The Daily Press

Weak guardiansh­ip laws undermine personhood, experts warn

- By Lauren Jessop

(The Center Square) – 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, Huntington­Bedford-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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