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Sometimes people are unable to make decisions about their health or finances and can no longer manage for themselves. Dementia or other progressive mental, emotional or physical illnesses can rob people of the ability to keep themselves safe. In the worst cases, individuals can become victims of others who see opportunities to take cash and possessions while “helping” or doing favors. The impaired person may even be pressed to make important decisions about medical care or living arrangements. To provide a decision-maker for people in these situations, Pennsylvania law allows the Orphans’ Court to appoint a guardian of the person (for personal and health matters) and/ or a guardian of the estate (for financial matters). Anyone interested in the person’s welfare can file the petition seeking a guardian.

To qualify for a guardian, a person must be found impaired in such a way that they are partially or totally unable to manage financial resources or meet essential requirements for physical health and safety. Because a ruling of “incapacity” and appointment of a guardian involves the curtailing of many important legal rights, stringent standards must be met. Notice must be given to the alleged incapacitated person and there is a right to request counsel.

Hearing Before the Court

The incapacitated person is required to attend a hearing before the Montgomery County Orphans’ Court unless doing so would harm the individual. An attorney for the incapacitated person is not required unless ordered by the court, as may be in cases of family conflict. When testimony by qualified persons such as a psychiatrist or other health care provider establishes clear and convincing evidence that the person is incapacitated, a guardian may be appointed. But just because an individual has periods of confusion does not mean that the person will be found incapacitated under the law.

If incapacity is established, the court will appoint a guardian of the estate and/or person with full or limited powers. It is the duty of the guardian to assert the rights and best interests of the incapacitated person to the greatest possible extent. The guardian must also encourage the incapacitated person to participate in all decisions which affect them to the maximum extent of their abilities. However, the guardian does not have to follow the wishes of that person if they are in conflict with their best interests. For example, many times an incapacitated person wants to continue to live in their home; if the guardian determines that assisted living or skilled nursing care is necessary, the guardian is fully authorized to admit the person to a facility, even over that person’s objections.

The appointed guardian has all powers set forth in the court order, usually including making every kind of decision with the exception of admitting the incapacitated person to inpatient psychiatric facilities or consenting to relinquishment of parental rights. Court approval is needed for consent to abortion, sterilization, sychosurgery, shock therapy, removal of a healthy organ, or to prohibit marriage, consent to divorce or to consent to experimental procedures.

Typical decisions made by guardians of the person include arranging medical care and consenting to surgery or other treatments, determining where an incapacitated person is to live and contracting for admission to nursing facilities. A guardian for the estate has the same duties as a personal representative, executor or administrator with specific requirements and limitations. Every guardian must file a detailed annual report with the Orphans’ Court.

Preparing a comprehensive power of attorney may make guardianship proceedings unnecessary and is less expensive and stressful than the court process. One may nominate a guardian in a power of attorney for the court’s consideration in the event of a guardianship proceeding in the future.