The MLO Minute, By Jennifer Simons, Esq., Attorney in McAndrews Law Offices’ Estates and Trusts Department
If you have been appointed as a guardian for an incapacitated person in Pennsylvania you need to be aware of changes coming to the rules governing guardianships in Pennsylvania, going into effect on June 1, 2019. In an ongoing effort to protect individuals who have been declared incapacitated by the court, such as elder individuals, and those with significant disabilities, the Pennsylvania Supreme Court has promulgated new rules, forms, and requirements for guardians of these vulnerable persons.
A guardian is a person appointed for an individual when a court determines that the individual’s mental or physical disabilities are so impaired that he/she is not able to receive and evaluate information effectively, and is unable to make and communicate decisions regarding his/her health and safety. Any interested person may petition the court to be appointed as a guardian for a person. Once a petition is filed with the court, the alleged incapacitated person must be served with a copy of a Citation, and the Petition, notifying the individual that a petition has been filed to have a guardian appointed for him/her, and that a hearing has been scheduled. The alleged incapacitated person is also notified that he/she has a right to his/her own attorney and to attend the hearing. At the hearing the Judge hears testimony regarding the person’s disabilities and capacity, and decides whether a guardian should be appointed for the person and/or the estate (or both) of the alleged incapacitated person.
Once a guardian is appointed for an incapacitated person, the guardian has certain duties and obligations to the incapacitated person, including the duty to always act in the best interests of the incapacitated person. A guardian of the person is responsible for making decisions regarding the health and safety of the incapacitated person, such as where the person will live, give consent for certain medical treatment and procedures, and ensure for the general care and maintenance of person. A guardian of the estate is responsible for the management of the incapacitated person’s income, investments, real estate, and any property owned by the incapacitated person. A guardian of the person and estate is essentially responsible for making nearly all of the decisions regarding the incapacitated person. It is therefore imperative that a person given this authority over another person, be a responsible, prudent, and trustworthy individual.
Previous to the promulgation of the new guardianship rules in Pennsylvania, there was less formal oversight of guardians. Guardians were appointed by a court and were required to complete and submit annual reports of the guardian of the person and guardian of the estate, however, there were no background checks performed on proposed guardians prior to being appointed, and no statewide mandated follow up on the guardian, or the incapacitated person, after the guardian was appointed. Many incapacitated persons are extremely vulnerable to designing persons, and the possibility of the incapacitated person being taken advantage of, or abused, both financially and physically. Although the majority of guardians are typically family members who do have the best interests of the incapacitated person in mind, there have been instances where this was not the case, thus resulting in the Pennsylvania Supreme Court implementing new rules and procedures to help prevent this type of abuse. Some of the more important changes are described below:
Guardianship forms, such as the Annual Report of the Guardian of the Person and the Annual Report of the Guardian of the Estate, have been revised and standardized to include more details and more information regarding the incapacitated person. Some of the revised forms went into effect in July of 2018 and are already being used in some of the counties in Pennsylvania. Other forms will go into effect on June 1, 2019. Additionally, all persons listed in a court’s Final Decree, who are required to receive Notice under a guardianship, must also receive a copy of the annual reports, and any other filings required by the court.
Guardianship Tracking System
One of the biggest changes for guardians is the implementation of a Guardianship Tracking System (“GTS”). The GTS is an online system by which guardians will file the annual reports and any other documents required by the courts. The system will carry over information from the previous year and will help to standardize, and make completion and submission of the reports easier. It will also allow the courts to follow up on reports that have not been submitted and better track the status of the incapacitated person.
Qualification and Background check of Guardian
Proposed guardians will be required to submit to a criminal background check and to advise what qualifications they possess to act as guardian and if they have had any guardianship training.
By implementing new procedures, rules, and forms, pertaining to guardianships, Pennsylvania is making an important step to address the problem of elder abuse and exploitation and striving to make sure that every individual who is appointed to make decisions on behalf of an incapacitated person is trustworthy, responsible, and has the best interests of the incapacitated person in mind.