The Guardianship Appointment Process

Transcript

Alan Shuckrow: Hi. I’m Alan Shuckrow, an attorney in Pittsburgh, Pennsylvania. And I want to welcome you to this informational video about a topic that I have both personal and professional experience with, and that is the appointment of a legal guardian for someone who unfortunately is unable to make personal and financial decisions for themselves. I say I have personal experience with this because our daughter Abby is 19 and unfortunately she is severely disabled and has had seizures since she was born.

Alan Shuckrow: My wife and I have always cared for Abby, but when she turned 18, we had to approach the court to request that we be appointed her legal guardians. Now, we were pretty confident that the court was going to grant our request, but this was frightening. What would happen if the court didn’t agree? What would happen next? Fortunately for us, we had skilled colleagues at my law firm that helped us through this process.

Alan Shuckrow: This process can be complex, definitely unfamiliar and stressful. I and my law firm, Strassburger McKenna Gutnick and Gefsky, hope that by watching this informational video, you will learn more about the process. Now, with that introduction, I would like to turn it over to my colleagues, Jamie Drennen and Gerri Sperling.

Jamie Drennen: A guardianship is a court appointment empowering one individual to make decisions on behalf of another incapacitated person to be incapacitated means that an individual lacks the ability to independently receive, evaluate and communicate information regarding their personal health and safety or their finances. A court will determine whether an individual is incapacitated by looking to the opinions of experts such as physicians or psychologists.

Jamie Drennen: Guardianships are frequently required for any adult individual who is unable to make decisions or care for themselves. Frequently, an individual may have lived independently for their entire life, but due to recent diagnoses, can no longer care for themselves or make decisions for themselves. Because every individual has unique needs and abilities. A court will assess all of the facts presented as well as expert opinions to make their determination as to whether an individual is incapacitated and in need of a guardian.

Jamie Drennen: Families who care for a disabled child may need to pursue a guardianship when that child turns 18. When a child turns 18, Pennsylvania recognizes that ordinarily they’re no longer a minor and they would be able autonomously, make decisions for themselves. However, in some instances, when a child is disabled and aren’t able to, parents need to petition the court to reestablish the need for a guardianship and the need for the parent to be able to make decisions on behalf of their child.

Jamie Drennen: Pennsylvania has created laws under Title 28, Chapter 25, Decedent’s States of Fiduciary Code to protect individuals who are incapacitated. These laws allow for an incapacitated individual to participate to the fullest extent possible in decisions being made about their lives. Courts implement something called the least restrictive alternative, which means that guardianships should be used as only a last resort after other options have been pursued.

Jamie Drennen: An individual seeking to be named as a guardian will be required to submit Pennsylvania state criminal clearances that are reset within no more than six months. The court may also appoint as a guardian, a corporate, fiduciary or other entity. The court will not appoint an entity or individual where there is a conflict of interest. A guardian must assert the rights and best interests of an incapacitated individual and must allow them to participate in decisions being made about their lives to the fullest extent possible after a guardian is appointed.

Jamie Drennen: There are certain filing requirements that must be made with the court. Some of these filing requirements include an inventory as well as a list of the incapacitated person’s assets, their current health status, where they’re living, and how many times the guardian has visited the incapacitated individual. The guardian powers are very comprehensive. There are a few things that guardians cannot do, one of which is admit an incapacitated individual to an inpatient psychiatric facility.

Jamie Drennen: A guardian also cannot relinquish the parental rights of an incapacitated individual on their behalf. A guardianship may be challenged. Guardians themselves may be held criminally or civilly liable if they demonstrate gross negligence, intentional misconduct or recklessness. A court may appoint independent counsel to represent an incapacitated individual if that’s necessary. And whether independent counsel is appointed will vary by county.

Jamie Drennen: Guardianships should only be used as a last resort and not to further anyone else’s interests. Some alternatives to guardianships that can be used as a less restrictive alternative include powers of attorney trusts or the employment of an individual who can care for an incapacitated person on a daily basis. We will now hear from my colleague, Gerri Sperling, who will discuss the procedure for appointment of guardians in Pennsylvania.

Gerri Sperling: There are different types of guardianships. There’s a guardian of the person. In that case, the court gives an individual or organized nation authority to make personal decisions on behalf of another individual. For example, medical decisions and decisions about where they live. There are also guardians of the estate. A guardianship of the in state involves an individual who is appointed to make financial decisions on behalf of another individual. Paying their bills, leasing their apartment, buying and selling property, controlling their assets, that sort of thing.

