When an individual reaches the age of eighteen (18), that individual has the right to make decisions on their own behalf. When a person has a disability, limitation or impairment that affects their ability to effectively receive and evaluate information and communicate decisions, guardianship may be required. Pennsylvania requires that a guardianship be pursued only when there is no less restrictive alternative.
Alternatives to guardianships include appointing a power of attorney under an enduring general power of attorney and an enduring health care power of attorney. Additionally, when a person does not have a power of attorney, a guardianship can sometimes be circumvented by a family member acting as a health care representative under the Pennsylvania Health Care Representative Act ( 20 Pa. Stat Cons § 5461). Unfortunately, many circumstances require a guardianship to be in place to manage an incapacitated person’s estate or to ensure the health and safety of the person.
A guardianship is initiated by a petition filed with the Orphans’ Court Division of the Court of Common Pleas in the county where the allegedly incapable person resides. To be appointed a person’s guardian, the applicant must provide medical evidence from a physician treating the person’s incapacity. The person filing the application for guardianship must personally mean the person for whom they are requesting that a guardian be appointed. The notice will include a copy of the application and written notice of the time and date of the hearing. A hearing is then held. During the hearing, evidence must be presented to show that the person is incapacitated and that there is no less restrictive alternative to guardianship. The court then makes a decision as to whether or not the appointment of the guardian is necessary and, if so, considers the individual to be an incapable person. Thereafter, the tutor is empowered to make decisions regarding the care and financial management of the incapacitated person.
Once tutorship has been obtained, the tutor must submit an inventory of the property of the incapacitated person within ninety (90) days of his appointment. In addition, on an annual basis, the guardian is required to file with the court reports on the property, income and expenses of the incapable person, as well as a report on his person which provides information on the place of residence. of the incapable person, the type of care they receive, and their treating physicians and care providers.
A guardianship is a more restrictive tool in dealing with incapacity than a power of attorney (POA). A power of attorney gives you more flexibility and there is usually no court intervention. A durable power of attorney is one of the most important estate planning documents you can have and can obviate the need for guardianship in the event of incapacity.
To sign a power of attorney, you must have the necessary legal capacity to do so. Therefore, for some people, signing a power of attorney may not be an option. If you become incapable and have not yet signed a power of attorney, it is often too late. At this point, a spouse, relative or friend will need to petition the court alleging that you are incapable and ask to be appointed guardian. Guardianship proceedings can often be avoided when proper planning is done prior to incapacitation.
If you have questions or need assistance, contact OWM Law’s Elder Law Team at 610-323-2800, or email Rebecca Hobbs, CELA© at [email protected]
The legal advice in this column is general in nature, consult your attorney for advice tailored to your particular situation.
Rebecca A. Hobbs, Esquire is licensed to practice in the Commonwealth of Pennsylvania and is certified as an elder law attorney by the National Elder Law Foundation, as licensed by the Supreme Court of Pennsylvania. She is a principal of the law firm of O’Donnell, Weiss & Mattei, PC, 41 High Street, Pottstown and 347 Bridge Street, Phoenixville, 610-323-2800, www. owmlaw.com. You can reach Ms. Hobbs at [email protected]