What is Guardianship?

Is a legal process to declare an individual incapacitated and appoint a guardian of the person and/or a guardian of the estate to assist the incapacitated individual in making medical decisions and/or managing finances.

Who may be appointed a Guardian?

A guardian may be any qualified individual over the age of 18, corporate fiduciary, non-profit corporation, or county agency.  The court-appointed guardian must not have interests that conflict with those of the incapacitated person unless no alternative exists.  

Must the incapacitated person be present at the guardianship hearing?

The incapacitated person must be present at the guardianship hearing, unless (1) a physician or psychologist states under oath that the incapacitated person would be harmed by being present; or (2) it is not possible for the incapacitated person to be present at the hearing due to his absence from the Commonwealth.  

Does the incapacitated person have a right to independent counsel?

Yes.  An incapacitated person may hire or retain counsel to represent her in a guardianship proceeding.  Notice of legal representation by the incapacitated person must be provided to the Court seven (7) days before the guardianship hearing.  Residents of state psychiatric hospitals and state mental retardation facilities must have counsel appointed to represent them in guardianship proceedings.  

Does the incapacitated person have a right to an independent evaluation?

The incapacitated person may petition the Court for the appointment of an expert to perform an independent evaluation as to her capacity and one may be appointed for “cause”.  

What are the duties of a guardian of the estate?

The duties of a guardian of the estate are included in the final Court Order appointing the guardian.  However, the Pennsylvania guardianship statute includes a number of matters that may be handled by an appointed guardian of the estate, such as: inquiry, discovery and inventory of assets; safeguarding of assets; management of assets; payment of debts, obligations and expenses; and preparation of annual reports.  

What are the duties of a guardian of the person?

The duties of a guardian of the person are included in the final Court Order appointing the guardian.  However, the Pennsylvania guardianship statute provides for the following duties: (1) assertion of the rights and interests of the incapacitated person; (2) respect for the wishes and preferences of the incapacitated person to the greatest extent possible; (3) participation, where appropriate, in the development of a plan of supportive services to meet the person’s needs; and (4) encouragement of the incapacitated person to participate to the maximum extent of her abilities in all decisions that affect her, to act on her behalf when she is able to do so, and to develop or regain her capacity to manage her personal affairs to the maximum extent feasible.

What is a plenary guardian?

The Court may appoint a plenary guardian of the person and/or estate only when the Court concludes after hearing and review of evidence, that the person is totally incapacitated and in need of plenary guardianship services.

What is a limited guardian?

The Court will prefer to appoint a limited guardian if the person is partially incapacitated, but needs guardianship services. If the Court appoints a limited guardian, it must identify the powers of the guardian and those powers must be consistent with the Court’s finding of the person’s limitations.  The partially incapacitated person retains all legal rights other than those designated by the Court’s order as areas over which the limited guardian has authority.

Are there any restrictions on what the guardian of the person can do?

Yes.  Unless expressly included in the Court’s Order based upon specific findings, a guardian does not have the power to (1) consent on behalf of the incapacitated person to an abortion, sterilization, psychosurgery, electroconvulsive therapy, or removal of a healthy body organ; (2) prohibit the marriage or consent to the divorce of the incapacitated person; and (3) consent on behalf of the incapacitated person to the performance of any experimental biomedical or behavioral medical procedure or to the participation in any biomedical or behavioral medical experiment.