At the Elderkin Law Firm, our staff handles two types of guardianships: adult guardianships and child guardianships. Adult guardianships mean guardianship of someone who is incapacitated. Upon a finding that an individual is incapacitated, the Court may be requested to appoint a guardian or guardians of his or her person or estate (property). "Incapacitated person" means an adult whose ability to receive and evaluate information effectively and communicate decisions 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. Child guardianships are different in that someone needs to step up and take care of the needs of a child or children because the parents are, for whatever reason, not able to.
If you are concerned about the welfare of a family member and would like to discuss guardianship as an option, take our Online Evaluation -OR- call (814) 456-4000 to schedule a consultation with one of our Matrimonial or Estate attorneys at our office in Erie, PA.
With adult guardianships, it will be necessary to prove to a Judge that a person is incapacitated, that is, that he or she cannot take care of financial decisions, cannot properly ensure his or her own safety, and cannot take care of his or her medical needs. Sometimes the situation may be that the alleged incapacitated cannot take his or her feeding or day-to-day needs. In Erie County, an affidavit from a treating physician is required to determine whether the person is incapacitated. There are forms that are provided by the county and either the attorney or the people who are concerned about that particular adult can talk to their doctors and try to find out the doctor’s thoughts on whether they are able to do these things for themselves or not.
Who usually files for guardianship?
The first step is to file a guardianship petition. Usually this decision is made by a person who is involved in the life of the incapacitated person and realizes that they cannot take care of themselves. That person (usually a family member) will step up and take responsibility. That person is typically the one who will speak to the doctors. Our attorneys will file a petition on their behalf, alleging that the individual is incapacitated, and will represent the concerned relative at a hearing. A separate attorney will be appointed to represent the alleged incapacitated.
Is it easy to obtain guardianship of someone?
If no one is contesting the guardianship petition, then the process is much easier. If your case is more complicated and you have family members disputing over whether the person is incapacitated or who the guardian should be, then more time may be required. If there is any sort of dispute, than the Court will schedule a hearing, and depending on the case or the amount of money involved (because you will get control over the person's finances) the Court can schedule a hearing for as long as an hour or a day, whatever is needed depending on the case. Anyone with a legal relationship to the person (next of kin, children or whoever the next living relatives are) have standing to come to the hearing to state their case and give their input. After each person states their case the Judge will make a decision and determine who the guardian will be, if a guardianship is warranted.
How do you revoke an adult guardianship?
When a guardianship is already established and now someone says the adult is capable of taking care of themselves, you may want to revoke the guardianship. Our attorneys can help file a petition to revoke a guardianship.
How do I appoint legal guardianship for my children in case of an accident or death?
Parents should have a will that designates a guardian in the event of a death or accident. Each of the parents' wills should designate the same person. In the event that something does happen to both parents, it gives the Court a starting point to help determine who should care for the children. Often times, numerous family members will step in and pursue the guardianship. Unless the child is in danger, there is often no placement made by the State. The State does not want to take the child away from any family members if family members are there and able to care for a child. Designating a guardian tells the Court, when the parents are not there, this was our intent; this is the person that should take care of our child. If the Court can see the will and see who the parents designated, then that carries a lot of weight.
If I am seeking guardianship, who would I go to first?
The first step to take should be to call a lawyer. It is important to ensure you are following procedures correctly. You can ask an attorney questions or you can ask the Orphans' Court Office questions; they cannot give legal advice but they can provide forms if they are available.
What are the responsibilities and rights of a guardian?
If it is the guardian of a child, the guardian would have the same duties a parent would have. The guardian controls who the child(ren) allowed to interact with; the guardian is basically in charge. If a grandparent steps in and wants to have a weekend with the child(ren), the guardian is essentially the parent, and can make that decision. The guardian is also responsible for the
child's(ren's) medical care and education. With regard to an adult, the guardian may be a care giver and will continue to do that, or would have the ability to arrange for someone to come in and care for the adult. The guardian would also have financial power to manage the incapacitated or minor's money. There is a duty to act only in the best interest of the incapacitated person and any actions you take have to be justified.
Can I gain temporary guardianship of a child?
A guardianship is permanent: The Court does not issue temporary guardianship in the absence of an emergency. If there is an emergency, a Judge might issue a temporary guardianship, but then will hold a final hearing later on to determine whether the guardianship will be permanent or not. While a guardianship is intended to be permanent, there are still revocation proceedings that can take place if the situation changes.