Injury Law and Guardianship Practice

Proceed With Caution Through the Intersection of Injury Law and Guardianship Practice

April 5, 2024
Publications

By Joseph Chapman and Courtney M. Wentzel

Injuries caused by others take away people’s capacity to care for themselves and make decisions. Pennsylvania’s Orphans’ Court judges are interested in protecting the incapacitated. You, dear personal injury lawyer, want someone who can sign your fee agreement, complaint or settlement agreement. Interests collide at the unnerving intersection of Pa R.C.P. 2206 (settlement for minor or incapacitated), 42 Pa. CSA 5533 (limitations period for minors), and the properly intense Orphans’ Court rules for the process of appointing a guardian.

The rules providing for the appointment of a guardian already had to be meticulously navigated by any practitioner—now, through the Pennsylvania Legislature’s enactment of Act 61 of 2023 (Senate Bill 506; PN 843)(Act 61), the guardianship rules are changing on June 11, 2024. The new rules provide plenty more for consideration when pleading, navigating or litigating any guardianship action.

Personal injury attorneys often represent adults who are so severely injured that they are unable to make their own decisions. If the injured person has not designated someone to act on their behalf, such as an attorney-in-fact, it may be necessary for a guardian to be appointed. Similarly, and often in the medical malpractice context, a child with disabilities who was able to act through his parent and natural guardian up until the point they turn 18 may need a guardian appointed as they reach majority.

Should a personal injury attorney choose to seek the court’s approval of a guardianship petition, they may encounter rules that seem draconian but are there to protect a person from being deemed incapacitated when they are not, from a guardian being appointed where there are less restrictive alternatives available to the individual, or from the potential moral hazard of appointing a guardian who does not have their best interests at heart. Here is a list of practices which differ:

It begins by petition not complaint;
That petition must be accompanied by a preliminary decree and citation with notice;
A Judge will schedule a hearing not less than 20 days in the future and issue the citation and the preliminary decree, which must be personally served on the alleged incapacitated person (AIP). 20 Pa.C.S. Section 5511(a);
An affidavit of service is filed with the court in advance of the hearing, evidencing service;
The petition requires a list of detailed factual averments which will expand with implementation of Act 61. Pa. O.C. Rule 14.2;
The petition identifies those who might be interested parties, also subject to service, in addition to the alleged incapacitated person. 20 Pa.C.S. Section 5511(a); Pa. O.C. Rule 14.2(f)(2);
The petition names the proposed guardian or guardians, and the proposal can be for: one person to serve for both the person and estate, two different people serving the alleged incapacitated person in separate roles over the person and estate, or the establishment of co-guardians;
Statute sets forth the appropriate “pecking order” of who should be proposed and appointed as guardian, which the courts carefully consider. Pa. O.C. Rule 14.6(b)(1) and (2); 20 Pa.C.S. Section 5511(f)(1);
The putative guardian’s criminal background check is usually attached to the petition as is a consent form signed by the proposed guardian indicating their willingness to serve;
The alleged incapacitated person must be at the hearing unless a medical provider certifies the person would be harmed by attending. 20 Pa.C.S. Section 5511(a)(1) & (2);
The court may appoint a lawyer to represent the alleged incapacitated person (for now, this remains optional until Act 61 takes effect). 20 Pa.C.S. Section 5511(a.1)(2);
At the hearing, the standard for showing incapacity is clear and convincing evidence, rather than a mere preponderance. 20 Pa.C.S. Section 5511(a);
It is almost a foregone conclusion that an expert must testify to the lack of capacity and address both the nature, extent and duration of the inability for the alleged incapacitated person to care for themselves physically as well as understand and make decisions about their finances;
The alleged incapacitated person has a right to request an independent medical evaluation. 20 Pa.C.S. Section 5511(d);
Even with the determination that the would-be ward is a totally “incapacitated person” as that term is defined by 20 Pa. C.S. Section 5501, the hearing does not end there. The court is also tasked with determining whether the requested “plenary” guardianship is the least restrictive alternative. The changes coming here as a result of Act 61 make clear the court cannot automatically appoint a guardian as a result of determining someone is incapacitated, and more must be found on the record. See 20 Pa.C.S. Section 5511(a)(6)(i)-(iv); and
If the court enters an order for permanent plenary guardianship, the order must be served on and read to the incapacitated person in the manner which is most likely to be understood by them, and an affidavit recounting service must be filed with the court.

With the rule changes coming in June, the petition will also require averments about guardian certification for those previously named the guardian for three persons or more. The new rules also change the court’s discretion to assign representation to the alleged incapacitated person to a mandate and make clear it is not a guardian ad litem appointment, but an attorney set to advocate for the rights and verbalized position of the alleged incapacitated person. It is an adversarial relationship to the party seeking to have a guardian appointed.

There is a new emphasis coming in June for the court to make a record showing how—despite, any friends, family or other support systems—a permanent plenary guardianship is the least restrictive means. Moreover, while the court must make specific findings of fact regarding less restrictive alternatives before ordering appointment of a guardian, Act 61 places the onus on the petitioner to plead these facts at the outset of the guardianship proceeding. It remains for case law to develop which puts meat on the bones for the sufficiency of the record.

It seems, though, the record will certainly have to address whether the alleged incapacitated person has some kind of document which would allow them to have chosen someone to manage their affairs or health decisions, or some other mechanism such as a health care representative, mental health advance directive, special needs trust, or representative payee to help them navigate decisions regarding their person, health and finances. These considerations require a working knowledge of not only guardianship law, but different aspects of estate planning and other fiduciary mechanisms. It must also be shown that there are no friends, family or other informal supports who can provide the needed assistance.

It should also be noted that that law provides for different types of guardianships depending on a person’s level of incapacity, available less restrictive alternatives, and informal supports. Total incapacity lands you in the realm of plenary guardianship, while partial incapacity suggests that a limited guardianship might be most appropriate. See 20 Pa.C.S. Section 5512.1(b) and (d). The courts are to favor the use of less restrictive alternatives to guardianship (See 20 Pa.C.S. Section 5512.1(a)(3) and (6)) and to favor the appointment of a limited guardian, when at all possible, which tasks the court to craft and enter an order supplanting the rights of the alleged incapacitated person only insofar as it is consistent with the court’s findings as to the person’s limitations. See 20 Pa.C.S. Section 5512.1(b) and (d). This makes the testimony of a medical professional all the more important.

The court’s guardianship order appointing a guardian of the estate enables that guardian to execute documents for the ward and institute suit on their behalf. That guardian should understand that this is not a once-and-done responsibility and recognize the ongoing requirements and fiduciary obligations of their role. In addition to seeing that the incapacitated person’s estate is dutifully managed and promoting the ward’s autonomy and consider their wishes and desires, the guardian is tasked with initially making an inventory and ongoing annual reporting through an electronic system managed by Pennsylvania. See 20 Pa.C.S. Section 5521. Failure to properly complete their duty is apt to land a guardian in a review hearing to show cause why they are not doing the job they accepted.

The rules set to take effect in a few short months are well-aimed at protecting some of our most vulnerable citizens. The whole set of requirements is also well-positioned to lead, even the most seasoned personal injury attorney, into the grip of procedural and substantive quicksand.

Joseph Chapman is a personal injury attorney and litigator at McNees Wallace & Nurick and serves clients from Harrisburg. He can be reached at jchapman@mcneeslaw.com and at 717-237-5375. Courtney M. Wentzel is a litigator at the firm where she focuses her practice on guardianship, elder law, orphan’s court litigation and fiduciary litigation. She can be reached at cwentzel@mcneeslaw.com and at 717-237-5213.