A guardianship can be a great help to an individual who does not have the ability to make sound decisions for themselves. However, sometimes a guardian may go against the best interests of an incapacitated person and may need to be removed. There are also other reasons to terminate a guardian’s authority. If you or a family member wish to have a guardianship reversed, you should speak with an experienced southeast Pennsylvania guardianship lawyer. The lawyers at Herr Potts and Potts have over eight decades of elder law experience that we will utilize to provide you with exceptional service. Herr Potts and Potts are here to inform you how guardianships can be reversed in Pennsylvania.
What is a Guardianship?
A guardianship is a legal process where a guardian or caretaker is appointed to handle the affairs of an incapacitated person. Any individual who has a genuine interest in the incapacitated person’s welfare can file a petition to have a guardian appointed. However, a court will not seek a guardian for the incapacitated person, and certain areas of Pennsylvania may not have a public guardian service. Therefore, the petitioner should choose a guardian, and the chosen guardian must be willing to handle the appointment. A guardian can be a:
- Qualified individual
- Corporate fiduciary
- Non-profit organization
- County agency
To be judged as incapacitated, a person must attend a hearing before Pennsylvania’s Orphans’ Court. During this hearing, testimony from qualified professionals like psychiatrists and other healthcare professionals will be used to establish whether there is clear and convincing evidence that a person is incapacitated. The incapacitated person has a right to counsel during the trial.
A person may be judged as incapacitated if they possess an illness like Alzheimer’s or dementia or another form of a progressive mental, emotional or physical illness. A person who has brief moments of confusion cannot be considered incapacitated under Pennsylvania law.
After a person is deemed incapacitated in a hearing, a guardian will be appointed for them. A guardian may have the power to handle an incapacitated person’s medical or financial affairs or both. For example, a guardian may:
- Admit an incapacitated person to an assisted living facility
- Schedule appointments with a physician
- Authorize surgical procedures or other types of medical treatment
- Authorize the sale of personal property
- Operate the incapacitated person’s business
How Do You Terminate a Guardianship?
A guardian must execute their duties with the best interests of the incapacitated person at heart. At times, a guardian may have to make decisions that are still in the best interest of an incapacitated person but against the wishes of an incapacitated person. However, a guardian may also use their position of power to take advantage of the person they are supposed to be caring for. When this happens, a termination of guardianship should be considered.
To initiate guardianship termination, an incapacitated person or another invested party can petition the court for a review hearing. A court may also initiate a review hearing on its own. The review hearing will look at:
- Whether a guardian has failed to perform his or her duties.
- Whether a guardian intentionally or willingly failed to act in the incapacitated person’s best interests. A court may also examine whether a guardian did not carry out the preferences of the incapacitated person to the “fullest extent possible.”
- Whether the incapacitated person’s condition improved to the point of no longer needing a guardian or only needing a limited guardian.
At the review hearing, an incapacitated person needs to prove one of the three scenarios above by a preponderance of the evidence. The preponderance of the evidence standard is a much lower burden of proof than the clear and convincing evidence standard used to judge a person as incapacitated. An incapacitated person also has the right to be present during the review hearing and to be represented by appointed counsel or their own choice of counsel.
Alternatives to Guardianship
There are less intrusive alternatives to guardianships available for residents of Pennsylvania. For example, a person who has a disability should consider looking at habilitation programs to help them manage their finances. Additionally, a person with a disability can also turn to mental health service providers who can aid them in making decisions regarding their health.
If possible, you should consider speaking with trusted members of your family to help you handle your financial or medical needs.
If you wish to know more about guardianships, alternatives to guardianships or contested guardianships, you should speak with an experienced attorney.
Southeast Pennsylvania Elder Law Attorneys Can Help You Remove a Guardian
If you or a family need assistance terminating a guardianship, you should consult with an experienced southeast Pennsylvania elder law attorney. The attorneys at Herr Potts and Potts are here to help you terminate a guardianship and reclaim control of your life. To schedule a confidential consultation, call us at (610) 254-0114 or contact us online.