Every time you go home, you notice your Dad is changing. It starts with him forgetting names. Then you see that he’s struggling to find the right words for things. Then he stops remembering to pay bills.
Pretty soon, an ugly reality sets in. The person who once took care of you can no longer take care of himself. That job will now fall to you or another loved one. Unfortunately, your Dad failed to prepare a power of attorney which would have given you the authority to make healthcare and financial decisions on his behalf.
With no power of attorney in place for your Dad, your only option is to petition the court to be appointed as his guardian.
To be appointed guardian, you will have to file a petition for guardianship in the county court where your Dad lives. For example if your Dad lives in Bucks County, PA, you would file the petition with the Bucks County Orphans’ Court.
After you file the petition, the court will schedule a hearing date. You will be required to notify your Dad and all other close relatives, such as your siblings, of the date of the hearing. Also, if your Dad is living in an assisted living facility or nursing home, you will have to notify that facility of the hearing date.
At the hearing, you will have to present clear and convincing evidence to the court that your Dad is incapacitated and is in need of a guardian. Under PA law, an incapacitated person is defined as:
“an adult whose ability to receive and evaluate information effectively and communicate decisions in anyway is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his health and safety”.
To meet your burden of proof, you and/or a sibling will testify as to your Dad‘s condition. Also, you will have to produce medical testimony, live or in a report, that your Dad is impaired and cannot manage his financial resources or meet the essential requirements for his physical health and safety.
The court can appoint you as guardian of the person, guardian of the estate, or both. As guardian of the person, you will be responsible for determining your Dad’s care needs, deciding where your Dad will live, and making healthcare decisions for him. As guardian of the estate you will be responsible for managing your Dad’s finances, paying his bills, and selling his home, if necessary.
If the court grants your petition for guardianship, as guardian of the estate, you will have to file a complete inventory of your Dad’s assets with the court within three months of your appointment. Also, on an annual basis you will be required to file reports of both the guardian of the person and guardian of the estate.
You can use your Dad’s income to pay his bills without obtaining court permission. However, if his monthly bills exceed his income, or you have to sell his home, you will have to obtain prior court approval.
Guardianship for your Dad will take a substantial investment of your time. Also, you will be required to report to the court on at least an annual basis the status of the guardianship.
Becoming a guardian can be a rude awakening. Many new guardians do not realize the scope of their commitment and responsibility. Courts have become much more conscientious in reviewing guardianship files and collecting the required reports from the guardians.
If your Dad had prepared a power of attorney appointing you as his agent when he still had mental capacity, he could have avoided the entire guardianship process. As the agent, you would have been able to make his financial and health care decisions without the substantial investment of time and money required for you to be appointed as guardian.
If either of your parents has not created a power of attorney, now is the time to do so. If he/she no longer has the mental capacity to do so, then you will have to petition the court to become their guardian.
Whether your parents need a power of attorney or a guardianship is required, Gummer Elder Law can help. Contact us now to schedule an appointment.