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Pennsylvania’s Powers of Attorney and guardianship rules will change in 2019, providing additional protection to the elderly at a time when they are at their most vulnerable.
A guardian is an individual or entity appointed by the Court to make decisions for an incapacitated person. The law in Pennsylvania defines an incapacitated person as, “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.”
A Judge sitting in Orphan’s Court decides if an individual is incapacitated. The process begins with an interested party filing a Petition with the Court. Then, a hearing is scheduled. More persons, referred to as “potentially aggrieved parties” such as a fiancée, best friend or business partner, will need to be served with notice and have the right to legally participate in the hearing. Previously, medical testimony was taken from a doctor or psychologist who has treated or examined the alleged incapacitated person. The new guardianship rules require an “Expert Report” instead of deposition testimony.
Come June 1, 2019, the Commonwealth will keep records on all guardianship cases through a new The Guardianship Tracking System, or GTS, to be used for filing reports and inventories required for guardianships. Online filing will be required using new forms.
The new rules require that each proposed guardian have a criminal background check produced by the Pennsylvania State Police. Each proposed guardian also must submit to the Court records regarding the completion of any guardianship training, the status of existing certifications, and any prior disciplinary action. The petition must state the proposed guardian’s current caseload.
Both Financial and Health Care Powers of Attorney are designed to work in lieu of Court-appointed Guardians. While individuals are still able, they may choose and name the individuals they want to manage their finances and make their health care decisions by naming them in their Powers of Attorney. Powers of attorney can accomplish an individual’s goals and avoid Court involvement. Without properly drafted Powers of Attorney the only choice is a Court appointed Guardian which requires additional expense and time.
Attorney Stuart T. Shmookler provides estate planning and administration services to families and business owners.