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Understanding guardianship

On Behalf of | Dec 28, 2020 | Estate Planning, Guardianship

Guardianship is an important legal tool that can protect vulnerable people and their property. It’s also widely misunderstood. In this blog post, we will try to cover some of the basics of guardianship law in Pennsylvania.

What is guardianship?

Put simply, guardianship gives one party certain limited legal rights to make decisions on behalf of another person. For instance, parents are presumed to act as guardians for their children. Another adult who takes the legal rights of a parent can also be known as the child’s guardian.

The law presumes that adults can make decisions about their own health and finances, but sometimes adults do not have that ability. For instance, an adult may be incapacitated due to illness, injury or chronic condition. If a court determines that an adult lacks the capacity to make important decisions about their own health, finances and other matters, the court can appoint a guardian.

Who may serve as guardian?

In many cases, a guardian is an adult child or other relative of the vulnerable adult. However, a court can appoint another person, or even an institution or care facility as a legal guardian, depending on the circumstances. A guardian must act in the person’s interest and has a fiduciary duty toward their finances.

It is important to remember that a person has rights when they are under guardianship. Before appointing a guardian, a court will require a hearing. A guardian must file regular reports to the court, and the court may hold a follow-up hearing to determine if the person is still incapacitated, if the guardianship is still necessary and if the guardian is continuing to act in the person’s best interests.

When to get started

Deciding to pursue a guardianship is a serious matter, and the process can be emotionally difficult for everyone involved.

A fairly common scenario involves an adult child who sees an aging parent who has increasingly difficulty with memory and taking care of household tasks. Often, the onset of these problems is slow enough that the parent and child can discuss the matter before the parent becomes legally incapacitated. When possible, it is a good idea to make provisions for guardianship during the process of estate planning.

In another scenario, an incapacitated child is reaching majority or is of age and the parent(s) seeks guardianship of such child to maintain the child’s health and safety as they are either mentally or physically incapacitated in a life-long way.

In other cases, the onset of incapacity happens rapidly, following an accident or medical problem. In a scenario that is all too common, an adult child seeks guardianship to protect their parent after they become aware that someone is trying to financially exploit the elderly person.

Learn more

Legally, the powers of a guardian can be quite extensive. It is no small matter to give one adult this kind of control over the life of another. However, when done correctly, the process of establishing a guardianship can be a vital way of protecting a vulnerable adult, and the relationship between guardian and subject can be one of love and mutual respect.