As people grow older, some will lose the capacity to make decisions for themselves. If you have an elderly loved one who has become incapacitated and cannot grant a power of attorney, a guardianship might be necessary. Elder Care Direction can help you to understand your options so you can help your loved one. Here are some things that you should know about Pennsylvania guardianships.
What is a guardian?
A guardian is a person, agency, or institution that a court appoints to be responsible for the affairs of an incapacitated person. Guardians may be appointed to care for minor children as well as to care for adults who are unable to make financial or medical decisions for themselves.
When does someone need a guardian?
In Pennsylvania, people who are over the age of 18 are presumed to be capable of making their own decisions and independently managing their affairs. Some people become incapacitated because of illnesses, age, or injuries and need help from others. A probate court must find that a person is legally incapacitated before a guardian can be appointed to make decisions for him or her.
When is someone incapacitated?
In Pennsylvania, an incapacitated person is someone whose ability to effectively evaluate information and to make decisions has become impaired to a substantial degree. Incapacitation means that the person is left either partly or completely unable to manage his or her financial and medical affairs.
Determining incapacitation is a legal issue. If a judge finds that a person is incapacitated and that there aren’t any less restrictive alternatives, the court will appoint a guardian to make decisions for the incapacitated person.
How do people become guardians?
To become a guardian, you will have to file a petition for guardianship of your loved one with the probate court. Your petition must explain the reasons why you believe that a guardian should be appointed. You must give all of the interested parties at least 20 days of notice before the hearing is scheduled so that they can object. As a petitioner, you might ask the court to appoint you or to appoint someone else who is willing to serve as the guardian for your loved one.
When you file your petition, the court will schedule a hearing. At the hearing, the judge will review the evidence that you present and the evidence that might be presented by others. The hearing provides you with an opportunity to present evidence about your loved one’s incapacitation and why you feel that guardianship is necessary. You must also provide evidence from a qualified medical professional about your loved one’s physical and mental condition and whether the professional believes that a guardianship should be ordered.
Who can be a guardian?
Pennsylvania allows the following parties to be appointed as guardians:
- County agency
- Guardianship support agency
- Nonprofit corporation
- Corporate fiduciary
- Qualified individual
Courts are not allowed to appoint a person or entity as a guardian when there is a conflict of interest, however. Having a familial relationship with the incapacitated person is not a conflict of interest.
Multiple guardians
Pennsylvania does not limit the number of people who can serve as co-guardians. However, having multiple guardians can cause some problems. Each co-guardian will have to consent to every decision that is made for the incapacitated person. When co-guardians are unable to agree, they might have to go back to court to seek a court order. It is often a better choice to choose one person to serve as a guardian to avoid problems.
Can a guardian receive payment for his or her work as a guardian?
People and entities that serve as guardians are allowed to receive compensation from the assets of the incapacitated person for their services if they obtain the approval of the court. However, guardians must manage the incapacitated person’s assets solely for the benefit of him or her. Guardians are not allowed to take advantage of their wards.
What happens when there is an emergency?
When an emergency happens, it is possible to ask the court for temporary guardianship. An emergency petition may be used when the circumstances are such that irreparable harm might occur without the appointment of an emergency guardian. In most cases, an emergency guardian may be appointed after you file an emergency petition for guardianship. This type of order may be effective for up to 72 hours. If the emergency lasts longer, you can ask for the temporary guardianship to be extended for 20 days past the expiration of the original order.
Contact Elder Care Direction
If your loved one is unable to make decisions for himself or herself, you might need to seek the appointment of a guardian. Elder Care Direction can explain how the process works and can save you time and money by helping you with the forms. We can also refer you to a qualified elder law attorney for further legal help. Contact us today to schedule a consultation by filling out our contact form.
