Whether you are a concerned family member, financial advisor, government official, or legal professional, you need to be equipped with the knowledge about establishing a guardianship.
A Guardian is a person, corporate fiduciary, non-profit corporation, or county agency appointed by a court to make certain decisions on behalf of another individual who has been determined by the court to be incapacitated and, thus, is unable to make those decisions. Guardianship is the most restrictive form of substitute decision making and is also the most complex and expensive to obtain and establish.
Legal guardianship should be viewed as the option of last resort and used only if other alternatives do not provide an adequate solution. It is highly recommended that an attorney familiar with guardianship matters be consulted before considering beginning the process to establish a guardianship. Professional help will be absolutely necessary throughout the entire process.
The Legal Process to Establish a Legal Guardianship
1. Preliminary Investigation
This investigation is used to demonstrate a need for guardianship during the Guardianship hearing. The investigative report should:
- address the individual’s disability and how it affects decision making
- analyze evaluations of the individual’s mental and physical condition, education, adaptive behavior, and social ability
- state and support an opinion about the need for guardianship, and
- recommend and support living arrangements and treatment plans.
Learn more about Disability Rights in Pennsylvania.
Additionally, the Proposed Guardian will need to provide any state-required background check information to the petitioning legal counsel prior to the filing of the petition.
2. Filing of the Petition
To start the court proceedings, a petition, or official request for a guardian, must be prepared, signed, and filed by an attorney for the person or entity that believes the individual needs a guardian. The petition is filed with the Court of Common Pleas, Orphans’ Court Division, in the county in which the alleged incapacitated individual lives.
3. Hearing Date and Citation
After the petition is filed with the Orphans’ Court, a hearing date is set. Then the Certificate/Affidavit of Service, Petition, and Citation with Notice to appear at the hearing (with date, time, and location) is sent to the individual in need of a guardianship. This Certificate also serves as the official notice to the individual that someone has petitioned for their guardianship. This information is also sent to any and all interested parties (such as relatives and/or the proposed guardian) so that they can be present if they wish.
4. The Hearing is Held
On the specified date and time, the hearing is held. At this time, evidence is presented about the need for guardianship. Typically an attorney represents the individual at the hearing. After all evidence has been presented, the judge confirms or denies the petition for guardianship.
If the petition is confirmed, it is determined if the proposed guardian is eligible and able to serve in that capacity. If the proposed guardian is accepted, the responsibilities and limits of the guardian are defined in the Final Order to ensure that the best interests of the individual are met. The Clerk of Orphans’ Court will then file the guardianship and that will allow the guardian to make decisions on the individual’s behalf. From the time of appointment, the guardian is then bound by the Final Order to serve best interests of the individual and accepts the responsibilities of guardianship. Please keep in mind that the legal process for establishing a guardianship takes considerable time. Establishing guardianship is a complex process that will not be done within 2-3 weeks.
Even though decision-making capabilities of the individual have now been removed, their Constitutional rights are still protected and must be honored by the guardian. The guardian is not held responsible for the actions of the protected individual. If the protected individual commits a crime, the guardian cannot be charged with the crime. However, the guardian is held responsible for his or her actions while acting as guardian for the individual.
Concluding Thoughts On Legal Guardianship
Guardianship is a complex legal process that requires careful consideration and professional guidance. It should always be viewed as the last resort, with other alternatives explored first to ensure the best interests of the incapacitated individual. While this process may be time-consuming, it serves to protect the rights and well-being of those who cannot make decisions for themselves. Remember that guardians are bound to serve in the individual’s best interests and uphold their rights. If you find yourself facing the prospect of guardianship, the seek the advice of an experienced attorney to help to navigate this intricate journey with confidence and compassion. •
About the author: Rich Howard has been the President of River Communities Fiduciary Services since its inception in 2016.
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