The media frenzy surrounding the #FreeBritney movement and movies like Netflix’s “I Care A Lot” have brought the topic of legal guardianships into the spotlight. For reference, a guardianship is a legal structure in which the court appoints an individual or an organization to handle another individual’s personal and/or financial affairs due to his or her physical or mental impairments, whether caused by age or otherwise. In Pennsylvania, there has been a rise in the number of guardianships of incapacitated persons, largely due to an increase in the aging population and other societal factors. Unfortunately, abuse and financial exploitation of incapacitated persons by court-appointed guardians has increased as well, leading to the realization that additional safeguards are needed to protect the alleged incapacitated person (“AIP”) throughout the guardianship process. As a result, Senate Bill 506 was signed into law as Act 61 (the “Act”) on December 14, 2023 by Governor Josh Shapiro. The Act, which became effective on June 11, 2024, amends certain provisions of Pennsylvania’s Probate, Estates and Fiduciaries Code (the “PEF Code”) governing guardianships of incapacitated persons, and creates new requirements for all guardianship matters involving incapacitated persons.
By way of background, under Chapter 55 of the PEF code, the court, upon petition and hearing, may adjudicate a person incapacitated and appoint a guardian of his or her person if it is established by clear and convincing evidence that the AIP is unable to effectively receive and evaluate information and to communicate decisions relating to his or her physical health and safety. Similarly, a guardian of the estate may be appointed if it is established by clear and convincing evidence that the AIP is unable to manage his or her financial affairs and to make and communicate responsible decisions relating thereto. A guardianship of the person and/or of the estate may be temporary (i.e., in the case of emergency guardianships which have a set duration), limited, or plenary in nature. The procedure for seeking either type of guardianship is further prescribed by Chapter 55 as well as State and Local Orphans Court Rules.
The Act amends Chapter 55 of the PEF Code in four major ways: (1) it requires the mandatory appointment of legal counsel for the AIP; (2) it places a greater emphasis on the Court’s requirement to consider less restrictive alternatives to guardianship; (3) it requires certification of certain guardians; and (4) it requires automatic review hearings in certain circumstances. Each of these are addressed in more detail below.
Mandatory Appointment of Counsel for AIP
Prior to the Act, the Petitioner in a guardianship proceeding was required to inform the Court, prior to the guardianship hearing, whether counsel had been retained by or on behalf of the AIP and if not, whether the AIP had requested counsel. This was colloquially known as the “seven-day letter” and was handled differently from county to county. Now, the ACT mandates that the AIP have legal representation throughout all guardianship proceedings, including the initial proceeding and any subsequent proceedings to consider, modify or terminate a guardianship. Specifically, the Petitioner must inform the Court if the AIP is represented by counsel at the time the petition is filed (or as soon as the Petitioner becomes aware of the AIP’s representation) and if the AIP has not retained counsel, then the Court must appoint qualified counsel to represent the AIP, regardless of the AIP’s ability to pay. The court-appointed counsel must meet with the AIP as soon as reasonably possible after the appointment and is required, within five days of the meeting, to file a certification with the Court indicating the time and place that the meeting occurred. Further, under the Act, if the Court determines that a guardian ad litem is necessary for the AIP, then the Court shall make a separate appointment for same.
Greater Emphasis on Less Restrictive Alternatives
Although the Court was always tasked with considering less restrictive alternatives to the appointment of a guardian, the Act places a much greater emphasis on the Court’s requirement to do so – and on the Petitioner. Pursuant to the Act, the underlying guardianship petition “must allege specific facts demonstrating that less restrictive alternatives were considered or tried and why the alternatives are unavailable or insufficient.” The Court must then make specific findings of fact based on the evidentiary record of the absence of sufficient family, friends, or other supports to assist the AIP in making decisions and of the insufficiency of each less restrictive alternative before appointing a guardian for the AIP. Less restrictive alternatives include, but are not limited to, advance directives, living wills, financial and healthcare powers of attorney, health care representatives (under Chapter 54 of the PEF Code), trusts/special needs trusts, representative payees for those receiving Social Security benefits, PA ABLE accounts, and mental health advance directives. If no less restrictive alternatives are available and sufficient, the Court is further directed to consider a limited guardianship, as opposed to a plenary guardianship, when applicable.
Certification Requirement for Guardians
Under the Act, individuals seeking to become the guardian of three or more incapacitated persons will be required to be certified and provide proof of such certification to the Court, prior to their third guardianship appointment. However, the Court can waive this requirement upon a petition demonstrating that a proposed guardian has such equivalent licenses or certifications as are necessary to ensure that the proposed guardian is capable of fully, faithfully, and competently performing the obligations of a guardian. Interestingly, the Act specifically states that a license to practice law does not constitute an equivalent license or certification for guardianship.
It is noted that although the Act puts the burden on the Supreme Court of Pennsylvania to prescribe rules and forms necessary to effectuate the required certification (including rules regarding the expiration and renewal of such certification), the Supreme Court has not yet prescribed any rules and forms in this regard. However, we can expect that the certification will require a proposed guardian, at a minimum, to submit their education and employment history as well as their federal and state criminal background history and to take and pass a certification exam administered by a national nonprofit guardianship certification organization.
Mandatory Review Hearings
Prior to the Act, any interested party, including the incapacitated person, could petition the Court for a review hearing at any time during the guardianship, especially if there had been a significant change in the incapacitated person’s capacity, or if the guardian had failed to perform his or her duties in accordance with the law or to act in the best interests of the incapacitated person. While this is still the case, the Act now mandates automatic review hearings in certain situations. Specifically, if the evidence presented during the initial guardianship hearing indicates that the circumstances of the AIP’s incapacity may change, the Court must schedule a review hearing no later than one year from the date of the Court’s Decree establishing the guardianship.
The incapacitated person must be present at the review hearing, along with his or her legal counsel. If, following the presentation of evidence and testimony from all parties, the Court finds that guardianship continues to be necessary and that no less restrictive alternatives exist, the Court may order that the guardianship continue. However, if the court finds that guardianship is no longer necessary or a less restrictive alternative exists, the court must discharge the guardianship.
Conclusion
While there are many nuances to the changes in Pennsylvania’s guardianship laws, it is important to remember that these laws have been revised to better protect the rights and well-being of incapacitated individuals and eliminate guardian abuse. A knowledgeable attorney can help you and your family better understand these provisions and navigate all aspects of guardianship proceedings including guardianship administration and the filing of requisite reports.
Franca Tavella is the author of this blog and is a member of the Firm’s Trusts and Estates practice. Franca has a special focus on limited and plenary guardianships and regularly oversees various aspects of guardianship proceedings.
