The Pennsylvania General Assembly recognizes that every individual has unique needs and differing abilities, and consequently has established a system which permits incapacitated persons to participate as fully as possible in all decisions which affect them, which assists these persons in meeting the essential requirements for their physical health and safety, protecting their rights, managing their financial resources and developing or regaining their abilities to the maximum extent possible and which accomplishes these objectives through the use of the least restrictive alternative. The legislature further recognizes that when guardianship services are necessary, it is important to facilitate the finding of suitable individuals or entities willing to serve as guardians ( 20 Pa. C.S.A. § 5502 ).
Who ia an “incapacitated person”?
An adult whose ability to receive and evaluate information effectively, and to communicate decisions in any way, is impaired to such a significant extent that he or she is partially or totally unable to manage financial resources or to meet essential requirements for his/her physical health and safety ( 20 Pa. C.S.A. § 5501 ).
What is the Proof Burden – Evidence Standard?
The Court requires a burden of proof for incapacity by “clear and convincing evidence” ( 20 Pa. C.S.A. § 5512.2 ).
What are the types of guardians?
a) Limited guardian of the person ( 20 Pa. C.S.A. § 5512.1 (b) ):
Where the person is partially incapacitated and in need of guardianship services for, inter alia, general care, maintenance and custody.
b) Plenary guardian of the person ( 20 Pa. C.S.A. § 5512.1 (c) ):
Where the person is totally incapacitated and in need of services for care, maintenance and custody.
c) Limited guardian of the estate ( 20 Pa. C.S.A. § 5512(d) ):
Where the person is partially incapacitated and in need of guardianship services for limited financial management.<
d) Plenary guardian of the estate ( 20 Pa. C.S.A. § 5512 (e) ):
Where the person is totally incapacitated and in need of complete and comprehensive fiscal management.
When time is of the essence, and lapse of time for petition, evaluation and hearing “will result in irreparable harm to the person or estate of the alleged incapacitated person,” an emergency guardian may be appointed either of the estate or of the person. An emergency guardian of the person may be in effect for only 72 hours and such order may be extended for no more than 20 days if the emergency continues after which a full guardianship proceeding must be initiated. An emergency order appointing an emergency guardian of the estate shall not exceed 30 days ( 20 Pa. C.S.A. § 5513 ).
Who may serve as guardian?
An individual or qualified corporate fiduciary, including non-profit corporation, a guardianship support agency ( 20 Pa. C.S.A. § 5551 ), a county agency, and a guardian office at a state facility ( see 20 Pa. C.S.A. § 5553 ).
Who may not serve as guardian?
Anyone providing residential services for a fee to the incapacitated person or anyone whose interests conflict with those of the incapacitated person unless there is no other alternative ( see 20 Pa. C.S.A. § 5511 (f) ).
Findings needed for limited guardian of the person ( 20 Pa. C.S.A. § 5512.1 and § 5512.2 (b) ).
The court shall enter an order appointing a limited guardian of the person and specify the powers for that guardian, which may include:
General care, maintenance, and custody of the incapacitated person.
Designating the place for the incapacitated person to live.
Assuring that they receive training, education, medical or psychological services as well as social and vocational opportunities to assist the incapacitated person in development of maximum self-reliance and independence.
Findings needed for limited guardian of the estate ( 20 Pa. C.S.A. § 5512.1 and § 5512.2 (b) ).
Court shall enter order with specific powers consistent with the court’s findings of the incapacitated person’s limitations specifying the portion of assets or income over which the guardian of the estate is assigned powers and duties.
Fiduciary duty of guardians:
Guardian of the person The fiduciary duty to assert the rights and best interests of the incapacitated person. The “expressed wishes and preferences of the incapacitated person shall be respected to the greatest possible extent.” “The guardian shall also encourage the incapacitated person to participate to the maximum extent of his abilities in all decisions.” ( 20 Pa. C.S.A. § 5521 (a) ) see 20 Pa. C.S.A. § 5521 (f) ).
Guardian of the estate
The fiduciary responsibility of fiscal management of income and assets specified by the order of Appointment. The powers are similar to those of personal representatives of decedents’ estates and guardians of minors ( 20 Pa. C.S.A. § 5521 (b&$41 ).
Relevant Case Law
Smith v. Smith 40 D&C 3d 635 ( 1986 ). A mental problem, for purposes of guardianship proceedings, amounts to a “mental illness” or “incapacity” where is makes the individual unable to protect himself/herself or his/her estate from designing persons or from dissipating assets, thus justifying the appointment of a guardian.In re: Patricia Anne Peery ____A2d____(Pa. 1999) see 1999 Pa. LEXIS 860. A guardian is appointed only upon a finding that the person is partially incapacitated and in need of guardianship services, or upon a finding that the person is totally incapacitated and in need of plenary guardianship services. Appointment of a guardian must follow dual findings of incapacity and a need for guardianship services. Consequently, whether or not an individual is incapacitated is immaterial, where it is found upon competent evidence that the individual is not in need of guardianship services.