Form CM200, Petition to Determine Capacity, is the petition filed with the Delaware Court of Chancery when a determination that a person lacks capacity under 16 Del. C. Section 2504(b) is disputed. The petitioner completes it, attaches the contested determination, and files it with the Register in Chancery in the county where the person whose capacity is in dispute lives or is located. On this page you can fill out CM200 online on FillingPDF and download or print the completed PDF; the form and its filing procedures are published by the Delaware Courts at courts.delaware.gov.
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What is CM200?
Form CM200, Petition to Determine Capacity, is the Delaware Court of Chancery form on which a petitioner asks the Court to determine the capacity of a "Subject Person" whose lack of capacity was found under 16 Del. C. Section 2504(b) and whose finding is contested.
The petition collects information about the petitioner, the Subject Person (age, addresses, any hospital, institution or group home stay), the interested parties, who pays the Subject Person's expenses, marital status, any Will, military service, who made the determination and when, and why it is contested and by whom. Section 10 lists statements the petitioner must check as true before the Court of Chancery will consider the petition.
The packet that carries the form also includes an instruction sheet for notifying interested parties, a Waiver of Notice and Consent that interested parties may sign, and an Affidavit of Efforts to Locate Address of Interested Party for anyone whose address cannot be found.
Once the petition is filed, the request is for a preliminary order that appoints an attorney ad litem, schedules a hearing and notifies the interested parties. The attorney represents the best interests of the Subject Person and does not represent the petitioner. The petition is not a guardianship petition: it may be filed only where existing protections, such as an advance health care directive, power of attorney or supportive decision making arrangement, make a guardianship as a last resort unlikely to be needed.
Who needs to file CM200?
The petitioner who disputes a determination that a person lacks capacity files Form CM200. The petitioner must complete it personally; the court clerk cannot complete the petition.
The Court of Chancery will consider the petition only if all of these are true:
- There is currently no guardian for the person or property of the Subject Person.
- There is a live dispute about the determination that the Subject Person lacks capacity.
- The Subject Person has lived in Delaware for at least the last six months.
- The Subject Person was found under 16 Del. C. Section 2504(b) to lack capacity within the last three months.
- Protections are already in place (for example an advance health care directive, power of attorney or supportive decision making arrangement) and the petitioner does not anticipate requesting a guardianship.
The determination must have been made by a physician, psychologist, physician assistant, advanced practice registered nurse, licensed clinical social worker or other responsible health-care professional under Section 2504(b)(1). It may not be made by a family member, cohabitant or surrogate of the Subject Person, even if that person is in the list.
Co-petitioners may sign together; the form has a signature block for a co-petitioner.
When to file CM200
File Form CM200 once the Subject Person has been found to lack capacity under 16 Del. C. Section 2504(b) and that determination is disputed. The finding must have been made within the last three months, so the petition cannot wait indefinitely after the determination. The form sets no calendar due date beyond that.
Payment must be received at the time of filing, or the Register in Chancery's office will not accept the petition. After filing, the Court is asked to enter a preliminary order appointing an attorney ad litem, scheduling a hearing and notifying interested parties. The petitioner is told what further notice is needed after that order is signed.
Documents you need
- A copy of the determination that the Subject Person lacks capacity under 16 Del. C. Section 2504(b), attached to the petition; it must have been made within the last three months by an eligible health-care professional.
- Identification, to bring to the Register's Office if you want a court clerk to notarize your signature on the forms that require it.
- Waiver of Notice and Consent, signed and notarized by each interested party who agrees to consent; the petitioner must send notice to anyone who does not sign one.
- Affidavit of Efforts to Locate Address of Interested Party, filed with the petition if you do not know an interested party's address; the notary requirement is waived for this affidavit under Court of Chancery Rule 178B.
- A separate sheet of paper, when the space for interested parties (item 3d) or for the explanation of the dispute (item 9) is not enough.
- Payment of the filing fee and scanning fee at the time of filing, by cash, check or money order payable to the "Register in Chancery".
How to fill out CM200
Enter the Subject Person and case number
In the caption, write the Subject Person's name above "A Subject Person". Leave the C.M. # blank unless the court has given you a number.
Complete the petitioner information
Item 1: enter the petitioner name(s), current address(es), telephone number(s) and relationship to the Subject Person. Check Yes or No on whether you need an interpreter and give the language if Yes.
Describe the Subject Person
Item 2: enter age, date of birth, current address and permanent address. If the person is in a hospital, institution or group home, give the facility name, admission date and reasons for admission, and answer the interpreter question.
List agents, attorneys and caregivers
Item 3a–3c: check No or Yes for an Agent under a Power of Attorney or Advance Health Care Directive, a Delaware attorney in the last two years, and someone responsible for care or finances in the past six months. Give the requested names and details for each Yes.
List all interested parties
Item 3d: enter name, relationship, address, phone number and email, and age for next of kin, anyone who would inherit without a will, and any named fiduciary, executor or beneficiary. For a minor, give the parent or guardian. Attach a separate sheet if needed.
