Our firm regularly represents clients in need of Special Needs Planning for families with a disabled loved one. When an individual with special needs turns 18, they are considered sui juris – of one’s own right – and that individual’s parents can no longer legally make decisions for him or her and cannot legally act on his or her behalf. We have extensive experience in Guardianship proceedings, where an individual over 18, who is unable to manage his or her own financial affairs and/or meet essential requirements for his or her personal health and safety, is adjudicated incapacitated and has guardians appointed to make decisions on his or her behalf. The guardianship process is a Court process and unless it is an emergency can take up to 3-4 months before guardians are appointed by a Judge.
We can evaluate our clients’ individual situation to determine when a guardianship proceeding is necessary, or whether a Power of Attorney can suffice. It is important to understand that guardians can be appointed to be guardians of the person (over the health and living conditions of the individual) and/or guardian of the estate (over the individuals’ financial estate). In addition, the guardians can get plenary guardianship (full) or partial guardianship over the individual.
Our attorneys stay on top of the changing landscape of Social Security options and planning, Medicare, Medicaid, retirement plan distribution requirements and options, gifting and essential estate planning documents needed as you age, and your family matures. Reviewing health and personal care planning, nursing home issues, and income tax concerns will help you ensure that your estate is in order.
From Powers of Attorney to Dynasty Trusts to Portability, Herr Potts and Potts and can provide the information and solutions to your legal needs. To schedule a confidential legal consultation at our Wayne or West Chester Pennsylvania law office, call (610) 254-0114.
A guardianship often occurs when an individual can no longer manage their own affairs or even their own health. Illnesses like Alzheimer’s, dementia, or other progressive mental, physical or emotional illnesses can destroy a person’s ability to fend for themselves. A guardian is appointed in these situations to ensure a person is not preyed upon by others claiming to be helping them.
To be eligible for a guardian, an individual must be so impaired that they are partially or totally unable to manage their financial resources or meet vital conditions for physical health and safety. To deem an individual as incapacitated the person must attend a hearing before Pennsylvania’s Orphan Court. Qualified professionals, like psychiatrists and other health care providers, must then provide testimony to the court to establish the individual is incapacitated. An individual who has brief periods of confusion will not be deemed to incapacitated in Pennsylvania.
Once incapacity is established, the court will appoint a guardian to manage the estate of the incapacitated party. The guardian may even be given power to manage the health care of the incapacitated party.
The court can appoint as guardian any:
Qualified individual
Corporate fiduciary
Nonprofit corporation
Guardianship support agency
County agency
When facing conflict of interest issues, a lawyer must make it clear that they can only represent one party in the dispute. This requires a lawyer to put into writing:
Agreements like this are known as a fee agreement. Fee agreements make it clear to the lawyer and the client everything to expect in the relationship. If a child is paying for the legal representation of a parent, it does not entitle them to also make decisions for the parent. If an elderly parent possesses a sound mind and can make decisions regarding their own interests, an individual paying for their representation cannot insert their own interests.
Lawyers can also make determinations on whether they reasonably believe a client can act in their own self-interest. If a lawyer feels a client cannot do so, the lawyer can seek a guardian or enforce other protective measures.
A guardian has a duty to assert the legal rights and best interests of an incapacitated person. If an incapacitated person has specific instructions and preferences a guardian must respect those wishes to the highest possible extent. However, a guardian may ignore the wishes of the incapacitated party if it conflicts with their best interests.
There are two types of guardianship, a plenary guardianship and a limited guardianship. A plenary guardian of an incapacitated person has the authority to make any decisions required for the personal well being of the incapacitated person. A limited guardian only has powers appointed to them by the court. There may be plenary or limited guardians of the person and of the estate. A guardian of the person makes necessary arrangements for the health care and well being of the incapacitated person. A guardian of the estate performs actions necessary to preserve and advance the estate of the incapacitated person.
A limited guardian is often appointed for the purpose attending to all of the incapacitated person’s health care needs. A limited guardian can make decisions to:
A limited guardian must obtain court approval to make decisions such as:
A plenary guardian is often appointed to see to the estate of a completely incapacitated person. A plenary guardian of an estate can:
The powers of a guardian expire at the time of the incapacitated person’s death. This information concerning guardianships are not all-inclusive, you should speak with an experienced attorney to learn everything you need to know about guardianships.
This website provides general information about Herr Potts and Potts. The information within this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own particular situation. Neither our presentation of the information on the site nor your receipt of the information creates a lawyer-client relationship or imposes any obligation on Herr Potts and Potts.
Prior results do not guarantee similar outcomes. Legal information on this site should not be considered as legal opinions or as a substitute for legal counsel. In general, we cannot guarantee that all information on the site will be applicable to your situation or that it is current, accurate or complete.
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