Guardianship in Pennsylvania
Robin Resnick
Disability Rights Network of Pennsylvania
1315 Walnut Street, Suite 500
Philadelphia, PA 19107-4705
215-238-8070
Is guardianship necessary?
• Guardianship should be option of last
resort
• Costs of guardianship
– Financial
– Emotional
– Limits on Self-Determination
• Alternatives to guardianship
– Natural supports
– Substitute health care decision-makers
– Substitute financial decision-makers
Health Care Decision-Making
Without Guardians
• Capacity to make health care decisions –
simple vs. informed consent
• Other than guardians, three types of potential
health care substitute decision-makers
– Health care agents (appointed by individual in
advance health care directive)
– Health care representatives
– MH/ID Facility Directors
Financial Decision-Making
Without Guardians
• Representative Payees
– SSI
– SSDI
• Trusts
• Estate Planning
Purpose of PA Guardianship Law
• Law amended in 1992 to update
• Recognizes that each person has “unique needs
and differing abilities”
• Seeks to permit incapacitated persons to
“participate as fully as possible in all decisions
that affect them”
• Objectives of law should be accomplished
through “the use of least restrictive alternative”
• If guardianship is necessary, guardians should be
suitable individuals or entities willing to serve
What is the standard for guardianship?
• In Pennsylvania, a guardian will be appointed only
if a court determines that the individual is
“incapacitated.”
• A person is “incapacitated” if his “ability to
receive and evaluate information 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 or safety.”
Who can be a guardian?
• Any qualified individual, corporate fiduciary, or
county agency
• Guardian must not have conflicts of interest
with incapacitated person
• Guardianship support agency in the absence of
others willing and qualified
• Guardianship offices in state facilities can serve
as guardians of estate for residents
• Residential service providers and employers
will not be appointed guardians unless no
alternative exists
How does a guardianship proceeding
begin?
• Court of Common Pleas, Orphans Court Division
• “Petitioner” files guardianship “petition”
• “Respondent” (individual alleged to be
incapacitated) must be personally served with the
petition.
• Respondent must receive written notice in simple
language of the time, date, and place of the
proposed hearing at least 20 days prior to the
hearing.
Rights of the Respondent at the
Hearing
• Present at the hearing
• Counsel
• Independent evaluation
How does a court assess capacity?
• Clear and convincing evidence that person is
incapacitated
• Testimony from an individual qualified by training and
experience in evaluating individuals with the
Respondent’s alleged incapacity
• Evidence regarding services used to meet the
Respondent’s physical health and safety needs and to
manage his financial resources
• Evidence regarding types of assistance the Respondent
needs
• Evidence as to why less restrictive alternatives are not
appropriate
Types of guardianship
• Plenary and Limited
• Person and Estate
Powers of Guardian of the Person
• Depends on if limited or plenary
• Can include:
– Providing for general care, maintenance, and custody
of individual
– Designating individual’s residence
– Assuring that individual receives appropriate services,
medical care, education, and vocational opportunities
– Assuring opportunities to maximize independence
– Providing necessary consents or approvals
Duties of Guardians of the Person
• Assert rights and interests of person
• Respect the person’s preferences and wishes to
greatest extent possible
• Participate in development of service plans,
selection of providers to meet person’s needs
• Encourage person to participate to maximum
extent possible in decisions that affect her, to act
on her own behalf when she can, and to develop
or regain abilities if feasible
• File reports with court
Limits on Guardians of the Person
• Court authorization
required before:
– Consenting to sterilization,
psychosurgery,
electroconvulsive therapy,
experimental medical or
behavioral procedures or
experiments
– Consenting to removal of
healthy bodily organ
– Prohibiting marriage
– Authorizing divorce
• Prohibited and cannot be
authorized by court:
– Consenting to admission to
psychiatric hospital or state
ICF/IID
– Consenting to
relinquishment of parental
rights
– Withholding or refusing to
authorize provision of lifepreserving treatment
– Forcing abortion
Guardians of the Estate
• Duties
– Depends whether plenary or limited
– Can include handling income, assets, benefits,
insurance, investments, personal property, real estate,
etc.
– File reports
• Use standard of care that a person of ordinary
prudence would practice in care of his own estate
• Cannot obtain undue profit or advantage
• Cannot place himself in position where there is a
conflict of interest with the incapacitated person
Emergency Guardianship
• If court finds based on clear and convincing evidence that
– Respondent is incapacitated
– Respondent needs a guardian
– Failure to appoint a guardian will result in irreparable harm to
Respondent or her estate
• Court must specify emergency guardian’s powers and
duties
• Emergency guardianship of the person order can last no
more 72 hours, but may be extended for up to 20 days after
expiration of initial order
• Emergency guardianship of the estate order can last up to
30 days.
• Court must adhere to normal procedures to the extent
feasible under the circumstances
Terminating Guardianship Order or
Removing Guardian
• Incapacitated person, guardian, or other
interested person can petition for review
hearing or court can decide to hold hearing
• Reasons for termination
– Change in person’s capacity
– Guardian has failed to perform duties
– Guardian has not acted in person’s best interests
• Rights at hearing
• Standard for termination/removal