Prior articles in this column covered the topic of powers of attorney and why every individual should have these documents in their estate plan. Some individuals are not able to create power of attorney documents prior to becoming incapacitated. These individuals must rely on another person to bring an action on their behalf to be appointed the individual’s guardian. This article touches on some common questions relating to guardianships in Pennsylvania.
What is a Guardian?
A Guardian is an individual, institution, or agency appointed by a court to manage the affairs of another individual. One might think of a situation involving the appointment of guardians where there are minor children. However, guardians are often appointed for adult individuals who lack the capacity to make decisions for themselves.
Why Would Someone Need a Guardian?
Pennsylvania presumes that an adult, 18 years of age or older, is capable of managing his or her own affairs and making his or her own decisions. However, some individuals are not capable of making their own decisions and managing their own affairs and require assistance from another person or entity. Only a court, after a hearing, has the authority to determine that an individual is incapacitated and appoint a guardian to act on his or her behalf.
How do I Know if an Individual is Incapacitated?
Whether or not an individual is incapacitated is a legal question. Pennsylvania law defines an incapacitated person 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.
If, after a hearing, a judge determines an individual meets this definition and there are no less restrictive alternatives, the judge will appoint a guardian to act on behalf of the incapacitated individual.
How Does One Become a Guardian?
The process is started by filing a petition for guardianship on behalf of the individual who is believed to be incapacitated. The petition must explain the purpose and seriousness of the proceedings and give all interested parties, including the alleged incapacitated individual, at least 20 days’ notice prior to a proposed hearing. This affords the interested parties an opportunity to object to the contents of the petition. The petitioner may be the individual seeking to be appointed guardian or the petitioner may nominate another willing party to be appointed.
Upon the filing of a petition, a hearing is scheduled before a judge at which evidence is presented as to the extent of the individual’s incapacity. The hearing is an opportunity for the petitioners to present evidence to the court as to the extent of the alleged incapacitated individual’s physical and mental condition and reasons why the guardianship is needed. Additionally, evidence from a qualified medical professional must also be provided as to the alleged incapacitated person’s physical and mental condition and whether or not a guardianship is necessary.
Who is Authorized to be a Guardian?
In Pennsylvania, “any qualified individual, corporate fiduciary, nonprofit corporation, guardianship support agency or county agency” may be appointed a guardian.
However, a court may not appoint a person or entity where the person or entity’s interest conflict with those of the incapacitated person unless no other alternative exists. A familial relationship to the incapacitated person is not considered an interest adverse to the incapacitated person.
Can More than One Person be Appointed Guardian at the Same Time?
Yes. While there is no limitation as to the number of co-guardians that can be appointed, co-guardians can raise a number of issues. Each guardian is required to consent to any decisions made on behalf of the incapacitated person. If multiple guardians cannot agree on a course of conduct, a court order may be required before any decision can be made. While it may be considered “fair” to make multiple children co-guardians, there is often one child who is capable
May a Guardian be Paid to Serve as Guardian?
Yes. An individual or entity serving as guardian may be compensated from the incapacitated person’s assets for the services performed as guardian if court approval is obtained. However, a guardian of the estate must manage the incapacitated person’s estate exclusively for the benefit of the incapacitated person and is not permitted to profit or take advantage of his or her position as guardian.
What if There is an Emergency?
If special circumstances arise, an emergency temporary guardian can be appointed. This type of petition is utilized in circumstances where failure to appoint an emergency guardian will result in irreparable harm to the person or estate of the incapacitated person. Typically, an emergency guardian is appointed by filing an emergency petition for guardianship. Such an order may be in effect for up to 72 hours. If the emergency continues, the emergency appointment of a guardian may be extended for up to 20 days from the expiration of the original emergency order. If you are aware of a situation which may require an emergency guardianship, please contact an experienced elder law attorney.
Additional questions about guardianships will be answered in next week’s column.