Protecting The Past; Planning The Future
Ken Russell – Guardianship & Conservatorship Attorney
Statistics show that you will likely need long-term health care at some point in your life. In 2017, approximately 41 million family caregivers in the United States provided an estimated 34 billion hours of care to an adult with limitations in daily activities.
If you become mentally or physically disabled, such that you are unable to manage your own affairs, the probate court will appoint someone to take control of all your assets and personal affairs. This process is called Living Probate and is often expensive, time-consuming, and humiliating.
A Guardian is either an individual, an institution, or an agency appointed by the Court to manage the personal and/or financial affairs of a person who can no longer care for themselves. There are many different situations in which the issue of guardianship may arise, but a typical situation is where an adult individual (called an “Alleged Incapacitated Person” or “AIP”) lacks the mental or physical capacity to make decisions for themselves. In those cases, the AIP may need the assistance from another person or entity (the “Guardian”) to manage their affairs and make the best decisions for them.
While most adults are presumed to be capable of managing their own personal and financial affairs, there are some adults who are not capable of doing so-either by reason of some mental incapacity or illness or other disability. For example, your elderly father who lives alone is suddenly giving away his personal items or assets but cannot recall what he did with them or why. Or, you become concerned when you visit your favorite Aunt and she has no food in the house or there’s no heat and she doesn’t seem to understand the situation. Whether a person is incapacitated is a legal question. Only the court has the authority to determine if a person is “incapacitated” and in need of a guardian. The Court will only do so after a formal petition for guardianship is filed, a hearing is held, and careful consideration is given to ensure that the incapacitated person is protected from harm while preserving their liberty and their right to make their own decisions.
After we thoroughly review the facts and circumstances of the AIP and your request to become a guardian, we would only file a petition for guardianship on behalf of the person you believe is incapacitated if we determine that a guardianship is in the AIP’s best interest. The petition is a document filed with the court setting forth the reasons why the person is in need of the appointment of a guardian. The petition must be explained to the AIP and given to all “interested parties” (this usually means any spouse, children, siblings, etc.) who will then have the opportunity to support or object to the contents of the petition. At least 20 days’ notice must be given prior to a proposed guardianship hearing. Once the Orphans’ Court receives the petition, a hearing will be scheduled before a judge at which time evidence is presented regarding the person’s incapacity. This evidence must include medical evidence from a qualified medical professional stating what the alleged incapacitated person’s physical and mental condition is and whether or not a guardianship is necessary.
Usually when a person comes in to discuss becoming a guardian for someone, they have knowledge of the person’s personal physician or if the person is already in a nursing home or assisted living facility or group home, they can get the name of the doctor or medical professional in charge of their care. Once this person is identified, we will send a form called “G-06 Expert Report” which the medical professional completes and signs, detailing the AIP’s physical and mental state and why they may need a guardianship. This form is then submitted to the Court as evidence at the hearing.
After the petition is filed and the alleged incapacitated person and all interested parties have been notified, the Court will send out the Notice of Hearing and a date for the hearing as well as the court room where the hearing will be held. As the person petitioning for guardianship, you must attend the hearing where you will testify as to why you filed the petition and why you believe the person needs a guardian. Whether or not the alleged incapacitated person needs to attend the hearing will depend. The court, upon presenting a formal request, may determine that the alleged incapacitated person need not attend if it would be harmful to their physical or mental health. If there is any interested person who has objected to the petition, they will also be in attendance to testify. Once all the evidence is presented, the Court takes the matter under consideration and it will then enter a “Final Decree” setting forth its decision-either naming the petitioner as guardian or denying the petition if it feels that there is a more suitable and less restrictive alternative available.
Yes, there are two types: 1) “Guardian of the Estate”; and 2) “Guardian of the Person”. A guardian of the estate essentially manages the person’s funds or assets. A “Guardian of the Estate” must determine where and how the person’s money is held and the value of each account and present this “Inventory” to the Court. The guardian of the estate is permitted to manage the assets and provide (pay) funds on behalf of the incapacitated person. A “Guardian of the Person” is someone who takes care of the incapacitated person’s day-to-day needs, taking the steps necessary to ensure the incapacitated person is safe, fed, clothed, sheltered, has medical care and proper socialization.
Yes, it is possible for one person to be named to be appointed by the Court as both Guardian of the Estate and Guardian of the Person.
Yes, the court will in some cases appoint more than one guardian at the same time. It is important to remember however, that each guardian must consent to any decision made on behalf of the incapacitated person and if one guardian does not agree or consent to a decision, then the parties might have to bring the matter to the court to decide the matter.
Yes. The Guardian of both the Person and the Estate is required to file an Inventory of the incapacitated person’s assets within 90 days of their appointment. Thereafter, the guardian must file annual Reports of the Person and Estate with the Court. There is a new system called the “Guardianship Tracking System” or simply “GTS” which allows the guardian to enter the necessary information and file these reports on-line for free. These reports are due on the anniversary of the date the Final Decree was issued and annually thereafter as long as the guardianship remains in place.
Yes, a guardian may be compensated from the incapacitated person’s funds for the services s/he provides as guardian if s/he obtains approval from the court.