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How Probate Guardianship Works

by | Aug 30, 2021 | Articles

Guardianship is the process for an adult family member, friend, or professional, who is not a child’s or incapacitated person’s parent to be appointed by the court, to take care of that individual’s property. Before considering Guardianship for a family member or friend, it’s important to understand the responsibilities involved.

Why Would a Child or Disabled Individual Need a Probate Guardianship?

Common Reasons Probate Court May Appoint Guardianship of a Minor or Incapacitated Individual

  1. A legal guardian is needed if a minor child or incapacitated person’s parent or legal guardian dies.
  2. Guardianship may be necessary if the parent or guardian becomes incapacitated, meaning someone must take over for the minor or incapacitated person’s welfare.
  3. If the child or disabled person is removed from their original guardian’s custody for legal reasons.

Whatever the reason, Guardianship is at the discretion of the Orphan’s Court in the county that the child or incapacitated person lives.

Things an Appointed Guardian Should Know

Guardianship of the Person – When the child or individual is living with an appointed adult who is not their legal parent, someone needs to be able to make decisions on the individual’s behalf. A court-appointed guardian of the person is responsible for all the individual’s needs – including food, clothing, shelter, medical care, education, special needs, etc.

Guardianship of the Estate – If the child or individual has assets or property, those would be the responsibility of the appointed guardian of the estate. Assets might include income, savings, accounts, real estate, etc. The guardian of the estate might be the same individual that is guardian of the person, or it could be two different people.

Guardianships may also be limited or plenary.  A plenary guardianship gives the guardian total control, while a limited guardianship reverses some decision-making authority and autonomy to the (partially) incapacity person.

How to obtain Guardianship

Whether a guardianship is needed due to the death of a surviving parent, or because an individual is incapacitated and does not have a power of attorney, the only way to obtain guardianship is to Petition the Orphan’s Court to be appointed as the guardian.  In the case of an adult (over 18) the court must declare the individual incapacitated when appointing the guardian.  Unlike a power of attorney, which gives an agent rights to act without taking away the rights of the principal, a guardianship proceeding takes away a persons right to make decisions and handle their own affairs, giving those rights exclusively to the guardian.  Because this is such a drastic step, guardianship requires a hearing in front of a judge, and usually there is an attorney appointed just to represent the incapacitated person.  Guardianship can be complex and time consuming.  Without legal representation it may be very difficult to obtain guardianship over someone.

Once appointed as the guardian, there are ongoing requirements to disclose all of the assets and income of the incapacitated person or child to the court, so that the court can ensure that none of the incapacitated person’s assets are being misused.

Conclusion

If you have questions about guardianship or caring for a child or disabled individual, reach out to a knowledgeable attorney to learn more.

Cherewka Law offers professional guidance from Probate Lawyers in Wormleysburg, PA that can help protect you and your family’s rights. We also serve surrounding areas, including Cumberland and Dauphin County. Schedule a free one-on-one consultation today!

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