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Guardianship & Legal Resources

Overview

This resource is a collection of information about guardianship and things to consider when determining the type of guardianship to pursue, the warning signs of abuse of power of attorney or guardianship, Supported Decision Making and how it can be used, and definitions of common legal terms you may encounter when discussing legal guardianship, power of attorney, or other legal proceedings.

A guardian is a person or agency who makes decisions in the best interest of a person who is unable to able make decisions for themselves. In legal terms, this person is considered “incapacitated”.

What does it mean to be an incapacitated person?

An incapacitated person cannot make or communicate decisions about his or her health, safety, financial, or self-care needs. The court determines if a person is incapacitated through a court hearing. Only an incapacitated person can have a guardian appointed, but not all need a guardian. Guardianship should be considered if the person does not have adequate support, or, if he or she is not willing to cooperate with those supports.

Who can be a guardian?

A guardian can be any person, county agency, or institutional trust interested in the person’s welfare. For people living in state facilities, the state may choose the guardian office of the facility as guardian of estate. The court will listen to the person’s choice of a guardian, if possible.

What does a guardian do?

A guardian will place that person’s needs first when making medical and financial decisions. The guardian must consider three important things when making decisions. Those three things include autonomy, independence, and protection of rights.

  • Autonomy– The ability to choose one’s own life. Choices are based on what the person would want if he or she were able to answer the question.
  • Independence– The desire not to have others tell you what to do. The person will enjoy living where they can make their own choices as much as possible so long as it does not put them in any danger.
  • Protection – The person will be safe from being taken advantage of or harmed.

A guardian should make the choices for this person as they would make for themselves as if they able to. There is a lot involved in it as well. This means staying involved in the person’s life and making sure there are plenty fun activities available for them. On a more serious note, it includes things like choosing and organizing caregivers, helping the person find and keep housing, as well as managing their finances.

Are all guardianships created equal?

Each person with a disability has his or her own talents and difficulties. With this in mind, guardianship will vary regarding the sorts of decisions and the range of decisions considered for each person, as well as the length of time the guardianship will be in place.

When guardianship is requested, you will need to consider which type of guardian to apply for. It is also possible for more than one guardian to be named, with each person having a different set of responsibilities.

What type of decisions does the person need help with?

  • Guardianship of person considers the health care, living situation, custody, education and training. There will also be consideration given to any support services they may need as well as social opportunities.
  • Guardianship of the estate allows for decisions regarding management of the person’s finances.
  • Guardianship of the person and the estate will include making both medical and financial decisions for the protected person.

How much help does the person need?

  • Plenary guardian: This allows the guardian to make almost all the decisions for the person*
  • Limited guardian: With this choice, the judge can pick and choose what sorts of decisions may be still left to the person in question.

For the person, the range of decisions include things like the person’s general care, choice of type and location for their home, and plans for needed services. The services may include those for physical and mental health, as well as any need for ongoing social and vocational support. Also, there will be a ruling allowing the guardian the legal right to sign consents.

Regarding the estate, the decision-making is straight forward, answering the exact portion of income over
which the guardian is assigned power and duties.

How long will the person need assistance?

If this is a situation of urgency, as in to prevent injury to someone on a short term basis, an emergency guardianship may be set up.

  • For the person, the time period can be from 72 hours to a maximum of 20 days.
  • For the estate, the time period will be not more than 30 days.

The other choice is for permanent guardianship. This means it will continue indefinitely, and may only removed or changed by a new court order or the death of the guardian.

*Some decisions require separate consideration such as agreement for procedures for sterilization, abortion, ECT, the removal of healthy body organs, to prohibit marriage or consent to divorce, as well as any experimental biomedical or behavioral medical procedures or experiments.

When an individual is under guardianship, or has a power of attorney (POA), it is essential that the individuals retain as many rights and as much independence as possible. However, there are certain times when these arrangements may lead to abuse by the POA or guardian.

Warning Signs

  • The principal, or the person with the incapacity, appears neglected (e.g., clothes appear unclean, weight loss, poor hygiene, inability to keep up home).
  • It is suddenly difficult to visit or speak with the principal, or it is difficult to speak with the person unless the guardian or POA is present as well.
  • Choices and decisions made do not seem to reflect the wishes and previously discussed goals of the person with the disability.
  • Bills are not paid. Missed payments, returned checks, and/or cancellation of services can be one of the first signs there is a problem.
  • Sudden and significant changes in the level of care the principal receives or changes in their financial status. For example, the in-home staff have been suddenly discontinued, or the principal is suddenly moved to a different care facility or agency.

Expectations of Guardians

Guardians are expected to visit on regular basis to assess the individual’s welfare and general condition. The person should be allowed to exercise as much of their voice as possible regarding decisions about their lives.

The individual’s finances should be kept separate from the agent’s finances and there should be a “paper trail” detailing how the money was used and for what.

