Once an individual reaches the age of 18, they have a legal right to make their own decisions regarding their health and financial situation. Unfortunately, if a person becomes physically or mentally ill, this may affect their ability to make well-informed decisions for themselves. If this happens, a person who is interested in the incapacitated person’s well-being can begin proceedings for a guardianship. A guardian can be appointed to handle several different tasks for an incapacitated person. If you or a family member wishes to file for a guardianship, you should speak with an experienced Pennsylvania guardianship lawyer. At Herr Potts and Potts, our lawyers are prepared to work with you and your family to create a guardianship to benefit your loved one. Our lawyers are here to discuss the types of guardianships in Pennsylvania.
How is a Guardianship Initiated?
A guardian is an individual or organization that is appointed to assert the interests of an incapacitated person. Under Pennsylvania law, a person is incapacitated if their ability to comprehend information is substantially impaired, making them partially or completely unable to make important decisions regarding their financial resources or physical health.
To initiate a guardianship proceeding an interested party can file a petition with Pennsylvania’s Court of Common Pleas, Orphans Court Division. The individual who files the petition (petitioner) must give the alleged incapacitated person (respondent) written notice of the date, time, and purpose of the guardianship proceeding. The written notice must also inform the respondent of the legal rights that are at stake and their right to have counsel appointed or the right to retain counsel. Other people who may be interested in the proceedings, like family members, should also be alerted.
To prove an individual is incapacitated, the petitioner must present clear and convincing evidence. The court will look at several factors before judging the respondent to be incapacitated:
- The type of disability the respondent is impaired by
- The respondent’s ability to make sound decisions
- The measures being taken regarding the respondent’s physical health
- The measures being used to handle the respondent’s financial affairs
- The services being used to rehabilitate the respondent
- The likelihood the respondent will recover from their disability
- What kind of assistance the respondent needs
- Why alternative and less restrictive measures would be inappropriate
The petitioner must also present testimony from professionals who are qualified to evaluate the impairment the respondent is afflicted with. The respondent can request that the court allows an independent evaluation to determine their capacity and can contest the guardianship in many other ways.
If you need to know more about how a guardianship is created, you should speak with an experienced West Chester elder law lawyer.
The Two Types of Guardianship in Pennsylvania
If an individual was deemed to be incapacitated, there are two types of guardians that a court can appoint: a guardian of the person and a guardian of the estate.
A guardian of the person has several different duties. Under Pennsylvania law, the primary duty of a guardian of the person is asserting the “rights and interests of the incapacitated person.” The guardian must also fully carry out all the preferences of the incapacitated person as much as possible. The guardian also has the right to engage in decisions concerning the incapacitated person’s health. Certain powers may be withheld from a guardian by the court, like the right to consent to a surgical procedure on behalf of the incapacitated person. A guardian should also encourage an incapacitated person to engage in decisions regarding their health to reinforce their ability to make decisions.
A guardian of the estate primarily handles financial decisions on behalf of the incapacitated person. These decisions may include running the incapacitated person’s business, handling their investments, and overseeing the sale of personal property. A guardian of the estate must use a reasonable standard of care when completing these tasks. This means that the guardian must utilize the same judgment they would when handling their estate. A guardian is not legally permitted to use the incapacitated person’s estate for their own financial gain.
As mentioned above, any interested party could serve as a guardian if they are willing. The following list names people or organizations that may qualify as a guardian:
- Any qualified individual
- Corporate fiduciary
- Nonprofit corporation
- Guardianship support agency
- County agency
Our Attorneys Can Help You Begin a Guardianship Proceeding
If you or a family member requires the aid of a guardianship, you should speak with an experienced Delaware County elder law attorney. The experienced attorneys at Herr Potts and Potts understand how difficult it can be to care for a family member who has a disability and we are here for you. To schedule a confidential consultation, call us at (610) 254-0114 or reach us online.