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In Pennsylvania, There Are Guardianship Alternative Supports , In Addition To Family And Friends , That Are Less Restrictive Than A Guardianship And That Are Available To Assist An Incapacitated Individual In Making Decisions In Light Of The Existence Of Advance Directives Such As Durable Powers Of Attorney Or Trusts.
These Alternative Supports Can Include Qualified Individuals , Corporate Fiduciaries, Nonprofit Corporations And Guardianship Support Agencies .
A. In Pennsylvania, Incapacitated Person’s Are To Participate As Fully As Possible In All Decisions Which Affect Them. In addition , They Are To Be Assisted In Meeting The Essential Requirements For Their Physical Health And Safety, Protecting Their Rights, Managing Their Financial Resources And Developing Or Regaining Their Abilities To The Maximum Extent Possible Through The Use Of The Least Restrictive Alternative Necessary To Achieve Those Ends.
See Pa. C.S. § 5502. Purpose of chapter.
Recognizing that every individual has unique needs and differing abilities, it is the purpose of this chapter to promote the general welfare of all citizens by establishing a system which permits incapacitated persons to participate as fully as possible in all decisions which affect them, which assists these persons in meeting the essential requirements for their physical health and safety, protecting their rights, managing their financial resources and developing or regaining their abilities to the maximum extent possible and which accomplishes these objectives through the use of the least restrictive alternative….
B. In Order To Establish Incapacity , A Petition For Guardianship Must Present Evidence Regarding The Types Of Assistance Required By The Person And As To Why No Less Restrictive Alternatives Would Be Appropriate. The Petition Must Also Detail The Steps Taken On Behalf Of The Incapacitated Person To Find A Less Restrictive Alternative To A Legal Guardianship.
See Pa. C.S. § 5518. Evidence of incapacity.
To establish incapacity, … The petition must also present ….; evidence regarding the types of assistance required by the person and as to why no less restrictive alternatives would be appropriate;
See Pa. C.S. § 5511. Petition and hearing; independent evaluation.
(e) Petition contents.–The petition, which shall be in plain language, shall include the …the steps taken to find less restrictive alternatives, …
C. In A Guardianship Hearing, Testimony As To The Capacity Of The Alleged Incapacitated Person Shall Be Subject To Cross-Examination By Counsel For The Alleged Incapacitated Person.
See Pa. C.S. § 5511 Petition and hearing; independent evaluation.
… Written notice of the petition and hearing shall be given in large type and in simple language to the alleged incapacitated person. The notice shall indicate the purpose and seriousness of the proceeding and the rights that can be lost as a result of the proceeding. It shall include …an explanation of all rights, including the right to request the appointment of counsel and to have counsel appointed if the court deems it appropriate and the right to have such counsel paid for if it cannot be afforded….
See Pa. C.S. § 5518.1. Cross-examination of witnesses.
Testimony as to the capacity of the alleged incapacitated person shall be subject to cross-examination by counsel for the alleged incapacitated person.
D. With The Support Of An Independent Evaluator, The Court Shall Consider And Make Specific Findings Of Fact Concerning The Need For Guardianship Services, If Any, In Light Of Not Only Such Factors As The Availability Of Family And Friends , But Also The Availability Of Other Supports To Assist The Individual In Making Decisions And The Existence, If Any, Of Advance Directives Such As Durable Powers Of Attorney Or Trusts.
See Pa. C.S. § 5512.1. Determination of incapacity and appointment of guardian.
(a) Determination of incapacity.–In all cases, the court shall consider and make specific findings of fact concerning:
(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 advance directives such as durable powers of attorney or trusts.
See Pa. C.S. § 5511. Petition and hearing; independent evaluation.
(d) Independent evaluation.–The court, upon its own motion or upon petition by the alleged incapacitated person for cause shown, shall order an independent evaluation which shall meet the requirements of section 5518 (relating to evidence of incapacity). The court shall give due consideration to the appointment of an evaluator nominated by the alleged incapacitated person.
E. Guardian Support Agencies Provide Service Alternatives To Guardianship To Individuals Whose Decision-Making Ability Is Impaired. Such Services Include, But Are Not Limited To Recruiting, Training And Maintaining A Group Of Individuals To Serve As Representative Payees Or Similar Fiduciaries Established By Benefit-Issuing Agencies, Agents Pursuant To A Power Of Attorney, And Trustees. Guardianship Support Agencies May Also Be Available To Provide Other Information On Available Alternatives To Potential Guardianship Petitioners And To Perform Such Other Duties As Required.
See Pa. C.S. § 5551. Guardianship support agencies; legislative intent.
The General Assembly finds that there is a need for agencies to provide services, as an alternative to guardianship, to individuals whose decision-making ability is impaired,
See Pa. C.S. § 5552. Services to individuals whose decision-making ability is impaired.
Guardianship support agencies shall provide guardianship services under this chapter. Such services shall include, but not be limited to:
(3) Recruiting, training and maintaining a group of individuals to serve as representative payees or similar fiduciaries established by benefit-issuing agencies, agents pursuant to a power of attorney, and trustees.
See Pa. C.S. § 5554. Services to courts, guardians and others.
(c) Services to petitioners and others.–Guardianship support agencies may be available to … to provide information on available alternatives to potential petitioners, … to perform such other duties as required.
F. Recipients Of Guardian Support Agency Services Shall Be Charged For Services Based On Their Ability To Pay. Guardianship Support Agencies Shall Make Every Effort To Minimize Costs, Including Minimizing Personnel Costs Through The Use Of Volunteers.
See Pa. C.S. § 5555. Costs and compensation.
Recipients of service shall be charged for services based on their ability to pay. Guardianship support agencies shall make every effort to minimize costs, including minimizing personnel costs through the use of volunteers.
G. In Addition, As With A Court Appointed Guardianship, There May Be Other Qualified Individuals , Corporate Fiduciaries Or Nonprofit Corporations That Have Interests Which Do Not Conflict With Those Of The Incapacitated Person And That May Be Available To Assist That Individual In Making Decisions In Light Of The Existence Of Any Advance Directive Guardianship Alternatives Such As Durable Powers Of Attorney Or Trusts.
See Pa. C.S. § 5511. Petition and hearing; independent evaluation.
(f) Who may be appointed guardian.–… The court may appoint as guardian any qualified individual, a corporate fiduciary, a nonprofit corporation, a guardianship support agency under Subchapter F (relating to guardianship support) … The court shall not appoint a person or entity…whose interests conflict with those of the incapacitated person except where it is clearly demonstrated that no guardianship support agency or other alternative exists. Any family relationship to such individual shall not, by itself, be considered as an interest adverse to the alleged incapacitated person. If appropriate, the court shall give preference to a nominee of the incapacitated person.
See Pa. C.S. § 5552. Services to individuals whose decision-making ability is impaired.
Guardianship support agencies shall provide guardianship services under this chapter. Such services shall include, but not be limited to:
(3) Recruiting, training and maintaining a group of individuals to serve as representative payees or similar fiduciaries established by benefit-issuing agencies, agents pursuant to a power of attorney, and trustees.
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