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 firstname.lastname@example.org and schedule an appointment.