A Guardianship Attorney Can Support You Through the Process
When an adult family member cannot make 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 person's care, property, or both. If you have concerns about a loved one for these reasons, reach out to a guardianship attorney in our Doylestown and Norristown, PA, law offices to discuss the matter.
In Pennsylvania, there are two types of guardians:
- A person's guardian 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.
Before proceeding, however, it's crucial to understand that establishing guardianship typically removes considerable rights from an individual. For instance, guardianship may deprive the individual of these rights:
- Determine residence
- Consent to medical treatment
- Make end-of-life decisions
- Possess a driver's license
- Manage, buy, or sell property
- Own or possess a firearm or weapon
- Contract or file lawsuits
So, you should only consider guardianship after exhausting other options. A guardianship attorney can guide you through the process.
How Do You Become a Legal Guardian In Pennsylvania?
The process starts by filing a petition for guardianship on behalf of the individual believed to be incapacitated. Under Pennsylvania law, the petitioner "may be any person interested in the alleged incapacitated person's ("AIP") welfare." This definition, however, is relatively broad. But it includes family, neighbors, area agencies on aging, healthcare provider, or other professionals with a relationship to the AIP.
The petition must explain the purpose and seriousness of the proceedings and give all interested parties, including the alleged incapacitated individual, at least 20 days' notice before a proposed hearing. This process allows interested parties to object to the contents of the petition. The petitioner may be the individual seeking to be appointed guardian. In addition, the petitioner may nominate another willing party for the appointment. If you want to file a petition, talk with a guardianship attorney.
Next, the court schedules a hearing before a judge. The petitioner must prove the AIP's incapacity by clear and convincing evidence to a judge. In addition, there need to be specific findings of cognitive incapacity impairing the person's ability to understand information, make reasoned decisions, effectively manage their financial resources, or assure their physical health and safety. Finally, a qualified medical professional must present evidence on the person's physical and mental condition and whether or not guardianship is necessary.
Often, the court holds an emergency hearing in Pennsylvania. That hearing seeks to determine that the AIP is at imminent risk of irreparable harm, including severe financial exploitation, medical risk, or risk of homelessness. As mentioned, however, guardianship is a last resort. It deprives a person of their legal rights and restricts their rights to autonomy and self-determination. But, again, our Bucks County and Montgomery County guardianship attorneys can provide guidance.
You can explore alternatives before moving to guardianship. For example:
- Representative or substitute payee
- Case/care management
- Health care surrogacy
- Durable powers of attorney for property
- Durable powers of attorney for health care
- Living wills
- Community advocacy systems
- Joint checking accounts
- Community agencies/services
- Supported decision-making networks
A guardianship attorney can work with you to review these options and determine which, if any, may resolve the situation.
Can You Terminate a Guardianship?
The goal of effective guardianship is for the court to restore the individual's rights. However, it remains in place until the incapacitated person dies. But an annual review and assessment monitor the need for maintaining or terminating guardianship. If warranted, it alerts the court to potentially restore some or all of the incapacitated person's rights. Talk to a guardianship attorney if you believe courts should consider restoration of rights for an individual.
How Can You Avoid Guardianship Scams?
Make sure you have a current, complete well-drafted estate plan. Most importantly, ensure that plan includes financial and healthcare Powers of Attorney. In addition, choose your Power of Attorney agent wisely. For example, that person should be someone you trust implicitly. Then name a backup agent, just in case. However, it's worth noting that a POA doesn't guarantee you won't end up in guardianship. However, it's rare with proper estate documents in place. That's why it's critical to speak with your estate attorney.
Talk to a Guardianship Attorney in Norristown or Doylestown
Because guardianship should be, as mentioned, the last resort, it's vital to talk with a guardianship attorney near you. An estate attorney can present your options and, if warranted, work with you to establish guardianship.
Give our local law offices in Montgomery and Bucks counties a call. Our lawyers and attorneys can provide counsel to determine if guardianship is your best option. They can also help with other facets of estate planning like advanced healthcare directives, wills, power of attorney, and more. So, call 610-275-0700 or email us today.