§ 5512.1. Determination of incapacity and appointment of guardian.

785 words·~4 min read·/pa/title-20/chapter-55/5512-1

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(a)Determination of incapacity.-- In all cases, the court shall consider and make specific findings of fact concerning:

(1)The nature of any condition or disability which impairs the individual's capacity to make and communicate decisions.

(2)The extent of the individual's capacity to make and communicate decisions.

(3)The need for guardianship services, if any, in light of such factors as the availability of family, friends and other supports to assist the individual in making decisions and in light of the existence, if any, of less restrictive alternatives. The court shall make specific findings of fact based on the evidentiary record of the absence of sufficient family, friends or other supports and of the insufficiency of each less restrictive alternative before ordering guardianship. Less restrictive alternatives include, but are not limited to:

(i)Advance directives such as durable power of attorney or trusts.

(ii)Living wills.

(iii)Health care powers of attorney.

(iv)Health care representatives.

(v)Financial powers of attorney.

(vi)Trusts, including special needs trusts.

(vii)Representative payees for individuals receiving Social Security benefits.

(viii)Pennsylvania Achieving a Better Life Experience accounts.

(ix)Mental health advance directives.

(4)The type of guardian, limited or plenary, of the person or estate needed based on the nature of any condition or disability and the capacity to make and communicate decisions.

(5)The duration of the guardianship.

(6)The court shall prefer less restrictive alternatives to guardianship and, if no less restrictive alternatives are available and sufficient, limited guardianship. The following apply:

(i)A determination of incapacity is separate from a determination of whether a guardian should be appointed.

(ii)The court may not use a determination of incapacity alone to justify a guardianship.

(iii)The court may not appoint a guardian if a lesser restrictive alternative exists that is sufficient to support the needs of an incapacitated person.

(iv)When entering an order denying a petition for guardianship in whole or in part, the court shall identify the less restrictive alternatives that are available and sufficient to enable the alleged incapacitated person to manage personal financial resources or to meet essential requirements of personal physical health and safety. An order may assist the respondent and any supportive and substitute decision makers involved to effectuate the respondent's decisions with third parties.

(b)Limited guardian of the person.-- Upon a finding that the person is partially incapacitated and in need of guardianship services, the court shall enter an order appointing a limited guardian of the person with powers consistent with the court's findings of limitations, which may include:

(1)General care, maintenance and custody of the incapacitated person.

(2)Designating the place for the incapacitated person to live.

(3)Assuring that the incapacitated person receives such training, education, medical and psychological services and social and vocational opportunities, as appropriate, as well as assisting the incapacitated person in the development of maximum self-reliance and independence.

(4)Providing required consents or approvals on behalf of the incapacitated person.

(c)Plenary guardian of the person.-- The court may appoint a plenary guardian of the person only upon a finding that the person is totally incapacitated and in need of plenary guardianship services.

(d)Limited guardian of the estate.-- Upon a finding that the person is partially incapacitated and in need of guardianship services, the court shall enter an order appointing a limited guardian of the estate with powers consistent with the court's finding of limitations, which shall specify the portion of assets or income over which the guardian of the estate is assigned powers and duties.

(e)Plenary guardian of the estate.-- A court may appoint a plenary guardian of the estate only upon a finding that the person is totally incapacitated and in need of plenary guardianship services.

(f)No presumption.-- No presumption of incapacity shall be raised from the alleged incapacitated person's institutionalization.

(g)Legal rights retained.-- Except in those areas designated by court order as areas over which the limited guardian has power, a partially incapacitated person shall retain all legal rights.

(h)Information as to rights.-- At the conclusion of a proceeding in which the person has been adjudicated incapacitated, the court shall assure that the person is informed of his right to appeal and to petition to modify or terminate the guardianship.

20c5512.1v

(Apr. 16, 1992, P.L.108, No.24, eff. 60 days; Dec. 14, 2023, P.L.446, No.61, eff. 180 days)

2023 Amendment. Act 61 amended subsec. (a).

1992 Amendment. Act 24 added section 5512.1. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.

Cross References. Section 5512.1 is referred to in section 5512.2 of this title.

20c5512.2s