Elder Law Program

What Must I Do to Make a Valid Will In Delaware?

• You must be at least 18 years old and “of sound and disposing mind and memory.”
• The Will must be in writing and signed by you or by a person signing your name in your presence and at your direction.
• The Will must be witnessed by two or more credible witnesses who sign their names in your presence. In Delaware, a person who may benefit from the Will can still act as a witness.

How Can I Revoke My Will? You may revoke your entire Will by:

• Destroying the original document; or
• Executing a new Will revoking your previous Will; or
• By written direction signed by you and witnessed by at least two witnesses.

How Can I Change My Will? You may change your Will by executing a “codicil,” which is a writing supplementing the Will. A codicil must be signed and witnessed in the same way a Will is executed. If I Don’t Have a Will, Can the State Take My Property? Your property will go to the State only if you die without a Will AND you have no surviving spouse or blood relatives. If you do have a surviving spouse and/or surviving relatives, Delaware law dictates the order in which your estate will be distributed. Your surviving spouse will receive everything if you have no surviving parents or children.

Delaware law regarding nursing home patients’ rights was revised in July 1998. This law provides, in part, that every nursing home patient and resident:

• Has the right to request and receive information regarding minimum acceptable staffing levels as it relates to his/her care;
• Has the right to request and receive the names and positions of staff members providing his/her care;
• Has the right to request and receive an organizational chart outlining the facility’s chain of command for purposes of making requests and asserting grievances;
• Has the right to choose a personal attending physician;
• Has the right to participate in an ongoing program of activities designed to meet, in accordance with his/her assessments and plan of care, the patient’s interests and physical, mental and psychosocial well-being;
• Has the right to examine the results of the most recent facility survey conducted by federal and/or state surveyors and any plan of correction in effect with respect to the facility (*survey results must be posted in a readily accessible area);
• Has the right to receive notice before his/her room or roommate is changed, except in an emergency.

Delaware recognizes the right of grandparents to seek visitation with their grandchildren. However, such visitation is not granted in every case. Under Delaware law, grandparents may ask the Family Court to grant them reasonable visitation rights regardless of whether the child’s parents are married, separated, or divorced, and regardless of the relationship of the grandparents to the person having custody of the child. If the natural or adoptive parents are living together as husband and wife, the Court will not grant grandparental visitation if both parents object. Also, whenever practicable, the Court will provide that the maternal grandparents’ visitation shall occur when the child is with the mother, and the paternal grandparents’ visitation shall occur when the child is with the father, unless all of the parties agree to some other arrangement. As in other cases, where a grandparent seeks visitation the Court will use the “best interest of the child” standard. The burden is on the grandparent to show that visitation with him or her is in the child’s best interest. In deciding whether to award grandparental visitation rights, the Court will considers such things as:

• The wishes of the child’s parents;
• The wishes of the child; and
• The nature of any prior relationship with the grandparent.

If your loved one needs help managing his or her financial affairs and/or making decisions about personal care, and he or she is no longer competent to execute a power of attorney and/or advance health care directive, you may wish to pursue a guardianship. This is done by filing a petition in the Court of Chancery. The petition may be for a guardianship of the person, property, or both. The disabled person must be represented by an attorney, called the “guardian ad litem.” Ordinarily the petition must be accompanied by an affidavit from the disabled person’s doctor, stating the person’s diagnosis and whether he or she is able to manage his or her affairs. If you feel you need a guardian of your property, you can petition the court yourself. This is sometimes done when a disabled person has been abused and is unable to protect himself. Adult Protective Services may also petition for a guardianship on someone’s behalf. If you learn that someone has petitioned to secure a guardianship over you, and you do not wish for that to happen, you can challenge the action through an attorney and present witnesses and evidence. You can also petition to terminate a guardianship over you that you feel is no longer necessary, or file a petition requesting that the guardian be changed. The guardian is required to act as a “fiduciary,” and make all decisions in the disabled person’s best interests. Because it allows a guardian to make all decisions about the disabled person’s care, guardianship is a drastic measure and the Court must be sure that it is absolutely necessary.

