What is a Guardianship?

When an adult family member is not capable of making reasonable decisions, or a child with a developmental disability reaches adulthood, family members can petition the court to name an adult guardian. The guardian may have responsibility for the care of the person, the person’s property or both.

A petition must be filed for adjudication of incapacity and for the appointment of a guardian. Under Pennsylvania law, the petitioner “may be any person interested in the alleged incapacitated person’s (“AIP”) welfare”. This is a fairly broad definition and may include family, neighbors, area agency on aging, healthcare provider or other professional with a relationship to the AIP.

The petitioner must prove by clear and convincing evidence to a Judge that the AIP is incapacitated to become a guardian. There need to be specific findings of cognitive incapacity that has impaired the person’s ability to understand information, to make reasoned decisions, to effectively manage their financial resources or assure their own physical health and safety.

In PA, an emergency hearing is proper where it is apparent that the AIP is at imminent risk of irreparable harm, including severe financial exploitation, medical risk or risk of homelessness. In reality, a guardianships is a last resort because it deprives a person of his/her legal rights and restricts their rights to autonomy and self-determination.

In Pennsylvania, there are two types of guardians:

  • a guardian of the person is responsible for making personal, residential and medical decisions for the AIP.
  • a guardian of the estate is responsible for financial decisions, managing income and property.

So how does a person get deemed incapacitated and appointed a guardian against his or her wishes, without even being present in court? In an emergency hearing, the 20-day notice period is typically waived, but required for the plenary hearing. The AIP has a right to counsel and if they can’t afford one, counsel will be appointed by the court. In an emergency hearing, there usually isn’t time to appoint counsel until the plenary hearing. The AIP is also required to attend the hearing unless there is a sworn statement by a physician that the AIP’s physical or mental health would be harmed by attending.

How can you avoid guardianship scams?

Have a current complete well-drafted estate plan, with financial and healthcare Powers of Attorney. Choose your agent under Power of Attorney wisely. Make sure it is someone you trust implicitly and then name a backup agent, just in case. While I can’t promise that you won’t end up in a guardianship proceeding if you have a POA (your agent could go rogue, fail to act, or die and there is no backup named), the chances are extremely low if you have the proper documents in place.

High Swartz guardianship attorneys help families as they make those decisions, and in resolving disputes regarding appointment of a guardian or those regarding the actions of a guardian. Call 610-275-0700 or email us today.

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