When an adult becomes incapacitated, through dementia, a stroke, a serious accident, or another condition, and has not executed a durable power of attorney or healthcare directive, the only way for family members to make legal and financial decisions on their behalf is through a court-appointed guardianship. Guardianship is a powerful legal tool, but it is also expensive, time-consuming, and intrusive. The good news is that it is almost always avoidable with proper advance planning.
What Guardianship Is, and Is Not
Guardianship in Pennsylvania is a legal proceeding through the Orphans' Court that results in a court-appointed guardian being given legal authority over an incapacitated person (called the "alleged incapacitated person" or AIP during the proceedings, and the "incapacitated person" after a finding of incapacity).
Pennsylvania law provides for two types of guardianship:
Guardian of the person, makes decisions about the incapacitated individual's health care, residence, and personal affairs.
Guardian of the estate, manages the incapacitated individual's financial affairs, including paying bills, managing investments, and handling real estate transactions.
A court may appoint the same person as both, or different people for each role. The court may also limit the scope of the guardianship to only those areas where the person genuinely lacks capacity — Pennsylvania law requires the least restrictive intervention consistent with the person's needs.
Guardianship is not the same as power of attorney. A power of attorney is a voluntary, private document executed by a competent person. Guardianship is a court proceeding, initiated when no valid power of attorney exists or when the existing documents are insufficient to address the situation.
The Pennsylvania Guardianship Process
A guardianship proceeding in Pennsylvania begins with a petition filed in the Orphans' Court of the county where the alleged incapacitated person resides. The petition must be filed by an interested party, typically a family member, caregiver, or social services agency.
Notice requirements: The AIP must be personally served with the petition and given notice of their right to contest the proceeding, retain counsel, and request an independent evaluation. These rights are taken seriously by Pennsylvania courts, guardianship is not a rubber stamp.
The hearing: A hearing is held before an Orphans' Court judge. The petitioner must present evidence, typically medical testimony or a report from a physician or licensed psychologist, establishing that the individual lacks capacity to make or communicate responsible decisions. The judge may appoint a guardian ad litem to represent the AIP's interests.
The order: If the court finds incapacity, it enters a guardianship order specifying the scope of the guardian's authority. The guardian is then required to post a bond (for guardians of the estate), file an inventory of assets, and submit annual reports to the court.
Ongoing oversight: Unlike a power of attorney, guardianship involves continuing court supervision. The guardian must seek court approval for certain transactions, file annual accountings, and remain accountable to the court throughout the guardianship.
How Long Does Guardianship Take, and What Does It Cost?
A contested guardianship can take months and cost thousands of dollars in legal fees, potentially on both sides if the AIP retains counsel to contest the petition. Even an uncontested guardianship typically takes six to twelve weeks from petition to order in most Western Pennsylvania counties and involves filing fees, bond premiums, and attorney fees.
The ongoing administrative burden is also significant. Annual accountings and reports are not optional, and failure to comply can result in the guardian being removed or held in contempt of court.
When Guardianship Is Truly Necessary
Guardianship is necessary when an adult lacks capacity to manage their own affairs and has not executed advance planning documents. The most common situations we see:
- An elderly parent with advancing dementia who never executed a power of attorney
- A young adult with an intellectual disability who is aging out of the school system and needs legal authority for medical and financial decisions
- An individual who suffered a sudden incapacitating injury or medical event without any advance directives in place
- A situation where an existing power of attorney is being abused and the court needs to step in
How to Avoid Guardianship Through Advance Planning
For most families, guardianship is entirely avoidable. The documents that prevent guardianship are the same documents that should be in every adult's estate plan:
Durable Power of Attorney: Authorizes a named agent to make financial and legal decisions on your behalf if you become incapacitated. Pennsylvania's Power of Attorney Act (20 Pa. C.S. § 5601 et seq.) governs these documents and includes specific execution requirements, the document must be signed before a notary and two witnesses to be valid.
Healthcare Power of Attorney / Healthcare Proxy: Designates a healthcare agent to make medical decisions on your behalf when you cannot make them yourself.
Living Will / Advance Healthcare Directive: Expresses your wishes regarding end-of-life treatment, including whether you want life-sustaining treatment continued if you are in a terminal condition or persistent vegetative state.
Together, these three documents cover virtually every situation where guardianship would otherwise be required. They are far less expensive to prepare than guardianship is to obtain, and they allow your chosen agents to act immediately, without court involvement.
A note for parents of young adults: When a child turns 18 in Pennsylvania, parents lose the automatic legal authority to make medical and financial decisions on their behalf, even if the child has a disability. Parents of adult children with intellectual or developmental disabilities should consult with an elder law attorney about guardianship or supported decision-making alternatives before the child's 18th birthday.
We Can Help — Whether You're Planning Ahead or Facing a Crisis
At Ament Law Group, Patrick J. Shannon, Esq. assists families with both advance planning to avoid guardianship and guardianship proceedings when they become necessary. Whether you are drafting powers of attorney for peace of mind or navigating a guardianship proceeding for a family member who can no longer manage their own affairs, we are here to guide you through the process.
Contact us to schedule a consultation.
This article is for general informational purposes only and does not constitute legal advice. Guardianship law and procedures vary by county; consult a licensed Pennsylvania attorney for guidance specific to your situation.
Need Help with Your Estate?
At Ament Law Group, P.C., we help Pennsylvania families protect their wealth and plan for the future. Whether you need a trust, will, or probate administration assistance, our team is here to guide you every step of the way.
Call us today at (724) 733-3500 to schedule your consultation.