What is a Guardianship?
A guardianship is a legal process where a court appoints a guardian to make decisions on behalf of an individual who is found to be incapacitated. Incapacity, whether temporary or permanent, may be due to disability, age and cognitive decline, brain injuries, or severe mental health issues. Guardianship allows a guardian to make decisions that are in the best interests of the incapacitated person. These decisions may include, but are not limited to:
- Health care, including medical treatment and procedure consent
- Managing finances and assets
- Housing arrangements
- Special needs services
- Daily life decisions
For a guardian to be appointed, the court must first determine that the alleged incapacitated person (the individual the guardian will be responsible for) does not have the capacity to make major and daily life decisions for themselves. Clear and convincing evidence of incapacity must be presented to the court. This should include evidence that the person is totally or partially impaired when it comes to receiving/evaluating information effectively, communicating a decision, managing health care, providing for physical safety, and managing their finances, among other things.i Second, if the court finds that the person is indeed incapacitated, the court must then determine if guardianship is the least restrictive alternative to ensure the person’s personal and financial needs are met and taken care of.
How do I qualify to be a guardian?
A guardian can be any qualified adult, non-profit organization, or county agency. ii However, in many instances involving a young adult with disabilities, it is a family member that petitions the court to become the guardian of their disabled and incapacitated family member. In these instances, a guardian is typically a parent or sibling. The court seeks to appoint guardians who have the incapacitated person’s best interest as a priority.
When should I initiate guardianship for my disabled child?
Depending on the court and circumstances, guardianship processes can take just a few months or longer. To avoid a gap in decision-making rights, starting the process before your child turns 18 is strongly recommended. This helps to ensure that your child will have the full support needed for their adulthood secured on or shortly after their 18th birthday.
Is the process to become a guardian extensive?
Becoming a guardian is paperwork intensive as you are asking a court to grant you the authority to make every day and major life decisions on behalf of another adult. It requires a detailed petition to be filed with the court that provides evidence to support the allegation that the person is incapacitated. It also requires criminal record checks for the proposed guardian(s), among other things. A guardianship attorney can help walk you through the checklist of items required by the law and the court to petition for guardianship.
After the petition is properly completed and filed with the court, counsel may be appointed for the alleged incapacitated person. The court will schedule a hearing to determine (1) if the person is incapacitated and (2) whether guardianship is necessary to ensure the safety and well-being of the incapacitated person.
In the hearing, evidence, including oral testimony, is presented to the court. If the hearing is successful and guardianship is awarded, the guardians will be tasked with making decisions for the incapacitated person and for filing annual reports with the court.
Frequently Asked Questions
What are the types of guardianships available in Pennsylvania?
In PA, guardians can be appointed as Guardians of the Person, Guardians of the Estate, or both. Guardianship of the person allows guardians to make personal decisions for someone. This includes health care decisions, medication, living arrangements, services, and daily needs, among other things. Guardianship of the estate allows guardians to make financial decisions including property and asset management.
What does plenary guardianship mean?
Plenary means “full” or total guardianship. This is in contrast to limited guardianship where the court may restrict or limit the guardian’s powers.
Is there anything I cannot do as a guardian?
Yes, there are specific exceptions and restrictions in the law that affect the powers and duties of a guardian. For instance, there are some powers and duties that the guardian must seek court approval for and there are other powers and duties that the court cannot grant to the guardian.
To be fully prepared to seek guardianship over a loved one, it is highly recommended that petitioners obtain counsel. Here at Cherkas Metcalfe Law, we specialize in guardianship petitions filed on behalf of parents seeking guardianship over their children who are young adults with disabilities. To speak further about becoming a guardian please contact our firm at 484.873.8010 or complete a contact form through our website.
The materials on this website are provided for informational purposes only and are not intended to be exhaustive or comprehensive discussions of the topics addressed. They are not meant to cover every legal issue or be a substitute for personalized legal advice. Laws and regulations change frequently, and how they apply to your situation may differ. Cherkas Metcalfe Law makes no guarantees about the completeness, accuracy, or timeliness of this information. The information within this article is not, nor is it intended to be, legal advice. Please consult an attorney for advice regarding your personal situation. To get advice about your particular circumstances, please contact Cherkas Metcalfe Law, PLLC directly. Viewing or using this information does not create an attorney-client relationship between you and Cherkas Metcalfe Law, PLLC.
i 20 P.a. C.S. § 5501
ii 20 P.a. C.S. § 5511(f)