If you suspect someone is abusing their powers of attorney, or guardianship, it’s important to speak up. Report concerns about abuse of an adult with a disability by calling Adult Protective Services on the Statewide Elder Abuse Hotline at 1-800-490-8505.

Supported Decision Making

People with intellectual and developmental disabilities, or those that have difficulty communicating, may need help in making decisions in their lives.

What is Supported Decision Making?

Supported Decision Making (SDM) is an option for people who need help with decisions. It’s an effort to provide every person the right to choose, no matter their challenges. This includes basic decisions, such as where to live, what to do, and whether to date. It also may include more complex decisions like marriage, health, and finances. SDM recognizes the natural support system of people in their lives.

What is the Difference Between Supported Decision Making and Guardianship?

Guardianship gives others the power to make decisions for the person. SDM allows the person to be a part of the decision making process. It recognizes the individual and their right to choose. This can help the person feel more independent and empowered. It may also provide more safety from abuse of by involving a number of people in the decision making process rather than just one.

Is Supported Decision Making Always Appropriate?

SDM is usually an informal process and plan rather than a legal document or process. Some professionals like doctors and lawyers have concerns about whether this way of making choices works with more complex decisions. Because of this, sometimes formal written agreements are used which provide detailed information about who is assisting with the types of decisions, and outlines the topics included in making the choice.

To Learn More About Supported Decision Making:

 

Glossary of Legal Terms

Principal: this is the person who is requesting the action, or filing the forms, to designate someone to act on his or her behalf.

Competence: the mental ability to understand problems set before them and to make sound and rational decisions based on the information.

Agent: The person who is identified to act on behalf of another, making decisions for that person when they are not capable of making their own.

Notarized: a document that has been signed in front of a notary public and carrying their stamp or notary seal. This signifies the notary authenticated the identity of the person or persons signing the document.

Asset: Refers to anything which has monetary value. Examples of this include real estate, personal property, bank accounts, or anything that might be used to pay a debt. It may also include less tangible things, such as a trademark, property rights, or even the good will or clientele a business has developed.

Paper trail: The step by step list of documents needed to allow someone to follow the exact history of all transactions that have occurred for a given time period.

Protective Services: A department of the Pennsylvania government charged with investigating any allegations of abuse toward persons with significant disabilities and/or greater than 60 years of age. This would include any emotional, physical, or financial abuse, including charges of abandonment, neglect, or of exploitation. They will additionally provide health and supportive services, and can legally intervene through the appointment of a legal guardian.

Trustee: an individual “holds” or manages some asset, often money, set aside for the benefit of another person. The appointee may only use the funds or assets to support that person, and has a duty to act in the other person’s best interest. Further, the trustee must not receive any personal gain from the asset.

Institutional trust account: a trust fund held by a corporation, institution, or organization for the benefit of a number of individuals. It may be assets for a particular group of people, such as a group of employees from an individual business, or may be a number of individual accounts held for separate people.

Support services: a coordinated system of services with the goal of assisting a person with a disability to be as independent as possible. Support services can provide assistance in a number of different ways, including case management, visiting nurse services, homemaking services, delivery of meals, and transportation to name a few.

Protected person: a person who is either a minor or judged to be unable to manage their affairs and has a court appointed guardian. This can include someone under a protective order.

Incapacitated: Any person whom the court has determined is unable to manage all of their needs independently, whether because of an inability to understand and evaluate information, or an inability to make and communicate reasonable and rationale decisions. Concerns may center on the ability to manage finances, medical care, housing, or safety or some combination of any of these.

Rep payee: (representative payee) A person or organization appointed to receive the social security disability or social security income benefits for another who is unable to manage these benefits on their own. The rep payee will assist the person in managing his/her finances and protect the person from financial victimization or fraud. The representative payee does not receive any financial benefit from this arrangement and must keep careful records regarding the use of the money.

Conservator: Pennsylvania does not use this term. Other states have separate designations, the conservator governs the incapacitated person’s estate and a guardian manages the person. Pennsylvania uses the term guardian for both.

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Other downloads

Name Description Type File
Guardianship This resource provides information on the legal process of being declared a guardian for another person. pdf Download file: Guardianship
Types of Guardianship This resource provides information on the different types of guardianship available and things to consider when determining the type of guardianship to pursue. pdf Download file: Types of Guardianship
Abuse of Power of Attorney or Guardianship This resource highlights some of the warning signs that may suggest this is occurring. pdf Download file: Abuse of Power of Attorney or Guardianship
Supported Decision making This resource provides information on Supported Decision Making, and how it can be used to help people make decisions. pdf Download file: Supported Decision making
Glossary of Legal Terms This resource provides definitions for common legal terms that individuals and families may encounter when discussing legal guardianship, power of attorney, or other legal proceedings. pdf Download file: Glossary of Legal Terms

This information was developed by the Autism Services, Education, Resources, and Training Collaborative (ASERT). For more information, please contact ASERT at 877-231-4244 or info@PAautism.org. ASERT is funded by the Bureau of Supports for Autism and Special Populations, PA Department of Human Services.