Estate planning in Pennsylvania is much more than figuring out the distribution of assets to beneficiaries; it can be a means to protect yourself and your children when you can no longer do so. One way you can protect yourself or any children is by creating a comprehensive estate plan that can help you avoid the need for a Guardianship.
At L. Theodore Hoppe, Jr., Esquire - Attorney at Law, we will work with you and will ask the right questions so that a comprehensive estate plan can be created. Contact us online or at 610-497-3579 for a free 30-minute consultation to learn more about estate planning generally and Guardianships specifically.
What Constitutes a Guardianship in Pennsylvania?
Guardianship is a process a court uses to grant someone (the Guardian) legal authority to make decisions on behalf of another person regarding finances and personal care. A guardian may be necessary when a person is incapacitated. An 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.
In re Estate of Walterman, 116 A.3d 704 (Pa. Super. 2014)
There are two types of guardianship –
- Guardian of the person – The guardian of the person is responsible for taking care of the incapacitated person's physical needs
- Guardian of the Estate – The guardian of the estate is responsible for taking care of the person's financial needs.
If one person is named the Guardian of the Person and the Estate, that is considered a plenary guardianship.
An order appointing a guardian has the effect of taking away the rights of the incapacitated person. As a result, the law requires that the least restrictive means be used to assist the incapacitated person. Therefore, the Court will want to ensure that there are no other options available to care for the incapacitated person other than guardianship. These might include:
- Family members who are already caring for the incapacitated person
- A Durable General Power of Attorney which authorizes someone to act as the Agent for the incapacitated person and make decisions about healthcare and finances
- Healthcare Power of Attorney
- Limited guardianship
To avoid a court-appointed Guardianship when or if you become ill or incapacitated in some way, you should ensure your estate plan includes things like a living will and a durable financial power of attorney. What type of document you have will depend on your life circumstances, so speaking with an estate planning attorney is essential.
The Role of Guardians in Pennsylvania
A guardian has the power to make important decisions on the incapacitated person's behalf. Some common duties they may be permitted to undertake include:
- Changing legal rights, generally
- Fixing the incapacitated person's residence or dwelling
- Accessing the incapacitated person's confidential records
- Consenting or withholding consent to marriage
- Entering into contracts on behalf of the incapacitated person
- Giving or withholding medical consent on behalf of the incapacitated person
- Selecting the incapacitated person's relationships
- Make decisions to educate the incapacitated person
Of course, not all of the above duties will apply to each individual case. In fact, the specific powers of a Guardian can be limited. Here is a link to a Manual that provides additional information concerning guardianships and the role of the guardian.
Appointments of Guardians in Pennsylvania
Guardians are appointed by a court. The process is started by filing a Petition with the Court asking for the appointment of a guardian. The filing must be served on the alleged incapacitated person, called the respondent, and must set forth why the respondent's condition results in the inability to make important decisions. A hearing will be held, and the judge will examine the evidence and make a decision.
Pros and Cons of Guardianships in Pennsylvania
To better understand the impact of Guardianships, it can be helpful to look at what the benefits and downsides are.
Possible Advantages of Guardianships
- Protection for vulnerable individuals: Guardianships can provide protection for individuals who are unable to manage their own affairs due to physical or mental incapacity, such as the elderly, disabled, or those with serious mental illnesses.
- Access to medical care: A Guardian can make medical decisions on behalf of the individual, ensuring that they receive proper medical care and treatment.
- Financial management: A Guardian can manage the individual's financial affairs, pay bills, and protect their assets from financial exploitation or mismanagement.
- Legal authority: A Guardian has the legal authority to make decisions on behalf of the individual, which can provide clarity and consistency in decision-making.
Possible Disadvantages of Guardianships
- Loss of autonomy: A Guardianship can result in the loss of independence and control over one's personal and financial affairs.
- High cost: Guardianships can be expensive, as legal fees and court costs can add up quickly.
- Stigma: Guardianships can carry a stigma of incompetence or incapacity, which can be stigmatizing for the individual.
- Potential for abuse: There is potential for abuse by the Guardian, who may take advantage of their position of power and control over the individual's affairs.
Guardianships can provide valuable protection and support for vulnerable individuals who cannot manage their own affairs. However, it is important to carefully weigh the pros and cons to determine whether you want to take steps via an estate plan to avoid a Guardianship. The potential for abuse is the most concerning part, and recent high-profile cases underscore how damaging and serious the abuse can be.
Can a Guardianship be Contested or Terminated in Pennsylvania?
A petition requesting the court to award a Guardianship over you or someone you love can be contested. When the petition is filed and served, you can respond, contesting it. Also, to prevent a specific person from being appointed as a Guardian, you can file competing petitions. The rules vary according to jurisdictions, so speaking with an attorney is the best way to avoid delays and errors in the process.
As for termination, Guardianships are typically made as a permanent arrangement. They are terminated upon the incapacitated person's death or recovery from the illness or injury that had incapacitated them.
There are times, too, when a court will remove a Guardian when cause is found (like abuse). That said, simply because the Guardian is removed does not remove the Guardianship. Another Guardian will be appointed unless the reason for the Guardianship no longer exists.
Alternatives to Guardianships
If you want to avoid a Guardianship situation, there are alternatives.
A living will, also called an advance directive, is a legal document that outlines what is to be done if you are incapacitated due to a disease, injury, or old age and can no longer communicate your wishes or manage your affairs.
A power of attorney (POA) is another option. A medical POA designates an agent to make health care decisions when you are temporarily or permanently unable to do so. A durable financial POA does the same but is indefinite, and the person granting the POA authority can revoke it.
Trusts are another option, especially revocable trusts or special needs trusts.
The best alternative to a Guardianship will depend on the person and the circumstances. Speaking to an attorney to discuss these things is an important way to identify and create a comprehensive estate plan.
Contact an Estate Planning Attorney to Understand Guardianships in Pennsylvania
Guardianships are serious and can result in the person losing control of some or all of their financial, medical, and personal matters. Speaking to an attorney to determine what makes sense in your unique situation is critical. At L. Theodore Hoppe, Jr., Esquire - Attorney at Law, our estate planning attorney will address your concerns and guide you through the process. Contact us online or at 610-497-3579 to schedule a free 30-minute consultation.