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What are the Duties of the Guardian of the Person?

Congratulations! The court has appointed you the guardian. You are done filing things with the court now, right? Not quite. Guardians have many responsibilities to care for the Incapacitated person. These include filing initial reports with the court and periodically thereafter. This article is intended as an overview of your responsibilities as guardian.

Read the Court Order Appointing You Guardian of the Person

First, you should carefully read the Court Order appointing you as a Guardian, which is usually called a “Final Decree.” You may be authorized to use power in certain limited ways, unless you have been appointed as a “Plenary” (full) Guardian of the Estate and/or Person. The Court’s Final Decree may specify that the Guardianship is either “Plenary” or “Limited.” If it is Limited, the Final Decree will identify specific limitations. If your appointment is subject to limitations you should be careful not to exceed them. To take actions on behalf of the Incapacitated Person, you may need to obtain a Guardian’s Certificate or a certified copy of the Court’s Final Decree (you can obtain this from the Register of Wills or Clerk of the Orphans Court). The Guardian’s Certificate confirms that you have been appointed by the Court and that you are still serving. The cost for these documents may be paid from the assets or income of the Incapacitated Person.

Plan of Supportive Services

Where appropriate you should assist in the development of a plan for supportive services for the Incapacitated Person. The plan should explain how the services will be obtained. Supportive services could include nursing, physical therapy, rehabilitation, meal preparation, cleaning, bathing, and other daily needs of the Incapacitated Person.

Encouragement of Incapacitated Person to Participate in Decisions

You should encourage the Incapacitated Person to participate in making decisions about their care to the maximum extent possible. Tell them what they need and the options you’ve found. Ask their opinion or preference about them. You should also encourage the Incapacitated Person to act on their own behalf whenever they may be able to do so. You also should encourage the Incapacitated Person to develop or regain their capacity to manage their personal affairs as much as possible.

General Care, Maintenance and Custody of the Incapacitated Person

A Plenary (full) Guardian of the Person has general responsibility for the care, maintenance, and custody of the Incapacitated Person. Your primary guiding principle should be to do what is in the best interests of the Incapacitated Person, even when that might conflict with your personal beliefs or interest. If the best interests of the Incapacitated Person conflict irrevocably with your strongly held personal beliefs or interests, you may, and should, apply to the Court for guidance or to be relieved of your duties. Your duty in this regard extends to objections by the Incapacitated Person. For example, it may be in the Person’s best interest to relocate to a senior living facility. Even if the Person strongly opposes it, if its in their best interest, you should take that action. You must also avoid any actual or even appearance of conflict of interest in determining and acting in the best interests of the Incapacitated Person. Guardians must not take advantage of their position and act in their own interests rather than the individual’s interests. They must not commingle their own funds with those of the individual (with certain exceptions). A guardian must not sell or convey the individual’s property to the guardian, the guardian’s family, or any entity in which the guardian has an interest. An appearance of conflict of interest is a situation that a reasonable person might perceive as self-serving or adverse to the interest of the incapacitated person individual.

Place for Incapacitated Person to Live

A Plenary Guardian of the Person can select where the Incapacitated Person will live. You should encourage the Incapacitated Person to express preferences and to participate in this decision to the maximum extent possible. If the Incapacitated Person is unable to participate in making this decision, you should make a decision that you conclude is in the best interests of the Incapacitated Person. You should consider the safety of the Incapacitated Person and the ability of friends and family members to visit the Incapacitated Person when choosing the place where the Incapacitated Person will live.

Visiting the Incapacitated Person

There is no specific legal requirement regarding the number or type of visits you should make to the Incapacitated Person, however it is expected that you would visit in person at least once every three months, and preferable once each month. In addition to periodic visits, you may need to visit when medical decisions must be made, or to observe any new concerns, behaviors or needs. You are expected to know the needs of the Incapacitated Person and to have a good idea of their health and emotional status, in order to make informed decisions for them. Therefore is important that you see them frequently enough to feel comfortable making those decisions.

