated and needs protective services, Delaware law requires that you shall report such information to the DSAAPD.  In some states the law only provides that certain categories of people, such as social workers, doctors, nurses, or police have a duty to report.  Under Delaware law the reporting requirement applies to everyone.  Under Section 3910 of Title 31 of the Delaware Code, any person with reasonable cause to believe that an adult is infirm or incapacitated and in need of protective services has a duty to report to the DSAAPD.  Anyone making a good faith report is immune from criminal and civil liability for making the report.  When a report is made, Adult Protective Services (APS), a program in the DSAAPD created by legislation passed in 1983, investigates the complaint, assesses risk, makes referrals and develops a case plan for services.  APS is also authorized to seek court orders for the protection of persons not able to protect themselves.   The staff is represented in court by a deputy attorney general. 

          As is discussed in the following section, elder abuse and exploitation are also crimes.  However, since the abuser is often a family member or a caregiver, the emphasis is placed on protection, rather than prosecution, to encourage reporting and to encourage the victim’s cooperation.  An infirm or incapacitated elderly or disabled person can voluntarily obtain protective services or such services may be ordered by the Court of Chancery.

        To make a referral to the program, call the state-wide toll free number, 1-800-223-9074, or you may call 211 during any non-holiday weekday between 8 a. m. and 8 p.m. and ask for Adult Protective Services. 

        If you have reasonable cause to believe that a resident of a long term care facility, who is infirm or incapacitated, needs protective services, your report should be made to the Division of Long Term Care Residents Protection at the Delaware Department of Health and Social Services by calling 302-577-6661.