Guardianship: What, When, Why
Guardianship: What, When, Why
By Mark T. Coulter, Esquire
Estate Planning Attorney
One fear of many elder citizens is the possibility of reaching the point in their life when a guardian may be appointed to oversee their lives. This concern is often twofold in nature: First, the fear of being in a mental state in which they can not function adequately, and second, the fear of having control over some or all of their life activities being in someone else’s hands. This article will acquaint you with guardianship practice, so that you can at least understand what it is, and isn’t.
Guardianship proceedings arise from statutory authority in Pennsylvania. The statute provides a method for the Court, upon petition of a legally interested person, to appoint a person to take over control of the personal and/or financial care of an individual who has become unable to continue to adequately do so themselves. Guardianship is not intended to be used as a sword which threatens an elder person, but instead as a shield against neglect, mistake or abuse when a person is no longer able to make reasonable and responsible decisions regarding important parts of their lives.
A guardianship need not be absolute in nature, so that if a person is only in need of stewardship over their financial affairs but otherwise fully able to function with their activities of daily living, then the guardian can be appointed with responsibility and control over only those impaired functions. The courts are in no great hurry to appoint guardians, especially in a contested case, and are fully aware of the personal affront which some people ascribe to being considered in need of a guardian. If limitations on the scope of responsibilities of a guardian are reasonably available, then the court is likely to impose them in order to grant the impaired elder the greatest personal freedom which can be permitted, while protecting them from their own established limitations.
Guardianship proceedings are initiated by an interested person filing a Petition with the orphan’s court in the county where the allegedly incapacitated individual resides. Notice must be given to the afflicted person regarding the date, time and location of any hearing scheduled on the Petition, and an opportunity to obtain counsel and appear provided. In fact, the person moving for appointment of a guardian must specifically advise the court a week before the hearing on the Petition if counsel for the afflicted person hasn’t appeared on their behalf yet, and the court may appoint an attorney for them if it feels it is necessary. In any event, at least 20 days notice of the hearing must be provided to the afflicted person.
One exception to the 20 day notice requirement is in the rare instance where an emergency guardianship is sought. In cases where the Petition establishes that the afflicted person is incapacitated, and that irreparable harm to the personal or financial security of the afflicted person will result unless a guardian is appointed, the court may grant a temporary emergency guardianship. This guardian is only authorized to control the personal safety and affairs for 72 hours, but this may be extended for up to 20 days in exigent circumstances. Financial emergency guardianships may be granted for up to 30 days.
The Petition seeking a guardian must contain certain information, which must then be supported by competent proof at the hearing on the matter. The petition, in plain language, must include the name, age, residence and post office address of the alleged incapacitated person, the names and addresses of the spouse, parents and presumptive adult heirs of the alleged incapacitated person, the name and address of the person or institution providing residential services to the alleged incapacitated person, the names and addresses of other service providers, the name and address of the person or entity whom the person filing the Petition asks to be appointed guardian, an averment that the proposed guardian has no interest adverse to the alleged incapacitated person, the reasons why guardianship is sought, a description of the functional limitations and physical and mental condition of the alleged incapacitated person, the steps taken to find less restrictive alternatives, the specific areas of incapacity over which it is requested that the guardian be assigned powers and the qualifications of the proposed guardian. If a limited or plenary guardian of the estate is sought, the petition must also include the gross value of the estate and net income from all sources to the extent known.
It should be noted that despite concerns people have about being found incompetent as to some or all of their affairs, a properly executed guardianship is intended to be beneficial, and can achieve positive results in the vast majority of cases. For a person no longer able to take care of their own personal or financial well-being who has not adequately planned to avoid guardianship (see below), then the guardianship process can avoid personal or financial tragedy. Moreover, a guardian can take important financial planning steps which benefit the incapacitated person and his family which otherwise could not take place after the onset of incapacity. For example, a guardian can ask the court to approve estate planning steps on behalf of the incapacitated individual in order to benefit the incapacitated person and their family, friends and charities in which they were demonstrably interested. The guardian can thus attempt to craft a dispositive plan and/or will which comports to your known or perceived interests. Further, a guardian can seek permission to grant one or more gifts to your family members in order to take advantage of federal estate tax exemptions if you have failed to plan for these tax savings to occur. A guardian may also be able to manage your affairs in a manner to expedite your eligibility for Medicaid benefits to pay for long term care, which otherwise would be unavailable to you with your current asset allocation. The steps taken by the guardian on behalf of an incapacitated person are conducted under the supervision of the court, with the guardian required to seek court approval for most significant transactions, and further being required to file periodic accountings with the court to demonstrate how the affairs have been handled. Thus, a guardianship is not necessarily a terrible thing, and can work many positive returns if the need for a guardian in fact exists, provided that an adequate guardian is selected.
With advance planning, adversarial guardianship proceedings can often be avoided, even if suffering periods of incapacity cannot. Through the use of a durable power of attorney, our clients can provide for a designated Agent of their choosing to have full authority to act on their behalf in all manner of things personal and financial. By so doing, the need for appointment of a guardian is often rendered moot, as a responsible Agent is available to tend to the very tasks which a court appointed guardian would otherwise address. Even if a guardianship is found necessary by the court, a well constructed power of attorney can provide for you to nominate in advance someone who you would like the court to appoint as your guardian is this result is found necessary, which nomination the court will respect unless it can be shown that your nominated guardian is inappropriate. A Trust Agreement executed prior to the onset of incapacity may also address many of these concerns, with the financial affairs being handled by a Trustee selected by the affected person, rather than the court or other interested persons. Further, the use of a Health Care Proxy (or surrogate) can often adequately address the health care decisions which might require the imposition of a guardianship. These planning tools, together or separately, may be effectively used to avoid entirely the need for anyone to consider commencement of a guardianship proceeding.
About Our Law Office
At the Estate Planning Centers at Coulter & May, P.C., we devote our practice to estate planning and assisting families through such transition times with estate and trust administration counseling. We offer guidance and advice to our clients in every area of estate planning, and offer comprehensive and personalized estate planning consultations. For more information or to attend an upcoming seminar or to book a consultation directly, please contact us at (412) 253-7526 or visit us online at www.estateplanningcenters.com.
Disclaimer: The information presented in this article is a conversational summary of a complex area of law and should not be construed to constitute legal advice. No person should rely upon the content of this article for making any decisions, and should instead consult with appropriate legal and tax professionals.