Wednesday, April 30, 2014

GUARDIANSHIP OF AN INCAPACITATED PERSON


Many people experience having to be responsible for family members, or perhaps close friends, who have become completely or partially unable to care for themselves or to manage their finances, due to some sort of physical or mental impairment.  In Pennsylvania, such a person is referred to as an “incapacitated person.”  The legal definition of an incapacitated person is “an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he [or she] is partially or totally unable to manage his [or her] financial resources or to meet essential requirements for his [or her] physical health and safety.”

If a person is incapacitated, a Judge from the Orphans’ Court (a division of the County Court of Common Pleas) may, upon request by petition of any interested person or institution, and upon receipt of clear and convincing evidence at a hearing in court, appoint a guardian for the incapacitated person.  There are two basic types of guardianship.  One is a guardian of the estate and the other is a guardian of the person. A guardian of the estate is responsible for the incapacitated person’s finances.  A guardian of the person is responsible for the incapacitated person’s health and well-being.  The court may make a guardian’s powers either “limited” or “plenary.”  Plenary power is the right and duty to make decisions about any and all aspects of the incapacitated person’s estate or person, or both, depending on what the individual requires.  The Orphans’ Court may, when appropriate, allow a guardian only certain specific, or “limited,” powers.  For example, a limited guardian of the estate might be given the power to manage regular bank accounts and pay bills, but not to manage investment accounts.  A limited guardian of the person might be given powers to manage the personal affairs and day-to-day life of an incapacitated person, but not to make healthcare decisions.

By law, the Orphans’ Court is required to prefer limited guardianships over plenary guardianships whenever possible.  However, there are obviously many instances where severe or complete incapacity, total mental incompetence, or significant physical disability dictate the need for a plenary guardianship.

No guardian possesses the following powers, unless they are specifically and expressly authorized by the court:

1.                  to consent to an abortion, sterilization, psychosurgery, electroconvulsive therapy or removal of a healthy body organ;

2.                  to prohibit marriage or consent to divorce; or

3.                  to consent to any experimental biomedical or behavioral medical procedure or be part of any biomedical or behavioral experiment.

 Not even the court can grant the following powers to any guardian:

1.                  to admit the individual to an inpatient psychiatric facility or to any State center for the mentally retarded; or

2.                  to consent to the relinquishment of the individual’s parental rights.

In determining whether appointment of a guardian is needed and, if so, what kind of guardian and what kind of powers would be appropriate, the Orphans’ Court typically requires testimony from a treating physician, psychiatrist or psychologist to establish the nature and extent of an individual’s incapacities.  Typically, the physician or other medical professional is not required to be present in court.  Rather, such testimony is usually accepted in the form of written answers to written questions about the incapacitated person, which is signed by the individual providing the answers.  In addition, it is desirable to present testimony from family members, friends and others who have personal knowledge of the incapacitated person’s situation.

After receiving all of the evidence and testimony, the Orphans’ Court is required to determine the following:

1.                  The nature of the particular condition or disability which impairs the individual’s capacity to make and communicate decisions;

2.                  the actual extent of the individual’s capacity to make and communicate decisions;

3.                  whether guardianship services are needed at all, in light of special circumstances including the availability of family, friends or other supports to assist the individual, and whether there already exists such documents as a sufficient durable power of attorney, advanced directive for healthcare, living will or useful trusts; and

4.                  an appropriate duration for any guardianship.

The Orphans’ Court is permitted to appoint a guardian only when it finds that a guardianship is the least restrictive alternative available to meet the needs of the incapacitated person.

While the Orphans’ Court is always available, it should be emphasized that, in many, many cases, preparation of proper estate planning documents, before the incapacitated person actually becomes incapacitated, can allow caregivers to exercise most necessary authority without the need for a guardian to be appointed.  These documents include durable powers of attorney, advanced directives for healthcare and living wills.  Proper planning hopefully makes it unnecessary to petition the Orphans’ Court for guardianship, doing away with the time, expense and potential aggravation that goes along with such proceedings.

Notwithstanding prior preparation however, there is always the possibility that an existing power of attorney or other advance directive is poorly drafted or doesn’t clearly authorize a particular power necessary to help the incapacitated person.  It is also possible that the agent under the power of attorney is unable or unwilling to act, or is acting to the detriment of the incapacitated person.  In either of these situations, it may still be necessary to obtain the appointment of a guardian.  This is because a guardian can be granted the powers necessary to properly assist the incapacitated person.  The Court or the guardian would also have the power to revoke any prior power of attorney.

If you have not prepared your own estate planning documents, or if you know of someone else who would be well advised to do so, or if you have any question about your existing documents, you should seek the advice and counsel of a competent estate planning attorney.

Thomas A. Fosnocht, Jr., Esquire, is an attorney with the law firm of Wolf, Baldwin & Associates, with offices in Pottstown, West Chester, and Reading.  Mr. Fosnocht concentrates his practice in wills, estates, probate, Orphans’ Court, and real estate, and litigation related to such matters.  He may be reached at 610-323-7436 or by e-mail to tfosnocht@wolfbaldwin.com. 

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