In Pennsylvania, beginning at the age of 18 years old, a person has the legal right to make decisions on their own behalf. A guardianship/conservatorship is a tool that is intended to help and protect an individual's financial and medical well-being when they are unable to make those decisions due to incapacity.
A guardian is appointed to help make personal decisions on behalf of another person.
A conservator is appointed to make financial decisions on behalf of another person.
At all times, a guardian and conservator have the duty to act in the best interest of the person they have been appointed to protect.
What is included in a Guardianship/Conservatorship?
A guardian has power over an individual in that they have the permission from a court to make decisions on behalf of the partially incapacitated person about items like where to live, what medical decisions should be made, and what type of education should be sought.
A conservator has power over the estate of another person. If a conservator is appointed by a court, they will be granted the power to enter into contracts, oversee debts, invest and manage assets, and perform other financial duties on behalf of the partially incapacitated person.
Who Needs a Guardian/Conservator?
To be valid in Pennsylvania, a court may appoint a guardian/conservator for an individual who is deemed to be incapacitated. The law in Pennsylvania considers a person to be incapacitated according to 20 Pa. Cons. Stat. Ann. § 5501 when:
[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.
Therefore, a court may appoint a guardian to manage decisions pertaining to finance, health, or both when that specific individual is no longer able to do so due to impairment.
How is a Guardianship/Conservatorship Created?
For a guardian/conservator to be appointed, either a potential guardian/conservator or a person wishing to nominate another person to be guardian/conservator must file a petition request appointment with the court. The person seeking the appointment then becomes the “petitioner” and they will then be tasked with serving a copy of their petition upon the person to which they are trying to have a guardian/conservator appointed. That person, for the purposes of the court proceeding, is called the “respondent.”
The notification that is served upon the respondent is required to include language that simply explains that their personal rights may be lost during the upcoming court hearing and the reasons why the appointment of a guardian/conservator is being sought. The law in Pennsylvania also requires that the petition includes:
- the name, age, residence, and post-office address of the respondent
- the names and addresses of the respondent's spouse, parent(s), and presumptive adult heirs
- the name and address of the person or institution providing residential services to the respondent
- the names and addresses of other persons or entities that provide services to the respondent
- the name and address of the person or entity whom the petitioner asks to be appointed as the guardian
- an averment that the proposed guardian has no interest that is adverse to the respondent
- the qualifications of the proposed guardian
- the reasons why guardianship is sought
- a description of the functional limitations and physical and mental condition of the respondent
- the steps taken to find less restrictive alternatives to guardianship; and
- the specific areas of incapacity over which the petitioner requests that the guardian is assigned powers
The court will then hear the petitioner's case whereby the petitioner must prove by clear and convincing evidence that the respondent is incapacitated. To do so, the petitioner will likely provide the testimony of a trained individual who has the requisite skill set to judge a person's incapacities and the depth to which they impact decision-making abilities.
The court will consider the respondent's ability to make and communicate decisions and whether or not alternative and less severe forms of aid like the non-court ordered help of family and friends would be of better help to the respondent than the appointment of a guardian/conservator since such an appointment significantly restricts the respondent's individual rights.
However, if the petitioner is successful and the court elects to appoint a guardian/conservator on the respondent's behalf, the court will then determine the length of time that the guardianship/conservatorship should last.
How does a Guardianship/Conservatorship work in Pennsylvania?
In Pennsylvania, a court-appointed guardian will likely be given many powers on behalf of the incapacitated person. Those powers include; the ability to provide general care, maintenance, and custody; have the power to designate where the partially incapacitated person will live; assure that the appropriate training, education, medical and psychological services, and social and vocational opportunities are provided; help make certain that the partially incapacitated person is given the tools necessary to again achieve the ability to be self-reliant; and have the power to make decisions of approval or denial.
When a guardian is appointed, it is usually meant to be permanent. However, if the guardian wants to resign at any point, a court may appoint a new guardian. A court may also end the guardianship/conservatorship if the person for which the guardianship/conservatorship was enacted is able to show that they are no longer incapacitated.
If you or a loved one are considering creating a guardianship/conservatorship, contact attorney Joseph D. Lento today.