    IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

In the Matter of J. T. M.,            :        C.M. No. 17901-S
A disabled person                     :


                             MEMORANDUM OPINION

                         Date Submitted: October 24, 2014
                         Date Decided: December 31, 2014




GLASSCOCK, Vice Chancellor
       This Opinion involves whether a guardianship should be imposed for the

benefit of J.T.M., an eighteen-year-old man resident in Delaware. Following a

hearing on October 24, 2014, I imposed a guardianship appointing D.S., Mr. M.’s

great-grandmother, and W.M., his father, as co-guardians. An Order was entered

on that date; this Opinion supplements that Order.

       Our country was founded on principles of individual rights, self-governance

and self-determination. This is embodied in our founding documents, including

the Declaration of Independence1 and the Bill of Rights.2                         The Delaware

Constitution of 1897 also makes clear the importance of such rights.3 An entire

branch of our jurisprudence, the criminal law, is dedicated to achieving a balance

between the exercise of these rights and the interest of the State in protecting

persons and property. That body of law, together with its governing constitutional

provisions,4 allows restriction or termination of those rights through incarceration

or execution, but only with significant procedural safeguards and after


1
  The Declaration of Independence para. 2 (U.S. 1776) (“We hold these truths to be self-evident,
that all men are created equal, that they are endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty and the pursuit of Happiness.”).
2
  See, e.g., U.S. Const. amend. V, XIV.
3
  See, e.g., Del. Const. pmbl. (“Through Divine goodness, all people have by nature the rights of
worshiping and serving their Creator according to the dictates of their consciences, of enjoying
and defending life and liberty, of acquiring and protecting reputation and property, and in general
of obtaining objects suitable to their condition, without injury by one to another; and as these
rights are essential to their welfare, for due exercise thereof, power is inherent in them; and
therefore all just authority in the institutions of political society is derived from the people, and
established with their consent, to advance their happiness; and they may for this end, as
circumstances require, from time to time, alter their Constitution of government.”)
4
  See, e.g., U.S. Const. amend. IV, V, VI, VIII, XIV; Del. Const. art. I, §§ 6, 7, 8, 11, 12.

                                                 1
determination of guilt beyond a reasonable doubt.5 Outside of the criminal arena,

imposition of a guardianship represents the most significant deprivation of the right

to self-determination a court can impose.6 This case represents a first chance to

address the proper standard by which evidence of the need for a guardianship must

be established.7




5
  See, e.g., In re Winship, 397 U.S. 358, 364 (1970) (“Lest there remain any doubt about the
constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process
Clause protects the accused against conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is charged.”); see generally Mathews
v. Eldridge, 424 U.S. 319, 332 (1976) (“Procedural due process imposes constraints on
governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the
meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.”)
6
  See, e.g., Alison Patrucco Barnes, Beyond Guardianship Reform: A Reevaluation of Autonomy
and Beneficence for A System of Principled Decision-Making in Long Term Care, 41 Emory L.J.
633, 736 (1992) (“The restriction of liberty created by appointment of a substitute decision-
maker is severe. The rights enjoyed by all competent adults to associate with persons of their
choice, to engage in recreational, political, and religious activities, and to choose their care
providers can be controlled by the substitute decision-maker.”); Susan G. Haines & John J.
Campbell, Defects, Due Process, and Protective Proceedings: Are Our Probate Codes
Unconstitutional?, 33 Real Prop. Prob. & Tr. J. 215, 227 (1998) (The constitutionally protected
individual interests implicated in a guardianship proceeding include: the right to choose where to
live and with whom to associate; the right to make medical decisions regarding one's body; the
right to marry and to associate freely; the right to travel or pursue in privacy the activities of
daily living; and the right to be free from unwanted constraints or incarceration.”); Jennifer L.
Wright, Protecting Who from What, and Why, and How?: A Proposal for an Integrative
Approach to Adult Protective Proceedings, 12 Elder L.J. 53, 71 (2004) (“A guardianship results
in the reduction of the protected person to the status akin to that of a minor child. The protected
person loses the right to determine where he or she will live, whom he or she will see, where he
or she will go, and how he or she will live his or her life.”) (footnote omitted).
7
  I do not mean to imply this is a case of first impression. Out of respect for the privacy rights of
individuals potentially subject to guardianships as disabled persons, these proceedings are
confidential. Accordingly, judicial decisions in these cases are not publicly disseminated or, as
in the public version of this Opinion, the names of the participants are redacted. This is,
therefore, the first public Opinion to address the proper standard of review under our current
guardianship statute. I am indebted to Vice Chancellor Noble, whose careful scholarship as
expressed in a non-public decision of this Court has served me as a guide.

