Guardianship

1. Michael B. Dubin, Esquire Jules S. Henshell, Esquire Guardianship “The Court has the power to place total control of a person’s affairs in the hands of another. This great power creates the opportunity for great abuse.” In re Hyman 811 A.2d 605,608 (Pa. Super. Ct. 2002)

2. Guardianship in Pennsylvania Pennsylvania’s guardianship statute, 20 Pa. C.S.A. §5501, etseq. was designed to protect the interests of persons with limited capacity to care for themselves or their property while affording such persons, consistent with their abilities, the right to participate in the decisions that affect them.

3. General Rule • Adults over the age of 18, have the right to make decisions for themselves unless: after a legal proceeding, a judge has • found the individual to be “incapacitated” and • has appointed a legal guardian.

4. What does “Incapacitated” mean? • An incapacitated person is an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that s/he is partially or totally unable to manage her/his financial resources or to meet the essential requirements for her/his physical health and safety. 20 Pa. C.S.A. Section 5501

5. Pennsylvania’s guardianship law is predicated upon the concept of meeting the needs of the incapacitated person by use of the least restrictive alternative.

6. What are Alternatives to Guardianship? Informal use of family members and friends (i.e.. Social Security rep payee, “next of kin” to make medical decisions) See, 20 Pa. Cons. Stat § 5461 Advance planning (i.e.. POA, estate planning documents) Express statutory authority for directors of MH/MR residential facilities (as limited by the MH/MR Act and Drug & Alcohol statutes.) See, 50 Pa. Cons. Stat. Ann. § 4417 (c)

7. When alternatives do not exist, who can be appointed a guardian? • Any qualified individual, corporate fiduciary, non-profit corporation, or county agency. • If no other person is willing, a guardianship support agency may be appointed. • Courts may give preference to a person suggested by the incapacitated person. • Proposed guardian must have no interests that conflict with the incapacitated person unless no alternative exists. • Unless no alternative exists, residential service providers (and their employees) may not be appointed.

8. What is the process for getting a guardian appointed? • An interested person must petition the Orphan’s Court. • Petitioner must ‘serve’ the incapacitated person 20 days in advance of hearing with a copy of the petition.

9. Notice required • Date, time and place of hearing • Purpose of the proceeding and potential for loss of rights • Right to request appointment of counsel if appropriate • Notice to interested persons, such as family members

10. Who can be the petitioner? Any interested person may be the person seeking to be guardian or propose another willing party to be appointed. Who pays for the cost of petitioning? Estate/Petitioner

11. What must the Petition for Appointment of Guardian include? • Name, age, residence and address of the alleged incapacitated person. • Names and address of the alleged incapacitated person’s spouse, parents and adult heirs; • The name and address of the person or facility providing residential services to the alleged incapacitated person; • The names and addresses of other persons or entities that provide services to the alleged incapacitated person;

12. Content of the Petition (continued) • Name of the person proposed as guardian; • Statement that the proposed guardian has no interest adverse to the alleged incapacitated person; • Qualifications of the proposed guardian; • The reasons why guardianship is needed; • Description of the functional limitations and physical or medical condition of the alleged incapacitated person

13. Content of the Petition • Steps taken to find a less restrictive alternative to guardianship; and • The specific areas of incapacity over which the petitioner seeks the guardian to be assigned powers (Person v. Estate). • If appointment of a guardian of the estate is sought, the gross value of the respondent’s estate and net income from all sources. 20 Pa.C.S.A. 5511(e)

14. Must the incapacitated person attend the hearing? • Yes* *Unless a physician/psychologist attests that the person would be harmed by being present

15. Does the respondent have a right to counsel? • Courts may appoint counsel • Residents of certain facilities must have counsel appointed for them (state MH/MR facilities)

16. What does a court consider? • A petitioner must prove by clear and convincing evidence that the alleged incapacitated person is incapacitated. • The court must consider the nature of the alleged incapacitated person’s disability and the extent of the person’s capacity “to make or communicate decisions”

17. “incapacity” • To prove incapacity, the petitioner must present medical evidence via Written Deposition pursuant to 20 PA C.S.A. § 5518 from a person qualified by training and experience in evaluating individuals with the alleged incapacities that establishes: • Nature and extent of the incapacities and disabilities; • The alleged incapacitated person’s mental, emotional, and physical condition; • The alleged incapacitated person’s adaptive behavior; and the alleged incapacitated person’s skills.

18. Additional evidence • Services utilized to meet the essential requirements for the alleged incapacitated person’s physical health and safety; • Services being utilized to manage the alleged incapacitated person’s financial resources; • Services being utilized to develop or regain the alleged incapacitated person’s abilities; • The types of assistance required by the alleged incapacitated person

19. Additional evidence (cont’d) • Why no less restrictive alternative would be appropriate; and • The probability that the extent of the person’s incapacities may significantly lessen or change. Court’s must make specific findings about the need for guardianship in light of existing alternatives such as availability of family, friends or other supports to assist the individual in making decisions.

20. Scope of guardianship • Guardianship of Estate vs. Guardianship of Person or Both • Limited vs. Plenary • Court’s prefer limited guardianship tailored to meet the specific need arising from limited capacity • Plenary guardianship of person or estate is appropriate only upon specific finding that the person is totally incapacitated and in need of plenary guardianship. • Court approval required to spend any principal

21. Guardian Reports to the Court * Report must be filed within 90 days of being appointed guardian and annually thereafter. Annual Report of Guardian of the Person including: • Current address and type of placement of the incapacitated person • Any major medical or mental problems; • Description of the living arrangements and the social, medical, psychological or other support services received by the person; • Opinion of the guardian concerning need for continued guardianship and reasons Annual Report of the Guardian of the Estate including: • The incapacitated person’s current principal and how invested; • The person’s current income’ • Identification of expenditures of principal and income since the prior report; • The needs of the person for which the guardian has provided since the last report

22. What are the powers of a limited guardian? If the court appoints a limited guardian, it must identify the powers of the guardian consistent with the alleged incapacitated person’s limitations. 20 Pa C.S.A. § 5512.1(d) • The partially incapacitated person retains all legal rights other than those vested in the guardian under the court’s order. • The powers of a limited guardian may include: • Providing for care, maintenance and custody of the person; • Designating place of residence; • Providing the required “consents” or approvals on behalf of the person • If appointing a limited guardian of the estate, the court must specify the portion of the assets to be controlled by the guardian.