When Should Someone Seek a Guardianship? Understanding Your Options & the Court's Preference for the Least Restrictive Means

Turning 18 is a legal turning point for everyone, but for families with children with special needs, careful planning is a must. Guardianship is one of the most powerful legal tools to protect a vulnerable adult. It transfers decision making authority away from someone who is unable to manage their own medical or financial affairs and gives that power to someone else. Because guardianships revoke or limit a person’s civil rights, courts always consider less-restrictive alternatives.

In Pennsylvania, there are three major types of guardianships. First is guardian of the person, which means that the appointed guardian has decision making power over someone’s housing, medical care and daily needs. Second is guardian of the estate which gives the appointed guardian the power to manage someone’s finances, property, and income. Third is a plenary guardianship which is a combination of both powers.  

Pennsylvania Courts appoint guardians when clear and convincing evidence is shown that a person is “incapacitated,” meaning that they are unable to communicate decisions, understand information to make well-reasoned decisions, manage their finances appropriately, and/or are unable to meet their basic health and safety needs. This commonly occurs when someone has a severe intellectual or developmental disability such as ASD or cerebral palsy, has a serious mental illness, suffers from a traumatic brain injury or stroke, has advanced-stage dementia, or has Alzheimer’s Disease. State law further requires proposed guardians to appear in court and have a doctor complete an exam and Expert Report about the person’s condition. And, as of recent, Pennsylvania Courts are required to appoint counsel for the person subject to the guardianship petition to help the process be as smooth as possible.

Pennsylvania law strongly urges courts and litigants to consider any available less restrictive means that keeps the individual safe before guardianship is pursued. This includes powers of attorney, healthcare directives, healthcare representatives, representative payee arrangements, trusts or special needs trusts, and support services. If someone can function safely with support, guardianship may not be necessary.

While guardianship can be a vital safety net, it’s not the first option. If you are concerned about a loved one’s ability to care for themselves or manage their affairs, contact Attorney Madeline Felix at Bloom Peters, LLC so she can help evaluate your options and guide you through the process with compassion and care.