What is needed for my to become guardianship of my handicapped niece?
Full Question:
Answer:
A power of attorney is a legal instrument that individuals create and sign that gives someone else the authority to make certain decisions and act for the signer. The person who has these powers is called an "agent" or "attorney-in-fact." The signer is the "principal." As a principal, if the principal's decisions conflict with those of the agent, the principal's decision will govern, assuming that the agent confers with the principal prior to taking an action. If an agent has acted on the principal's behalf and acted within the scope of authority granted by the power of attorney, then the principal may be obligated by the terms and conditions of his actions. The power of attorney is not a substitute for a will. Upon the principal's death, either the will or the state's law of intestacy will govern the distribution of the estate.
The person designated to be the agent assumes certain responsibilities. The agent is obligated to act in the principal's best interest. The agent must always follow the principal's directions. Agents are "fiduciaries," which means that the agent must act with the highest degree of good faith in behalf of their principals. The agent must keep his money separate from the principal's; keep detailed records concerning all transactions he engages in on the principal's behalf; not stand to profit by any transaction where the agent represents the principal's interests; and not make a gift or otherwise transfer any of the principal's money, personal property, or real estate to himself unless the power of attorney explicitly states he can do so.
Generally, an agent will not be liable for the debts of the principal, unless the debts are a result of the bad faith or dishonest behavior of the agent or unless the agent acquires the debts jointly with the principal. Upon the death of the principal, the executor of his or her estate will handle the payment of outstanding debts.
A guardianship is a legal relationship that can be created when a person is assigned by the court to take care of and make personal decisions for another (ward). Guardianship of a minor can be over the actual minor, the property of the minor, or both. Guardianships of minors are often established when neither parent is able to provide a safe, secure home for the child because of drug abuse, alcoholism, and other serious personal problems or when a minor child inherits property worth more than a certain amount of money. To become a guardian of a child either the party intending to be the guardian or another family member, a close friend or a local official responsible for a minor's welfare will petition the court to appoint the guardian. The guardianship petition usually names the potential guardian and provides information about the parties' relationship (if any) and any pertinent information about the heirs or estate of the ward, as well as information about the minor's parents and whether and where they are living. Notice of the time and place of the guardianship hearing must be given to the potential ward and other interested parties. The guardianship of a minor remains under court supervision until the child reaches the age of majority. A guardianship of a child takes away the parents' right to make decisions about their child's life. However, it does not permanently terminate parental rights. This means that although the guardian now has custody and is responsible for raising the child, the parents are still the child's legal parents. The court can order a guardian to let the parents visit or contact the child, but the court may also put limits or other conditions on the visitation, such as requiring that any visitation be supervised. The time and frequency of parental visitation is often is up to the guardian (or the court) to decide. Parents may, in some cases, regain custody of their child in the future if the court determines the guardianship is no longer in their child's best interests. The court may terminate a guardianship if a subsequent hearing proves that the need for a guardian no longer exists, or in the case of a minor, when the child reaches the age of majority. Preferred guardians for a minor are parents and then other relatives. However, the primary consideration in selecting a guardian is the best interests of the minor. If the parents are still alive, before a nonparent is chosen as a guardian, the parents must be determined to be unable or unfit to look after the best interests of the minor.
The following are PA statutes:
20 Pa.C.S.A. § 5513. Emergency guardian
Notwithstanding the provisions of section 5511 (relating to petition
and hearing; independent evaluation), the court, upon petition and a
hearing at which clear and convincing evidence is shown, may appoint an
emergency guardian or guardians of the person or estate of a person
alleged to be incapacitated, when it appears that the person lacks
capacity, is in need of a guardian and a failure to make such appointment
will result in irreparable harm to the person or estate of the alleged
incapacitated person. The provisions of section 5511, including those
relating to counsel, shall be applicable to such proceedings, except when
the court has found that it is not feasible in the circumstances. An
emergency guardian so appointed for the person or estate of an alleged
incapacitated person shall only have and be subject to such powers,
duties and liabilities and serve for such time as the court shall direct
in its decree. An emergency order appointing an emergency guardian of the
person may be in effect for up to 72 hours. If the emergency continues,
then the emergency order may be extended for no more than 20 days from
the expiration of the initial emergency order. After expiration of the
emergency order or any extension, a full guardianship proceeding must be
initiated pursuant to section 5511. The court may also appoint an
emergency guardian of the person pursuant to this section for an alleged
incapacitated person who is present in this Commonwealth but is domiciled
outside of this Commonwealth, regardless of whether the alleged
incapacitated person has property in this Commonwealth. An emergency
order appointing an emergency guardian of the estate shall not exceed 30
days. After 30 days, a full guardianship proceeding must be initiated
pursuant to section 5511.
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. § 5112. Persons not qualified to be appointed by the court
The court shall not appoint as guardian of the estate of a
minor any person who is:
(1) Under 18 years of age.
(2) A corporation not authorized to act as fiduciary in
the Commonwealth.
(3) A parent of the minor, except that a parent may be
appointed a co-guardian with another fiduciary or
fiduciaries.