Gerri Sperling: There are permanent guardians, temporary guardians, plenary or full guardians and temporary guardians. The most common type of guardianship is a plenary, a permanent plenary guardianship. In that case, the court gives an individual or an organization full and permanent authority to make decisions on behalf of another. There are also partial guardianships. An example of a partial guardianship I worked on is where an individual needed a guardian of the person to make medical decisions on their behalf, but they still had the capacity to decide where they lived and with whom they lived.

Gerri Sperling: A temporary guardianship is one where the guardianship may not be needed on a permanent basis. I had a situation where there was an individual with schizophrenia who went off of his medication and he became psychotic and couldn’t function. His sister came in and asked to be appointed temporary guardian of his person and a state court appointed her. And when he went back on his meds and was able to function well, the two of them went to court together to have the temporary guardianship removed.

Gerri Sperling: There are also emergency guardianships. These are pretty rare. But for example, the situation that I talked about with the man with schizophrenia, that started out as an emergency guardianship. The court will appoint an emergency guardianship where it’s clear that the person lacks capacity and will suffer irreparable harm if guardianship is not conferred on another person. In the case with the man with schizophrenia, the emergency guardianship was good for 72 hours.

Gerri Sperling: It could be extended and it was extended for 20 days for the personal guardianship, 30 for the guardianship of the estate. But we had to initiate temporary guardianship proceedings within that period of time, or the guardianship would have lapsed. There is a process in Pennsylvania that governs appointment of a guardian. It starts with filing a petition in the Orphans Court of the County where the alleged incapacitated person resides.

Gerri Sperling: After the petition is filed, the Orphans Court will schedule a hearing and issue a citation. That citation and the actual petition for guardianship has to be served on the alleged and capacitated person at least 20 days before the hearing. A court may appoint independent counsel to represent the alleged incapacitated person. Some counties do that automatically. Others really just look at the case in question and decide whether that makes sense.

Gerri Sperling: The alleged incapacitated person must attend the court hearing unless there is information presented from an expert who knows the alleged incapacitated person that it will be detrimental to their health or well-being to attend the hearing or the alleged incapacitated person is out of state and it is impossible for them to attend. However, in these days with video hearings, courts are more willing to permit people to attend via video and not requiring them in all cases to come in person.

Gerri Sperling: The judge will review the information presented and will make a determination whether the person is incapacitated. The judge will then decide what type of guardianship is required and whether the proposed guardians should be appointed guardian. The guardianship petition is really important. You need to include in your petition a lot of information regarding the alleged incapacitated person. Their name, address, date of birth.

Gerri Sperling: Their presumptive heirs. Their close family members who they reside with. And most importantly, information as to their incapacity. What is their diagnosis? What are the functional limitations imposed by this diagnosis? What services do they receive? Who is providing those those services? And are there any less restrictive alternatives to guardianship? The petition should also include the name and address and qualifications of the proposed guardian or guardians.

Gerri Sperling: There should also be a statement as to whether the proposed guardians have any interest that is adverse to the alleged incapacitated person. If a guardianship of the estate is part of what is being sought, the petition should list the assets of the alleged incapacitated person and their income. The guardianship petition should include as an exhibit, an expert report.

Gerri Sperling: The state now has standardized forms for submitting expert reports. The expert should be someone who knows the alleged incapacitated person and can explain what the nature of the incapacity is and the functional limitations. This expert report is frequently used in lieu of testimony at the hearing. When you file your petition in Allegheny County, you should also submit a Pennsylvanian Notification of Mental Health Commitment form, which we fondly refer to as the gun form.

Gerri Sperling: The purpose of this forum is to tell the state if the person is adjudicated incapacitated. It is to inform the state of the adjudication. And so that way the incapacitated person no longer has access to firearms. Additionally, you need to submit criminal clearances that are current for the proposed guardians. The petitioner should be prepared to testify as to why they presented this petition to the court.

Gerri Sperling: You may not need to present expert testimony. Allegheny County generally accepts the expert report. If you use the form that’s been approved by the state, so do most other counties. Although sometimes the court may want either telephonic or in-person testimony of the expert as well. The proposed guardians need to testify. They need to testify as to their qualifications to serve as guardian, their willingness to serve and the fact that they have no interest adverse to the alleged incapacitated person.

Gerri Sperling: The alleged incapacitated person may wish to testify if he or she is able to as well. I’ve had situations where adult children want to testify and want to tell the court that they want their parents to be able to continue to make decisions on their behalf. There are instances where alleged incapacitated individuals challenge the guardianship process. They have the opportunity to present their own expert evidence at the hearing, and the judge will then make a determination as to capacity.

Gerri Sperling: There are also situations where the incapacity is not a challenge, but who will be the guardian is the issue. I had a case a few years ago where there was no question that the adult child was severely disabled, but the parents were involved in an acrimonious divorce and both wanted to be appointed guardian. Ultimately, in that case, the court appointed an aunt and neither parent.

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