In Pennsylvania, guardianships are usually sought because an individual has become incapacitated to the point that they can no longer make sound decisions for themselves. Individuals that cannot make appropriate choices regarding their health or financial situation are prime examples of people who may need the aid of a guardian. However, a guardian cannot simply be appointed; there are procedures that must be followed before a guardian can be chosen.
If you or a family member is considering a guardianship, you should consult with an experienced Chester County guardianship attorney. The legal team at Herr Potts and Potts can help you determine whether a guardianship is right for you or your family member. We have decades of experience handling elder law issues in Pennsylvania, and we will utilize that experience efficiently when representing you. To schedule a confidential consultation, call us at (610) 254-0114.
How Can a Guardian Be Appointed?
Under Pennsylvania law, a guardian can only be appointed for an individual after a hearing which determines that the individual is “incapacitated.” An individual is considered “incapacitated” if they are so severely impaired that they cannot manage their financial resources or make competent choices regarding their health.
There are many options available when it comes to appointing a guardian. A guardian can be:
- Any qualified individual
- Corporate fiduciary
- Non-profit corporation
- County agency
The court can also choose to assign a guardian that is suggested by the incapacitated individual.
Guardianship proceedings can be initiated by any “interested person” that is concerned for the well-being of the individual for which a guardianship is sought. The petition must be filed with Pennsylvania’s Court of Common Pleas, Orphans Court Division. The individual who files the petition (petitioner) must personally inform the alleged incapacitated person of the guardianship hearing with written notice at least 20 days before the hearing. The written notice must inform the alleged incapacitated individual of the purpose of the hearing and their right to be represented by counsel. The petition must also inform any other individuals that may be interested in the hearing, such as family members of the alleged incapacitated individual.
To be deemed as incapacitated, qualified health professionals must provide testimony that proves the individual is not capable of handling their financial affairs or physical health or both. The alleged incapacitated individual (respondent) can request the court to allow an “independent evaluation” by an expert of the respondent’s choosing.
To show that a person is incapacitated, a petitioner must provide the court with “clear and convincing” evidence. The primary factors that are considered are the severity of the respondent’s disability and the ability of the respondent to make or communicate appropriate decisions for their financial or physical well-being. An individual who has brief periods of confusion cannot be judged as incapacitated. The petitioner must also show why a guardianship is necessary as opposed to less-restrictive alternatives. Additionally, the petitioner must also inform the court of what measures are being used to cure the respondent of their disability if possible.
What Powers Does a Guardian Have?
Once an individual is determined to be incapacitated, the court must decide the level of discretion they will provide to the appointed guardian. The court can give a guardian limited or plenary powers. Those powers may apply to the person of the incapacitated person or the estate of the incapacitated person. A guardian of the person can:
- Carry out the wishes of an incapacitated person
- Protect and assert the rights of an incapacitated person
- Encourage an incapacitated individual to engage in decisions regarding their health
While a guardian of the person can schedule and approve medical treatment for an incapacitated person, there are some actions they do not have the power to commit as a guardian. For example, a guardian of the person cannot consent to an abortion or sterilization for an incapacitated person. There are several other things a guardian does not have the power to do, like prohibit an incapacitated person from getting married or consenting to a divorce on behalf of the incapacitated person.
A guardian of the estate can manage the business and investments of an incapacitated person, and even sell personal property belonging to the incapacitated person. However, the guardian must act solely in the interest of the incapacitated person. A guardian of the estate cannot use an incapacitated person’s estate to benefit themselves in any manner.
Chester County Guardianship Lawyers Can Help You File a Petition
If you or a family member need to file a guardianship, you should speak with a Chester County guardianship lawyer today. The dedicated lawyers at Herr Potts and Potts understand the need to protect a family member that may be disabled or incapacitated, and we are here to help you. To schedule a confidential consultation, call us at (610) 254-0114 or reach us online.