Guardianship
A guardian is a court-appointed decision-maker who makes decisions on behalf of an incapacitated adult. Guardianship may be necessary when a child with special needs becomes a legal adult, or when a previously competent adult’s health conditions interfere with his ability to make informed decisions or avoid dangerous situations. Depending on the type and scope of the guardianship, a guardian may have authority to make decisions about medical treatment and health care providers, submit applications for government assistance, or monitor or manage finances.
Guardianship is an option of last resort. Part of the process of becoming a guardian is proving that the person you want to be guardian of is legally incapacitated. This means proving to the court that the person’s ability to receive and evaluate information and communicate decisions is so impaired that he is unable to manage his finances or to be physically safe.
In situations where guardianship is appropriate and necessary, I can help people become court-appointed guardians of their loved ones.
Frequently Asked Questions About Guardianship
There are two major categories of guardianship:
- Guardianship of the person: A guardian of the person has authority to make day-to-day decisions regarding the incapacitated person’s health care and living arrangements, and may apply to receive the incapacitated person’s Social Security benefits on behalf of the incapacitated person.
- Guardianship of the estate: A guardian of the estate is appointed specifically to manage an incapacitated person’s financial affairs. A guardian of the estate may withdraw money from bank accounts, settle debts, or pursue litigation. A guardian of the estate must request permission from the court to spend principal (for example, savings the incapacitated person owned when the guardian was appointed). A guardian of the estate also must request the court’s permission before selling the incapacitated person’s real property.
Guardianship may be limited to certain powers, or may be a more general grant of authority. When determining whether a guardian should be appointed or whether the guardian’s authority should be limited or plenary, courts are required to use the least restrictive alternative necessary to meet the needs of the incapacitated person.
In appropriate cases, a court may appoint an emergency guardian to serve temporarily. Emergency guardians’ powers usually are limited to what is necessary to address the emergency.
Pennsylvania’s legislature and courts understand that guardianship represents a serious infringement upon a person’s rights and freedoms. There are many safeguards built in to the guardianship process. Some of these are:
- Notice requirements. The alleged incapacitated person must be given written notice of the petition for guardianship and the scheduled guardianship hearing at least 20 days before the hearing. The person serving notice upon the alleged incapacitated person is required to orally explain the petition’s contents and terms “to the maximum extent possible in language and terms the individual is most likely to understand.” Notice of the petition and hearing also must be provided to the alleged incapacitated person’s heirs living in Pennsylvania and to the person or facility providing residential treatment services to the incapacitated person.
- Due process rights. With some exceptions, Pennsylvania law generally requires that the alleged incapacitated person be present at the guardianship hearing. The alleged incapacitated person has the right to be represented by an attorney, and may ask the court to appoint an attorney to represent him. The alleged incapacitated person may ask the court to order an independent evaluation of his capacity and may request a jury trial.
- Limits on guardians’ authority. There are some statutory limits on guardians’ authority. For example, a guardian may not consent to the relinquishment of an incapacitated person’s parental rights, and a guardian cannot admit an incapacitated person to an inpatient psychiatric facility. Prior court approval is required for some actions, including consenting to the incapacitated person’s sterilization or divorce. Guardians of the estate must have court approval prior to selling the incapacitated person’s real property or spending principal of the incapacitated person’s estate. In all instances, guardians must make decisions according to the best interest of the incapacitated person.
- Annual reports. Both the guardian of the person and the guardian of the estate must submit annual reports to the court.
- Review hearings. The incapacitated person, guardian, and interested parties may petition the court for a hearing to review the guardianship on the grounds of a significant change in the person’s capacity, a change in the need for guardianship services, or the guardian’s failure to perform his duties in accordance with the law or to act in the incapacitated person’s best interest.
Any person interested in the alleged incapacitated person’s welfare may petition for a guardian to be appointed.
In cases where a person successfully petitions the court for a guardian to be appointed, the petitioner can ask the court to be reimbursed from the incapacitated person’s estate for the costs he incurred in the course of the guardianship proceeding.
Yes. In my experience, courts generally prefer to appoint a family member as guardian if one is willing and able to serve. It usually is expected that family members will serve without being paid for their work.
A court may opt to appoint a professional guardian (such as a lawyer or social worker) in situations where there is disagreement about who should act as guardian, when a potential guardian has a conflict of interest, or if there is no one willing or able to serve. Professional guardians can request the court’s permission to be compensated from the incapacitated person’s income or assets.