April 5, 2018 -
Is your child unable to manage his or her own life independently? Generally speaking, when a child turns 18 they will be able to make legal, financial, and other decisions for themselves. But what happens if they lack the mental capacity or the reasoning skills necessary to make these decisions in their own best interests? A guardianship may be the answer.
In Pennsylvania, courts will grant a guardianship if an individual is “incapacitated.” This means the individual’s “ability to receive and evaluate information effectively and communicate decisions in any way is 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.” (20 Pa.C.S. § 5501) Pennsylvania law specifies that the courts should be looking for the “least restrictive” method of ensuring that an incapacitated person’s needs are met. An alternative to guardianship may be a Power of Attorney for property or healthcare, for example. If a guardianship is the least restrictive method, then the court wants to ensure that an appropriate guardian is named - someone who will genuinely be acting for the best interests of the individual.
In order to establish a guardianship, a person who is interested in the well-being of the incapacitated person must file a petition and go to a hearing. The petitioner does not need to be the person who wishes to be appointed the guardian, but it must be a person who is looking out for the welfare of the incapacitated person. (The court may dismiss the proceeding if the petition is not complete, or if the court finds that the proceeding was not truly started for the purpose of benefitting the incapacitated person.) At the hearing, the petitioner needs to establish by “clear and convincing evidence” that the individual is incapacitated and a guardian should be appointed. This evidence often includes testimony/reports from medical and/or mental health professionals.
After a hearing, if the court appoints a guardian, the court can appoint a guardian with either limited or plenary (full) guardianship, depending on the degree of incapacity. A guardian has a duty to make decisions that are in the best interests of the incapacitated person. He or she will be responsible for providing a report to the Court regarding the status (personal and/or financial) of the incapacitated person.
What this means for you: The guardianship process can be complex, with many possible pitfalls and outcomes. If you have questions about guardianship, we can help you. We are available to discuss the advantages or disadvantages that exist in your unique case and can help you obtain a guardianship. Our team of education law attorneys consists of Gabriella H. Farhat, Jeffrey C. Murse, Gerryanne P. Cauler and Lauren E. Martin.
Make Pyfer Reese your choice! Call 717.299.7342 to schedule a consultation regarding your education law needs.