Guardianship and Power of
Attorney: The Myths and the
Facts
Pennsylvania State Long Term
Care Ombudsman Conference
April 24, 2012
Power of attorney
• Written document in which a person (the
“principal”) gives another person (the
“agent”) the authority to act for the
principal according to the terms and
conditions specified in the document.
• Governed by statutory law in Probate,
Estates and Fiduciaries Code at 20
Pa.C.S. § 5601 et seq.
Powers of attorney, cont.
• What the agent is given authority to do is listed
in the document (may be broad or specific).
• 2 Kinds: Financial POA (which often includes
power to admit to facility, enter into agreement
for care and authorize medical and surgical
procedures) and Health Care POA
• Need not be witnessed (unless signed by mark
or by another person at direction of principal) or
notarized, but it’s a good idea.
Power of attorney, cont.
• Requirement of notice, which must be signed by
principal:
NOTICE
THE PURPOSE OF THIS POWER OF
ATTORNEY IS TO GIVE THE PERSON YOU
DESIGNATE (YOUR “AGENT”) BROAD
POWERS TO HANDLE YOUR PROPERTY,
WHICH MAY INCLUDE POWERS TO SELL OR
OTHERWISE DISPOSE OF NY REAL OR
PERSONAL PROPERTY WITHOUT ADVANCE
NOTICE TO YOU OR APPROVAL BY YOU….
POAs, cont.
• Lack of notice doesn’t invalidate POA, but
gives agent the burden of demonstrating
his/her exercise of the authority is proper if
there’s a challenge.
• Acknowledgment Requirement: POA not
valid unless agent has signed and
attached acknowledgment that they will
act for benefit of principal, keep assets
separate, exercise reasonable prudence.
POAs, cont.
• Principal must have adequate intellectual capacity at
time POA is signed in order for it to be valid.
• Dementia diagnosis alone doesn’t mean principal lacks
capacity.
• More capacity needed for more complicated transactions
than for less complicated.
• Law not clear on exact level of capacity required to
execute POA, but case law suggests rule is whether
principal had general understanding of what they were
doing (may be higher depending on type of authority
being granted, especially gifting).
POAs, cont.
• Who determines whether principal has
capacity?
– Ethical duty of attorney to identify who client is
and consider capacity of client
– Psych evaluation
– May be challenged in Orphans’ Court –
burden is on challenger to show lack of
capacity by clear and convincing evidence.
When Does Power of Attorney Take
Effect?
• Depends on terms of document:
– Financial POAs frequently take effect upon
signing but often are not used until needed.
– May be “springing” (goes into effect upon
trigger event, usually when attending
physician determines principal lacks
capacity).
– Health care POAs are frequently springing.
POA revocation
• Principal may revoke power of attorney
• No particular form of revocation required
by law, but wise to put it in writing.
• Revocation should be sent by certified
mail to agent and third parties who may be
relying on POA, and should record it if
POA was recorded.
POA - remedies for abuse
• Agent is required to keep full and accurate
record of all actions, receipts and
disbursements.
• Principal or guardian can request Orphans
Court to require accounting.
• OAPS may seek court-ordered access to agent’s
records if agent does not provide and records
are necessary to complete investigation,
assessment or service plan, or delivery of
needed services to prevent further abuse,
neglect, exploitation or abandonment.
Guardianship
• A guardian is a person who is given the
legal power and duty by a court to take
care of and manage the property and
rights of another person who, due to
incapacity, is considered unable to
manage their own affairs.
• Courts are directed by law to use least
restrictive alternative in ensuring needs
of incapacitated persons are met.
Guardian of person/estate
• Guardian of person – responsible for
decisions re health care, living
arrangements, custody, general
maintenance, training, education, services,
social and vocational opportunities,
assisting in development of maximum
independence
• Guardian of estate - finances
Incapacitated Person
• Definition of an incapacitated person is 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.
Court determinations
• Nature of conditions impairing capacity to
make and communicate decisions;
• Extent of individual’s capacity to make and
communicate decisions;
• Need for guardianship services in light of
availability of family, friends and other
supports to assist the individual in making
decisions and in light of existence of any
POA or trust.
In re Peery, 727 A.2d 539
• PA Supreme Court held that intellectually
disabled woman was not in need of
guardian, despite dependence on others,
because she had caregivers and supports
(a “circle of support”) that assisted her in
meeting the essential requirements for
health and safety and managing financial
resources.
