What is Guardianship and How Does it Work?

By Heidi Rai Stewart and Matthew J. Lautman

When an individual who is 18 years of age or older cannot represent himself, speak on his own behalf, give informed consent, formulate and apply judgment, or understand likely consequences of behavior, he probably needs a guardian.

The circumstances triggering this need could vary from an elderly individual suffering from dementia to a young person who sustained severe brain injuries in an auto accident. Generally, if the individual already has an advanced health care directive or durable power of attorney for finances and medical issues, there is already an agent – or responsible person or entity – selected to take care of the person’s needs.

However, while it is easy to assume by the time a person reaches a certain age, they will already have documents such as powers of attorney (POA) put in place, that may not be the case. Even if is in place, it is possible that the POA does not address all situations.

This real-life case provides a good example. An elderly doctor and his wife who had no children lived together in a condominium. The doctor became ill and was rushed to the hospital, and his wife was left home alone. No one was aware that the wife suffered from Alzheimer’s disease until a week after the doctor was hospitalized, when she was found acting bizarrely in the hallways of the building. She was then hospitalized, and during that period the doctor died.

Although they had POAs drawn up, the documents only named the other spouse and did not provide for any successors. No one was left to deal with the doctor’s funeral or the care of his widow. The wife’s cousin was eventually located and appointed to look after her personal and financial needs through a guardianship action.

In a case like this, or in others that may not have been as easily foreseen – such as a young person in an auto accident – guardianship actions are taken care of in the Orphan’s Court Division of the Court of Common Pleas.

One of the first things to be decided when bringing a guardianship action is how extensive the guardianship should be. Guardianships can be limited to just financial or just personal matters. They can be limited only to deal with litigation in a personal injury claim. If the opportunity exists to limit the guardianship without compromising the individual’s safety and well-being, then that is the least restrictive alternative, which is preferred by the Courts in Pennsylvania.

However, if the individual is compromised extensively due to disability, personal injury, or declining cognitive function, a broad guardianship of the person and the estate may be the best choice. The Pennsylvania statute defines an "incapacitated person" as being, "[A]n adult whose ability to receive and evaluate information effectively and communicate decisions is in any way impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety."

Anyone, including non-family members, may bring an action for guardianship. This person is referred to as the "petitioner." The action requires the filing of formal legal documents followed by a court hearing. A petition and written notice of the details of the hearing as well as other information must be served in person to the individual for whom guardianship is sought. This person is referred to as the "respondent." The respondent’s heirs, as well as any service providers or other interested parties must also receive notice of the hearing.

Medical testimony is required of a doctor under oath which may be done as part of the hearing, but more often is submitted to the court through a sworn deposition of the doctor. The respondent is required to attend the hearing unless a medical doctor or psychologist states under oath that the respondent would be harmed by his attendance or that the respondent cannot be present because he is out of the Commonwealth. The Court will permit the hearing to take place at the respondent’s residence at his or his council’s request.

If a guardian is appointed, she is charged with advocating the rights and interests of the incapacitated person, respecting his wishes and preferences to whatever extent is possible, helping to develop a plan for support, and where possible, encouraging him to participate in all decisions that affect him.

A guardian of the estate is charged with managing the finances of the incapacitated person in the same way the guardian would prudently manage his own estate. All acts taken by a guardian of the estate must be solely for the benefit of the incapacitated person without any undue profit or advantage being taken by the guardian for himself.

The guardians must fulfill several requirements as part of their responsibilities, such as filing annual reports with the Orphans’ Court regarding medical and financial status. Although a guardian may spend money from the incapacitated person’s financial accounts as needed for his care, the guardian cannot invade the principal of the incapacitated person without approval of the Court. Fees charged by the guardian and by any legal counsel require approval by the Court.

Guardianships can be terminated if the incapacitated person regains sufficient capacity to be able to manage his own affairs. This may be more likely to occur when the incapacity was as a result of an accident and significant recovery has occurred.

For example, a woman had been declared incapacitated by the court after an automobile accident left her in a coma and severely injured. Her son was appointed to serve as guardian of her and her estate. As years went by, the woman began to recover to a much greater extent than had been anticipated by anyone, including her doctors. With testimony by affidavit and in person by her attending physician, her son, and herself, the guardianship was successfully terminated permitting her to regain control over all of her life decisions.

Because guardianship takes away an individual’s right to make many decisions for himself, it should be the course of last resort and only pursued when the individual’s safety, personal and/or financial, is at risk and no less restrictive alternative is available. But when guardianship is necessary to protect an individual and to maintain safety and well-being, it is a viable option that should be strongly considered. Given the responsibilities associated with guardianship, it is imperative that the guardian be honest, responsible, and have the time and resources to dedicate to the person for whom they are caring.