What is a guardianship?
A guardianship is the court procedure through which an incapacitated person is appointed a guardian. The court appoints a guardian after hearing evidence that a person is incapacitated and decides that there is a need for a guardian.
Why do I have to go to court to get guardianship over my own child?
Once a child reaches the age of 18, it is assumed that they will be able to make decisions regarding their health and finances. Therefore, once your child reaches the age of 18, they become a legally competent adult in the eyes of the law and you have no control to make financial or health-related decisions on their behalf, regardless of any disabling condition your child may have. If your child’s decision-making abilities are severely affected or they are unable to communicate, you will have to go to court to show that they are incapacitated and unable to make such decisions on their own.
What is an incapacitated person?
In Pennsylvania, 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 is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.
When should I begin the guardianship process?
You should begin the guardianship process before your child turns 18 to avoid any lapse in your right to make decisions for him or her. If possible, you should begin the process approximately six months before your child’s 18th birthday or as soon afterward as reasonably possible.
What rights and duties will I have as a guardian?
The rights you have as a guardian depend on whether you are appointed guardian of the person and/or guardian of the person’s estate and whether such guardianships are plenary or limited (see below).
As the incapacitated person’s guardian, you have the duty to protect the rights, interests and well-being of that person. Guardianship does not mean that the incapacitated person must live with his or her guardian forever. Guardianship does also not give you the duty to support the incapacitated person financially.
What is the difference between a limited guardianship and a plenary guardianship?
A plenary guardian has almost unlimited authority to make all decisions necessary for the personal well-being of the incapacitated person. For example, the guardian may place the incapacitated person in a nursing home or make medical decisions on their behalf, including life or death choices.
A limited guardian of the person has only those powers specifically set forth in the court’s order. For example, a limited guardian may be granted the power to designate the incapacitated person’s place of residence, but the incapacitated person will retain the rights to make other decisions on his own behalf, such as consenting to medical treatment.
Plenary guardianships are much more common than limited guardianships.
What is the difference between a guardian of the estate and the guardian of the person?
A guardian of the estate is responsible for handling the financial affairs of the incapacitated person. A guardian of the person is responsible for the day-to-day care of the incapacitated person such as living accommodations and medical treatment.
What does the guardianship process entail?
To begin the guardianship process, a petition must be filed with the Court of Common Pleas in the appropriate county and then served on all necessary parties. Once the petition is presented to the court, a time and place for the actual hearing will be assigned. During the period between the petition being presented and the hearing, a deposition will usually be scheduled with the alleged incapacitated person’s treating physician. The purpose of this deposition is to gather evidence relating to the alleged incapacity. In lieu of a deposition, the treating physician may also testify live in open court, but this is rare.
During the guardianship hearing, which both the petitioner and alleged incapacitated person must attend (unless his/her doctor advises against this), evidence must be presented to show the need to adjudicate the person incapacitated and to appoint a guardian. Based on this evidence, the court will decide whether or not the individual is incapacitated and whether or not to appoint a guardian of the person or his estate.
After the court appoints me guardian of my child, is there anything else I have to do?
Yes; after you have been appointed guardian, reports must be filed annually outlining the care you have provided to the incapacitated person and itemizing the income received and money spent for that person.
My child is over 18 and I need to be appointed as guardian right away due to an emergency. What are my options?
A person may file a petition for appointment of an emergency guardian for persons who need the immediate appointment of a guardian. The court may appoint an emergency guardian of the person and/or estate when it finds, upon clear and convincing evidence, that the person is incapacitated and that failure to make an emergency appointment will result in irreparable harm to the person or estate.
The initial appointment of an emergency guardian cannot be for longer than 72 hours. If the emergency continues beyond that point, the order may be extended for up to 20 days. Under no circumstances may an emergency guardianship of the estate exceed 30 days. If the emergency situation will exceed beyond 30 days, the petitioner must initiate a full guardianship proceeding.
What can’t a guardian do?
A limited guardian cannot do anything that is not specifically laid out in the order of court. A plenary guardian also has restrictions on what they can do. Unless the court’s order specifically says otherwise, a guardian of a person cannot consent on behalf of the incapacitated person to an abortion, sterilization, psychosurgery, electric shock treatment, removal of a healthy body part, or consent to medical experimentation. A guardian may not block the marriage of the incapacitated person or refuse to consent to a divorce. The guardian may not admit the incapacitated person to a mental unit or consent to the relinquishment of parental rights.
Do I have to be the parent in order to become a guardian?
No. Any adult can petition to become the guardian of an alleged incapacitated person. Oftentimes, a special needs adult may not have any living family or family member who is willing to serve in a guardian capacity, so the court may appoint a nonrelative, family friend or nonprofit agency representative as guardian of that individual. Please note that the court screens any individual petitioning to be a guardian of an adult to ensure that said individual is appropriate for that position.
Contact Our Experienced Attorneys Today
If you would like more information about obtaining a guardianship, please contact McMorrow Law, LLC, at 724-940-0100 . Our office is located in Pittsburgh, but we handle guardianships across western Pennsylvania. Please call us today for more information.