[The following article was written by Elizabeth White, a Certified Elder Law Attorney* with Marshall, Parker and Weber]
There are two primary types of adult guardians in Pennsylvania – a guardian of the person and a guardian of the estate. A guardian of the person is in charge of the health care decisions and living arrangements for of the individual. A guardian of the estate is in charge of the property management and finances of the individual. One guardian may serve in both capacities.
An adult guardianship is established through a legal proceeding. A person or persons petition the court to name a guardian or co-guardians for an individual.
A person must be deemed to be incapacitated in order for the court to name a guardian of the person and/or estate. Incapacity in Pennsylvania means that the person’s ability to receive and evaluate information effectively and communicate decisions is impaired to such a significant extent that he or she is partially or totally unable to manage his financial resources or to meet essential requirements for his or her physical health or safely.
The alleged incapacitated person, certain family members, caregivers, and institutions or residential facilities that assist in the care of the individual get notice of the legal guardianship proceeding. The petition that was filed with the court is served personally on the alleged incapacitated individual. He or she has the right to get his or her own legal representation in the guardianship proceeding.
Evidence must be presented by the petitioner in order for the court to determine incapacity. The evidence presented generally includes testimony from the individual’s doctor(s), caregivers, and family members. The court also hears the testimony of the proposed guardian in order to ensure that the person put forward to serve in the role of guardian is suitable for the position.
The guardian is to act in the best interest of the incapacitated person and should not have interests that are adverse to the incapacitated person. If the incapacitated person has expressed wishes or preferences, those wishes and preferences should be respected, to the greatest extent possible, by the guardian.
The guardian has the responsibility of filing guardianship reports, at least annually, with the court. These reports outline the actions of the guardian, and provide an inventory and financial picture of the incapacitated person’s finances. This provides supervision by the court to ensure that the guardian is acting appropriately on behalf of the incapacitated person.
A finding of incapacity through a guardianship is a last resort, as it can take away an individual’s right to make almost all legally binding decisions. Instead, the court appointed guardian assumes the role of legal decision maker. It is usually preferable to use a less restrictive measure to manage a person’s finances and health care. An example of a less restrictive measure is a power of attorney if the incapacitated person has a valid document, or if the alleged incapacitated person is able to understand and execute power of attorney documents pursuant to the law.
* Attorney White has attained Certification as an Elder Law Attorney by the National Elder Law Foundation, as authorized by the Pennsylvania Supreme Court.