How would I gain guardianship of my father who has Alzheimers?
Full Question:
What are my chances of gaining legal custody of my Alzheimers father who's wife is alcoholic and is verbally abusive. They reside in Pennsylvania.
10/26/2007 |
Category: Guardianship |
State: New York |
#11040
Answer:
The following is a statute:
20 Pa.C.S.A. § 5511. Petition and hearing; independent evaluation
(a) Resident. — The court, upon petition and hearing and upon the
presentation of clear and convincing evidence, may find a person domiciled
in the Commonwealth to be incapacitated and appoint a guardian or
guardians of his person or estate. The petitioner may be any person
interested in the alleged incapacitated person's welfare. The court may
dismiss a proceeding where it determines that the proceeding has not been
instituted to aid or benefit the alleged incapacitated person or that the
petition is incomplete or fails to provide sufficient facts to proceed.
Written notice of the petition and hearing shall be given in large type
and in simple language to the alleged incapacitated person. The notice
shall indicate the purpose and seriousness of the proceeding and the
rights that can be lost as a result of the proceeding. It shall include
the date, time and place of the hearing and an explanation of all
rights, including 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. The Supreme Court
shall establish a uniform citation for this purpose. A copy of the
petition shall be attached. Personal service shall be made on the alleged
incapacitated person, and the contents and terms of the petition shall be
explained to the maximum extent possible in language and terms the
individual is most likely to understand. Service shall be no less than 20
days in advance of the hearing. In addition, notice of the petition and
hearing shall be given in such manner as the court shall direct to all
persons residing within the Commonwealth who are sui juris and would be
entitled to share in the estate of the alleged incapacitated person if he
died intestate at that time, to the person or institution providing
residential services to the alleged incapacitated person and to such
other parties as the court may direct, including other service
providers. The hearing may be closed to the public and without a jury
unless the alleged incapacitated person or his counsel objects. The
hearing shall be closed and with or without a jury if the person alleged
to be incapacitated or his counsel so requests. The hearing may be held
at the residence of the alleged incapacitated person. The alleged
incapacitated person shall be present at the hearing unless:
(1) the court is satisfied, upon the deposition or testimony of or
sworn statement by a physician or licensed psychologist, that his
physical or mental condition would be harmed by his presence; or
(2) it is impossible for him to be present because of his absence from
the Commonwealth. It shall not be necessary for the alleged incapacitated
person to be represented by a guardian ad litem in the proceeding.
Petitioner shall be required to notify the court at least seven days
prior to the hearing if counsel has not been retained by or on behalf of
the alleged incapacitated person. In appropriate cases, counsel shall be
appointed to represent the alleged incapacitated person in any matter for
which counsel has not been retained by or on behalf of that individual.
(b) Nonresident. — The court may find a person not domiciled in
the Commonwealth, having property in the Commonwealth, to be
incapacitated and may appoint a guardian of his estate. The appointment
may be made after petition, hearing and notice, as in the case of a
person domiciled in the Commonwealth, or upon the submission of an
exemplified copy of a decree establishing his incapacity in another
jurisdiction. The court shall give preference in its appointment to the
foreign guardian of the nonresident incapacitated person, unless it finds
that such appointment will not be for the best interests of the
incapacitated person.
(c) Payment of certain costs. — If the alleged incapacitated
person is unable to pay for counsel or for the evaluation, the court shall
order the county to pay these costs. These costs shall be reimbursed by
the Commonwealth in the following fiscal year.
(d) Independent evaluation. — The court, upon its own motion or
upon petition by the alleged incapacitated person for cause shown, shall
order an independent evaluation which shall meet the requirements of
section 5518 (relating to evidence of incapacity). The court shall give
due consideration to the appointment of an evaluator nominated by the
alleged incapacitated person.
(e) Petition contents. — The petition, which shall be in plain
language, shall include the name, age, residence and post office address
of the alleged incapacitated person, the names and addresses of the
spouse, parents and presumptive adult heirs of the alleged incapacitated
person, the name and address of the person or institution providing
residential services to the alleged incapacitated person, the names and
addresses of other service providers, the name and address of the person
or entity whom petitioner asks to be appointed guardian, an averment that
the proposed guardian has no interest adverse to the alleged
incapacitated person, the reasons why guardianship is sought, a
description of the functional limitations and physical and mental
condition of the alleged incapacitated person, the steps taken to find
less restrictive alternatives, the specific areas of incapacity over
which it is requested that the guardian be assigned powers and the
qualifications of the proposed guardian. If a limited or plenary guardian
of the estate is sought, the petition shall also include the gross value
of the estate and net income from all sources to the extent known.
