Guardianship and Legal Capacity

At Shober & Rock, we consult on the need for Guardianships and the alternatives to Guardianships. If you require this intervention, we will assist you in getting into Court and getting appointed as Guardian. We assist our Clients in the administration of a Guardianship Estate and avoiding pitfalls that frequently occur if you do not have professional assistance as a Guardian. Do not do this on your own.

Guardianship and Capacity FAQ’s

When do I need a Guardianship? A Guardianship is needed when a person does not have the capacity to handle their own affairs and when there are no other options for doing so such as under a Power of Attorney. It is also needed when dealing with an incapacitated person who needs care but does not agree to seek such care. A Guardianship is the only way that someone other than the patient can make decisions on their behalf which may be against their wishes since they are not competent to make these decisions in the eyes of a Court.

How to file for guardianship?  A Petition is directed to the Orphan’s Court or similar court of jurisdiction seeking the appointment of a Guardian. The Incapacitated Person is served with notice of this Petition and has the right to appear and defend herself.

What’s the difference between guardianship and power of attorney?  A Power of Attorney is so much easier since you, not a Judge, decides what happens. If you do not trust professionals, having a Power of Attorney is even more important because it is the only way to make sure your life is run on your own terms. Choose an agent you know rather than having a Guardian appointed for you later.

How much does guardianship cost?  The fees have to be reasonable but may run into the thousands of dollars combined with Court costs. The Court will ultimately determine what is reasonable for the attorney in terms of fees.

How do I know when my parent needs a Guardian?  The need for a Guardian and the legal need for Guardianship are two distinct things. In terms of the personal need for a guardian, this is a difficult decision in many cases because most parents do not lose their capacity overnight. It is usually a slow and steady decline. It is very hard to know when to step in and take over. In the end, it usually boils down to personal and financial safety. They may stop paying their bills or forget to turn off their car in the garage. They may be wandering or getting lost while on errands. These are clear indications that someone needs to step in. If dad or mom declines the intervention however, someone will need to be authorized to act on their behalf to either direct or control their behaviour. A Power of Attorney will not do. Sometimes a guardianship is necessary to protect a parent from a family member who is taking advantage and the parent is unaware of it. The Guardianship brings the Court into the situation to stop the abuse. Most children are very reluctant to intervene in a parent’s life. Most feel they are overstepping. Unfortunately this usually results in the parent being exposed to more danger. If you have any doubts, consult an elder law attorney who can certainly help you with this situation.

What is considered incapacity?  In Pennsylvania 20 Pa.C.S.A §5501 provides as follows:

§ 5501. Meaning of incapacitated person. “Incapacitated person” means an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.

Who can make the decision whether someone is incapacitated?  Only the Orphan’s Court may rule in this regard in Pennsylvania upon notice and hearing to the incapacitated person who may appear on his own behalf to defend himself.