FROM MIKE’S DESK
What Is a Guardianship in Pennsylvania?
When an individual reaches the age of 18 in Pennsylvania, they become legally recognized as an adult. The person has the legal right to make decisions on his or her own behalf. If the person is unable to make those decisions due to some incapacity, then a concept known as guardianship is applied to help manage decisions to protect the individual’s finances, health, and safety.
How Does Pennsylvania Define an Incapacitated Person?
Under Pennsylvania law, an “Incapacitated Person” is defined as “an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.”
What Is a Guardian?
The person who is appointed to help make personal decisions on behalf of another person is called the guardian. The guardian has the duty to act in the best interests of the person they have been appointed to protect.
Common examples of scenarios in which a guardian may be appointed include:
- An older parent with dementia
- A young adult with a severe developmental disability
- An adult who sustained an accident or traumatic brain injury
How Is a Guardian Appointed?
The process of appointing a guardian does not just automatically happen. A parent, spouse, or child does not simply become the guardian of another adult when a disabled child turns 18. Formal Court proceedings must be conducted to obtain a Court Order that the person is determined to be incapacitated. A Petition needs to be filed with evidence, including an expert report, a background check of the proposed guardian, and a Court hearing is required. The proposed guardian must prove at the Hearing that the individual’s ability to receive and evaluate information effectively, and to communicate decisions, is impaired to such a significant extent that they are partially or totally unable to manage their financial resources or to meet the essential requirements for their physical health and safety.
A recent change in Pennsylvania requires the Court to appoint an attorney to represent the person who is alleged to be incapacity to ensure that the person’s wishes are maintained.
Only a Court can appoint a guardian. A parent cannot, without judicial oversight, appoint a guardian for an adult child. Additionally, parents cannot name a guardian for an adult disabled child under their Will, as Pennsylvania’s guardianship procedures are the exclusive means by which a guardianship can be created. When someone becomes appointed as a guardian, they have certain obligations, including filing initial reports within ninety (90) days, and then annually.
Sometimes these proceedings are relatively straightforward, such as in the example of parents seeking to become guardians for a severely disabled young adult. However, some proceedings can become very contested, such as when children may fight over who should be the guardian of their parent and in charge of the parent’s finances, or in situations where the individual does not believe they are incapacitated fight the proceedings themselves.
All in all, sometimes the process is relatively simple, and other times, it can be more complicated.
NEED GUIDANCE ON GUARDIANSHIP OR APPOINTING A GUARDIAN?
I have experience in guardianship cases, including representing parents of disabled children, as well as in situations where an adult parent has a traumatic brain injury or dementia. I have also been appointed by the Court to represent the individual who is alleged to be incapacitated, and I zealously represent these individuals with compassion and dignity. If you need legal services pertaining to guardianship or would like to chat more about your circumstances, please contact me. I am available to assist you with experience, patience, and empathy.
Michael Frisbie
Frisbie Legal Solutions
169 N. Broad Street
Doylestown, PA 18901