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       Because it involves fiduciary relationships, guardianship has traditionally

fallen within the jurisdiction of this court of equity, both with respect to its English

common-law antecedents and in its current statutory incarnation.                   Today, all

guardianships imposed in Delaware over disabled adults are pursuant to statute.

The Court of Chancery is empowered by 12 Del. C. § 3901(a) “to appoint

guardians for the person or property, or both, of any person with a disability.” A

“person with a disability” is one who

       [b]y reason of mental or physical incapacity is unable properly to
       manage or care for their [sic] 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[.]8

       The Petition here was filed by W.M. (“W.”) and D.S. (“D.”),9 the father and

great-grandmother of Mr. M., respectively. In compliance with Court of Chancery

rules, the Petition was accompanied by an affidavit from Mr. M.’s treating

physician.10 According to that affidavit, Mr. M. suffers from “a disability that

interferes with the ability to make or communicate responsible decisions regarding

health care, food, clothing, shelter or administration of property,” caused by



8
  12 Del. C. § 3901(a)(2).
9
   I use the first names of the Petitioners to differentiate them from the proposed ward, Mr. M.
No disrespect is intended.
10
    See Ct. Ch. R. 175(d).

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autism, attention deficient hyperactive disorder, and encephalopathy.11 As a result

of this disability, Mr. M. “is unable to perform the following functions: (1)

Activities of daily living; (2) Cognitive activities, e.g. needs help with dressing,

brush[ing] teeth and hygiene, poor judgment.”12 In the opinion of the physician,

despite his disability, Mr. M. has sufficient mental capacity to understand the

nature of guardianship and to consent to the appointment of a guardian.

       Consistent with the procedures established by Rule 176,13 an attorney was

appointed ad litem for Mr. M. That attorney, Andrew A. Whitehead, Esquire,

interviewed his client, Mr. M., at his office in Georgetown on October 8, 2014. He

also reviewed the physician’s affidavit and met with the Petitioners.          In a

thoughtful report to the Court, Mr. Whitehead opined that his client was a disabled

person under the provisions of 12 Del. C. § 3901(a). He reported that Mr. M.

consented to and supported the appointment of his father and great-grandmother as

his guardians. The Petitioners disclosed to Mr. Whitehead that Mr. M. receives

Social Security Disability benefits in cash each month as well as benefits under

Medicaid. He lives with D. during the week, as he has for many years, and attends

a day program to educate those with autism spectrum disorder. During weekends,

Mr. M. lives with W. At both residences, he has his own room and feels “at


11
   Aff. of Thiele Anthony, MD.
12
   Id.
13
   See Ct. Ch. R. 176(a).

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home.” He also spends one weekend a month with his mother, who lives in

another state. The report explains that Mr. M. “was diagnosed with autism at a

very young age and has been in [an academic autism program] since he was three

years old.” The guardians explained to the attorney ad litem that Mr. M. could not

comprehend the value of money, that he has been tricked out of toys and other

property by children in his neighborhood, that he could not grasp budgeting and

struggles with counting money, and that he suffers from anxiety under stress.

Further, he is unable to take his required medications except under direction of

others. Mr. Whitehead supports appointment of W. and D. as guardians for Mr. M.

                                I. STANDARD OF REVIEW

          To impose a guardianship, I must find that, by reason of mental or physical

incapacity, the proposed ward is “unable to properly manage or care for [his] own

person or property,” and that as a result, he 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 the person’s own health . . . .”14 The statute, however, is silent as to

the standard by which this finding must be made. As described above, the criminal

law requires proof beyond a reasonable doubt before substantial deprivations of

personal liberty interests may be imposed by the Court; at least one state imposes


14
     12 Del. C. § 3901(a)(2).

