A guardianship is established when a person, who becomes the ward, is deemed incapacitated and, thus, unable to make and communicate informed decisions. Viewed as a restrictive arrangement that impedes the ward’s fundamental rights, guardianship is often seen as a last resort and courts will explore other options prior to the establishment of guardianship. Here, we will talk a bit more about guardianship, how it is established, and how it can be avoided.
What is Guardianship?
In a guardianship, a person must first be deemed incapacitated by a court. Once declared to be incapacitated, the person, known as the “ward,” has a guardian appointed who will be responsible for making decisions on his or her behalf. The nature of these decisions can range from those involving finances, to those medical in nature and personal in nature. The decision-making authority of the guardian will be detailed in the guardianship order and based on the capacity of the ward to make some decisions versus other decisions.
In Pennsylvania, a person is considered incapacitated when his or her ability to receive and process information is impaired to the point that he or she is unable to manage financial resources or effectively manage physical health and safety in whole or in part. The person alleged to be incapacitated must be given written notice of any guardianship action. The notice must inform the person of his or her right to be represented by legal counsel as well as the right to be present at the hearing. A hearing must be held and supporting evidence presented prior to the court issuing any sort of determination regarding incapacity.
If a person is determined to be incapacitated, then the court can appoint any qualified individual(s) to serve as guardian(s). In some cases, a family member may serve as a guardian. In other cases, an attorney, fiduciary, or some other professional guardian may be appointed. The guardian is obligated to provide an annual accounting to the court.
A guardianship is a restrictive arrangement that essentially removes the right of the incapacitated individual to make major life decisions. The forfeiting of the fundamental right to self-determination is not taken lightly and Pennsylvania law even provides an explicit preference for using a power of attorney as opposed to a guardianship whenever appropriate. A power of attorney, however, can only be established when the principal is competent to do so. That is why it is encouraged that, as part of the estate planning process, people include a durable power of attorney. In the event that the person later is deemed incapacitated, the designated agent under the durable power of attorney can step in to manage many of the decisions that would otherwise necessitate the establishment of a guardianship.
Pittsburgh Estate Planning Attorneys
Whether you need assistance with guardianship proceedings or want to put a durable power of attorney in place to avoid the need for guardianship in the future, the team of knowledgeable estate planning attorneys at Jones, Gregg, Creehan & Gerace is here for you. Contact us today.