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.
Obtaining a Guardianship in Pennsylvania
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
Powers that Can be Granted to a Guardian
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:
- Arrange medical care for the incapacitated person
- Consent to surgery or other treatments
- Determine living arrangements for an incapacitated person or contract for admission to nursing homes
A limited guardian must obtain court approval to make decisions such as:
- Consenting to an abortion for an incapacitated person
- Shock therapy
- Removal of a healthy organ
- Prohibit marriage
- Consent to divorce
- Consent to experimental medical procedures
A plenary guardian is often appointed to see to the estate of a completely incapacitated person. A plenary guardian of an estate can:
- Buy and sell assets, including investments and real estate
- Operate a business that is part of the incapacitated person’s estate
- Accept a deed in lieu of foreclosure
- Lease property of the estate
- Purchase liability insurance
- Make reasonable expenditures to preserve the estate
- Compromise or settle controversies with court approval
- Vote any stocks held by the estate
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.
Recent Guardianship Matters Our Attorneys Represented:
- Filed for emergency guardianship for a client as their sibling was suffering from a mental illness and needed help.
- Transferred Guardianship from a different state to Pennsylvania.
- Represented client in a contested Guardianship matter.
- Obtained Court approval for Guardian to use principal of the incapacitated individual.
- Petitioned for a Guardianship Review Hearing in Court for client to ensure that the Guardian was acting properly.
- Successfully obtained a court order to allow for estate planning by an incapacitated individual.
- Added a sibling as a Co-Guardian with parents.