In the early 1990s, Pennsylvania amended its guardianship law in several important ways. First, Parliament clarified that, at least in certain circumstances, persons with disabilities do not require the services of a full or “full” guardian. Pennsylvania`s guardianship law now states that if alternative approaches such as a valid power of attorney, trust documents, and family support are sufficient to protect the interests of the person with a disability, guardianship may not be required. Of course, for a power of attorney to be valid, the legally incapable person must have sufficient cognitive abilities at an early stage to obtain a power of attorney, since only a person who has at least a basic understanding of the rights and powers granted to another person under a power of attorney can validly sign such a document. The lawyer is also required to serve the application on the alleged disabled person and to review it with that person in the manner most likely to be understood by that person. The lawyer will submit to the court an affidavit of notification to the alleged disabled person and his or her next of kin and will inform the court of any circumstances that may require the appointment of a lawyer for the alleged disabled person. Therefore, in situations where a disabled child reaches the age of 18 or an aging family member is at an early stage of cognitive loss, it is important to discuss this issue with a competent lawyer as early as possible to determine whether a power of attorney can be enforced, rather than pursuing guardianship. the latter being much more complicated and involving litigation. Unlike guardianship proceedings, the execution of a power of attorney generally involves a relatively brief visit to a law firm by the person granting the power of attorney and the person who will act under the power of attorney (the “attorney”). As discussed below, guardianship proceedings in Pennsylvania involve several formal steps to protect the rights of the person with disabilities and require careful oversight by an attorney experienced in these areas. However, if a guardian is required, a Pennsylvania court may appoint a guardian of the person and/or estate for a person who resides in Pennsylvania and a guardian of the estate for a person who owns property in Pennsylvania if it decides after a hearing that the person is unable to work.

A person with a disability is a person who is unable to communicate their decisions in a way that allows them to manage their finances independently or meet the demands necessary for their physical health and well-being. Within ninety (90) days of the appointment of the guardian, the persons appointed to this position must submit to the court a report on the financial and personal situation of the person with a disability on the forms provided by the court. Guardians must also provide the court with an inventory of the disabled person`s property. Personal and financial reports on guardians must then be submitted to the court annually. Amendments to the Pennsylvania Guardianship Act of 1992 also introduced “limited guardianship” into the Commonwealth. In the context of limited guardianship, the court may grant certain powers to the guardian, such as: The power to make decisions regarding operations under general anesthesia or financial decisions over $1,000.00, as an alternative to the “plenum” or “full guardianship”, under which the guardian has full authority to make all personal decisions, medical and/or financial. In theory, limited guardianship is the preferred form of guardianship in Pennsylvania, but courts rarely exercise this power to issue limited guardianship orders, as interpreting and supervising this guardianship can sometimes be difficult for all parties. This reluctance to invoke limited guardianship may also result from additional judicial review under amendments to the Pennsylvania Guardianship Act of 1992, which require the guardian to report annually on the personal and financial affairs of the person with a disability.

Any person over the age of 18 is considered competent under the law, unless a judge declares the person “legally incompetent” and appoints a guardian to make decisions about their personal and/or financial affairs. It is a common misconception that when a person is mentally or physically disabled, the person`s next of kin (such as the parent of a child who turns 18 or the children of an older person with cognitive loss) “automatically” becomes that person`s “guardian”. On the contrary, the legal presumption that any person over the age of 18 has legal capacity can only be eliminated through formal guardianship proceedings. But it is also not true that anyone who is “unable to work,” that is, unable to make and communicate responsible decisions about their well-being, needs guardianship services. While the Orphans` Court is always available, it should be noted that, in many, many cases, the preparation of appropriate estate planning documents before the person with a disability becomes truly incapable can allow caregivers to exercise most of the necessary powers without having to appoint a guardian. These documents include continuing powers of attorney, expanded health care guidelines and living wills. Hopefully, proper planning will render the application for guardianship to the Orphans` Court unnecessary, thereby eliminating the time, costs and risks of aggravation associated with such a procedure. The majority of courts in Pennsylvania require such a statement to be very detailed.

After the application for guardianship is filed, the court issues a preliminary judgment setting a hearing date and ordering the applicant`s lawyer to inform all family members. At the hearing, the court will determine whether the person is unable to work and, if so, whether or not a guardian is needed. If a guardian is needed, the court will decide who should serve and also whether guardianship will be limited or playing. Pennsylvania law does not allow guardians to have certain powers, such as: the power to admit the disabled person to a hospital psychiatric facility or to authorize the waiver of parental rights on behalf of the disabled person. The court hearing in uncontested guardianship proceedings is usually straightforward and involves only a brief statement before the court. Since most applications for guardianship are not contested and the medical-psychological statement on the need for guardianship is clear, judicial proceedings are generally neither cumbersome nor difficult. Since guardianship hearings are sometimes part of a longer list of cases before the court, participants in a guardianship hearing should plan to spend one to three hours at the courthouse on the day of the hearing, although in many cases the stay is much shorter. However, despite prior preparation, it is still possible that an existing power of attorney or other advance directive may be poorly worded or that some authority to assist the person unable to work may not be clearly authorized.