Obtaining Guardianship in Pennsylvania
Often times, folks have heard the term “guardianship” but really don’t know what it means. In Pennsylvania, if someone is incapacitated and does not have a power of attorney appointing another (their “Agent”) to manage their financial affairs and to make medical decisions on their behalf, or is unable to execute one because of their current mental state, guardianship is the procedure allowing a third party to do these things through the Orphans’ Court.
Pennsylvania judges prefer the use of a Power of Attorney over Guardianship, when appropriate. The appointment of a Guardian for an adult individual requires a court Order determining that the person is “incapacitated”, This requires a medical professional to testify under oath before the Court indicating that the individual’s ability to receive and evaluate information effectively, and to communicate decisions, is impaired to such a significant degree that they are either partially or completely unable to manage their own affairs. This means that they cannot pay their bills and meet the essential requirements of their physical health and safety. If deemed incapacitated, an adjudication by the Court and the appointment of a Guardian in essence removes from them all of their legal rights to do anything on their own. However, bear in mind, that just because someone is incapacitated does not mean that they are not to be included, as must as possible, in their own life decisions. Their human rights still remain and are to be treated with understanding.
Since the advent of HIPAA, hospitals and physicians have become increasingly reluctant to provide medical services to individuals who have questionable legal capacity to provide informed consent. Absent a legally effective Power of Attorney, a guardianship may be necessary to manage the health care needs of an incapacitated person. Moreover, many banks and financial institutions are unwilling to permit family members to manage the financial affairs of a disabled person absent either a clearly valid Power of Attorney or a Guardianship Order. Consequently, in circumstances where a child with disabilities reaches 18, or an aging family member is in early stages of loss of cognitive functioning, it is important to discuss this matter with competent counsel at the earliest possible date to determine whether a Power of Attorney can be executed rather than pursuing Guardianship.
The most famous guardianship case of recent history is that of Brittany Spears. In California, the legal term is ‘conservatorship’. California, where Spears’ case is, defines conservatorship this way: “a court case where a judge appoints a responsible person or organization (called the “conservator”) to care for another adult (called the “conservatee”) who cannot care for himself or herself or manage his or her own finances.” If a judge grants the conservatorship, the conservator can assume the powers authorized under the order for the duration and scope that is established. The incapacitated persons civil rights are basically taken from them and given to another on their behalf.
Guardianships are often used for people who have a severe cognitive impairment. Often those people are older, such as those with severe dementia, or a traumatic brain injury. With Spears, her case is far from typical – upon appointment of a guardian, she was very young, successful, working, and had a massive empire. This is far from usual and as Spears counsel did argue, exceeds the scope of guardianship.
When meeting with prospective clients, counsel should give preference to a power of attorney. If that is impossible, then the request for guardianship should be narrowly tailored to deal with only the true activities that the person is unable to manage for themselves and the court is always supposed to use the least restrictive alternatives.
It was quite clear from the constant news coverage of the conservatorship that Spears did not like her father acting as conservator on her behalf. Although the incapacitated person does not get to choose who their conservator is, their preference does hold sway with the court. In each guardianship that I have been involved, the question is always asked to the incapacitated person whether they approve of the proposed guardian. Believe it or not, the court truly does take their opinion into consideration.
But being named a guardian isn’t for the lazy or disorganized. Within ninety days of the appointment, the guardian is required to file an inventory of the incapacitated persons assets with the court. Henceforth, there are annual reports required to be filed with the court concerning their financial and medical affairs. And, depending on the bills due on behalf of the incapacitated person, court approval may be required.
Only a Court can appoint a guardian. A parent cannot, without judicial oversight, appoint a guardian for an adult child, and even the naming of a guardian under a Will for a minor child requires a Court Order to effectuate the Guardianship. Parents cannot name a guardian for an adult child under their Will, as Pennsylvania’s guardianship procedures are the exclusive means by which a guardianship can be created.
When the Court appoints guardians for the incapacitated person, the court identifies a “Guardian of the Person” which makes the guardian responsible for personal decisions of the incapacitated person, including medical decisions, as well as a “Guardian of the Estate” which provides decision-making authority to the guardian over the financial affairs of the incapacitated person. A Guardianship involves only decision-making authority, and does not create any additional responsibility to financially support the incapacitated person by the guardian. Two or more responsible persons can act as Co-Guardians.
The process of obtaining a Guardianship Decree begins with the filing of a petition in the local Orphans’ court providing relatively detailed information with regard to the incapacitated person, such as his name, address, next of kin, financial resources, personal situation, and the nature of the disability of the alleged incapacitated person. At the same time testimony of a physician or psychologist who is familiar with the alleged incapacitated person must be obtained which sets forth the nature of the disability of that individual, and sets forth the reasons why a Guardianship is necessary. The Court then issues a hearing date which notice is then provided to all next of kin and interested parties. The alleged incapacitated person must also receive notice and be included in the process, perhaps being required to attend the hearing. If the hearing is uncontested, the proceeding is generally straightforward and involves only brief testimony before the Court. However, if the next of kin do not agree on the proposed appointed guardian, the matter becomes must more complicated and expensive.
Therefore, in my professional opinion, every person of sound mind over the age of 18 should have powers of attorney in place appointing an agent and successor agent of their choosing so that their loved ones do not have to go through this process later in life.