A guardianship lawyer helps you establish care for an incapacitated loved one

Caring for an incapacitated person means being able to access and manage almost every aspect of that person’s life, from paying bills, selling property, and investing assets to making decisions on medical care and even where they live. For anyone to make these critical decisions for another person, even a close family member, they will first need to be granted the legal authority to do so. An experienced guardianship attorney can help you navigate this process and obtain the legal authority necessary to care for your loved one.

Pennsylvania law 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.”

Oftentimes incapacity is visited upon someone due to the onset of an ailment such as Alzheimer’s. However, someone who has been in a catastrophic accident in which they sustained a traumatic brain injury may become incapacitated under the law. Our office has assisted in the Guardianship process both for seniors who have fallen ill as well as young adults who may have been incapacitated since they were born.

The Courts do not grant Guardianship lightly. After all, they are essentially stripping away the autonomy of an adult American citizen, which is a serious charge. As a result, Pennsylvania law has strict procedures in place that must be carefully followed before a Court will issue an Order naming someone as a Guardian over another.

The burden of proving, by a preponderance of the evidence, both that a person is “incapacitated” under Pennsylvania law and that the person seeking to be appointed as Guardian is fit to do so, lies squarely with the Petitioner. If the Court has not been convinced that this high standard has been met, it will not grant the petition. A skilled, experienced attorney becomes indispensable to help make sure that you leave the Courthouse with the legal ability to care for your loved one in need.

This is a complex process that the Courts take very seriously. You should seek the assistance of an experienced estate attorney to help ensure your success.

To begin the process, you must file a petition with the Court in the county where the incapacitated person resides. The petition will outline the reasons for seeking guardianship and provide information about the incapacitated person's condition. Often, but not always, the petition is filed by the same person who is seeking to be appointed as the guardian.

After you file your petition, you are required to notify certain individuals, called the “presumptive intestate heirs” of the alleged incapacitated person. In other words, you have to notify any person who would inherit assets from the incapacitated person if they died without a Will, a list that is set forth by statute. This ensures that interested parties have an opportunity to participate and voice any concerns.

The key component of any petition for guardianship is for the petitioner to prove, by the preponderance of the evidence, that the person for whom they are seeking guardianship is truly incapacitated. This requires testimony from physicians, caregivers and family members familiar with the person’s condition. An Expert Report, completed by a competent professional who has assessed the person, will also be required. This report will lay out the nature of the person’s incapacity, how severe the incapacity is, and what areas of day-to-day life are impacted by the incapacity.

In many cases, the Court will appoint an attorney who represents the interests of the incapacitated person throughout the legal process. This attorney will investigate the situation, assess the condition of the incapacitated person, evaluate the abilities of the proposed guardian, ensure all necessary statutory procedures have been followed, and make recommendations to the court.

Once all the necessary evaluations and investigations are complete, the Court will schedule a hearing to determine whether guardianship is necessary. At the hearing, it will fall to the petitioner and their attorney to present sufficient evidence supporting not only the need for a guardianship to be appointed, but the fitness of the proposed guardian to serve.

If the Court determines that guardianship is necessary and in the best interest of the incapacitated person, it will issue a guardianship order. This order grants the proposed guardian the legal authority to make decisions on behalf of the incapacitated person.

This is a complex process that the Courts take very seriously. You should seek the assistance of an experienced Lancaster guardianship lawyer to help ensure your success.