Who May be Appointed as a Guardian?
Updated: Jan 27, 2023
What happens when someone is no longer able to care for themselves? Or they are a danger to their own well-being? Under Pennsylvania law, the court can appoint a guardian to make decisions for the protected person, whether an adult or a child. Guardians have a legal responsibility to make decisions in the best interest of the protected person. A guardianship proceeding is filed by a person called the “petitioner”. This person is not always appointed as the guardian.
Who May be the Petitioner?
A petitioner may be any person interested in the alleged incapacitated person’s welfare. This may include family, friends, neighbors, an attorney, or other professional with a relationship with the person to be protected. Guardianship petitions are often filed by the local area agency on aging, or by hospital, nursing home, or other health care provider. Courts are mindful that in certain cases a petition may be filed by someone who is not acting in the best interests of the person to be protected. Sometimes a creditor, a nursing home, or certain family members (including a spouse contemplating a divorce) may file a petition for an improper purpose, such as to deprive the person of rights. The court may dismiss a proceeding where it determines that the proceeding has not been instituted to aid or benefit the protected person.
Who Can Be Appointed as a Guardian?
Any qualified individual, corporate fiduciary, non-profit corporation, or county agency may serve as guardian. If no other person is willing or qualified to serve, a guardianship support agency may be appointed by the court. If appropriate, the court shall give preference to a person suggested by the incapacitated person. The guardian must not have interests that conflict with those of the incapacitated person unless no alternative exists.
The selection of a guardian for a protected person is a decision that will have a significant impact on the person’s life and well-being. The guardian of the person will determine where the protected person lives and make medical decisions on their behalf. Selecting a responsible and capable guardian can be a challenging task, particularly where there is conflict among family members or other care providers. Qualities needed by a guardian of the estate may differ from those needed by a guardian of the person.
Important Qualifications of a Guardian of the Estate
Responsibility and trustworthiness;
Understanding of obligation to manage funds as a fiduciary on behalf of another;
Ability to manage, invest, and expend funds appropriately, considering the size of the estate and the nature of expected expenses;
Ability to engage appropriate tax, accounting, investment, and financial planning professionals, as needed;
Ability to create a plan for the short- and long-term needs of the protected person;
Understanding of the obligation to keep the IP’s funds separate and to account for the protected person’s funds, on an annual report and, if required, in an account to the court;
Ability to manage real estate and pay appropriate expenses;
Ability to apply for and obtain state and federal benefits including medical assistance;
Ability to handle possible additional future responsibilities;
No conflict of interest; and
Ability to communicate with an IP and their family who are limited English proficient or to provide interpretation and translation services.
A Family Member is Preferred as Guardian
When considering whom to appoint as a guardian of the person, the law requires the court to consider individuals in the following order of priority, provided any such individuals are available and suitable and have no conflict of interest:
The guardian of the estate (if already appointed);
The spouse, unless estranged or an action for divorce is pending;
An adult child;
A parent;
The nominee of a deceased or living parent of an unmarried AIP;
An adult sibling;
An adult grandchild;
Other adult family member;
An adult who has knowledge of the AIP’s preferences and values, including, but not limited to religious and moral beliefs, and would be able to assess how the AIP would make decisions; or
Other qualified proposed guardian, including a professional guardian.
Although the court must be mindful of these priority lists, the court retains discretion to determine whether any family member or friend would be appropriate and best suited to serve as a guardian under the particular circumstances.
Key Quality for Guardian: The court will often inquire about the length, depth and nature of the relationship between the protected person and proposed guardian in order to guard against appointing someone who may be seeking to take advantage of the protected person. A family member who is only more recently involved in the protected person’s life will be viewed with some amount of skepticism by the court.
Consult with a Guardianship Lawyer Today
If you have questions about legal guardianship in Pennsylvania, we recommend consulting with a lawyer experienced in guardianship proceedings and elder law. At Fiffik Law Group, our skilled lawyers have helped many clients in the area navigate the guardianship process. Whether you are pursuing becoming a guardian or objecting to a guardian, we can help. Contact us today to schedule your initial consultation.