Legal Guardianship in PA
Guardianship is a legal action requesting the Court to appoint a guardian for a disabled or incapacitated adult. The Guardian is appointed to make decisions about the care and treatment of the incapacitated person and/or to manage their property and finances.
We no longer use the term “incompetent” to describe an individual in the legal guardianship process, we use the term “incapacitated”. 20 Pa. C.S.A. §5501 defines “Incapacitated Person” as follows: “Incapacitated Person means 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.”
The guardianship process is often seen as a “last resort” in protecting an alleged incapacitated person. It is preferable that the alleged incapacitated person had executed a Durable Power of Attorney or Healthcare Power of Attorney prior to their incapacity. However, since this does not always occur, when an adult becomes incapacitated, we have to resort to the guardianship process.
Jurisdiction over a guardianship action lies within the Orphans’ Court. The guardianship action is initiated by filing a Petition in the Orphans’ Court. The proper venue for a guardianship proceeding is in the county in which the incapacitated person resides or is domiciled. The initial Petition for Guardianship must clearly state the individual’s physical and mental limitations and specifically identify the type of guardianship which is sought.
The Court may appoint a Guardian of the Estate and/or a Guardian of the Person. The Guardian of the Estate oversees the management of the incapacitated person’s finances and financial affairs. The Guardian of the Person oversees health, safety and physical well-being of the incapacitated individual.
The alleged incapacitated person must be provided with written notice of the action and the right to be represented by counsel. He or she may be present at the hearing unless their welfare will be harmed by doing so. There must be a hearing, with evidence, before the Court may issue a determination of incapacity.
Who may serve as a Guardian? The Court may appoint any qualified individual whether a family member, spouse, clergyman, an attorney, a fiduciary, or other county agency.
If you have any questions regarding legal guardianship in PA, please contact us. We welcome your inquiries.