Del. Ch. Ct. R. 17

(a) Real Party in Interest.

(1) Designation in General. An action must be

prosecuted in the name of the real party in interest. The

following may sue in their own names without joining

the person for whose benefit the action is brought:

(A) an executor;

(B) an administrator;

(C) a guardian;

(D) a bailee;

(E) a trustee of an express trust;

(F) a party with whom or in whose name a contract

has been made for another’s benefit; and

(G) a party authorized by statute.

(2) Joinder of the Real Party in Interest. The Court

may not dismiss an action for failure to prosecute in the

name of the real party in interest until, after an

objection, a reasonable time has been allowed for the

real party in interest to ratify, join, or be substituted

into the action. After ratification, joinder, or

substitution, the action proceeds as if it had been

originally commenced by the real party in interest.

(b) Persons Without Capacity.

(1) Persons Included. A person without capacity is an

unborn descendant, minor, person with a disability, or

other person who lacks the capacity to sue or defend a

lawsuit.

(2) Representatives. The following representatives

may sue or defend on behalf of a person without

capacity unless the representative has an interest in

the action:

(A) a general guardian;

(B) a limited guardian with authority to sue or

defend the lawsuit;

(C) a trustee;

(D) a conservator; and

(E) a like fiduciary.

(3) Guardian Ad Litem. A guardian ad litem may sue

or defend a lawsuit on behalf of a person without

capacity if appointed by the Court. The Court must

appoint a guardian ad litem to represent a person

without capacity who is unrepresented.

(4) Rebuttable Presumption of Qualification to Serve

as a Guardian. A parent of a minor who holds joint or

sole custody will be presumed a qualified guardian ad

litem unless such person has an interest in the case

which is inconsistent with the minor’s interests.

(5) Procedure for Appointment of Guardian Ad Litem.

(A) Motion for Appointment. A person who wishes

to have a guardian ad litem appointed for a person

without capacity must file a motion. The motion

must:

(i) explain how the person to be represented

lacks capacity, including the person’s date of birth

if a minor;

(ii) confirm the absence of any duly appointed

representative;

(iii) describe the movant’s relationship to the

person without capacity;

(iv) identify the proposed guardian ad litem;

(v) describe the qualifications of the guardian

ad litem;

(vi) affirm that the proposed guardian ad litem

lacks any interest in the action;

(vii) identify all persons holding parental or

custodial rights, guardianship, or power of

attorney to sue or defend lawsuits, or who

otherwise have the care of the person without

capacity and whether each is available for

appointment or has an interest in the case; and

(viii) be verified or otherwise supported by

sufficient evidence.

(B) Service. The motion must be served on all

parties to the action and:

(i) on the person allegedly without capacity,

unless the Court determines that service would be

useless or harmful;

(ii) on all persons or entities holding parental

or custodial rights, guardianship or power of

attorney to sue or defend lawsuits, or, if such

persons or entities do not exist, then an adult

living with or who otherwise has the care of the

person allegedly without capacity; and

(iii) by publication as the Court directs, if the

location or identity of the person allegedly without

capacity is unknown.

(C) Order. If the motion shows cause for

appointing a guardian ad litem, or if the Court

appoints a guardian ad litem on its own initiative,

then the Court must enter an order of appointment.

The Court will not enter an order of appointment

before 20 days after service of the motion, if one is

filed.

(D) Granting of Motion. If a person opposes the

motion, then the Court may appoint a guardian ad

litem after finding:

(i) the person to be represented lacks capacity;

(ii) the guardian ad litem can fairly represent

the interests of the person without capacity; and

(iii) the guardian ad litem can best represent

the interests of the person without capacity, if

there is more than one proposed guardian ad

litem.

(6) No Appropriate Guardian. If no appropriate

guardian ad litem is identified, the Court can:

(A) appoint an attorney to represent the person

without capacity, and assess any related attorney’s

fees and expenses against any or all parties;

(B) permit the person without capacity to proceed

without a guardian ad litem; or

(C) dismiss any claim or the action.

(c) Public Officer’s Title and Name. A public officer

who sues or is sued in an official capacity may be

designated by official title rather than by name, but the

Court may order that the officer’s name be added.