Due to COVID-19, most court functions in the state have been suspended. In addition, our office is working remotely. For assistance, please email esr@mmzlaw.com with your contact information and the legal matter you need help with and someone will be in touch. If you are seeking help regarding a Will, Financial, or Health Care Power of Attorney, every effort will be made to respond as quickly as possible.

How Guardianship Works in Pennsylvania—and Why This Legal Process is Often a Last Resort

Gavel and striking block on law book with "Guardianship" title on wooden desk

This year, just about every news and media outlet has picked up the ongoing story of 39-year-old pop star Britney Spears, who has been living under a conservatorship—called guardianship in Pennsylvania and many other states—for well over a decade. While a ward, Ms. Spears released several albums, undertook a world tour performing her music, and … Read more

Guardianship Versus Power of Attorney Designations: What’s the Difference?

Older gentleman and daughter working on his estate plan with a lawyer

A little while ago, we published a post here on the blog as part of our Complete Guide to Estate Planning series covering all of the most vital estate planning documentation you need to consider.

High on that list of essential documents is a power of attorney (POA) designation—or perhaps more than one—allowing you to designate a specific trusted individual or individuals, like family members or other loved ones, to be in charge of your affairs or help you make financial decisions, healthcare decisions, and more.

Today’s post focuses a little bit more closely on why experienced probate and estate lawyers strongly recommend setting up POA designations as part of your estate plan to be fully prepared for all eventualities as you age. In the question of guardianship vs. POA, you want to avoid your family needing to seek guardianship.

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What are the Advantages of Hiring a Guardianship Attorney?

Guardianship concept graphic

If you are thinking about seeking guardianship for a loved one in Pennsylvania, it is often an emotionally fraught situation. Sadly, minor children may need legal guardians because their biological parents have passed away suddenly or they are unable to care for them. Accidents and illnesses often lead previously capable adults—who never thought to put a power of attorney (POA) designation in place previously—needing someone else to handle their affairs.

Are you looking to become a guardian for a minor child who needs someone to assume duties of a natural parent, or do you have an adult family member who is no longer capable of managing their own affairs and who did not create a power of attorney? You will likely need professional, caring guidance to help you sort through the details and help you face your hearing in Orphans’ Court.

There is no reason you should attempt to handle guardianship concerns—under any circumstances—without guidance from an experienced guardianship attorney. Today’s blog post highlights three of the biggest reasons why.

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Powers of Attorney: Beware of Forced Arbitration Clauses

Recently, the Superior Court of Pennsylvania upheld a Philadelphia County Court of Common Pleas judge’s decision not to enforce an arbitration agreement in a nursing home contract that was signed by a resident’s wife without his knowledge.  Despite that decision, numerous courts in Pennsylvania and around the country have enforced compulsory arbitration clauses, which are often unknowingly signed by consumers, the elderly and others, which force people to give up their right to a jury trial.

Many politicians, both in Pennsylvania and on the national stage, continue to support forced arbitration, notwithstanding the fact that this practice ignores citizens’ constitutional right to a jury trial, which is outlined in the 7th Amendment to the United States’ Constitution, as well as Article 1, Section 6 of the Pennsylvania Constitution.   Recently, President Trump directed the Center for Medicare / Medicaid Services (CMS) to change a rule which prevented nursing homes from inserting such clauses into their admission contracts.

In many circumstances, nursing home contracts are not carefully reviewed, and are hastily signed by the Power of Attorney for a family member or loved one who is being discharged from the hospital to a nursing or rehabilitation facility.  Because of the urgency created by hospitals’ efforts to discharge patients, the time frame within which a POA or family member can carefully research the quality of care provided by the facility is compressed, and patients are discharged to the nearest facility that has space available.

This often results in family members being placed in nursing / rehab facilities with a poor track record for providing care.  Many times, these facilities have been sanctioned by the state, placed under the management of a third party administrator, or repeatedly sued for injuries and neglect suffered by residents.  Not surprisingly, such facilities often do not want the light of day shined on their business practices or the substandard care they provide, so they place arbitration clauses in their admission agreements.  These clauses take the case out of the civil justice system and often allow the case to be decided by an arbitrator chosen by the facility.  The results of the arbitration are confidential and, more often than not, much smaller than a verdict that would be entered by a jury tasked with enforcing safety standards in the community.

So how can you avoid unknowingly agreeing to a forced arbitration clause? First, if you’re signing a rehabilitation or nursing home agreement yourself, be sure to read it carefully and, if it contains an arbitration clause, cross the clause out or opt out of it.  Second, when the time comes for you to sign a Power of Attorney appointing an agent to act on your behalf, be sure that the document contains a paragraph outlining “prohibited powers”.   Whenever our office prepares a Power of Attorney, we advise our clients to include the following clause: “This Power of Attorney does not grant authority for my Agent  to enter into an Alternative Dispute Resolution Agreement regarding any matter or for any purpose.  In addition this Power of Attorney does not authorize my Agent to waive a trial by jury on my behalf.”

With such language in place, if your agent unwittingly signs an admission agreement containing an arbitration clause, and you are seriously injured on account of the facility’s neglect, it is highly likely that the arbitration clause will be invalidated by a court.

Believe it or not, facilities that are subject to public scrutiny in a court of law tend to be better staffed, and provide overall better care.  When you think about it, why would anyone want to be a patient in a facility that is afraid of public scrutiny?

Challenge to “In Loco Parentis Standing” – Use it or Lose It!

Holding Hands

Sued for custody of your child by someone other than the your child’s other parent?  Beware!  Under Pennsylvania Law a person other than a parent has standing to sue for custody in very limited circumstances.  Standing is a legal concept.  Standing refers to the right of a particular person to file a case in court.  If you don’t challenge standing in time you forfeit the right to challenge standing forever!

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Help for Potential Guardians of Minor Children

Sunset hug

For parents, a key component of estate planning is often selecting potential guardians for minor children should something tragic happen to one or both parents. These considerations can be double-sided emotionally and difficult to face. On the one hand, who would ever take care of your children just like you would? Facing such a decision also brings to light many fears and concerns. On the other hand, making the decision can be freeing in a way, because you know your children will be cared for if something happens.

Our firm understands the struggle that parents might face when dealing with such a decision, and we also understand the concerns that a potential guardian faces if the actual appointed time comes to pass. Many people agree to be named as legal guardians without ever really thinking the situation will occur where they will have to take charge of the children. That doesn’t mean they don’t love the kids or want this responsibility, but when the time comes, a guardian can be suddenly overwhelmed with the reality of the responsibility.

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