Guardians are appointed by the Court, unlike Agents, who
are chosen by the person drawing up the Power of Attorney. The
guardianship process involves filing a petition with the Court and holding
a hearing to establish the incapacity and need for a guardian. This
process involves risks that a properly executed power of attorney does
not.
Initially, the Court must make a determination that an
incapacity exists. Reaching that determination will require the testimony
of an expert witness, typically the treating physician.
Secondly, the Court must find that there is a need for
guardianship services. The Court then has the power to fashion the scope
of the guardianship, making it as limited or broad as the facts suggest is
necessary.
A petitioner must prove to the Court's satisfaction that
the individual is incapacitated and that there is a need for a guardian.
Every judge requires that the petitioner prove the content of their
petition by clear and convincing evidence. In addition, judges from county
to county may vary in their level of scrutiny.
Furthermore, a petitioner (the person requesting
guardianship over another individual) runs the risk that the petition will
be opposed. Family members often disagree as to who should be appointed
guardian or if a guardian should be appointed at all. The alleged
incapacitated person has the right to counsel and the Court typically
appoints counsel in disputed cases. In the event the petition is disputed,
the proceeding could turn into extensive litigation, greatly increasing
the cost and time involved.
Despite these potential pitfalls, the majority of
guardianship petitions are approved by the Court. Unopposed hearings take
less than 30 minutes. The Court typically appoints the guardian on the day
of the hearing. Once appointed, a guardian has considerable power as well
as numerous duties and responsibilities, which will be covered in a later
issue.
Earlier, we defined a guardian as an individual
appointed by the Court to care for an incapacitated person (ward). A
guardian may have the power to manage the personal affairs (a guardian of
the person) or the financial affairs (a guardian of the estate) of the
ward, or both.
A guardian is considered a fiduciary of the ward,
someone who is legally entrusted to act in the best interests of the ward
at all times. Therefore, the guardian has a variety of responsibilities in
addition to the considerable power granted by the Court.
As a guardian of the ward's person, the guardian has the
power to determine where the ward will live, whether that be at home or in
a nursing home or similar facility. In addition, a guardian of the person
has the limited power to make health care decisions on behalf of the ward.
A guardian of the person has the authority to authorize or withhold
medical or psychiatric treatment . When faced with an end of life
decision, a guardian is best advised to seek Court input, particularly
when there is no evidence as to whether the ward would have wanted
artificial means of life support.
A guardian of the estate must take control of the ward's
assets to the exclusion of all other parties. A guardian should close out
all of the ward's old accounts and open a fiduciary account in the
guardian's name. Government benefits can be made directly payable to the
guardian, including Social Security Disability (SSD) and Supplemental
Security Income (SSI). A guardian of the estate must keep the ward's funds
separate from the guardian's funds.
A guardian of the estate may expend income of the estate
on the care and maintenance of the guardian without Court approval. In the
event a guardian of the estate needs to spend principal, such as payments
for nursing home care, Court approval is recommended. In addition, any
gifting of the ward's property requires Court approval.
As a fiduciary, the guardian of the estate must abide by
Pennsylvania's Prudent Investor Act which requires a guardian to manage
the ward's assets in accordance with specified standards. If at all
possible, a guardian of the estate must maintain the value of the ward's
assets. It is acceptable for a guardian to hire a financial advisors to
help manage large estates.
Guardians of the estate and person must file annual
Accountings. The Accountings provide a yearly update on the ward's
personal condition and finances for any interested person. It is
imperative that a guardian keep accurate records in case of a challenge to
his/her conduct.
Although the appointment of a guardian brings
considerable benefits to the ward, the appointment also brings
considerable duties and responsibilities to the guardian. Guardianship
proceedings should be viewed as a last resort. Whenever possible, the
proceedings should be avoided through the careful drafting of a
comprehensive power of attorney.
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