Stephanie Thomas Kramer, Esquire

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.

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.

As we age, managing our finances and personal affairs can become more challenging. Many older adults want to maintain their independence but also recognize they may need some help. This is where a durable power of attorney can be very useful.What is a Durable Power of Attorney?A durable power of attorney is a legal document that allows you to choose someone you trust to handle certain tasks for you. This person is called your "agent" or "attorney-in-fact." The word "durable" means that the document stays in effect even if you become unable to make decisions for yourself later on.How Can a Durable Power of Attorney Help?A durable power of attorney gives you flexibility. It allows you to get help with tasks when you need it, while still keeping control over your affairs. Here are some ways it can be helpful:Bill Paying: You can have your agent help pay your monthly bills, while you still manage other parts of your finances.Banking: Your agent can handle bank transactions for you if needed.Legal Matters: Your agent can sign legal documents on your behalf.Property Management: Your agent can help manage your property or real estate.Healthcare Decisions: If you have a healthcare power of attorney, your agent can make medical decisions for you if you're unable to do so.You Don't Lose ControlMany older adults worry that having a power of attorney means giving up control. This is not true. Here's what you need to know:You can still manage your own affairs as usual.You can still make your own decisions and handle your own finances.Your agent doesn't replace you - they just have the ability to help when needed.You decide what powers to give your agent. You can make it very limited or very broad.Flexibility for the FutureA durable power of attorney provides peace of mind. It ensures that someone you trust can step in to help if you ever need it. This can be especially important if:You become ill or hospitalizedYou have memory problems or confusionYou have physical limitations that make it hard to do certain tasksYou want to travel but need someone to handle things at homeChoosing Your AgentPicking the right person as your agent is very important. Here are some tips:Choose someone you trust completelyPick someone who is responsible and good with financial mattersConsider choosing an adult child, close relative, or trusted friendMake sure the person is willing to take on this responsibilityYou can name more than one agent if you wantSetting It UpTo create a durable power of attorney:Decide what powers you want to give your agentChoose your agent(s)Have a lawyer draft the document for youSign the document in front of a notary publicGive copies to your agent, doctor, and important family membersMaintaining Your IndependenceRemember, having a durable power of attorney doesn't mean you're giving up control. It's a tool that helps you maintain your independence by ensuring you have help available when you need it. You can still:Make your own decisionsManage your own moneyPay your own billsSign your own documentsYour agent only steps in when you ask them to or if you become unable to handle things yourself.Changing Your MindIf you ever change your mind, you can:Revoke (cancel) the power of attorney at any time, as long as you're mentally competentChange who you've named as your agentModify what powers you've given your agentPeace of MindHaving a durable power of attorney in place can provide great peace of mind. It ensures that:Someone you trust can help you if neededYour wishes will be followedYour affairs will be managed even if you can't do it yourselfYou have a plan in place for the futureGetting HelpIf you're interested in setting up a durable power of attorney:Talk to your family about your wishesConsult with an elder law attorneyDiscuss it with your doctorReach out to local senior services for guidanceRemember, a durable power of attorney is a powerful tool that can help you maintain control over your life as you age. It provides flexibility and security, allowing you to get help when you need it while still maintaining your independence.