What is the difference between a plenary guardian and a plenary guardian of estate?
Full Question:
What is the difference between a plenary guardian and a plenary guardian of estate?
11/12/2007 |
Category: Guardianship |
State: Pennsylvania |
#12089
Answer:
The following are Pennsylvania statutes:
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. § 7723. Representatives and persons represented
The following rules except as set forth in paragraph (7) apply to the
extent there is no conflict of interest with respect to the matter at
issue between the representative and the person or persons represented
that might affect the impartiality of the representative and, if two or
more persons are being represented, to the extent there is no conflict of
interest with respect to the matter at issue between or among the persons
represented that might affect the impartiality of the representative:
(1) A plenary guardian represents the person whose estate the guardian
supervises, and a limited guardian represents the person whose estate the
guardian supervises within the scope of authority prescribed by the court
order that defines the guardian's authority.
(2) An agent under a general power of attorney represents the agent's
principal, and an agent under a limited power of attorney represents the
principal within the scope of the agent's authority under the power of
attorney.
(3) Where property or an interest in property is vested in a class of
persons, the living sui juris class members represent the class members
who are minors, unborn, unknown or unascertained.
(4) Where property or an interest in property will pass to a class of
persons upon the occurrence of a future event, the living sui juris class
members represent the class members who are minors, unborn, unknown or
unascertained. The class members entitled to represent other class
members or potential class members are the persons who would take the
property or interest in property if the future event had occurred
immediately before the commencement of the judicial proceeding relating
to the property or interest in property or immediately before the
effective date of the nonjudicial resolution of the matter.
(5) Where property or an interest in property will pass to a person,
class of persons or both upon the occurrence of a future event, but the
property or interest in property will pass to another person, class of
persons or both upon the occurrence of an additional future event, the
person, class of persons or both who would take upon the occurrence of the
first event represents the person, class of persons or both who would
take upon the occurrence of the additional event, provided their
interests are identical or substantially similar for purposes of the
particular trust matter. If a class of persons would take upon the
occurrence of the first event, paragraph (4) applies to representation
between or among the class.
(6) A person represents all minors or unborn individuals and persons
whose identity or location is unknown and not reasonably ascertainable,
to the extent such persons are not otherwise represented, if the
interests of the person and the person represented are substantially
identical with respect to the particular question or dispute involved.
(7) Whether or not there is a conflict of interest described in this
section, the sole holder or all coholders of a presently exercisable or
testamentary power of appointment represent all potential appointees and
all takers in default of exercise of the power of appointment if the
holder may appoint to:
(i) the holder's estate, the holder's creditors or the creditors of the
holder's estate; or
(ii) anyone other than the holder's estate, the holder's creditors and
the creditors of the holder's estate.
(8) The sole holder or all coholders of a presently exercisable or
testamentary power of appointment not described in paragraph (7)
represent all potential appointees and all takers in default of exercise
of the power who are also potential appointees.
(9) Except as provided in paragraph (1), a person represents the
person's minor and unborn descendants.