Understanding What Guardianships Entail
A Guardianship is an arrangement determined by the court system which places someone in the position to oversee the care of an incapacitated adult. Often due to mental illness, dementia, major strokes, and severe mental illness, among other conditions, a loved one is no longer able to take care of themselves. Absent a valid Durable Power of Attorney and Medical Directive, a substitute decision maker is needed to address the needs of the individual.
In Pennsylvania, there are guardianships of the person and guardianships of the estate. A personal guardian helps make decisions regarding medical treatment and residential placement, ensuring that the person in their charge gets adequate medical treatment and care, and personal needs are met. A guardian over the estate can make decisions about that individual’s finances and property.
A court appearance is required to file for a Guardianship proceeding in order to get the appropriate decision-making authority. Proof will need to be provided that the individual is disabled or incapacitated, and in need of assistance. In some cases, a parent of a disabled child may need to apply for either full or limited Guardianship once that child turns 18 for the parent to continue to make the necessary decisions if the child does not have the capacity to do so themselves.
How is someone determined to be incapacitated?
An adult is determined to be incapacitated by the court if he or she is incapable of receiving and evaluating information effectively, or if the person cannot adequately respond to events, environments or people.
An individual’s mental capacity is determined by exam by a medical physician or a psychiatrist, and documentation of the exam findings is provided as evidence to the court.
When loved ones fail to plan ahead and do not have Durable Financial Powers of Attorney prepared, guardianships may be needed to take care of financial matters. It is important that appropriate persons, financial institutions or agencies be appointed by the Orphans’ Court. Ensure that a guardianship is filed in a timely manner and that an appropriate guardian is appointed with the assistance of the attorneys at Julian Gray Associates. They can help you navigate the required court proceedings to ensure your loved one is cared for by a trusted guardian.
Who May Serve as Guardian?
Any interested person may petition the court to be appointed as a guardian for a person. Pennsylvania law defines who can be appointed as a guardian. A guardian may be a qualified person (relative or non-relative), a corporate fiduciary, a non-profit agency, a guardian support agency or a county agency. However, a person paid to provide residential services to the individual may not serve as his or her guardian.
Rules for Guardians?
As of June 1, 2019 Pennsylvania made an important step by changing the laws to address the problem of elder abuse and exploitation, striving to make sure that every individual who is appointed to make decisions on behalf of an incapacitated person is trustworthy, responsible, and has the best interests of the incapacitated person in mind.
There are updated annual reporting requirements. The guardianship forms are now revised and standardized to include more information and copies will go to all persons required to receive notice of guardianship.
The law also puts into place the Guardianship Tracking System (“GTS”). This online system has guardians file annual reports and any other documents required by the courts. The GTS provides more oversight, makes documents more standardized, allows courts to follow up on cases and tracks the status of persons in care.
Before the new law, there really were no checks or oversight to ensure the right people were serving as guardians. After the law, Proposed guardians will be required to submit to a criminal background check and to advise what qualifications they possess to act as guardian. He or she must also explain his or her qualifications and give information about any training.