What is a Guardianship?

Guardianship is a legal process whereby an incapacitated person’s control over their person or property, or both person and property, will be appointed to another. Guardians are typically qualified individuals, corporate fiduciaries, nonprofit corporations, guardianship support agency or county agency.

In order for a guardianship to be granted, a determination of incapacity must be made. The petitioner for guardianship must prove incapacity which has impaired the individual’s ability to manage his or her financial resources or his or her physical well-being, and that there is a need for guardianship services.

By PA statute, an incapacitated individual is 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.

In PA, the two types of guardianship available are plenary and limited. The plenary guardianship is a guardianship over both person and property. A plenary guardianship is only appointed when a totally incapacitated person is no longer capable of making a contract, gift, or other instrument in writing.

The limited guardianship seeks to give the incapacitated individual the ability to retain control over the areas of their person or property that they are able to control. For example, in a limited guardianship, a person may be found to be able to make decisions about where to live or whom to marry, but is unable to manage their financial matters. The incapacitated individual will retain the right to determine where to live and whether or not to marry, but financial matters will be handled by the limited guardianship fiduciary. Under current PA law, the limited guardianship is the preferred guardianship.

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