Understanding Guardianships in Pennsylvania

Author

The Elder Law Office of Olimpi & Kramer

For more information about the author, click to view their website: Stephanie Kramer, Esquire

Posted on

Sep 17, 2024

Book/Edition

Pennsylvania - Greater Pittsburgh Area

Understanding Guardianships in Pennsylvania

A 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:

  1. Guardian of the person - This guardian makes decisions about medical treatment, living arrangements, and personal care.
  2. 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 Guardianship

To 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 Guardianships

The 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 Guardian

Potential guardians may include:

  • Family members or friends
  • Professional guardians
  • Corporate fiduciaries (e.g., banks)
  • Non-profit organizations
  • County agencies

The 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 Guardians

Guardian of the Person

Responsibilities may include:

  • Determining living arrangements
  • Consenting to medical treatment
  • Ensuring proper care and services
  • Encouraging independence and self-reliance
  • Visiting the incapacitated person regularly

Guardian of the Estate

Duties typically involve:

  • Managing finances and property
  • Paying bills and taxes
  • Making investments
  • Applying for benefits
  • Keeping detailed financial records

Both 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 Person

An 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 Oversight

Measures 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 Guardianship

Before appointing a guardian, the court must consider less restrictive alternatives, including:

  • Advance directives
  • Powers of attorney
  • Representative payees
  • Trusts
  • Supported decision-making arrangements

These options may allow an individual to retain more autonomy while still receiving needed assistance.

Terminating or Modifying a Guardianship

A 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 Assistance

Navigating 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.

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