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this standard to guardianship as well.15 The United State Supreme Court, on the

other hand, has held that certain governmental actions that limit individual rights of

self-determination and self-control, such as termination of parental rights, civil

commitment, deportation, and denaturalization, must be supported by evidence that

is clear and convincing.16 The imposition of guardianship is, I find, even more

restrictive of substantial liberty interests than those actions. Indeed, the majority of

states impose a clear and convincing evidentiary standard for establishing a

guardianship by statute.17 While Delaware’s cases have not been consistent in the

application of a standard, I find that imposition of a guardianship must be



15
   See Sally Balch Hurme and ABA Comm’n on Law and Aging, Conduct and Findings of
Guardianship                 Proceedings              (2013),             available             at
http://www.americanbar.org/content/dam/aba/administrative/law_aging/2014_CHARTConduct.a
uthcheckdam.pdf; see, e.g., In re Kapitula, 899 A.2d 250, 253 (N.H. 2006) (Findings justifying
imposition of a guardianship must be “in the record and must have been based upon evidence
supporting them beyond a reasonable doubt.”).
16
   These decisions have been made in the context of the due process clause of the Fifth and
Fourteenth Amendments. See Santosky v. Kramer, 455 U.S. 745, 747-48 (1982) (“Before a State
may sever completely and irrevocably the rights of parents in their natural child, due process
requires that the State support its allegations by at least clear and convincing evidence.”);
Addington v. Texas, 441 U.S. 418, 424 (1979) (“We noted earlier that the trial court employed
the standard of ‘clear, unequivocal and convincing’ evidence in appellant’s [civil] commitment
hearing before a jury. That instruction was constitutionally adequate. However, determination of
the precise burden equal to or greater than the ‘clear and convincing’ standard which we hold is
required to meet due process guarantees is a matter of state law which we leave to the Texas
Supreme Court.”); Woodby v. INS, 385 U.S. 276, 286 (1966) (“We hold that no deportation order
may be entered unless it is found by clear, unequivocal, and convincing evidence that the facts
alleged as grounds for deportation are true.”); Chaunt v. United States, 364 U.S. 350, 353 (1960)
(“[I]n view of the grave consequences to the citizen, naturalization decrees are not lightly to be
set aside—the evidence must indeed be ‘clear, unequivocal, and convincing’ and not leave ‘the
issue in doubt.’”) (citation omitted).
17
    Sally Balch Hurme and ABA Comm’n. on Law and Aging, Conduct and Findings of
Guardianship Proceedings, supra note 15.

                                                6
supported by evidence that is clear and convincing, and not merely by a

preponderance of the evidence.

         At the hearing on October 24, 2014, I was able to question Mr. M. as well as

D. and W. I reached the same conclusion as did the attorney ad litem on behalf of

Mr. M. All the evidence indicates that Mr. M. has cognitive disabilities that make

him unable to manage his own property, make him subject to designing persons

and place him at risk of serious physical harm if his consumption of medication is

unsupervised. Although he is disabled, Mr. M. can comprehend the nature of a

guardianship and supports its imposition here as in his best interest. He clearly

loves and trusts the Petitioners, and they in turn love him. Mr. M.’s mother

supports the guardianship, which is in all respects uncontested. Mr. M., who is by

all accounts a pleasant and likeable young man, is indeed fortunate to have a loving

family to support and assist him. I find, by clear and convincing evidence, that Mr.

M. is a disabled person subject to guardianship under 12 Del. C. § 3901(a)(2).

                                 II. CONCLUSION

         For the reasons above, the Petition for Guardianship is granted. I further

find that that the Petitioners are the appropriate persons to serve as Mr. M.’s

guardians and that the guardianship is plenary.18 In this particular instance, the

record indicates clearly that Mr. M. is unable to manage his property or health care


18
     See 12 Del. C. § 3922.

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and that it is appropriate, consistent with the discussion above, that the use of his

resources and his place of residence and living conditions be as decided by his

guardians in his best interest. However, Mr. M. is a very young man still in school

and, I expect, learning and growing intellectually and emotionally. As a result, I

direct the Office of the Public Guardian to provide me with a report in one year

concerning Mr.       M.’s condition and whether any aspects of the guardianship

should be modified.19 An Order consistent with this Opinion has already been

placed on the docket.




19
  The required report from the Office of the Public Guardian shall not relieve the guardians of
providing a yearly physician’s report in twelve months as required by Court Rule. See Ct. Ch. R.
180-B.

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