Answer expenses and marital status
Item 4: state who is paying the Subject Person's expenses and from what funds. Item 5: check one box: Single, Married, Divorced or Widowed.
Answer the Will and military questions
Item 6: check No or Yes; if Yes, give the Will's address and the person or entity holding it. Item 7: check Yes or No on military membership.
Identify the determination
Item 8: insert the name of the person who determined the lack of capacity and the date. Attach a copy of the determination.
Explain why the determination is contested
Item 9: describe in detail why the determination is contested and by whom. Attach a separate sheet if the lines are not enough.
Check the section 10 statements
Item 10a–10g: check each statement that is true, mark the county in 10d (New Castle, Kent or Sussex), and acknowledge the attorney ad litem terms in 10g. All statements must be true before the Court will consider the petition.
Prepare the notice documents
Fill in a Waiver of Notice and Consent for each interested party who will consent, and, where an address cannot be found, the Affidavit of Efforts to Locate Address of Interested Party with the applicable boxes in item 6.
Review, sign and download the PDF
Check every entry, then download or print the completed PDF from FillingPDF. Sign at the Register's Office before a notary or court clerk, with identification, and assemble the package described under How to submit.
How to submit CM200
File Form CM200 in person at the Register in Chancery in the county where the Subject Person lives or is located; the form names no other channel.
- Kent County: Register in Chancery, 38 The Green, Ste. 208, Dover, DE 19901, 302-735-1930.
- New Castle County: Register in Chancery, 500 N. King Street, 7th Floor, Wilmington, DE 19801, 302-255-0544.
- Sussex County: Register in Chancery, 34 The Circle, Georgetown, DE 19947, 302-856-5777.
The petitioner's signature must be notarized on several forms. If you appear in the Register's Office with identification and the correct paperwork, a court clerk there can notarize your signature. Attach the contested determination of incapacity.
A filing fee plus a per-page scanning fee applies and must be paid when you file. The office accepts cash, check or money order made payable to the "Register in Chancery"; a fee also applies if the office makes photocopies for you. Call the county office for current amounts. The petitioner is also responsible for obtaining consents from interested parties or sending them notice. FillingPDF lets you fill out and download the PDF; submission follows the channels above.
Common mistakes to avoid
- Asking the court clerk to complete the petition; the petitioner must fill it out.
- Filing in a county where the Subject Person does not reside and is not located; the petition belongs in the county of residence or location.
- Leaving out the copy of the contested determination of incapacity, which must be attached.
- Relying on a determination made more than three months ago, or one made by a family member, cohabitant or surrogate of the Subject Person.
- Arriving at the Register's Office without payment; the petition is not accepted unless payment is received at filing.
- Signing before reaching a notary, or without identification, when the forms require a notarized signature.
- Skipping the notice step: the petitioner must obtain consents or send notice to every interested party listed in item 3.
- Not filing the Affidavit of Efforts to Locate Address of Interested Party when an interested party's address is unknown.
- Leaving unchecked any of the section 10 statements; all must be true before the Court will consider the petition.
Frequently asked questions
What is Form CM200?
Form CM200 is the Delaware Court of Chancery's Petition to Determine Capacity. A petitioner files it to ask the Court to determine the capacity of a Subject Person when a finding of lack of capacity under 16 Del. C. Section 2504(b) is disputed.
Where do I file the CM200 petition?
File it with the Register in Chancery in the county where the Subject Person resides or is located: Kent County (Dover), New Castle County (Wilmington) or Sussex County (Georgetown). The form lists each office's address and telephone number; it names no other filing channel.
Who can make the determination that is contested?
A physician, psychologist, physician assistant, advanced practice registered nurse, licensed clinical social worker or other responsible health-care professional under Section 2504(b)(1). A family member, cohabitant or surrogate of the Subject Person cannot make it, even if listed.
How recent must the finding of incapacity be?
The Subject Person must have been found to lack capacity under 16 Del. C. Section 2504(b) within the last three months. The determination itself must be attached to the petition.
Is there a fee to file CM200?
Yes. A filing fee plus a per-page scanning fee applies and must be paid when you file, or the office will not accept the petition. Pay by cash, check or money order to the "Register in Chancery"; call your county office for current amounts.
Who pays the attorney ad litem?
The petitioner is responsible for the attorney's fee unless a Judicial Officer decides otherwise. The Court appoints the attorney to represent the best interests of the Subject Person, not the petitioner, and the fee may be higher for contested or out-of-state matters.
Do I have to notify the interested parties?
Yes. The petitioner must obtain consents or send notice to every interested party listed in item 3. Each may sign a notarized Waiver of Notice and Consent; anyone who does not sign must be sent notice.
Can I fill out CM200 online on FillingPDF?
Yes. You can fill out the fillable PDF online on FillingPDF and download or print it. FillingPDF does not file it with the court and is not connected to it; you file in person at the Register in Chancery, where signatures are notarized.
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