Court must also determine
• Plenary or limited guardian?
– Of person or estate
– Court is required to prefer limited
guardianship
– Except in specific areas guardian is given
authority, the partially incapacitated person
retains all other legal rights.
• Duration of guardianship
Legal Procedure
• Petition
– Filed in Orphan’s Court
– May be filed by any party interested in the alleged
incapacitated person’s (AIP’s) welfare.
• Must contain description of functional limitations
and physical and mental condition of AIP,
reasons why guardianship is sought, steps
taken to find less restrictive alternatives, name
and qualifications of proposed guardian.
Legal procedures, cont.
• Written notice must be served on AIP at
least 20 days before hearing date.
• Must also be explained to AIP “to the
maximum extent possible in language and
terms the individual is most likely to
understand.”
• Service also required on relatives who
would be heirs.
Right to counsel
• AIP has the right to be represented at the
hearing (if he has an attorney).
• If not, AIP may request the appointment of
counsel and court shall appoint counsel “if the
court deems it appropriate”.
• Appointed counsel can be paid by county/state if
AIP cannot afford.
• Petitioner must notify court at least 7 days prior
to hearing if counsel has not been retained for
AIP.
• AIP has right to request independent evaluation.
Hearing
• AIP must be present at hearing unless:
– Physician or licensed psychologist testifies that
attendance would harm AIP’s physical or mental
condition or
– AIP absent from the Commonwealth.
• Burden is on petitioner to prove incapacity
• Petitioner must present testimony from
individuals qualified to evaluate the type of
incapacity alleged (usually psychiatrist or
licensed psychologist).
Effect of guardianship
• Person adjudicated totally incapacitated
loses most rights, including ability to:
– Enter into a contract
– Make gifts
– Accept/reject medical treatment
– Decide where to live
– Manage financial affairs
POA vs. Guardianship
• POA appropriate (and guardianship is not) if
individual has capacity.
– POA does not involve loss of rights, autonomy.
– Allows individual to exercise control by planning in
advance, and avoids expense and burdensomeness
of court involvement.
• Guardianship is necessary if individual lacks
capacity (and needs a decision-maker).
– Note that many medical decisions can be made by
relatives under Act 169 and that simple finances can
often be handled via joint bank accounts and SSA
representative payee status.
Post-adjudication duties of
guardian
• Guardian has the duty to assert the rights
and best interests of incapacitated person
(IP).
• PA law not specific, but should include:
– See if IP has outstanding health needs and
address
– Evaluate living arrangements for
appropriateness and safety
– Determine existence of funeral/burial
arrangements and make them if none exist.
Duties of guardian (cont.)
• Gather info on and gather/protect assets, gather
info on debts.
• Obtain all benefits to which IP is entitled (MA,
Medicare, SS, SSI, VA, etc.) and become rep
payee if appropriate.
• Set up separate bank account for IP.
• Set up written record keeping system to track all
assets, income, expenses and other financial
affairs of IP.
– No commingling IP’s assets with guardian’s.
Duties of guardian, cont.
• File annual report with Court (and final report upon IP’s
death).
– Each county has form.
– Includes current principal, income, expenditures, needs of IP,
housing arrangement, number and length of visits to IP,
guardian’s opinion whether guardianship should continue.
– Are reports reviewed?
• Visit Incapacitated Person – state law doesn’t say how
often. Best practice would be monthly or at least
quarterly.
– Care planning conferences in nursing facilities.
Legal options if IP appears to have
capacity
• Guardianships not normally reviewed
without request (although court may set
date for review hearing in its order
establishing the guardianship).
• Can’t revoke a guardianship like a POA.
Legal options, cont.
• Petition court for review: court shall conduct
review hearing promptly if IP, guardian or any
interested party petitions the court for a hearing
for reason of:
– significant change in capacity,
– significant change in need for guardianship services,
– or the guardian’s failure to perform his duties in
accordance with the law or to act in the best interest
of the IP.
– Burden is on the person advocating to continue the
guardianship.
– Can request independent evaluation.
Legal Help
•
•
•
•
Each AAA required to fund OAA-funded
legal services.
PLAN legal services programs:
www.palegalaid.net
Local bar association for referrals to
private attorneys
Request that court appoint counsel
Contact information
• Pamela Walz, Esq.
Co-Director, Aging and Disabilities Unit
Community Legal Services, Inc.
3638 N. Broad Street.
Philadelphia, PA 19140
pwalz@clsphila.org