Guardianship

The Law Offices of Leo Mikityanskiy represents clients in guardianship proceedings in Bucks County and Philadelphia County, Pennsylvania.  A Guardianship is a court-supervised administration for a minor child or an incapacitated person, referred to as “the ward”. An incapacitated person is an adult unable to care for himself or herself or to manage his or her financial affairs because of a physical or mental condition.  Guardianship proceedings have to be brought in court to appoint a Guardian for a person who lost capacity due to an age-related disease such as Alzheimer’s or Parkinson’s and does not have a Power of Attorney and/or Medical Health Care directives. The court may appoint a guardian for the ward to care for the person.  This is called “guardian of the person”, and a guardian for the assets is called “guardian of the property”.  Frequently, a guardian is needed for both the person and the property, and it may be the same guardian.  A plenary guardian of the person may make the medical decisions concerning the health care of the incapacitated person or place the person in a nursing home.  Sometimes, a person only needs a guardian of the property if the person is unable to take care of his or her finances.

Guardianship is designed to protect the rights and interests of the ward, and the court does so by establishing strict procedures for appointment of a guardian and to ensure the guardian’s compliance with the rules. The guardianship procedures are some of the most complicated legal proceedings in any court and require the assistance of an attorney. Establishing a guardianship can be expensive, and the costs of administering a guardianship of the property can be considerable. For this reason, it is usually a good idea to see if there are any alternatives to a guardianship proceeding before starting the process.

The Guardianship Process.

The process of appointing a guardian begins with filing a petition in the Court of Common Pleas Orphans’ Court Division.  Under Pennsylvania law and Orphans’ Court’s rules, the petition must detail the financial, family and personal situation of the person for whom a guardian is sought to be appointed, and the nature of his or her disability or incapacity.  The petition must describe the reasons why a guardianship is necessary and whether less-restrictive alternatives have been explored. The court may require statements or live testimony of medical experts who are familiar with the incapacitated person or evaluated him or her.

After the petition for guardianship is filed, it must be served on all interested parties, including the person for whom the appointment of a guardian is sought.  The court will schedule a hearing date. The court will also assign an attorney or temporary guardian (Guardian Ad Litem) to the person alleged to be incapacitated to make sure the interests of the person are protected.

The court hearing itself may be relatively brief if the case is uncontested and the person for whom the guardian is sought consents to the appointment if the person can still legally consent. Depending on the status of the alleged incapacitated person, a medical expert may or may not recommend that he/she be present for the hearing.  The process of appointing a guardian may take several months, but the court may entertain a petition for an emergency guardian of the person or estate of an incapacitated person if there is an urgent need, to avoid irreparable harm to the incapacitated person’s estate or person.

If the court approves the appointment of a guardian, the guardian must qualify to serve, and sometimes post a bond (insurance) to serve.  The guardian is usually obligated to provide the court with a report of the financial and personal status of the incapacitated person within a short time of appointment and then at least once annually.  At the Law Offices of Leo Mikityanskiy, we provide professional guidance and assistance to guardians in all stages of guardianship proceedings and reporting. The guardian must regularly communicate with the incapacitated person and periodically visit the person to ensure the person’s needs are met.

Alternatives to Guardianships.

Some alternatives to Guardianship include Powers of Attorney and prior designations of Guardian before the need arises.  It is highly advisable for an elderly person to have a Power of Attorney appointing a relative, a loved one, or a friend as an agent.  A simple, inexpensive Power of Attorney will ensure that your children can make personal and financial decisions for you and sign legal documents if you lose your capacity to make the decisions and sign yourself.  This power includes proper Medicaid Planning if necessary.  If there is no such Power of Attorney, complicated, lengthy and expensive Guardianship proceedings have to be brought in court to appoint a Guardian for a person who lost capacity due to an age-related disease such as Alzheimer’s, and then the court may limit what the Guardian can do.  Another useful document is a Living Will and Health Care Proxy, which is a set of instructions concerning medical care appointing an agent for making medical care decisions.  Power of Attorney and Living Will/Health Care Proxy are very serious legal documents, and they must be properly prepared, explained to you, and executed, or they will not be valid.

Learn more about the guardianship process or being named as a guardian for your loved one, and how to avoid the costly and complicated guardianship process with advance Estate Planning. Contact guardianship attorney Leonid Mikityanskiy at our Feasterville, PA office at (215) 357-1400.

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