Guardians vs. Conservators

Understanding Guardianships in PennsylvaniaA guardianship is a legal arrangement in which the court appoints someone to oversee the care and/or finances of an incapacitated adult. There are two main types of guardianships in Pennsylvania:Guardian of the person - This guardian makes decisions about medical treatment, living arrangements, and personal care.Guardian of the estate - This guardian manages finances and property.Guardianships may be necessary when an adult becomes incapacitated due to conditions like dementia, severe mental illness, or major stroke, rendering them unable to make decisions or care for themselves. The court can appoint a guardian if there is no valid power of attorney or advance directive in place.Establishing a GuardianshipTo establish a guardianship, a petition must be filed with the Orphans' Court. The petitioner must provide evidence that the individual is incapacitated and in need of a guardian. This typically involves an examination and evaluation by a physician or psychiatrist.The court will hold a hearing to determine if the person is incapacitated and if a guardianship is necessary. The alleged incapacitated person has the right to attend the hearing, present evidence, and have legal representation.Types of GuardianshipsThe court can appoint:Limited guardian - With authority over only specific areas of decision-making.Plenary (full) guardian - With broad authority over all personal and/or financial decisions.Emergency guardian - Appointed on a temporary basis in urgent situations.The court must prefer less restrictive alternatives to guardianship when possible.Who Can Serve as GuardianPotential guardians may include:Family members or friendsProfessional guardiansCorporate fiduciaries (e.g., banks)Non-profit organizationsCounty agenciesThe guardian should be someone who is trustworthy and will act in the incapacitated person's best interests. Individuals paid to provide residential services to the person cannot serve as their guardian.Duties of GuardiansGuardian of the PersonResponsibilities may include:Determining living arrangementsConsenting to medical treatmentEnsuring proper care and servicesEncouraging independence and self-relianceVisiting the incapacitated person regularlyGuardian of the EstateDuties typically involve:Managing finances and propertyPaying bills and taxesMaking investmentsApplying for benefitsKeeping detailed financial recordsBoth types of guardians must file annual reports with the court detailing their activities and the status of the incapacitated person.Rights Retained by the Incapacitated PersonAn incapacitated person retains all legal rights except those specifically granted to the guardian by court order. The guardian should involve the person in decision-making to the greatest extent possible.Guardianship OversightMeasures have been implemented to improve guardianship oversight and prevent abuse:Criminal background checks for proposed guardians.Standardized forms and reporting requirements.An online tracking system for filing reports.Automatic review hearings in some cases to reassess the need for guardianship.Guardians must keep the court informed of any changes in the incapacitated person's condition or circumstances.Alternatives to GuardianshipBefore appointing a guardian, the court must consider less restrictive alternatives, including:Advance directivesPowers of attorneyRepresentative payeesTrustsSupported decision-making arrangementsThese options may allow an individual to retain more autonomy while still receiving needed assistance.Terminating or Modifying a GuardianshipA guardianship can be terminated if the incapacitated person regains capacity. Any interested party can petition the court to end or modify a guardianship. The court will hold a hearing to determine if changes are warranted.Seeking Legal AssistanceNavigating the guardianship process can be complex. Consulting with an experienced elder law attorney is advisable when considering guardianship or serving as a guardian. An attorney can help ensure proper procedures are followed and that the incapacitated person's rights are protected.Guardianship is a significant responsibility that impacts an individual's fundamental rights. While it can provide vital protection for vulnerable adults, it should be pursued only when necessary and with careful consideration of less restrictive alternatives. Proper oversight and adherence to legal requirements are essential to prevent abuse and ensure that guardianships serve the best interests of incapacitated individuals.

