There are few areas of the law that impact as many people as guardianship— the process of appointing a representative for an incapacitated person. Despite this, it can still be an exercise in frustration: where do you start? When is the appropriate time to initiate proceedings? Why should you start this process?
Guardianships arrive on attorneys’ desks by a few different avenues. They typically represent one of three different parties: the “alleged incapacitated person” or AIP, their family, or even the facility where the AIP is housed. When the attorney represents a facility— such as an assisted living facility, a nursing home, or a hospital—they likely represent the facility in a variety of similar proceedings. When they represent the AIP, it is typically because a local Orphans’ Court has appointed them to do so. Representing the family, however, can take many forms, and it is often here that people become confused and hesitant.
Who has the right to initiate a guardianship case? The majority of cases fall under one of two “umbrellas:” either a family member, like a parent, sibling, or child, initiates proceedings to protect the AIP’s health and financial well-being, or the facility where the AIP resides initiates proceedings to identify an appropriate guardian to communicate with and ensure the AIP’s position at the facility is secure. In each case, the initiating party has identified the need to protect the interests of an individual who may not be able to make informed decisions on their own.
Part of guardianship proceedings, of course, is determining whether an AIP really is incapacitated— whether their mental competency is so diminished that it is not possible for them to comprehend complex issues and make their own decisions with consideration of the full context and consequences of those issues. The court will evaluate this question through various methods, the most common of which is an evaluation of their mental capacity completed by an expert physician. Counsel may agree to use this expert report as the sole evidence of the AIP’s capacity, or they may employ additional methods, such as their own independent report, interviews with those around the AIP, and even personal testimony from the AIP. Should the court determine that the AIP is not, in fact, incapacitated, the guardianship action will typically be dismissed, and no guardian will be appointed. If, however, the court accepts that the AIP is sufficiently incapacitated, it will proceed with appointing an appropriate guardian.
Guardianship traditionally consists of two components: guardianship of the person and guardianship of the estate. A guardianship of the person appoints a guardian to make medical and health decisions for the AIP, as little as confirming a change in medication and as big as arranging end-of-life care. A guardianship of the estate appoints a guardian to make financial decisions on behalf of the AIP, protecting their assets and handling expenses that may arise using funds from the AIP’s accounts. These guardians may be different people, or the same person can fill both roles. Courts can get creative with these guardianships; the competency of the AIP may be such that a limited guardianship may be justified in one or both pieces, allowing the AIP to collaborate with the guardian on their decisions rather than being constrained to following the guardian’s choices. If an AIP has been shown to struggle with financial decisions but is still well-acquainted with their health history. In that case, the court may appoint a limited guardianship of the person but a plenary guardianship of the estate. It is a highly individualized field of law, one in which the personality and abilities of each party matter to the final decision.
If a court determines that a guardianship is necessary, who then becomes the guardian? Traditionally, when a family member initiates a guardianship proceeding, they also petition for their appointment as guardian. Pennsylvania does have barriers to guardianship, but they are easily satisfied: the family member will likely need to complete a criminal background check and a few courses on pertinent matters, as well as ensure they have a plan for the AIP’s care— whether that means living in an accessible home with the family member or being placed in a facility that suits their needs. If a family member cannot act as a guardian or is not considered an appropriate option. In that case, the court may also appoint a guardian service, an organization with employees specially trained to act as guardians for their clients. In any case, the court’s job is to appoint an appropriate guardian to protect the AIP’s rights.
So why pursue a guardianship? Families often initiate them because they can see that a family member’s condition necessitates or will soon necessitate that somebody else get involved to make decisions on their behalf. A guardianship ensures that the AIP’s health and security are safeguarded in the absence of previous instructions, such as a Power of Attorney document or advance directives. If you find that a loved one is in need of this kind of protection, contacting an attorney with expertise in these proceedings can help you protect their interests for years to come.
