Guardianship laws in Pennsylvania

By: Hazen Law Group

Upon attaining the age of 18, a person has the right to make decisions on his or her own behalf without regard to any limitations or disabilities unless he or she has been adjudicated to be incapacitated by a court. This determination is made by a judge at a legal proceeding. If the court decides the individual is incapacitated, it may appoint a guardian of the person and/or guardian of the estate of the incapacitated person.

Although the appointment of a guardian may be inevitable in some instances in order to safeguard the well-being of a person, guardianship proceedings can be expensive legal procedures that could be incompatible with the objective of increasing the person’s level of independence. Among the alternatives to guardianship is to obtain help from family or friends for the management of a person’s finances. In addition, the individual can apply for public benefits, including Social Security Disability (SSD) and Supplemental Security Income (SSI), both of which can be handled without a guardian via the appointment of a representative payee.

Under Pennsylvania’s guardianship law, if there are alternatives, such as a valid Power of Attorney, trust documents, and family support systems in place to safeguard the interests of the incapacitated person, then a guardianship may be unnecessary. In cases in which a child with disabilities or an elderly family member is marked by cognitive impairment, it is advisable to seek counsel from an attorney as soon as possible to decide whether the person has the capacity to execute a Power of Attorney in lieu of a guardianship.

But if a guardian is necessary, then a Pennsylvania court may appoint a guardian of the person and/or of the estate for someone who resides in Pennsylvania and a guardian of the estate for an individual who owns property in Pennsylvania if it decides following a hearing that the person is incapacitated. An incapacitated person is someone who is unable to communicate decisions in such a way as to allow the person to independently manage his or her finances or comply with necessary requirements for his or her physical health and well-being.

In the event there is no one who is willing or who possesses the qualifications to serve as guardian, the court may appoint a guardianship support agency. The guardian must not have any interests that are adverse to those of the incapacitated person unless there is no other choice.

In order to obtain a Guardianship Decree, you must first file a petition in the Orphans’ Court Division of the Court of Common Pleas, which is the local county court in Pennsylvania. You must also obtain a sworn statement from a physician or psychologist who is knowledgeable about the incapacitated person that stipulates the reasons a guardianship is needed.

The majority of courts in Pennsylvania require such a statement to be very detailed. After you file the Petition for Guardianship, the Court issues a Preliminary Decree that sets a hearing date, and orders the Petitioner’s attorney to give notice to all family members. At the hearing, the court will determine if the individual is incapacitated and if so, whether or not a guardian is needed. If a guardian is needed, the court will determine who should serve and also if the guardianship will be limited or plenary. According to Pennsylvania law, the guardian may not have certain powers, such as the authority to admit the incapacitated person to an inpatient psychiatric facility, or to approve, on behalf of the incapacitated person, of the renunciation of the person’s parental rights.

The guardians are required, within 90 days of their appointment, to supply the court with a report concerning the financial and personal condition of the incapacitated person. In addition, the guardians must give the court an Inventory of the person’s assets. The guardians must then provide such reports to the Court each year.

There is a path to a secure future for you & your family.