Guardianships, also known as conservatorships in some jurisdictions, are legal arrangements established when an individual can no longer manage their own financial, personal, or medical affairs. This legal process involves petitioning the court to appoint a guardian or conservator to oversee the incapacitated person's wellbeing and assets.When is Guardianship Necessary?Guardianship may become necessary when an individual is unable to make sound decisions due to:Advanced dementia or Alzheimer's diseaseComa or persistent vegetative stateSevere brain injury or damageOther serious medical conditions affecting cognitive functionThe key factor is that the person lacks the capacity to manage their own affairs and make important life decisions.The Legal ProcessTo establish a guardianship, the following steps typically occur:A petition is filed with the court requesting guardianship.The court reviews evidence of the individual's incapacity, including:Medical records and evaluationsTestimony from doctors and other healthcare professionalsAssessments of the person's functional limitationsThe court determines if the individual meets the legal definition of incapacity.If incapacity is established, the court appoints a qualified guardian. This may be:A family member or friendA professional guardianA non-profit organizationA government agencyThe court specifies the scope of the guardianship, which may include:Guardian of the Estate (for financial matters)Guardian of the Person (for healthcare and personal decisions)Both financial and personal guardianshipDuties and Responsibilities of GuardiansOnce appointed, guardians have significant responsibilities, including:Making financial and/or healthcare decisions on behalf of the incapacitated personEnsuring the person's basic needs are met (housing, food, medical care, etc.)Managing assets and paying billsKeeping detailed records of all actions and transactionsSubmitting regular reports to the courtObtaining court approval for major decisions (e.g., selling property, changing living arrangements)Guardians must act in the best interests of the incapacitated person at all times. They are accountable to the court and must follow all requirements outlined in the guardianship order.Ongoing Court OversightThe court maintains supervision over guardianships to ensure proper care of the incapacitated person. This typically involves:Reviewing annual reports submitted by the guardianAppointing a court examiner to monitor the guardianshipAddressing any concerns raised about the guardian's performanceModifying or terminating the guardianship if circumstances changeAlternatives to GuardianshipBefore pursuing guardianship, less restrictive alternatives should be considered, such as:Power of attorneyHealthcare proxyLiving trustsRepresentative payee for government benefitsSupported decision-making arrangementsThese options may provide sufficient assistance while preserving more autonomy for the individual.Seeking Legal GuidanceNavigating the guardianship process can be complex. An experienced elder law attorney can provide valuable assistance by:Evaluating whether guardianship is necessaryExplaining legal options and alternativesPreparing and filing required court documentsRepresenting interested parties in guardianship hearingsAdvising appointed guardians on their duties and responsibilitiesWhile guardianship provides important protections for incapacitated individuals, it also involves a significant loss of rights and autonomy. Courts aim to balance the need for protection with preserving as much independence as possible. By understanding the guardianship process and available alternatives, families can make informed decisions to best support their loved ones who need assistance.Guardianship laws and procedures vary by state, so it's advisable to consult with a qualified local attorney for specific guidance. With proper legal counsel and court oversight, guardianship can provide vital support and protection for those who truly need it.

Guardianship Versus Powers of AttorneyOne of the most common questions I get as a practicing elder law attorney is, what is the difference between guardianship and a power of attorney? A power of attorney is a document that a person executes when they are competent to appoint someone to be their agent for either healthcare matters, financial matters or both. The defining characteristics of powers of attorney is that it is a voluntary action by the person, and it can be revoked at any time so a power of attorney cannot be used to trump someones free will in order to place them in a facility for example, against their wishes.A guardianship is a process where one typically files a pleading, requesting to be appointed as a persons guardian.  In this case, we must demonstrate that the person we seek to protect is incompetent to manage either their healthcare, or their finances, or both.The guardianship typically comes about in two primary ways. First, if the person we seek to protect never executed a power of attorney, and now is incapable, a guardianship would be necessary in order to handle things like an admission to a hospital or long-term care facility because no one has been appointed to consent to treatment for them.  Second is a situation where the person we seek to protect is actively combative to the plan in place to handle their health matters. In this case, we must seek guardianship in order to overcome their wishes, particularly if they are unwise. For example, if your parent develops dementia, but insists that there is nothing wrong with them, that they should continue to drive and live independently and manage their medication, despite evidence that those things are dangerous in their current condition, guardianship is typically necessary in order to restrict their freedom.In some states, like Florida, the guardianship will also cover financial matters.  in Alabama, the conservatorship is established at the same time as a guardianship in order to handle healthcare matters for those cases where there is no power of attorney, and the conservatorship is necessary in order pay their bills, access finances, and so forth.To establish financial guardianship, no matter what its called, we typically must be bonded so the person who is applying must be credit worthy and able to obtain a bond from a surety company. This ensures that the persons financial well-being is well taken care of.  If there is no one available, or if no one wishes to handle finances, every county typically has, or can appoint someone, as a county conservator to serve as that persons conservator.  This is helpful in cases where its a very difficult or complex financial situation.  Then it may be preferable to have a professional appointed and giving a relatively small fee for doing so.  This leaves the guardian to care for the healthcare of the individual without the added stress of complicated financial matters. Contact an elder attorney for more information about what your needs are and please dont put off executing a power of attorney in favor of those people that you trust as soon as you can to avoid what could be difficult and unnecessary proceedings in Probate Court down the road.This article was contributed by Kyla Kelim with Aging in Alabama.  Kyla is an experienced Elder Law attorney.  Contact Kyla at 251-281-8120.