Guardianship Laws

Adult Guardianship Statute: 

Pa. Cons. Stat. 5501 to 5555 (section 5501 begins on pg. 173)

Right to Counsel in Statute: Initial Guardianship Proceedings: 
Yes, Conditional
Right to Counsel in Statute: Post-Appointment Guardianship Proceedings: 
Not stated
Right to Counsel Statututory Citation: 
Right to Counsel Definition in Statute: 

The written notice of the petition and hearing shall include the right to request the appointment of counsel and to have counsel appointed if the court deems it appropriate and the right to have such counsel paid for if it cannot be afforded.

Advocacy Role of Counsel Defined in Statute: 
Not stated
Professional Rules &/or Ethics Opinions: 

[1] The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions. Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being. [2] The fact that a client suffers a diminished capacity does not diminish the lawyer’s obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication. PA Rule of Prof. Conduct 1.14, under "Explanatory Comment."

Case Law Discussing Role of Counsel: 

None found. Cases discuss the role of the guardian, not counsel. In Pennsylvania, the power is placed in the guardian to advocate for the wishes of the person and the guardian is held to a high standard regarding their advocacy.

Other Case Law: 

Case #1: The statutory procedure for the determination of incapacity, 20 Pa.C.S. § 5512.1(a), requires the court, in determining incapacity, to weigh the available support of others. We have no difficulty concluding, therefore, that a person cannot be deemed incapacitated if his impairment is counterbalanced by friends or family or other support. The critical fact is whether or not the alleged incapacitated person needs a guardian. If the court finds that a person does not need a guardian, it does not matter whether he is incapacitated - the court cannot proceed to the appointment of a guardian. A guardian is appointed only “[u]pon a finding that the person is partially incapacitated and in need of guardianship services,” 20 Pa.C.S. § 5512.1(b), or “upon a finding that the person is totally incapacitated and in need of plenary guardianship services,” 20 Pa.C.S. § 5512.1(c). It is quite clear from 20 Pa.C.S. §§ 5512.1(b) and (c) that appointment of a guardian must follow dual findings of incapacity and a need for guardianship services. In this context, therefore, whether or not Miss Peery was incapacitated was immaterial, since it was found upon competent evidence that she did not need guardianship services. In re Peery, 556 Pa. 125, 130 (1999). (The alleged incapacitated person had a mental impairment but the orphans’ court concluded that a guardianship was not warranted because the person had a support system in place that met her financial and physical needs and which she preferred over a guardianship.) Case #2: This Order complied with the trial court’s obligation to protect and provide for Carolyn’s best interests. It is clear that throughout this very carefully drawn legislation, it was intended that the incapacitated person be permitted the fullest degree of freedom and control over his/her physical and financial affairs. It goes without saying that a twenty-five year old . . . woman [with an intellectual disability] has the capacity to make an informed decision about the person with whom she will live and whether or not she wishes to remain in touch with or visit an estranged parent. Unless the decision is irrational and results in a perceivable harm to the incapacitated person, the court should honor her wishes. Estate of Haertsch, 437 Pa.Super. 187, 192 (1994).

Other Important Info: 

[3] The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client’s interests foremost and, except for protective action authorized under paragraph (b), must look to the client, and not family members, to make decisions on the client’s behalf. PA Rule of Prof. Conduct 1.14, Under "Explanatory Comment." (This rule permits a third party/family to attend meetings with the lawyer where the attorney-client privilege will still apply.) Per 20 Pa.C.S. § 5521 (c)(1), each guardian of an incapacitated person shall file with the court appointing him a report, at least once within the first 12 months of his appointment and at least annually thereafter. This most likely is PA's attempt to comply with due process concerns. It shall be the duty of the guardian of the person to assert the rights and best interests of the incapacitated person. Expressed wishes and preferences of the incapacitated person shall be respected to the greatest possible extent. Where appropriate, the guardian shall assure and participate in the development of a plan of supportive services to meet the person’s needs which explains how services will be obtained. The guardian shall also encourage the incapacitated person to participate to the maximum extent of his abilities in all decisions which affect him, to act on his own behalf whenever he is able to do so and to develop or regain, to the maximum extent possible, his capacity to manage his personal affairs. 20 Pa. Cons. Stat. § 5521(a).

Discuss Guardianship or Supported Decision-Making?: