What Guardianship in Pennsylvania Means To You and Your Loved Ones

When an individual reaches the age of 18, regardless of any functional limitations or disabilities, he or she has the legal right to make decisions on his or her own behalf. However, when the individual is incapacitated and the decisions they make, or may make, are not in their best interests, an interested party may file a petition for guardianship, requesting that the Court appoint a guardian to make decisions for that person.

Although family members are often appointed as guardians for their loved ones, they are not the only persons who may be appointed. Frequently, family members are unwilling or unable to serve as guardians due to a variety of factors, including their own health, distance from the loved one, or other family responsibilities. Alternatives to family members serving as guardians should be discussed with your Family Law attorney.

The Commonwealth of Pennsylvania defines the following as an incapacitated individual for whom guardianship may be requested:

[A]n 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.

20 Pa.C.S. § 5501

The Commonwealth of Pennsylvania defines the following persons/entities as eligible for appointment:

Any qualified individual, corporate fiduciary, non-profit corporation, or county agency may serve as guardian.

20 Pa.C.S. §5511(f)

If the person requesting guardianship for a loved one is not seeking his own appointment, and has no one to nominate for the appointment, the Court will appoint a guardian from a list of pre-qualified individuals. This appointee may be an attorney experienced in this area of the law, or an agency whose competence and integrity are known to the Court.

In some circumstances, the Court will give preference to the person requesting that a guardian be appointed, or to someone he recommends. However, this is not always the case. For example, the petitioner will not be appointed if it is found that there has, in the past, been a hostile relationship between him and the incapacitated person, or if it is shown that the petitioner has taken financial advantage of the incapacitated person. In fact, the Court requires the petitioner to give notice of the guardianship hearing to all interested persons in order that any such person may attend the hearing and give testimony regarding the suitability of the person to be appointed guardian.

Because the appointment of a guardian involves the denial of basic human rights, the Court looks very closely at all evidence presented by the petitioner prior to rendering a decision. The petitioner must prove by “clear and convincing evidence” – the highest burden in civil matter – that the alleged incapacitated person is in need of guardian. Further, the alleged incapacitated person has the absolute right to be represented by legal counsel. If he cannot afford an attorney, the Court will appoint one for him.

20 Pa.C.S. § 5511(a)

Once a guardianship is in place, the guardian must report to the Court annually to advise of the welfare of the incapacitated person. These reports are filed with the Court and are available to all interested individuals. If an interested person has concerns regarding the guardian’s treatment of the incapacitated person, he may file a petition with the Court to have that guardian removed and another appointed.

The Court is the ultimate protector of the incapacitated person, and looks closely at any and all concerns that an interested party may have. At a hearing to examine the actions of a guardian, the Court will examine all the information presented to it and will determine what is in the best interest of the incapacitated person. The guardian in question may be admonished and, in some cases, replaced.

The attorneys at Knight & Moskow, P.C. have extensive experience in this area of the law. If you have a loved one who can no longer make good decisions for themselves, we will assist you in making these hard decisions. Call us at (610) 565-8210 or e-mail us at inquiries@knightandmoskow.com and schedule an appointment.

What Are The Differences Between Open and Closed Adoptions In Pennsylvania?

Under Pennsylvania’s law on adoption, the adoption process cannot begin until the rights of the natural or birth parents have been terminated, either by the consent of the parent, or involuntarily. Therefore, a petition for the termination of parental rights is the first step in any adoption. In most adoptions, the biological mother has sought to have her child adopted, so the termination of her rights is usually voluntary. The biological father’s rights are often terminated involuntarily, or without his knowledge when his identity or whereabouts are unknown. The Court will involuntarily terminate a parent’s rights if it is shown that the parent has, “… evidenced a settled purpose of relinquishing parental claim to the child and has… refused and failed to perform any parental duties for the child. 23 Pa.C.S. ‘ 2511(a)(1).

The biological parents’ consent to the adoption must be in writing and must be dated at least 72 hours after the child’s birth. According to Pennsylvania laws on adoptions, such consents become irrevocable thirty days after signing.

Once the rights of the biological parents have been terminated, the adoption process may begin. The adopting parents must obtain federal (FBI) and state (PA State Police) clearances, and must also be cleared from the Child Abuse Registry. In addition, they must submit to a home study conducted by a licensed agency, which will recommend to the Court that the adopting parents will be able to provide a healthy and happy home for the child.

There are two types of adoptions: open adoptions and closed adoptions. The most common of the two is a “closed” adoption, where all adoption records are sealed by the Court and, thereby, unavailable to public scrutiny. Once sealed, the records can only be by Court Order. Although, certain non-identifying information, such as the medical history of the biological family, must be made available to the adoptive parents at the time of the adoption, names and contact information of birth parents, adoptive parents and the child are typically not shared among the parties.

Once the adoptions are finalized, the birth parents have no right to contact the child and cannot obtain information about the child while he or she is growing up. The biological parent likewise has no obligation to support the child.

The adopted child is issued a new birth certificate that names the adoptive parents as the child’s parents. The child’s name and birthplace are typically changed to reflect the surname and location of the adoptive parents.

Open adoptions, although less common, are available in Pennsylvania. In an open adoption the adopting parent(s) and the birth parent(s) agree to share certain information about the child (pictures most typically), usually on an annual basis. An open adoption is sometimes in the best interests of the child, especially where he is old enough to know his birth parents. Until recently, such arrangements have been informal. However, the Pennsylvania adoption laws now provide for a written agreement between the birth and adopting parents which is enforceable by the Court. The adopting parents are now required by law to inform the adopting parents of that such an agreement is now available, and such notice must be given prior to the termination of their parental rights.

The open adoption agreement might include the birth parent a right to contact the child or birth parents periodically, as well as the disclosure of information, such as:

• Sharing of first names
• Sharing of first names, last names and contact information
• Sharing of letters, e-mails and phone calls
• Sharing of information about the child between the adoptive parents and the birth parents

Much like in a custody agreement, the agreement may also include a schedule of visits with the child, either annually or upon certain life events, such as birthdays or graduations.

Whether the adoption itself is “open” or “closed”, the adopting parents and the adopted child have the same rights and obligations toward each other as if they were biologically related. They can inherit from one another, they have a duty of financial support and, should an illness befall the child, the parents are legally obligated to care for them. There is no provision in Pennsylvania law to unadopt a child.

Adoption is a complicated procedure that requires the advice and assistance of an attorney well versed in the applicable law.

The attorneys at Knight & Moskow, P.C. have extensive experience in this area. If you are seeking to expand your family through adoption, or is a pregnant woman looking for a good home for your expected child, call us at (610) 565-8210, or e-mail us at inquiries@knightandmoskow.com to schedule an appointment.