Understanding Guardianship�& Less Restrictive Alternatives��Kerri Anzulewicz, MSW�Assistant Director�Lackawanna County Area Agency on Aging

What is Guardianship?

A guardianship court order allows a designated individual, individuals, or entity to act on another person’s behalf when they are determined by a court to be incapacitated.

An adult who is partially or totally unable to receive or understand information or communicate decisions effectively, to the extent that they are unable to manage their finances or meet their own safety and health needs, is considered incapacitated under Pennsylvania law.

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How long does Guardianship Last?

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• Guardianships can be of the person, estate, or both;
• Guardianships can be emergency or long-term;
• and Guardianships can be limited or plenary.

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Guardianship Safeguards

Due Process Protections

• Right to receive notice of the proceeding
• Be represented by an attorney,
• Have a hearing on the need for guardianship, present evidence and witnesses, cross-examine witnesses,
• Have guardianship ordered only based on clear and convincing evidence,
• Receive notice of guardianship orders
• Appeal the court’s decision

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Legal Representation

• All Alleged Incapacitated Persons (AIPs) have the right to legal representation. As of June 2024, if they do not have an attorney, one must be appointed by the court. The attorney is expected to represent the wishes and desires of the AIP and to identify the least restrictive alternatives available to meet the needs of the AIP.

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Guardianship Tracking System

• The PA GTS provides an online alternative to paper forms used by guardians to submit inventory and annual reports. All judicial districts are required to use GTS to manage guardianships and monitor a guardian’s report filing requirements.

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When is Guardianship Needed?

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When is a Guardianship Needed?

Is the adult partially or totally unable to receive or understand information or communicate decisions effectively, to the extent that they are unable to manage their finances or meet their own safety and health needs?

Do they lack informal and/or formal supports who are able to able to assist in managing the adult's finances or meet the adult's safety and health needs?

Less Restrictive Options

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Supported Decision Making

Supported decision-making is a process that allows the incapacitated person (IP) to make their own decisions after consulting with trusted supporters. These supporters can help the IP understand the decision they need to make and provide guidance about their options, but ultimately the IP is the one who makes the decision. Supported decision-making can be used instead of guardianship or as part of a guardianship, when appropriate, to ensure the person under guardianship is as involved as possible in decision-making.

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Advanced Directives

Financial Power of Attorney

This document, completed before the person loses capacity, allows them to appoint someone to act on their behalf in financial matters should they lose capacity.

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Health Care Power of Attorney

This document, completed before the person loses capacity, allows them to appoint someone to act on their behalf in to make medical and end-of-life decisions.

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Mental Health Power of Attorney

This document, authorized under Pennsylvania law, permits a person with a mental illness to provide instructions in advance regarding the treatments and medications to which the person would consent if able, and may name an agent to act when the person is not able to make decisions himself or herself.

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Advanced Directives

Health Care Advance Directive

This may be a living will, health care power of attorney, or a single document containing both. These documents need to be completed when the person has capacity to understand them and make the necessary decisions about their own future care. Living wills give instructions for making medical decisions regarding end-of-life care.

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Physician Order for Life Sustaining Treatment (POLST)

This document can be created by a doctor to communicate a patient’s condition, preferences, and end-of-life medical care decisions when that patient has a terminal illness. If a patient decides to create a POLST with

their doctor’s help, the form then stays with the patient in case they need emergency care or become incapacitated.

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Health Care Representative

When a doctor determines that someone does not have capacity to make their own medical decisions and that person does not have a guardian or agent identified in a health care power of attorney, a health care representative can make certain medical decisions on the person’s behalf like a guardian of the person. When determining who may act as health care representative, priority is given to a spouse, adult children, and other close family members. While the doctor may have the representative sign a declaration, the court, generally, is not involved with this process.

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Supportive Relationships, Community Services, and Residential Settings

An individual may be able to avoid guardianship if they have supportive family, friends, and others who can help them with certain tasks that they are not capable of doing on their own.

There may be services available in the community that can help the individual maintain independence to the extent possible. These services could include meal preparation or delivery, house cleaning, personal care assistance, adult day programs, and more.

Certain residential settings may provide a supportive environment and certain assistance that will allow the person to live independently while getting necessary support.

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Representative Payee

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Representative payees receive certain government benefits like Social Security on behalf of the IP. The representative payee is allowed to manage this money on the IP’s behalf and for the IP’s benefit. The representative payee must be appointed by the Social Security Administration

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Veterans Affairs Fiduciary

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Veterans Affairs fiduciaries receive Veterans Compensation Benefits on behalf of the IP. The Veterans Affairs fiduciary must be appointed by the U.S. Department of Veterans Affairs.

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Trusts

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A Trustee is appointed to manage the money and any other assets of the person (beneficiary) on their behalf. Trusts can specify directions the trustee must follow to manage the money. Trusts are appropriate for individuals with larger estates and should be created with an attorney. Different types of trusts have different requirements.

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ABLE Accounts

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These accounts are for people with qualifying disabilities (written diagnosis and onset before age 26) to allow a tax-free way to save for disability-related expenses, while maintaining government benefits. These accounts allow fiduciaries to manage the funds. This is an accessible option that allows those with less savings to avoid the expenses associated with a trust. For more information, visit https://www.paable.gov/.

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Limited Guardianship

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If it is determined that a guardianship is necessary, a limited guardianship must be considered. Limited guardianships assign only specific powers and responsibilities to the guardian, allowing the IP to retain more of their rights and autonomy. The exact powers assigned to the guardian are determined by the court.

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Questions?��Thank you!

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