determining the best interest
Guardianships
When a person is unable to make decisions for himself/herself, a guardian may be in the person’s best interest.
What is Guardianship?
A guardianship is a legal proceeding in which a court determines if an individual is incapacitated, i.e., unable to make decisions for himself/herself, and whether he/she needs a guardian to make those decisions. Pennsylvania guardianships are governed by 20 Pa. C.S. § 5501 et seq. A guardianship may be appropriate in some situations in order to serve the best interests of an adult with an intellectual disability or a cognitive impairment, such as Dementia or Alzheimer’s.
Filing a Petition
A guardianship may be sought by any person “interested in the incapacitated person’s welfare.” The guardianship proceeding is initiated by filing a petition with the Orphans’ Court in the county in which the alleged incapacitated person resides. The petitioner can be a family member, a friend, a neighbor, a nursing home or senior living facility employee, or anyone else who may regularly cross paths with the alleged incapacitated person.
The petition must contain the name and address of a nominated guardian. The petitioner may be the same as the nominated guardian. The court may appoint as guardian “any qualified individual, a corporate fiduciary, a nonprofit corporation, a guardianship support agency…or a county agency.”
At the guardianship hearing, the petitioner must present evidence to establish incapacity of the alleged incapacitated person. While the court’s determination of incapacity is a necessary prerequisite to establishing a guardianship, the court may not use a determination of incapacity alone to justify a guardianship. If the court has determined that the alleged incapacitated person is incapacitated and that the incapacitated person is in need of guardianship services, it may appoint a guardian of the person and/or a guardian of the estate.
Making a Determination
After reviewing the petition, the court will schedule a hearing. The “alleged incapacitated person” must be provided with written notice of the petition and the hearing. It is mandatory for the alleged incapacitated person to be represented by counsel in a guardianship proceeding. If the alleged incapacitated person does not have counsel, the court will appoint an attorney, often at the cost of the county. The attorney must advocate for the alleged incapacitated person’s expressed wishes and consistent with his/her instructions, to the extent he/she is able to express hishe/ wishes and provide instructions.
If you are seeking guardianship of your loved one in Allegheny County, Westmoreland County, or Washington County, I can help you navigate this process.
