Weak Pennsylvania Guardianship Laws Undermine Personality, Experts Warn | News
HARRISBURG — Experts weighed in last week on legislation to strengthen guardianship laws, further protecting the rights of residents deemed unable to make decisions for themselves.
Without stronger protections in Pennsylvania, however, conservatories can cause more harm than not.
Members of the Senate Judiciary and Aging and Youth Committees heard testimony from experts who overwhelmingly believe that guardianship should only be used as a last resort and support policies that provide more safeguards.
In her opening remarks, Senator Lisa Baker, R-Dallas, majority chairman of the Judiciary Committee — and the sole Republican sponsor of Senate Bill 506 — said the bill’s primary goals would be to ensure that a lawyer is provided to persons presumed to be incapable; require courts to consider less restrictive alternatives before appointing a guardian; and would need professional tutors to be certified.
Pennsylvania is one of the few states that does not require the appointment of an attorney in guardianship proceedings. The current law allows judges to use their discretion to appoint a lawyer or not. Additionally, oversight by professional guardians is limited and procedures vary from county to county.
Senator Judy Ward, R-Lewistown, majority chair of the Committee on Aging and Youth, said appointing someone a guardian is a serious step that must be taken with great caution and the utmost respect for fundamental human rights – a sentiment echoed by many others.
Montgomery County Court of Common Pleas judge Lois Murphy — who also sits on the Supreme Court’s Elder Justice Advisory Council — said the courts are making a major effort to improve their ability to oversee guardians appointed by the court and to increase the information available on the cases.
The guardian tracking system, in use since 2019, allows judges across the state to share and view information about potential guardians, such as whether they have a criminal record. It can also identify red flags on the expenditure of funds by a guardian.
Murphy credited the system for the ability to access data it provided to committees. At the end of 2022, 44% of the nearly 19,000 Pennsylvanians currently under guardianship are adults over the age of 60, and 62% of those cases have guardians who include one or more family members.
Attorney Jennifer Garman, director of government affairs for Disability Rights Pennsylvania, said guardianship is largely for people without qualified representation.
Information she provided showed that in 2019, less than 18% of statewide cases were contested — with 45 of 67 counties reporting no contested cases.
Guardianship also applies to young adults who are disabled or cognitively impaired due to illness or injury. Garman noted that unlike older people, who can spend the last years of their lives under guardianship, young adults can spend decades. Without a lawyer, many families are unaware that there are alternatives or that they can go back to court to have guardianship removed, if necessary.
“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,” Garman said. . She added that the bill would ensure that alternatives are explored.
Although it is widely accepted that changes are needed, funding is a concern.
Sally Schoffstal of the Pennsylvania Association of Elder Law Attorneys said she does not support the mandatory named attorney because most counties do not have the resources and staff to fulfill the requirement, preferring instead to rely on the flexibility given to judges to determine whether a lawyer is necessary. .
On compensation for tutors, she said the association’s view is that it should be modest in scale but provide sufficient compensation for the work done.
Committee members also heard from the Elder Law Section of the Pennsylvania Bar Association, the Huntington-Bedford-Fulton Area Agency on Aging, AARP Pennsylvania and the County Attorney’s Office of Dolphin.
“The experiences of those who regularly work with the system are vital, as they see firsthand how the current system works and what needs to be done to strengthen it and make it work better for Pennsylvanians,” Baker said.
She added that the information shared will help guide them in assessing potential changes to the guardianship system.