A guardian is a person lawfully invested with the power and charged with the duty of taking care of the person and managing the property and rights of another person, who, for because of age (i.e. child), mental incapacity (i.e. Dementia and Alzheimer’s disease), or self-control (i.e. drug abuser) is unable to care and mange his/her own affairs.

When an individual reaches the age of 18, regardless of any functional limitations or disabilities, he/she has the legal right to make decisions on his or her own behalf. Only a court, after a legal proceeding, may judge an individual to be incapacitated and appoint a guardian to make decisions for him/her.

In Pennsylvania, a court may appoint a guardian of the person and/or of the estate for an individual who lives in Pennsylvania or if the property is in Pennsylvania after a hearing and finding that the individual is “mentally incapacitated.” It is the petitioner’s burden to establish by clear and convincing evidence that the respondent is incapacitated. 20 Pa. Cons. Stat. Ann. §5511(a).

The proceeding is initiated when an interested person files a petition in the Court of Common Pleas, Orphans Court Division for the appointment of a guardian for a person or the person’s estate. The information to be included in the Petition is governed by 20 Pa. Cons. Stat. Ann. § 5511(e).

Any qualified individual, corporate fiduciary, non-profit corporation, or county agency may serve as guardian. 20 Pa. Cons. Stat. Ann. § 5511(f). If no other person is willing or qualified to serve, a guardianship support agency may be appointed by the court. 20 Pa.

Cons. Stat. Ann. § 5553(a). The guardian must not have interests that conflict with those of the incapacitated person unless no alternative exists. 20 Pa. Cons. Stat. Ann. § 5511(f). For persons residing in state facilities, the guardianship office may be appointed guardian of the estate. 20 Pa. Cons. Stat. Ann. §5511(f).

Many people with disabilities are able to make non-financial decisions concerning aspects of their lives without a guardian but could use assistance from others concerning financial matters. In instances such as Social Security Disability (SSD) and Supplemental Security Income (SSI), the funds can be managed without a guardian through the appointment of a representative payee. Advance planning by families can often avoid the need for a guardian to manage gifts, inheritances, or other assets.

If you need an attorney with knowledge and experience of guardianship law, contact us today for your free consultation.

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