Proposal updates guardianship law to prevent abuse

By Lauren Jessop

Gagliardi Photography | Shutterstock

(The Center Square) – A proposal that could update Pennsylvania's guardianship laws and add necessary protections for some of the state’s most vulnerable residents is being tweaked as it moves through the legislature. 

The Senate Judiciary Committee, headed by Sen. Lisa Baker, R-Dallas, recently voted unanimously to amend Senate Bill 506. The proposal refines guardian certification requirements and updates the hearing review process.

Majority Chairman Sen. Lisa Baker, R-Dallas – who cosponsored the bill along with Sen. Arthur Haywood, D-Abington – said the goal is to protect those deemed incapable of making decisions for themselves by preventing unnecessary guardianships when other alternatives are available, and to limit abuse of the guardianship system.

Haywood, unable to be present, said in a statement read on his behalf that his neighbor was criminally exploited by a guardian and forced to sell property he owned. By the time Haywood learned of it, it was too late to help.

When an individual is deemed incapacitated, the court may appoint a guardian who then becomes responsible for making financial, medical, and personal decisions on their behalf. 

As previously reported by The Center Square, the bill would ensure an attorney is provided to alleged incapacitated individuals, require courts to consider alternatives before appointing a guardian, and institute certification requirements for professional guardians. 

Pennsylvania is one of a small number of states that do not mandate appointment of counsel in guardianship proceedings. Current law allows judges to use their discretion. Additionally, there is limited oversight of professional guardians, and procedures vary from county to county.

The first amendment passed establishes that a license to practice law does not constitute an equivalent license or certification for guardianship. Under the drafted bill, the court may, under certain circumstances, waive certification requirements – in which case the guardian would not be subject to oversight by a national certification organization.

Baker said there were concerns that professional guardians, who also happen to be attorneys, will seek this waiver – and an exemption from oversight and certification – which is not their legislative intent. 

The second amendment establishes a more robust and accessible review hearing procedure for incapacitated persons and updates the hearing review process. 

Permanent guardianship may be appropriate when a person’s incapacity is irreversible, but it would not be appropriate “to close the door on further review in all cases,” Baker said. When incapacity may be temporary, there appears to be a need for the court to hold a review hearing to ensure that no alternatives to guardianship exist, she said. 

Two types of review processes would be established – automatic and petition. 

If evidence presented during initial guardianship determination indicates the circumstances of an alleged incapacitated person may change, the court would be required to hold a review hearing within one year of establishing guardianship. 

It specifies factors that can be used in determining the potential for change, such as: if the incapacity can be managed by medication, rehabilitation, or other means; the possibility exists for the individual to regain physical or cognitive capacity; or the opinion of a qualified expert who has personally examined the individual. 

After a previous hearing on the matter, Baker said they received an outpouring of communication – many from family members and close friends of those placed in guardianship – “and for those passionate individuals, reform of the system is a deeply personal matter,” she said.

“Guardianship can be an essential and effective means for safeguarding the interests of people who suffer some incapacity, impairing their ability to make responsible decisions for themselves,” Baker said in a press release. 

“Some weaknesses in the system have become apparent, and some sad cases of financial exploitation make reform of the system imperative,” she added. “This bill will ensure greater accountability in our state’s guardianship system.”

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Proposal updates guardianship law to prevent abuse