Responsibility for Training, Education, Medical and Psychological Services of the Incapacitated Person

A Plenary Guardian of the Person should assist the Incapacitated Person in the development of the as much self-reliance as is possible. The Court’s Final Decree may give you specific responsibilities regarding the training, education, medical, and psychological services needed by the Incapacitated Person. You should also consider and provide appropriate social and vocational opportunities. Again, your guiding principle is the same: the best interests of the Incapacitated Person. Consideration of the express wishes of the Incapacitated Person their family members is appropriate where it does not conflict with this principle. You should participate in supportive services to the extent that you are able.

Consents/Approvals for the Incapacitated Person

The Order appointing you as Guardian may give you the authority to enter consent or approval for various medical, surgical, psychological or other treatments for the Incapacitated Person. As always, you should try to follow the express wishes of the Incapacitated Person and family members to the extent that these do not conflict with the best interests of the Incapacitated Person. Your independent judgment on these issues should not be overridden by family wishes. Note that no Guardian has the authority to admit the Incapacitated Person to an inpatient psychiatric facility or to consent to the relinquishment of parental rights of the Incapacitated Person. In addition, you may not consent to the following procedures or practices for the Incapacitated Person unless and until a Court approves it:

  • Consent abortion, sterilization, psychosurgery, electroconvulsive therapy or the removal of a healthy body organ of the Incapacitated Person.

  • Stop a marriage or consent to a divorce of the Incapacitated Person.

  • Consent to the performance of or participation in any experimental biomedical or behavioral medical procedure by the Incapacitated Person.

  • End of life decisions.

Annual Report

You are required to file an Annual Report each year, on the date that is the 12-month anniversary of your appointment as Guardian of the Person, and annually after that for as long as you remain Guardian. You can obtain a copy of the Annual Report form at the office of the Clerk of the Orphan’s Court in the County where the Order was issued. A filing fee is typically payable, however if the Incapacitated Person has no assets and is indigent, you may be able to file the Annual Report without the filing fee. In order to do that you will need to file a Petition to Waive Fees and receive a Court Order waiving fees. In the Annual Report you should describe in detail the following:

  • The current address and type of placement of the Incapacitated Person.

  • The major medical or mental problems of the Incapacitated Person.

  • A brief description of the living arrangements, social, medical, psychological, and other supportive services being received by the Incapacitated Person.

  • Your opinion as to whether the guardianship should continue, be terminated or modified, supported by your reasons for this opinion.

  • The number of length of times you have visited the Incapacitated Person during the last 12 months.

Final Report

Within sixty (60) days of the death of the Incapacitated Person or if the Guardianship is vacated, you are required to file the Final Report. The same form used to file the Annual Report is used to file the Final Report.

What Training Exists for Family and Other Non-professional Guardians?

Serving as guardian is one of society’s most challenging roles, yet in most states and localities, family and other non-professional guardians receive little or no instruction or assistance. They are unfamiliar with the court system and the guardianship role, and don’t know what is expected of them. They come to a demanding responsibility generally unprepared and often with nowhere to go for help. However, a growing number of state and local courts have developed training resources including online curricula, handbooks and videos. A few states such as Florida, New York and Ohio require training for non-professional as well as professional guardians. The federal Consumer Financial Protection Bureau has developed a plain language guide for non-professional guardians of property called Managing Someone Else’s Money: Help for Court-Appointed Guardians of Property and Conservators. The National Guardianship Association has published The Fundamentals of Guardianship: What Every Guardian Should Know (2017).

Consult with a Guardianship Lawyer Today

If you have questions about legal guardianship in Pittsburgh, we recommend consulting with a lawyer experienced in guardianship proceedings and elder law. At Fiffik Law Group, our skilled lawyers have helped many clients in the Pittsburgh area navigate the guardianship process. Whether you are pursuing becoming a guardian or objecting to a guardian, we can help. Contact us today to schedule your initial consultation.

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