Two Pa. Senate panels delve into guardian legislation

by Robert Swift

HARRISBURG – Legislation to upgrade state guardianship laws for incapacitated individuals was the subject of a hearing Tuesday by two Senate committees.

The Aging and Youth and Judiciary committees heard testimony from a judge, lawyers, advocates for senior citizens and disability rights advocates about Senate Bill 506 sponsored by Judiciary Majority Chair Lisa Baker, R-Luzerne, and Sen. Art Haywood, D-Montgomery.

“The bill before us has its roots in an embezzlement case that victimized over 100 people,” said Ms. Baker at the hearing’s start.

The bill’s goal is to ensure that the incapacitated have proper legal representation and their rights are safeguarded, added Ms. Baker.

SB506 would require that legal counsel be appointed as an advocate in guardianship proceedings regardless of one’s ability to pay and require guardians who represent three or more incapacitated people to meet certification requirements set by the Pennsylvania Supreme Court.

SB506 would also require courts to consider less restrictive alternatives before appointing a guardian and obtain findings of fact in a case. These alternatives could include advanced directives, living wills, powers of attorney for health care and finances and appointing representatives to handle paying bills and other financial matters.

Under current state law, appointing a legal counsel in guardianship cases is discretionary and there is limited oversight over guardians, said Ms. Baker.

More than 18,000 Pennsylvanians had been judged incapacitated and had guardians as of the end of 2022, said Montgomery County Judge Lois Murphy, a member of the Pennsylvania Supreme Court’s advisory council on elder justice in the courts.

These guardians collectively oversee $1.58 billion of funds, Judge Murphy added, based on a statewide tracking system started in 2018. Family members are guardians in 62% of cases, and 44% of guardian cases involve individuals over age 60.

Pennsylvania can expect more issues with the guardianship system as the population ages, said Aging and Youth Majority Chair Judy Ward, R-Blair.

“Placing a guardian in charge of a person’s medical, financial and other important life decisions should never be done lightly,” said Judge Murphy. “We have a duty in every case to protect the constitutional rights of the individual who may be deprived or his or her liberty and autonomy.”

The advisory council supports the concepts in the legislation that require certification and education of guardians and requiring courts to consider less restrictive alternatives to guardianship, added Judge Murphy.

Passing SB506 would move Pennsylvania forward towards meaningful reform of the guardian system, said Teresa Osborne, director of state advocacy for the AARP Pennsylvania Office and a former state aging secretary.

“AARP recognizes that guardianship reform means that in addition to updating state laws, we must also work with state courts and other stakeholders – including our state’s network of local Area Agencies on Aging – to improve the day-to-day practice of guardianship,” said Ms. Osborne.

Attorneys are getting more involved in guardianship cases as public agencies helping the disabled and aging face funding issues, said Sally Schoffstall, an elder law attorney in Lehigh County.

The Pennsylvania Association of Elder Law Attorneys seeks additional state funding to ensure that competent legal counsel can act on a timely basis and allow for review of guardianship reports, certification of professional guardians and training of non-professional guardians, she added.

The Pennsylvania Bar Association strongly supports SB506, said attorney Pamela Walz.

“We also strongly support the bill’s definition of the role of counsel as an advocate for the client’s expressed wishes and consistent with the client’s instructions, wherever the client is able to express wishes and provide instruction,” said Ms. Walz.

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Two Pa. Senate panels delve into guardian legislation