A guardianship is the court procedure used to declare a person “incapacitated”. An incapacitated person is an adult who is unable to manage her financial resources or meet the essential requirements for her physical health and safety. An incapacitated person’s ability to communicate or receive and interpret information is impaired to a significant extent. A guardianship is initiated by filing a petition with the local Orphans’ Court requesting that a person have a guardian appointed. The Court relies on medical information from the person’s doctor in determining whether she is incapacitated. If the Court finds that the person is totally or partially incapacitated, it will appoint a guardian to act on the incapacitated person’s behalf. The guardian will make decisions for the incapacitated person, including management of finances and medical decisions. A guardian is most often a close family member, but the Court may appoint a professional agency if the incapacitated person does not have family who are willing or able to serve.
There are two types of guardians: guardian of estate and guardian of person. The guardian of estate manages the incapacitated person’s finances and handles paying bills, buying/selling real estate, overseeing bank accounts, and applying for public benefits such as Medicaid. The guardian of person assists the incapacitated person in making medical decisions. The guardian of person gives the required consents for medical treatment, including admission into a hospital or nursing home. The guardian is appointed by the Orphans’ Court and is subject to the Court’s supervision. The guardian must file annual reports to keep the Court informed of the incapacitated person’s situation and to ensure the guardian is acting appropriately. The guardian of estate must report all assets, including bank accounts and real estate, and give detailed information on all money spent by the guardian. The guardian of person report tells the Court about the incapacitated person’s personal needs and medical care. The annual reports can be filed online through the Pennsylvania Guardianship Portal.
In most cases, no, you will not need a Guardianship so long as a valid Durable Power of Attorney is in place. If a Durable Financial Power of Attorney was prepared before the year 2000, most banks will not accept the document and will not allow you to act as agent. In that case, a Guardianship may be necessary to give you access to bank accounts and other financial assets. A Guardianship may also be required when the appointed agent in a Durable Power of Attorney dies or is unable to continue in that role – for this reason, it is strongly recommended that you name successor agent(s) in your Power of Attorney.