I recently had the pleasure of helping a family get a guardianship for their adult disabled daughter.  She had recently turned 18 and was suffering from Down’s Syndrome.  Due to her disability, she did not have the mental capacity to manage finances or make decisions about her personal health and safety.  Her parent’s role as her parental guardian came to an end when she turned 18.  If they wanted to make decisions about her care and well-being going forward, they needed to proceed with a court proceeding to have themselves appointed her guardian. In addition, many of the social service agencies were asking the parents to obtain a guardianship for their daughter.

Court appointed guardianships are started with the filing of a petition, setting forth information about the incapacitated person, including their age, care needs, finances and family.  Normally, an attorney is retained to file the appropriate documents with the court.   The petition must include medical documentation, explaining the reasons for the incapacity.  This is normally a letter signed by a doctor.   In addition, the parents who are asking to be the guardians must acquire a criminal background from the Pennsylvania State Police.

The petition is filed with the local Court of Common Pleas in the County where the incapacitated person resides.  A hearing date is set where the parties can present their testimony.  A local attorney (known as a guardian ad litem) is normally appointed to represent the incapacitated person.  That attorney must ensure that all of the proper steps are followed to obtain guardianship and that the request to have the parents appointed is appropriate and necessary.

Once the hearing is set, various interested parties must be served with a copy of the petition, including the incapacitated person.  A hearing is held before a judge where testimony is presented by the person who is asking to become the guardian. In addition, the physician of the incapacitated person gives testimony, often over the phone.

The entire process can take months to complete.  However, once the court signs the order appointing the parents as the guardian, they will be able to serve in that capacity for the rest of their child’s life.  As the parents age, the parents may step down as guardian and be replaced by a sibling of the disabled child or other close family member.

As part of the ongoing duties of the guardian, there is a requirement to file annual reports of the financial and personal activities of the incapacitated person.  There is now an online system for filing these reports. Those reports are then provided to interested parties such as caregivers, physicians and some family members.

Keep in mind that guardianship may not be necessary in all cases.  I have met some highly functioning Down’s Syndrome and mentally handicapped individuals who have been able to sign a power of attorney.  If they are capable of understanding the purpose of a power of attorney, then there is no need to obtain a guardianship.  The power of attorney serves to appoint the parents as the agents for the incapacitated person.  In addition, the cost of powers of attorney are significantly less than a court proceeding to appoint a guardian.

For more information visit www.paelderlaw.com or call 1-800-401-4552

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