The Impact of Act 61 - Additional Considerations for Guardians: Guardian Certification and Waiver Petitions

Written by: McNees Wallace & Nurick LLC

Pennsylvania guardianship rules and processes are subject to significant changes through the enactment of Act 61 of 2023 (Senate Bill 506; PN 843). This legislation, which updates the legal framework surrounding guardianships, is part of a broader legislative effort to protect the Commonwealth’s most vulnerable citizens who may be the subject of guardianship proceedings.

Act 61, which became effective on June 11, contains a key provision:  the introduction of new certification requirements for all “individuals seeking guardianship” of three (3) or more incapacitated persons.  Despite the legislators’ use of the sole term “individuals” in the section of the statute addressing certification, individuals, agencies and other organizations who serve as guardians in the Commonwealth of Pennsylvania should take care to monitor the legal landscape surrounding these new rule changes.  We expect that there will be further development and clarification of authority outlining the new guardianship certification requirements, to whom they apply, or the grounds, standards, and procedures for courts in Pennsylvania to waive certification requirements.  In the meantime, there will likely be disputes as to who needs to obtain certification.  The statute also expressly provides for waiver of the certification requirement, and waiver petitions will continue to be filed until there is more clarity around the certification requirements and perhaps more options available to guardians to obtain certification.

Certification requirement for “individuals”
Act 61 adds certification requirements for “individuals” seeking to be appointed as guardians of three or more people.  At least at this time, it is not entirely clear whether the new certification requirement applies to professional guardianship agencies, fiduciary organizations serving as guardian, or employees of those entities.  What was precisely intended through this important legislative initiative?

The legislative history associated with this section suggests that the changes were intended to cover professional guardianship agencies and fiduciaries, but the express language in the statute uses the word “individuals,” creating what could be viewed as an ambiguity requiring additional guidance or legislative action.  The legislation did not change who can be appointed guardian; that statutory provision sets forth a list that includes “any qualified individual” along with others.  The certification section of the statute that follows only addresses “an individual.”

At this juncture, guardianship agencies or other organizations should be mindful of this potential ambiguity and, until such time as the meaning of “individuals” is clarified for purposes of the certification requirement, would be wise to assume that they, and potentially all their employees, may be subject to Act 61’s certification requirement.  If not applicable now, it is a mark of competence and trustworthiness that will likely be required or, at the very least, favored in the future.

Waiver of certification requirement
Notably, Act 61 also provides that the guardian certification requirement may be waived by a court upon a petition demonstrating that a proposed guardian has such “equivalent licenses or certifications as are necessary to ensure that the proposed guardian is capable of fully, faithfully, and competently performing the obligations of a guardian.”  Where Act 61’s certification requirement does apply, a party may seek a waiver of the certification requirement.

Waiver requires a petition and court approval.  A prospective guardian must present a factually sufficient petition demonstrating that a proposed guardian has such equivalent licenses or certifications as are necessary to ensure that the proposed guardian is capable of fully, faithfully and competently performing the obligations of a guardian.”  The facts entitling a person to a waiver will vary from person to person and care should be taken to fully develop the waiver request when presenting a waiver petition (as discussed in more detail below).  This provision of the Act further provides that “a license to practice law shall not constitute an equivalent license or certification.”

Waiver petitions are making their way through the Orphans’ Court
Entities in Pennsylvania have been requesting certification waiver by petition filed in the Orphans’ Court.  Specifically, in May of this year, two organizations filed waiver petitions in the Court of Common Pleas of Allegheny County.  These petitions are recent examples of professional guardianship agencies seeking a determination that the certification requirement under Act 61 is not applicable to them or, alternatively, that the certification requirement should be waived with respect to their appointment as guardians in the subject county court.

These waiver petitions were filed in miscellaneous dockets, meaning they are not filed in a particular guardianship case. It is currently unsettled whether such waiver petitions do not need to be pursued in every single guardianship case in a single county, but likely need to be pursued in every county in which the person, entity or agency purports to serve in a guardianship role, provided they serve in that role for more than three people across the Commonwealth and when seeking a third or more appointment.

At the outset, organizations may set forth the argument that certain provisions of Act 61 may not be directly applicable to them because, often, the guardianship appointments authorize the respective agencies themselves to act (as opposed to specific “individuals” employed by the agencies).  Nonetheless, organizations seeking waiver of the certification requirement should consider not only seeking the court’s acknowledgment that they are exempt from the certification requirement altogether, but, alternatively or additionally, that the certification requirement should be waived as to the organization and its employees.

Key considerations for waiver petitions
In support of an entity’s request for a guardianship certification waiver, the petitioning party should plan to cite various facts to show that their history and experience, as well as prior service before the court in guardianship matters, warrants a finding that the certification requirement should be waived.  Further, it may be compelling to note if a significant number of the entity’s personnel maintain a nationally certified status as guardians and whether they employ highly qualified individuals to serve as caseworkers after vetting them thoroughly.

To bolster these points, petitioning parties should plan to include facts and supporting documents in their petitions showing, among other items:

• Their prior work as guardians before the court where the waiver petitions were filed
• Background information regarding the education and experience of their caseworkers and supervisory personnel
• Information as to their personnel’s passage of an examination administered through the National Guardianship Association
• Significant liability insurance policies that they maintain

Information such as liability insurance coverage or the results of criminal background checks is also routinely submitted to the court as part of the proposed guardian’s paperwork relating to their consent to serve as guardian in a guardianship case.

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The Impact of Act 61 - Additional Considerations for Guardians: Guardian Certification and Waiver Petitions