By Attorney Megan D. Strait
Guardianships are implemented by the court when an individual, commonly referred to as an alleged incapacitated person, is deemed to be incapable of rendering financial and/or healthcare decisions on his or her own. In December 2023, Governor Josh Shapiro signed Act 61 of 2023, which is set to go into effect next month. This Act is aimed at trying to solve ongoing issues with Pennsylvania’s guardianship system. If you are currently serving as a guardian or you plan to become a guardian, then it is important for you to note these changes.
The first major change in the new law is mandatory legal representation for the alleged incapacitated person. Historically, this was treated as an option and thus, often handled differently amongst the counties in Pennsylvania. With the new law going into effect, every alleged incapacitated person will be appointed an attorney to represent his or her interests regardless of the individual’s ability to pay for that representation. This change also distinguishes between an attorney being appointed as counsel for the alleged individual and an attorney being appointed as a guardian ad litem and indicates that in some cases both may be necessary.
The second change requires individuals who are seeking guardianship of three or more alleged incapacitated persons to be certified. While the requirements for certification have yet to set by the Pennsylvania Supreme Court, this new law does provide for a minimum of what the certification must include, which is submission of education, employment, and criminal history along with the passing of a guardianship certification exam. The law does permit the certification requirement to be waived, but only upon a showing that the individual already has the equivalent licenses or certifications that are necessary to prove that the individual can faithfully perform the obligations of guardian.
The third change revolves around placing a greater emphasis on “less restrictive alternatives”. Less restrictive alternatives have been defined as living wills, healthcare powers of attorney, financial powers of attorney, trusts, representative payees or the availability of family and friends. Under the new law, any petition seeking guardianship must set forth specific facts demonstrating that less restrictive alternatives have been considered or tried or why less restrictive alternatives are not available. Additionally, the court must make specific findings that there is insufficient family support and no less restrictive alternatives available before determining that a guardianship is necessary. This third change also makes it clear that a determination of incapacity alone is not enough to justify the appointment of a guardian.
The last change implements automatic review hearings. If the evidence at the initial hearing indicates that the capacity of the alleged incapacitated person may change, the court is required to set a date for the review hearing in its initial order for guardianship. The review hearing must be held within one year of the guardianship being established and must be done in the presence of the alleged incapacitated person and his or her attorney. The law also provides a list of things for the court to consider when determining whether a guardianship needs to continue, including the opinion of a medical professional who has personally examined the alleged incapacitated person, the alleged incapacitated person’s circumstances of daily living, whether the incapacity can be managed by medication or rehabilitation, and whether there is potential to regain capacity. It will be at this hearing that the court must determine whether to modify, continue or terminate the guardianship.
It is the hope that these changes will better protect Pennsylvania’s most vulnerable population and reduce the amount of exploitation that can result from guardianships being implemented. If you have any questions about these changes or you are considering guardianship for a loved one, please contact Walters & Galloway, PLLC and let us help guide you through the process.
