Over the past several years, there have been concerns that alleged incapacitated persons subject to guardianship proceedings have not been sufficiently protected. They are vulnerable individuals and if guardians are appointed, those guardians should be trustworthy, knowledgeable, and subject to ongoing supervision to prevent cases of financial exploitation, abuse, and neglect. Pennsylvania recently added additional safeguards for alleged incapacitated persons by enacting Act 61, which became effective on June 11, 2024. An adult guardianship is established through a legal proceeding in the Pennsylvania county where the alleged incapacitated person resides.
Act 61 changed four things to the Guardianship law in Title 20 of the PEF Code: 1) mandatory legal counsel for the alleged incapacitated person; 2) consideration of the less restrictive alternatives to a guardianship; 3) certification requirements for court-appointed guardians; and 4) review hearings of the guardianship.
Mandatory legal counsel
Act 61 eliminates the court’s discretion as to whether an attorney is appointed for the alleged incapacitated person. All alleged incapacitated persons must now have their own counsel or have counsel appointed by the court. The petitioner in the guardianship action must tell the court if the alleged incapacitated person has counsel if the petitioner is aware or as soon as petitioner becomes aware of the representation. Regardless of the ability to pay for counsel, if counsel has not been retained, the court must appoint qualified counsel. Once appointed, the counsel must meet with the alleged incapacitated person as soon as reasonably possible and file a certification with the court within five days of the meeting that the meeting has occurred.
Less restrictive alternatives
The petition “must allege specific facts demonstrating that less restrictive alternatives were considered or tried and why the alternatives are unavailable or insufficient.” The court must make specific findings of fact of the absence of “sufficient family, friends or other supports and of the insufficiency of each less restrictive alternative before ordering guardianship.” The less restrictive alternatives noted in Act 61 are advance directives, living wills, health care powers of attorney, financial powers of attorney, trusts (including special needs trusts), representative payees for those individuals receiving Social Security benefits, Pennsylvania ABLE (Achieving a Better Life Experience) accounts and mental health advance directives. If there are no less restrictive alternatives available and sufficient, the court shall prefer limited guardianship.
Certification for guardians
If an individual seeks guardianship of three or more incapacitated persons, that individual must be certified and provide proof of the certification to the court prior to a third guardianship appointment. The certification can be waived by the court after a petition has been filed that demonstrates the proposed guardian has equivalent licenses or certifications necessary to perform the obligations of a guardian fully and competently. The license to practice law does not constitute an equivalent license or certification.
Review hearings
If the evidence presented during the guardianship proceeding shows that the circumstances of the person’s incapacity may change, the court must hold a review hearing to determine whether the guardianship continues to be necessary. The date for this review hearing must be set in the court’s order establishing the guardianship. The hearing must take place in the presence of the incapacitated person and their attorney. If the court finds that the guardianship continues to be necessary and no less restrictive alternatives exist, the court may order that the guardianship continue. In determining whether the person’s incapacity may change, the court may consider the following factors: whether the incapacity can be managed by medication, rehabilitation or other means; whether there is potential to regain physical or cognitive capacity; the opinion of the physician or other qualified expert; the circumstances of the person’s daily living; and any other factors that the incapacitated person’s condition could improve at a future time.
There is agreement that Act 61 additions are important safeguards for alleged incapacitated or incapacitated persons. Implementation of the law may be difficult in terms of available guardians, dollars to pay for the mandatory appointment of counsel, to compensate guardians that are high quality, review the guardianship reports, and train non-professional guardians.
If you have questions or need assistance navigating guardianships or less restrictive alternatives like a power of attorney, contact us at Marshall, Parker & Weber to schedule a consultation.
