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 spent four years in a Las Vegas musical residency. Her ability to achieve these extraordinary professional milestones as an “incapacitated person” has naturally thrown the validity of Ms. Spears’ legal status into question—and introduced many to how guardianships work—or seemingly don’t work.
With the subject of guardianships being so prominent in the public discourse now, we wanted to take a few moments and provide some background on guardianship as it relates to individuals in PA.
Whom is Guardianship Meant to Protect?
In short, guardianship is a legal process designed to protect the interests of the most vulnerable: minor children in certain situations where their welfare is at stake and adults who are partially or totally unable to manage their own affairs because of incapacity or disability. In Pennsylvania, all guardianships fall under the jurisdiction of the Orphans’ Court division of the Court of Common Pleas in the county in which the minor or the incapacitated person resides.
As we cover on our May Herr & Grosh main guardianship page, where children are concerned, guardianship is intended to protect the legal rights of a minor child and, in many cases, allow the guardian to assume the duties of a natural parent. The guardianship of a minor remains under the supervision of the Orphans’ Court until the child turns 18 years old.
Sometimes the process of adoption may also come into play, and it’s important to stress here that if you are seeking guardianship of a child, you should contact an attorney experienced in the areas of guardianship, adoption, and custody to guide you.
Adults Who Are “Incapacitated”
The court may appoint a guardian to care for or handle the personal/medical (guardian of the person) and financial (guardian of the estate) affairs of a person who is incompetent or incapable of managing these decisions on their own. 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 [or she] is partially or totally unable to manage his [or her] financial resources or to meet essential requirements for his [or her] physical health and safety.”
A judge must declare this incapacity through a court order for a guardian or guardians to be appointed—and the legal process to obtain guardianship is not a simple one. (Read more about why you need a trusted guardianship attorney to help you with the process.)
No matter if it’s a child or an adult at the center of a guardianship matter, guardians are not permitted to benefit at the expense of the individuals they care for. However, because guardianship is a legal relationship, a judge may appoint an independent agency or service provider rather than a friend or family member as guardian. In these situations, the court-appointed guardian will receive payment from the assets of the ward or from the government if the ward lacks sufficient assets to pay the guardian’s fees. In some circumstances, there could potentially be a high cost involved for the ward. (Going back to our example of the Britney Spears conservatorship, sources site her monthly payments to her guardians total about $16,000.)
Pennsylvania Prefers to Use POA over Guardianship
While filing a guardianship petition is always an option, the preparation of proper estate planning documents will, more often than not, allow caregivers and/or family members to make financial and healthcare decisions without the appointment of a guardian. Durable powers of attorney, advanced directives for healthcare and living wills cost relatively little to prepare and prove the age-old adage that “an ounce of prevention is worth a pound of cure.” Courts will only appoint guardians if there are no less restrictive alternatives (such as powers of attorney) available, a clear indication that our courts and legislature prefer these legal relationships over formal guardianship whenever appropriate.
Quick Recap: POA Designations vs. Guardianship Proceedings
A little while ago, we created a blog post outlining some of the reasons why POAs are a better choice for many adults whose families are concerned about their decision-making capacity. The trick is, of course, ensuring that these designations are set up by the individual ahead of the need, such as in the estate planning process.
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The good news is that a POA is a relatively flexible document that puts you in charge of deciding whom you want to help you in the future if you should require help. POA designations can be shaped to accommodate a variety of circumstances, as well. And when compared to the prospect of involving the courts in what is typically an expensive, time-consuming, and sensitive family matter, putting a POA in place is better for everyone.
The Process for Obtaining Guardianship in PA
If you find yourself in a situation where obtaining legal guardianship seems to be the only path forward to protect a family member or friend’s best interests, the process needs to begin with engaging a guardianship attorney. Your lawyer will then assist you with filing your petition with the Orphans Court at the county level.
Please note that we do not recommend you initiate guardianship proceedings on your own based solely on the recommendation of a service provider other than an experienced family law attorney. It is a myth that guardianship is always needed for individuals with severe disabilities or those living in residential facilities.
Once a petition is filed, a hearing will be scheduled before a judge, and there are many strict rules about paperwork and notices that must be presented to various parties before the hearing can take place. Testimony from mental health professionals and doctors will also be needed to help the judge decide whether an adult is incapacitated to the degree that he or she requires a guardian.
As discussed above, courts in Pennsylvania will seek alternatives to full guardianship of adults whenever possible, including assigning a role called “limited guardianship.” If the court appoints a limited guardian, it will identify very specific powers of the guardian consistent with the court’s findings of the ward’s individual limitations.
If guardianship is established, involved parties need to realize that there are ongoing reporting requirements. Guardianships are court-supervised for their duration in an effort to ensure that the ward’s health and safety are adequately protected over time.
Are You Considering Seeking Guardianship in Pennsylvania? Don’t Go it Alone.
Because pursuing guardianship is not just legally complex but often an extremely emotional process for all involved, your best way forward is to consult with a knowledgeable guardianship lawyer as soon as possible.
In Lancaster, May Herr & Grosh offers our valued clients over 200 years of combined experience handling legal matters in and out of the courtroom. We will help you explore whether guardianship is right for your unique situation and provide compassionate legal guidance you can count on.
Get in touch with us today to schedule your free initial consultation.