(f) Who may be appointed guardian. — The court may appoint as
guardian any qualified individual, a corporate fiduciary, a nonprofit
corporation, a guardianship support agency under Subchapter F (relating
to guardianship support) or a county agency. In the case of residents of
State facilities, the court may also appoint, only as guardian of the
estate, the guardian office at the appropriate State facility. The court
shall not appoint a person or entity providing residential services for a
fee to the incapacitated person or any other person whose interests
conflict with those of the incapacitated person except where it is
clearly demonstrated that no guardianship support agency or other
alternative exists. Any family relationship to such individual shall
not, by itself, be considered as an interest adverse to the alleged
incapacitated person. If appropriate, the court shall give preference to
a nominee of the incapacitated person.
20 Pa.C.S.A. § 5512.1. Determination of incapacity and appointment of
guardian
(a) Determination of incapacity. — In all cases, the court
shall consider and make specific findings of fact concerning:
(1) The nature of any condition or disability which impairs the
individual's capacity to make and communicate decisions.
(2) The extent of the individual's capacity to make and communicate
decisions.
(3) The need for guardianship services, if any, in light of such
factors as the availability of family, friends and other supports to
assist the individual in making decisions and in light of the existence,
if any, of advance directives such as durable powers of attorney or
trusts.
(4) The type of guardian, limited or plenary, of the person or
estate needed based on the nature of any condition or disability
and the capacity to make and communicate decisions.
(5) The duration of the guardianship.
(6) The court shall prefer limited guardianship.
(b) Limited guardian of the person. — Upon a finding that the
person is partially incapacitated and in need of guardianship services,
the court shall enter an order appointing a limited guardian of the
person with powers consistent with the court's findings of limitations,
which may include:
(1) General care, maintenance and custody of the incapacitated
person.
(2) Designating the place for the incapacitated person to live.
(3) Assuring that the incapacitated person receives such training,
education, medical and psychological services and social and vocational
opportunities, as appropriate, as well as assisting the incapacitated
person in the development of maximum self-reliance and independence.
(4) Providing required consents or approvals on behalf of the
incapacitated person.
(c) Plenary guardian of the person. — The court may appoint a
plenary guardian of the person only upon a finding that the person is
totally incapacitated and in need of plenary guardianship services.
(d) Limited guardian of the estate. — Upon a finding that the
person is partially incapacitated and in need of guardianship services,
the court shall enter an order appointing a limited guardian of the
estate with powers consistent with the court's finding of limitations,
which shall specify the portion of assets or income over which the
guardian of the estate is assigned powers and duties.
(e) Plenary guardian of the estate. — A court may appoint a
plenary guardian of the estate only upon a finding that the person is
totally incapacitated and in need of plenary guardianship services.
(f) No presumption. — No presumption of incapacity shall be
raised from the alleged incapacitated person's institutionalization.
(g) Legal rights retained. — Except in those areas designated by
court order as areas over which the limited guardian has power, a
partially incapacitated person shall retain all legal rights.
(h) Information as to rights. — At the conclusion of a proceeding
in which the person has been adjudicated incapacitated, the court shall
assure that the person is informed of his right to appeal and to petition
to modify or terminate the guardianship.
20 Pa.C.S.A. § 5512.2. Review hearing
(a) Time of hearing. — The court may set a date for a review
hearing in its order establishing the guardianship or hold a review
hearing at any time it shall direct. The court shall conduct a review
hearing promptly if the incapacitated person, guardian or any interested
party petitions the court for a hearing for reason of a significant change
in the person's capacity, a change in the need for guardianship services
or the guardian's failure to perform his duties in accordance with the
law or to act in the best interest of the incapacitated person. The court
may dismiss a petition for review hearing if it determines that the
petition is frivolous.
(b) Burden of proof and rights. — The incapacitated person shall
have all of the rights enumerated in this chapter. Except when the
hearing is held to appoint a successor guardian, the burden of proof, by
clear and convincing evidence, shall be on the party advocating
continuation of guardianship or expansion of areas of incapacity.
20 Pa.C.S.A. § 5518. Evidence of incapacity
To establish incapacity, the petitioner must present testimony, in
person or by deposition from individuals qualified by training and
experience in evaluating individuals with incapacities of the type
alleged by the petitioner, which establishes the nature and extent of the
alleged incapacities and disabilities and the person's mental, emotional
and physical condition, adaptive behavior and social skills. The petition
must also present evidence regarding the services being utilized to meet
essential requirements for the alleged incapacitated person's physical
health and safety, to manage the person's financial resources or to
develop or regain the person's abilities; evidence regarding the types of
assistance required by the person and as to why no less restrictive
alternatives would be appropriate; and evidence regarding the probability
that the extent of the person's incapacities may significantly lessen or
change.