Weak guardianship laws undermine personhood, experts warn

At a joint committee hearing on Tuesday, experts weighed in on legislation that seeks to strengthen guardianship laws, further protecting the rights of residents deemed incapable of making decisions for themselves.

Without stronger protections in Pennsylvania, however, guardianships may cause more harm than not.

Members of the Senate Judiciary and Aging and Youth committees heard testimony from experts who overwhelmingly believe guardianship should be used only as a last resort and are supportive of policies that offer more safeguards.

In her opening remarks, Sen. Lisa Baker, R-Dallas, majority chair of the Judiciary Committee – and the sole Republican sponsor of Senate Bill 506 – said the bill’s main goals would be to ensure an attorney is provided to alleged incapacitated individuals; require courts consider less restrictive alternatives before appointing a guardian; and would need professional guardians to be certified.

Pennsylvania is one of only a few states that do not mandate appointment of counsel in guardianship proceedings. Current law allows judges to use their discretion over whether to appoint an attorney. Additionally, there is limited oversight of professional guardians, and procedures vary from county to county.

Sen. Judy Ward, R-Lewistown, majority chair of the Committee on Aging and Youth, said appointing a guardian for someone is a serious step which must be taken with great caution and utmost respect for the person’s basic rights – a sentiment echoed by many others.

Lois Murphy, judge of the Court of Common Pleas in Montgomery County – who also serves on the Advisory Council to the Supreme Court on Elder Justice – said the courts are making a major effort to improve their ability to monitor court-appointed guardians, and to increase the information available on cases.

The Guardian Tracking System, in use since 2019, allows judges across the state to share and view information on prospective guardians – such as whether they have criminal records. It can also identify red flags on the spending of funds by a guardian.

Murphy credited the system for the ability to access data she provided to the committees. As of the end of 2022, 44% of the almost 19,000 Pennsylvanians currently under guardianship are adults over the age of 60 and 62% of those cases have guardians that include one or more family members.

Attorney Jennifer Garman, director of government affairs for Disability Rights Pennsylvania, said guardianship is largely happening to people without trained representation.

The information she provided showed that in 2019, less than 18% of statewide cases were contested – with 45 out of 67 counties reporting no contested cases.

Guardianship also applies to young adults who have disabilities or are cognitively impaired due to illness or injuries. Garman noted that unlike the elderly, who may spend the last few years of their lives under guardianship, young adults could spend decades. Without counsel, many families are unaware there are alternatives, or that they can go back to court to have the guardianship removed if appropriate.

“Parents of young adults with disabilities are often misinformed by schools, health care providers, disability service providers, that guardianship is necessary when their child turns 18,” said Garman. She added that the bill would ensure alternatives are explored.

While there is wide agreement that changes are needed, funding is a concern.

Sally Schoffstal, from the Pennsylvania Association of Elder Law Attorneys, said they do not support mandatory appointed counsel because most counties do not have the resources and personnel to fulfill the requirement, preferring to rely on the flexibility given to judges to determine if counsel is required.

On the subject of guardian compensation, she said the association’s view is that it must be on a modest scale but provide sufficient compensation for work performed.

Committee members also heard from the Elder Law Section of the Pennsylvania Bar Association, Huntington-Bedford-Fulton Area Agency on Aging, AARP Pennsylvania, and the Dauphin County District Attorney’s Office.

“The experiences of those who work with the system on a regular basis are vital, as they see firsthand how the current system functions, and what needs to be done to strengthen it and make it work better for Pennsylvanians,” Baker said.

She added that the insights shared will help guide them as they weigh potential changes to the guardianship system.

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