One of the frequent requests that I receive is for help with obtaining a guardianship for a loved one. So, when might a person need a guardian? 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.
So how is a guardian appointed? The guardian is appointed by the Court after the filing of a Petition. The Court will hold a hearing where testimony is presented to establish that the person is incapacitated. This evidence must include testimony from a medical professional, usually a treating doctor, who is familiar with the person.
As order appointing a guardian has the effect to 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 the guardianship. These might include:
- Family members who are already caring for the incapacitate 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
If you would like to discuss whether a guardianship might be appropriate for a loved one, please contact L. Theodore Hoppe, Jr., Esquire – Attorney at Law.