Guardianship in Pennsylvania

1. Guardianship in Pennsylvania Robin Resnick Disability Rights Network of Pennsylvania 1315 Walnut Street, Suite 500 Philadelphia, PA 19107-4705 215-238-8070

2. Is guardianship necessary? • Guardianship should be option of last resort • Costs of guardianship • Financial • Emotional • Limits on Self-Determination • Alternatives to guardianship • Natural supports • Substitute health care decision-makers • Substitute financial decision-makers

3. Health Care Decision-MakingWithout Guardians • Capacity to make health care decisions – simple vs. informed consent • Other than guardians, three types of potential health care substitute decision-makers • Health care agents (appointed by individual in advance health care directive) • Health care representatives • MH/ID Facility Directors

4. Financial Decision-MakingWithout Guardians • Representative Payees • SSI • SSDI • Trusts • Estate Planning

5. Purpose of PA Guardianship Law • Law amended in 1992 to update • Recognizes that each person has “unique needs and differing abilities” • Seeks to permit incapacitated persons to “participate as fully as possible in all decisions that affect them” • Objectives of law should be accomplished through “the use of least restrictive alternative” • If guardianship is necessary, guardians should be suitable individuals or entities willing to serve

6. What is the standard for guardianship? • In Pennsylvania, a guardian will be appointed only if a court determines that the individual is “incapacitated.” • A person is “incapacitated” if his “ability to receive and evaluate information and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health or safety.”

7. Who can be a guardian? Any qualified individual, corporate fiduciary, or county agency Guardian must not have conflicts of interest with incapacitated person Guardianship support agency in the absence of others willing and qualified Guardianship offices in state facilities can serve as guardians of estate for residents Residential service providers and employers will not be appointed guardians unless no alternative exists

8. How does a guardianship proceeding begin? • Court of Common Pleas, Orphans Court Division • “Petitioner” files guardianship “petition” • “Respondent” (individual alleged to be incapacitated) must be personally served with the petition. • Respondent must receive written notice in simple language of the time, date, and place of the proposed hearing at least 20 days prior to the hearing.

9. Rights of the Respondent at the Hearing • Present at the hearing • Counsel • Independent evaluation

10. How does a court assess capacity? • Clear and convincing evidence that person is incapacitated • Testimony from an individual qualified by training and experience in evaluating individuals with the Respondent’s alleged incapacity • Evidence regarding services used to meet the Respondent’s physical health and safety needs and to manage his financial resources • Evidence regarding types of assistance the Respondent needs • Evidence as to why less restrictive alternatives are not appropriate

11. Types of guardianship • Plenary and Limited • Person and Estate

12. Powers of Guardian of the Person • Depends on if limited or plenary • Can include: • Providing for general care, maintenance, and custody of individual • Designating individual’s residence • Assuring that individual receives appropriate services, medical care, education, and vocational opportunities • Assuring opportunities to maximize independence • Providing necessary consents or approvals

13. Duties of Guardians of the Person • Assert rights and interests of person • Respect the person’s preferences and wishes to greatest extent possible • Participate in development of service plans, selection of providers to meet person’s needs • Encourage person to participate to maximum extent possible in decisions that affect her, to act on her own behalf when she can, and to develop or regain abilities if feasible • File reports with court

14. Limits on Guardians of the Person • Court authorization required before: • Consenting to sterilization, psychosurgery, electroconvulsive therapy, experimental medical or behavioral procedures or experiments • Consenting to removal of healthy bodily organ • Prohibiting marriage • Authorizing divorce • Prohibited and cannot be authorized by court: • Consenting to admission to psychiatric hospital or state ICF/IID • Consenting to relinquishment of parental rights • Withholding or refusing to authorize provision of life-preserving treatment • Forcing abortion

15. Guardians of the Estate • Duties • Depends whether plenary or limited • Can include handling income, assets, benefits, insurance, investments, personal property, real estate, etc. • File reports • Use standard of care that a person of ordinary prudence would practice in care of his own estate • Cannot obtain undue profit or advantage • Cannot place himself in position where there is a conflict of interest with the incapacitated person

16. Emergency Guardianship • If court finds based on clear and convincing evidence that • Respondent is incapacitated • Respondent needs a guardian • Failure to appoint a guardian will result in irreparable harm to Respondent or her estate • Court must specify emergency guardian’s powers and duties • Emergency guardianship of the person order can last no more 72 hours, but may be extended for up to 20 days after expiration of initial order • Emergency guardianship of the estate order can last up to 30 days. • Court must adhere to normal procedures to the extent feasible under the circumstances

17. Terminating Guardianship Order or Removing Guardian • Incapacitated person, guardian, or other interested person can petition for review hearing or court can decide to hold hearing • Reasons for termination • Change in person’s capacity • Guardian has failed to perform duties • Guardian has not acted in person’s best interests • Rights at hearing • Standard for termination/removal