Sorting Through Pa.’s Guardianship System: An Option for Your Loved One
May 16, 2022
Reprinted with permission from the May 13, 2022 edition of The Legal Intelligencer © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
A situation may arise where someone is unable to make medical or financial decisions for himself or herself and has no legally designated decision-maker. Perhaps that person never appointed a power of attorney, never had the capacity to appoint a power of attorney, or has a power of attorney who is no longer appropriate or has acted improperly. Under such circumstances, pursuit of a guardian to oversee that person and his finances may be an appropriate and effective course of action. A guardian can be appointed by the court to make decisions for another.
The law allows “any person interested in the alleged incapacitated person’s welfare” to petition for guardianship. That petitioner bears the burden of proving the guardianship is necessary. The standard of proof for establishing a guardianship is “clear and convincing evidence,” which has been called the second highest standard of proof next to “beyond a reasonable doubt” used in criminal proceedings. Thus, before pursuing guardianship, one should make sure they are able to show the following by clear and convincing evidence: incapacity; need for guardianship; and that there are not available, adequate, less restrictive alternatives to the guardianship. The petitioner should also consider who is the best person or persons to serve as guardian.
Preparing, Pleading and Filing the Petition
When filing a petition in the Pennsylvania Orphans’ Court, it is important to pay close attention to the Orphans’ Court rules and the guardianship statute, discussed above. The Orphans’ Court has a particular set of rules that, if not strictly followed, can result in the court rejecting a petition or a delay in hearing the petition. In addition, each county in Pennsylvania has their own set of local rules that must be followed. This section gives a brief overview of the Pennsylvania Orphans’ Court rules requirements for a guardianship petition.
First, all guardianship cases are filed “under seal.” This means that the documents are not of public record and that personal information contained in the guardianship petition is protected from disclosure. The petition must describe all facts that show why guardianship is appropriate, all other facts discussed in the first section of this article and identify the proposed guardian. The petition must also provide other specific information, for example, names and addresses of the petitioner, the alleged incapacitated person, and any heirs of the alleged incapacitated person. The rules provide fourteen points of what must be included, so it is important to pay close attention to each requirement.
The petition must also include specific information about the proposed guardian. This includes things like the relationship of the guardian to the incapacitated person, whether the guardian has any training as a guardian, and whether the guardian is a guardian over any other person.
The petition must also have any important documents related to the incapacitated person attached to it. Some documents that should be included are any documents that support the facts described in the petition and a criminal background check of the proposed guardian. The background check of the guardian must have been completed within the six months before the filing of the petition for guardianship. The guardian should also sign a guardian consent form and attach it to the petition.
A petition for guardianship must include a “citation with notice” (citation), which is provided in Orphan’s Court Rule 14.2, a preliminary decree, and a proposed order for the judge to sign, granting the guardianship. The citation provides the alleged incapacitated person with notice, in plain language, that someone has filed a petition for guardianship over them. The citation will include the date, time, and place of the hearing on the petition for guardianship, which is discussed in more detail in the next section.
Finally, a petition for guardianship, as with all petitions filed with a Pennsylvania court, must also include a signature page, or “verification,” from an individual who has personal knowledge of the facts that are described in the petition. This verification states that all the facts in the petition are true, subject to the penalties of perjury in Pennsylvania. It is important that the person who signs the verification carefully reviews the facts described in the petition before signing the verification. This section is only a high-level overview of the requirements of a petition for guardianship. If you have further questions about the Pennsylvania Orphans’ Court rules or how to file a guardianship petition, you should contact an attorney.
What to Expect After Filing the Petition for Guardianship
After filing the petition for guardianship, the case will be assigned to a specific judge who will review the petition and schedule it for a hearing. That hearing must be scheduled at least 20 days out, because the law requires that the alleged incapacitated person, his sui juris heirs, and the person or institution providing residential services to the alleged incapacitated person be given at least twenty days’ notice of the hearing. Any interested party is entitled to respond to the petition for guardianship or appear at the hearing to state their objections on the record.
The law requires the alleged incapacitated person to be present at the hearing unless the court is satisfied, upon the deposition or testimony of or sworn statement by a physician or licensed psychologist, that the person’s physical or mental condition would be harmed by his presence; or it is impossible for him to be present because of his absence from the commonwealth. The court can also consider permitting the alleged incapacitated person to participate in the hearing by video.
It is within the court’s discretion to appoint an attorney to represent the alleged incapacitated person at the hearing. If the alleged incapacitated person is unable to pay for counsel, then the court may order counsel fees and costs to be paid by the county.
While a hearing on a petition for guardianship is not bifurcated (meaning split into two separate stages), as a preliminary matter petitioner must show by clear and convincing evidence that the alleged incapacitated person is totally incapacitated for a plenary guardianship to be considered. A totally incapacitated person is “an 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.” Total incapacity must be established at the hearing by a “person qualified by training and experience in evaluating individuals with incapacities of the type alleged by the petitioner.”.
Once incapacity is established, petitioner must show that a guardianship is needed, and that there is no available, adequate, less restrictive alternative. A judge must consider the availability of friends, family, and other supports that can assist an individual without the need for a guardian. Only after the court makes those findings will it consider whom to appoint as guardian of the person and estate. The courts will first consider those previously nominated by the alleged incapacitated person, family members, and friends, before appointing a professional guardianship agency, so long as such persons are available and suitable to serve.
Duties, Powers and Reporting Requirements of the Guardian
After being appointed as guardian, the guardian has certain powers vis-à-vis the incapacitated person, corresponding limitations on those powers, and various duties and obligations. It is important to note that the guardian’s powers have limitations. For example, a guardian of a person’s estate may discharge the incapacitated person’s estate only for reasons necessary to the incapacitated person. See In re Damario’s Estate, 412 A.2d 842, 845 (Pa. 1980). The guardian is prohibited from disposing of principal from the incapacitated person’s estate without a court order. As a result, a guardian’s sale of a person’s real property requires specific court approval.
The guardian’s duties are primarily set forth in the relevant portion of Pennsylvania’s statutory framework that governs decedents, estates, and fiduciaries. In general, the guardian’s ultimate duty is to act in furtherance of the best interests of the incapacitated person where possible, and this duty has a statutory basis. Pennsylvania’s relevant statutory provision also explicitly provides that a guardian has an obligation to promote the autonomy of the person who is the subject of a guardianship.
One of a guardian’s primary responsibilities is complying with the reporting requirements pertaining to Pennsylvania’s guardianship tracking system (GTS), which is available online through the website for the Unified Judicial System of Pennsylvania. Specifically, 20 Pa. C.S. Section 5521(c) sets forth annual reporting requirements, with specific requirements depending on whether a given guardianship pertains to the person or the estate. The guardian of the estate must also file a complete inventory within ninety days of being appointed. Delinquency in complying with the applicable reporting requirements is ultimately reported to the court and may result in action taken against the guardian involved. This is not an exhaustive list of guardian reporting requirements and if you have questions or need assistance serving as a guardian you should contact an attorney.
Petitioning for guardianship of your loved one or serving in a guardianship role can have many challenges. If assistance is needed in navigating the legal facets of Pennsylvania’s guardianship law or making critical guardianship decisions, an attorney can assist. Another great resource is “The Guardianship Bench Book” published by the Pennsylvania Supreme Court.
—Salvatore Sciacca, an associate in the firm’s litigation practice group, contributed to the preparation of the article.
Courtney Wentzel, Lauren Anthony and Casey Hunt are associates in McNees Wallace & Nurick’s litigation practice group.