Guardianships

Sometimes people are unable to make decisions about their health or other personal care or about their finances and can no longer manage for themselves. Dementia or other progressive mental, emotional or physical illnesses can rob people of the ability to make personal and financial decisions and keep themselves safe. In the worst cases, individuals can become victims of others who see opportunities to take cash and possessions while "helping" or doing favors.

To provide a decision-maker for people in these situations, Pennsylvania law allows the local Orphans' Court to appoint a guardian of the person (for health care decisions, living arrangements and other personal decisions) and/or a guardian of the estate (for financial matters). Anyone interested in the person's welfare can file the petition seeking a guardian. The person filing the petition should propose a person to act as guardian. This person will need to know what they will have to do and agree to do it. There is no public guardian service in Delaware County at this time. There are, however, private guardian services.

Because a ruling of “incapacity” and appointment of a guardian involves the curtailing of many important legal rights, high standards must be met. A guardian can be appointed only if the Court finds that a person (the “alleged incapacitated person”) is impaired in such a way that he is partially or totally unable to meet essential requirements for physical health and safety or to manage financial resources, and a guardian is needed. Notice must be given to the alleged incapacitated person and there is a right to request counsel.

Hearing Before the Court

The alleged incapacitated person is required to attend a hearing before the Orphans' Court where the petition was filed (generally Delaware County for persons residing in Delaware County) unless excused, for example, by a doctor who says that it would be harmful for the person to attend the hearing. The alleged incapacitated person may hire an attorney, or he may request that the Court appoint an attorney and have the attorney’s fees paid for him if he cannot afford to pay them himself. However, an attorney for the alleged incapacitated person is not required unless ordered by the Court. This may occur where there is family conflict or other questions are raised.

When testimony by a qualified person such as a psychiatrist or other health care provider establishes by clear and convincing evidence that the person is incapacitated and it is shown that the person needs a guardian, a guardian will be appointed. But the standard to prove incapacity is high. Just because a person has periods of confusion, this does not necessarily mean that they will be found to be incapacitated under the law.

If incapacity and the need for a guardian are established, the Court will appoint a guardian of the person and/or estate with full (plenary) or limited powers and duties, as described in the Court Decree appointing the guardian. Generally, it is the duty of the guardian to assert the rights and best interests and to respect the expressed wishes and preferences of the incapacitated person to the greatest possible extent. The guardian must also encourage the incapacitated person to participate in all decisions which affect him to the maximum extent of his abilities. However, ensuring the best interests of the incapacitated person may mean that the guardian will not follow the wishes of that person if they are in conflict with his best interests. For example, an incapacitated person may want to continue to live in his home, but if the guardian determines that assisted living or skilled nursing care is necessary, the guardian is authorized to admit the person to a facility even over that person's objections.

Powers and Duties

The powers and duties of the Court-appointed guardian may be limited, but often include making every kind of decision for the incapacitated person. However, a guardian cannot consent to admission to an inpatient psychiatric facility or a State center for the mentally retarded or consent to relinquishment of parental rights. Court approval is needed for consent to abortion, sterilization, psychosurgery, electroconvulsive shock therapy (ECT), or removal of a healthy body organ, to prohibit marriage, to consent to divorce, or to consent to experimental procedures. When there is a hearing about whether a guardian is to consent to or not consent to a specific act, the guardian is to tell the Court of any known objection of the incapacitated person, whether expressed before or after the guardian was appointed.

Typical decisions made by a guardian of the person include arranging medical care and consenting to surgery or other treatments, determining where an incapacitated person is to live and contracting for admission to nursing facilities. A guardian of the estate handles financial matters and has many of the same responsibilities as a person appointed to manage an estate or a person who has died, with specific requirements and limitations. Every guardian must file annual reports with the Orphans’ Court explaining what they did over the past year.

A guardian’s authority expires upon the death of the incapacitated person. Then matters such as final arrangements, payment of bills, distribution of assets, etc., are handled by a person entitled to act under estate law. This would include an executor named in a will or a person who can become administrator of the estate under Pennsylvania law covering persons who die without a will (intestacy law), such as a person entitled to the estate under a will, family members, principal creditors, “other fit persons”, etc.

Making a power of attorney covering personal and financial decision-making may make guardianship proceedings unnecessary, and is less expensive and stressful than the court process. Anyone can also name in advance a preferred guardian of the person or estate for consideration by the Court in case a guardianship proceeding becomes necessary.