Elder abuse has been steadily increasing in Pennsylvania for the past
decade, with 28,633 reports of abuse received by the state in fiscal
year 2016-2017, according to the
Pennsylvania Department of Aging.
The increase in the number of elder abuse reports in Pennsylvania is
likely the result of both the aging population and efforts to increase
awareness of elder abuse by local, state, and national advocates for the
elderly.
Elder abuse can be physical, financial, or in the form of neglect and,
unfortunately, can be perpetrated by legal guardians -- those appointed
to care for the elderly individual.
In 2018, Pennsylvania updated its guardianship rules to create more
checks against guardian abuse, to make them more accountable, to allow
family and others to intervene on the elderly individual's behalf, and
to expand who can object to a guardian's appointment. The revisions go
into effect on June 1, 2019.
According to the state's
Office of Elder Justice in the Courts,
a guardian is responsible for making certain decisions on behalf of an
adult of any age who is deemed incapacitated by a court. A guardian can
be a family member or an unrelated third party, and the decisions
guardians make include financial, medical, and personal matters that the
incapacitated person has been determined to be unable to make on his or
her own.
Rules Reformed
The Pennsylvania Supreme Court adopted revised Orphans' Court Rules
14.1 through 14.14, which reform numerous aspects of the guardianship
process. According to a
report issued by the Advisory Council on Elder Justice in the Courts in January 2019, these reforms include:
-
Procedures for consideration of potential guardians that favor close
family members, but do not exclude other relatives and friends from
consideration
-
Criminal background checks of proposed guardians
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Appointment of counsel when appropriate
-
Verification by counsel of the appointed guardian's representation, scope of employment, and duration of representation
-
Timely and efficient fee dispute resolution procedures
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Mandatory filing of an inventory within 90 days of a guardian's appointment
-
Mandatory completion of annual reports by the guardian starting one year after appointment
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Monitoring of the court's guardianship docket to ensure compliance and notification
-
Judicial review of filed reports
-
Recommended remedial actions regarding reporting issues
Family Disputes
Caring for an aging individual and handling personal and financial
affairs can lead to emotionally fraught and sometimes highly contentious
situations within a family. The new rules are intended to ensure the
guardian is fulfilling all of the required duties and may help to head
off or resolve disputes between families and guardians before they reach
court.
The latest ruling in an ongoing battle over the guardianship of
Genevieve Bush illustrates how family disputes can turn into a
long-running drama, especially in the case of incapacitated family
members. (
In the Matter of Genevieve Bush, an Incapacitated Person, No. 1686 EDA 2018, Pa. Superior Court, March 19, 2019.)
When Genevieve Bush executed a will in 2004, she named her three sons
and one daughter as beneficiaries. Two years later, Bush revised her
will to name only her daughter as beneficiary; Bush also executed a
durable power of attorney and a durable power of attorney for
healthcare, both of which named her daughter as agent. In 2007, Bush
executed a pour-over will and revocable trust with the same dispositive
scheme as the 2006 will, and another durable power of attorney for
healthcare naming her daughter as agent.
In litigation that ensued thereafter in 2011, the trial court
determined that Bush suffered from an incapacity at least as early as
2006, adjudicated her an incapacitated person, and named one of her sons
and her daughter as co-guardians of her person and another son as
guardian of her estate. The trial court also voided the power of
attorney under which the daughter was appointed as agent. The trial
court did not address the validity of Bush's other documents. The
Superior Court affirmed the trial court's decision. A few years later in
2013, the trial court removed the son and daughter as co-guardians of
Bush and appointed a third party as guardian of Bush's person. The
Superior Court again affirmed.
Most recently in 2018, Bush's sons petitioned the trial court to void
their mother's planning documents, arguing interference with the
guardian's responsibilities.
The trial court held, and the Superior Court affirmed on March 19, 2019
that the sons did not demonstrate that an actual controversy was
imminent such that the court should act on the sons' petition. Those
with an interest in her estate "will not be injured by waiting until the
ordinary course of judicial proceedings that will occur upon the death
of [Bush]," said the trial court.
While the state's new guardianship rules might not have helped to avoid
the problems that arose in this case, the increased oversight of the
new rules may help reduce or even eliminate issues for other families
before they start or before they escalate.
Full Article & Source:
New Rules To Monitor Legal Guardians For Pennsylvania Elderly Take Effect June 1
