On December 14, 2023, Governor Josh Shapiro signed into law Act 61 of 2023 (formerly known as Senate Bill 506). This Act went into effect on June 14, 2024. The new law amends Title 20 Decedents, Estates and Fiduciaries of the Pennsylvania Consolidated Statutes and makes four major changes to the guardianship laws. The goal of the new law is to help prevent exploitation and abuse of individuals with diminished capacity.
A guardianship is a legal proceeding whereby an individual is adjudicated incapacitated by the court and an individual or corporation is appointed as the guardian to make medical and/or financial decisions for that individual. If you are currently acting as a guardian for someone or if you anticipate needing to file for guardianship, it is important to understand the changes in Pennsylvania’s law.
The first change in the guardianship law is that it is now required that the court appoint an attorney to represent the alleged incapacitated person subject to the guardianship petition in every case. Prior to the new law, the guardianship law in Pennsylvania provided that counsel could be appointed where the court deemed it appropriate or where it was requested. Prior to the new law, each county handled the appointment of counsel differently. Under the new law, regardless of the ability to pay or the facts of the case, the court is required to appoint counsel where counsel has not been previously retained to represent the alleged incapacitated person.
The second change in the guardianship law is that professional guardians are now required to be certified. The new law states that if a guardian is seeking to be the guardian of three or more individuals, they must provide proof of compliance with the certification requirements to the court. The certification must be with a national nonprofit guardianship certification organization.
The third change now implements a requirement that when a petition for guardianship is filed, the petition must show that there are no alternative, less restrictive options for alleged incapacitated individuals besides guardianship. The Act provides specific examples of less restrictive alternatives which include Advanced directives, powers of attorney, trusts, healthcare representatives, representative payees, Pennsylvania achieving a better life experience (ABLE) accounts, etc.
The fourth change relates to review hearings. The court is now required to schedule review hearings no later than a year from the date of the initial guardianship hearing where at the original hearing there was evidence presented that indicate that the person’s capacity may change in the future. The review hearing is to determine whether it is necessary for the guardianship to continue.
The new guardianship laws in Pennsylvania are a positive change to help protect our most vulnerable population and to help reduce financial exploitation and abuse in the guardianship system. However, with the new changes it is important to make sure that you are working with an attorney that is experienced and familiar with the new guardianship requirements.
The legal advice in this column is general in nature, consult your attorney for advice to fit your particular situation.
Rebecca A. Hobbs, Esquire is licensed to practice in the Commonwealth of Pennsylvania and is certified as an Elder Law Attorney by the National Elder Law Foundation as authorized by the Pennsylvania Supreme Court. She is a principal of the law firm of O’Donnell, Weiss & Mattei, P.C., 41 High Street, Pottstown, and 347 Bridge Street, Phoenixville,610-323-2800, www. owmlaw.com. You can reach Ms. Hobbs at [email protected]
