If you are dealing with elderly people, it is important to understand the recently revised rules for guardianships in Pennsylvania. The reason for these major changes is due to growing concern about financial, physical, or emotional abuse of the elderly who are no longer able to speak for or protect themselves. Among other goals, the new rules are designed to increase oversight and accountability of the guardians.
Guardianships of elderly people typically result when a person does not have a financial or medical power of attorney, and is no longer able to manage healthcare or financial decisions. Even when an elderly person has a financial and/or health care power of attorney, there are times when a guardianship is still necessary.
For example, a person starts to give away money to strangers or based on solicitations, when that has not been that person’s pattern previously. Often, the person will not even remember doing it. Having a power of attorney does not take away that person’s right to deal with their own health care or finances; it merely names others who can assist that person. Thus, an elderly person’s designated power of attorney generally cannot prevent the elderly person from making unwise or unhealthy decisions. A guardianship is needed to accomplish that.
Only a judge can appoint a guardian. It is a decision they do not make lightly, because appointment of a guardian results in the incapacitated person essentially losing her/his right to act on her/his own behalf. There are two aspects of a person’s life for which guardianships can be granted. First, a guardianship of the person addresses general health and quality of life issues. Second, a guardianship of the estate addresses financial issues. A judge can appoint a guardian to address one or both of those areas, depending on the needs of the person.
There are two parts to a guardianship proceeding. The first part relates to whether the person can make appropriate decisions concerning health care and/or finances. This part requires medical evidence from a doctor. If the judge finds a person is unable to make such decisions, then that person is ordered to be incapacitated.
The second part relates to the judge appointing an appropriate guardian. The judge considers testimony or other evidence that the person seeking guardianship will provide appropriate healthcare and/or financial decisions in the best interests of the incapacitated person. Frequently, a close relative, such as a spouse or child, is the one seeking guardianship.
The new rules place greater requirements on the guardian. For example, a potential guardian must provide a criminal background check because a criminal history can affect that person’s ability to serve. Also, there is now an electronic reporting system which allows guardians to file required annual financial reports. The new state-wide monitoring program is meant to provide more thorough screening of annual reports and trigger appropriate follow-up action if needed.
Given the increased requirements, responsibilities, and oversight of guardians, it may no longer be the case that a spouse or child will automatically be appointed. It is now more important than ever for clients and attorneys to screen potential guardians and determine whether that person could serve under the new rules.
This article addresses a few changes to the guardianship laws and procedures in Pennsylvania. There have been many changes, all of which are intended to provide better protection for those who are unable to care for themselves or their finances. Please seek professional legal advice for further information which may relate to your specific circumstances. Do discover more about this and other estate planning and/or asset protection planning topics join us for one of our upcoming workshops. Just click here.