Tips to Saving Money on Funerals

Avoid unnecessary costs:

• Request an itemized list of costs, including for caskets, from several mortuaries. By law, a mortuary must give out price information over the phone. If it is a time of crisis, ask a friend to obtain the lists for you.

Study the lists:

1. Are there charges for things you can do for free? (ie: the obituary, programs)
2. Have you actually seen the lowest price casket? The markup on a casket that wholesales for $297 can range from $900 – $2,000!! Shop around!!
3. In Delaware, cremated remains may be disposed of and transported in any way desired by the family of the deceased. It is not necessary to purchase an urn or have the person embalmed. The law requires the body to be transported using a cot or a receptacle. It does not require a casket.

Don’t start the conversation by saying how much you can spend. Often a mortician will lower prices if you keep explaining it is more than you can afford. Obtain your own casket from a casket retailer. (See websites listed below for retailers). It is illegal for a funeral home to charge a “handling fee” if you do this. Don’t pay for “sealer” or a “protective” casket. They do not actually preserve the body but instead make it decay faster. Even “irrevocable” pre-paid funeral arrangements can be transferred to another funeral home if you are unhappy with the service you are receiving. Join a not-for-profit funeral society. Delaware is served by the Memorial Society of Maryland, 800-564-0017.

For More Information The above information was taken from The American Way of Death Revisited by Jessica Mitford, www.funerals.org (Funeral Consumers Alliance, 802-482-3437) and www.funerals-ripoffs.org (Contains list of wholesale prices for caskets by model).

Delaware Links

Division of Services for Aging and Adults with Physical Disabilities The mission of the Division is to improve or maintain the quality of life for Delawareans who are at least 18 years of age with physical disabilities or who are elderly. The Division is committed to the development and delivery of consumer-driven services which maximize independence through individual choice, enable individuals to continue living active and productive lives and protect those who may be vulnerable and at risk.

ELDERinfo – Health Insurance Counseling for Medicare Beneficiaries Operated by the Office of the Delaware Insurance Commissioner, the ELDERinfo office provides information to Medicare beneficiaries about Medicare, Medicare Supplement insurance (Medigap), Medicare HMOs (Medicare Managed Care), Medicaid, long-term care insurance, and other types of health insurance for Medicare beneficiaries.

Grandparent Resource Center The Grandparent Resource Center is an information and referral center for grandparents and relative caregivers raising grandchildren or other’s children.

National Links

AARP AARP is a nonprofit, nonpartisan association dedicated to shaping and enriching the experience of aging for our members and for all Americans. Founded in 1958 by retired educator Dr. Ethel Percy Andrus, it is the nation’s largest organization of midlife and older persons, with more than 30 million members.

Social Security Online The Official Website of the Social Security Administration.

Medicare The Official U.S. Government Site for Medicare information. The Health Care Financing Administration The federal agency that administers Medicare, Medicaid and the State Children’s Health Insurance Program (SCHIP).

National Council on Aging Organizations and professionals dedicated to promoting the dignity, self-determination, and well being of older persons.

National Institute on Aging The NIA’s mission is to improve the health and well-being of older Americans through research nd todisseminate information and communicate with the public and interested groups on health and research advances and on new directions for research.

ElderWeb This site is designed to be a research site for both professionals and family members looking for information on eldercare and long term care, and includes links to information on legal, financial, medical, and housing issues, as well as policy, research, and statistics.

National Center on Elder Abuse This site contains many resources to help you find the assistance, publications, data, information, and answers concerning elder abuse.

Pension Rights Center The Pension Rights Center’s Legal Outreach Program works to protect the pension rights of workers, retirees, and their families.

U.S. Dept. of Labor Pension and Welfare Benefits Administration The mission of the PWBA is to assist workers in getting the information they need to protect their benefit rights, assist plan officials to understand the requirements of the relevant statutes in order to meet their legal responsibilities, develop policies and laws that encourage the growth of employment-based benefits, and deter and correct violations of the relevant statutes.

National Council for Aging Care Provides resources on financial planning, government benefits, and other issues related to aging.