By: Michelle A. Ross, Esq.
In Pennsylvania, when an individual lacks the capacity to make their own decisions regarding their health care and/or finances, the Orphans’ Court may appoint a guardian to assist them. If you are currently serving as someone’s guardian, or if you plan to become someone’s guardian in 2024, then you should be aware of the 4 major changes to the guardianship laws that will become effective on Tuesday, June 11, 2024.
Senate Bill 506, now Act 61 of 2023, amends various sections of the Pennsylvania Probate, Estates, and Fiduciary (PEF) Code and outlines new requirements that all county Orphans’ Courts across the Commonwealth will now need to follow when handling guardianship matters.
Mandatory Legal Representation
Where it had previously been optional and thus inconsistently handled from county to county, all PA Orphans’ Courts will now be required to appoint an attorney to represent the alleged incapacitated person’s (AIP) expressed wishes and instructions in all stages of the guardianship proceedings, from petition and initial adjudication hearing through the modification or termination of guardianship. Moreover, if the court further finds that the AIP’s interests will also need to be protected, then the court will be required to appoint a second attorney to serve as the AIP’s guardian ad litem (GAL).
Takeaway: A guardianship proceeding will no longer take place without at least 1, possibly 2, lawyers (whose fees will most likely be paid by the county at a reduced rate) to represent the AIP.
Certification Requirements for Guardians
Those seeking to become the guardian of 3 or more individuals will now need to first become certified and provide proof of compliance with the certification requirements to the court. The Supreme Court has not yet prescribed the rules and forms necessary to effectuate the required certification process.
However, these eventual rules will most likely require a proposed guardian to, at a minimum:
- Submit information and documentation related to education, employment, and Federal and State criminal history; and
- Take and pass a certification exam as administered by a national nonprofit guardianship certification organization or provide proof of equivalent licensure/certification, before the court will consider their request to become a guardian.
Takeaway: An individual will now be required to submit to a certification process to become a guardian of 3 or more individuals.
Greater Emphasis on Less Restrictive Alternatives
Greater emphasis will now be placed on the court’s requirement to consider and favor “less restrictive alternatives” to the appointment of a guardian.
Going forward, if the court cannot point to evidence of record that supports both a finding that the AIP has insufficient family, friends, or other supports to assist, and a finding that the AIP also has no or insufficient less restrictive alternatives in place (i.e. advance directives, living wills, health care powers of attorney/representatives, financial powers of attorney, trusts/special needs trusts, representative payees for those receiving Social Security benefits, Pennsylvania Achieving a Better Life Experience accounts, and mental health advance directives), then the court will not be permitted to appoint a guardian.
Takeaway: To justify a guardianship appointment, Courts must first find the existence of insufficient family support and the absence of sufficient alternative measures such as advance directives or financial powers of attorney.
Mandatory Review Hearings
If the evidence presented during the guardianship hearing indicates that the circumstances of the person’s incapacity may change in the future, it will now be mandatory for the court to hold a review hearing no later than a year from the date of the initial guardianship appointment. At that time, the parties will be expected to present evidence from lay persons or opinions from medical professionals or other qualified experts regarding:
- Whether the incapacity could be adequately managed by medication or rehabilitation;
- Whether the potential exists for the incapacitated person to regain physical or cognitive capacity; and
- The circumstances of the incapacitated person’s daily living and support from others.
Upon the court’s consideration of the evidence and testimony presented, the continuance, modification, or termination of the guardianship will then be ordered.
Takeaway: Mandatory review hearings will be conducted for cases in which the court determines that circumstances have the potential to change.
The guardianship laws have been changed to protect our society’s most vulnerable population and reduce the amount of abuse and exploitation suffered by AIPs at the hands of their guardians. In turn, however, it will become increasingly difficult and costly for family members or other interested parties to adequately represent themselves against the increased number of mandatory opposing counsel at the increased number of mandatory court appearances. Thus, it is now more important than ever to hire a lawyer that not only has the most up-to-date knowledge of this nuanced practice area, but also has the experience and skillset necessary to provide you with the best representation possible when litigating guardianship matters in the Orphans’ Court.
If you have any questions on the changes to the PA Guardianship Laws or would like more information, please contact Michelle A. Ross.
Michelle is Counsel with Leech Tishman and leader of the firm’s Guardianships Practice Area. Michelle focuses her practice on trusts and estates planning and administration, elder law and guardianships, and various other Orphans’ Court fiduciary litigation. Michelle is based in the Pittsburgh office and can be reached at 412.261.1600 or firstname.lastname@example.org