Pennsylvania Guardianship Basics

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.

How a Guardianship Proceeding is Initiated

A guardianship may be sought by any person “interested in the incapacitated person’s welfare.” 22 Pa. C.S. §5511(a). The guardianship proceeding is initiated by filing a petition with the Orphans’ Court in the county in which the alleged incapacitated person resides. Id. 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. Id.

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.

Incapacity Defined

“’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.” 20 Pa. C.S. § 5501.

Who Can Serve as Guardian

The petition must contain the name and address of a nominated guardian. 20 Pa. C.S. § 5511(e). The petitioner may be the same as the nominated guardian. If appropriate, the court may give preference to the nominee. 20 Pa. C.S. § 5511(f) (emphasis added). The court may appoint as guardian “any qualified individual, a corporate fiduciary, a nonprofit corporation, a guardianship support agency…or a county agency.” An individual seeking guardianship of three or more incapacitated persons must be certified to do so. Id.

Mandatory Representation by Counsel

The petitioner is typically represented by an attorney who prepares and files the petition. In 2024, the laws concerning guardianship changed such that it is now 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, usually at the cost of the county. 20 Pa. C.S. § 5511(a.1)(2). The attorney must advocate for the alleged incapacitated person’s expressed wishes and consistent with his instructions, to the extent he is able to express his wishes and provide instructions. 20 Pa. C.S. § 5511(a.1)(3).

Determination of Incapacity

At the guardianship hearing, the petitioner must present evidence to establish incapacity of the alleged incapacitated person. 20 Pa. C.S. § 5518. The petitioner must present live or deposition testimony or an expert report from “individuals qualified by training and experience in evaluating individuals with incapacities of the type alleged by the petitioner, which establishes the nature and extent of the alleged incapacities and disabilities and the person’s mental, emotional and physical condition, adaptive behavior and social skills.” Id.

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. 20 Pa. C.S. § 5512.1(a)(6)(ii).

Less Restrictive Alternatives

The court will look at whether less restrictive alternatives to guardianship exist, and if they do exist, then the court might not award a guardianship or might limit a guardianship. 20 Pa. C.S. § 5512.1(a)(6)(iv). Less restrictive alternatives include, but are not limited to: (i) advance directives such as durable power of attorney or trusts; (ii) living wills; (iii) health care powers of attorney; (iv) health care representatives; (v) financial powers of attorney; (vi) trusts, including special needs trusts; (vii) representative payees for individuals receiving Social Security benefits; (viii) Pennsylvania Achieving a Better Life Experience accounts; and/or (ix) mental health advance directives. Id.

Appointment of Guardian and Duty to File Annual Report

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 limited or plenary guardian of the person and/or a limited or plenary guardian of the estate.

A guardian of the person may have powers that include, for example, general care, maintenance and custody of the incapacitated person, designating the place for the incapacitated person to live, assuring that the incapacitated person receives such training, education, medical and psychological services and social and vocational opportunities, as appropriate, as well as assisting the incapacitated person in the development of maximum self-reliance and independence, and providing required consents or approvals on behalf of the incapacitated person. 20 Pa. C.S. § 5512.1(b).

A guardian of the estate may have powers that include, for example, managing the incapacitated person’s income and/or assets.

Guardians must file yearly reports after appointment in the Guardian Tracking System. 20 Pa. C.S. § 5521(c).

Review Hearing to Terminate or Modify a Guardianship

At any time following the issuance of the order establishing guardianship, any interested person may file a petition with the court to terminate or modify the guardianship. 20 Pa. C.S. § 5512.2(a.1). Upon the petition being filed, the court will schedule a review hearing in the presence of the incapacitated person and the incapacitated person’s attorney. Id. If, following the presentation of evidence and testimony from all parties, the court finds that guardianship continues to be necessary and that no less restrictive alternatives exist, the court may order that the guardianship continue. Id. But if the court finds that guardianship is no longer necessary or a less restrictive alternative exists, the court will terminate the guardianship. Id.

Finding an Attorney Who Can Help Me Petition for Guardianship of My Loved One

If you are located in Allegheny County, Washington County, Westmoreland County, or Somerset County, I can help you petition for guardianship of your loved one with an intellectual disability or a cognitive impairment such as dementia or Alzheimer’s. Please contact me to set up a consultation. Additionally, you may want to consult the Pennsylvania Guardianship Handbook, which is a great resource for guardians.