As Pa. Aims to Tighten Guardianship Laws, Practitioners Expect Litigation to Increase
“I think it’s a good starting point to make sure that there’s due process, accessibility and that the allegedly incapacitated person’s rights are being addressed and cared for,” Philadelphia Court of Common Pleas Judge Sheila Woods-Skipper said. “I think that some of the logistical things will be more challenging.”
July 20, 2023
By: Max Mitchell, Bureau Chief
Bills aiming to make it harder for allegedly incapacitated Pennsylvanians to get taken advantage of through the guardianship system are moving swiftly through the state General Assembly. Practitioners in this area of law are largely supportive of the changes and say the new guardrails are likely to lead to increased litigation in these cases, which are estimated to deal with more than $1.6 billion in assets within the Keystone State.
The proposals—one of which was passed by the Senate (Senate Bill 506) and the other which now sits in the state House Judiciary Committee (House Bill 1397)—seek to strengthen the state’s guardianship practice by changing the laws in three main ways. First, they mandate for counsel to be appointed for all alleged incapacitated people subject to a guardianship petition. Second, they require professional guardians be certified. And third, they require that petitions for guardianships demonstrate that there are no other less restrictive alternatives for the individual.
SeniorLaw Center Executive Director Karen Buck said the changes will bring uniformity across the state, where currently there is a patchwork of systems, and balance to these very consequential proceedings.
“To balance the scales of justice you need both sides to be represented,” she said.
Those who practice in this area of law say guardianships are a particularly difficult area of practice. Since guardianships involve taking away the rights of incapacitated people and placing them in the hands of others, courts need to be very vigilant to ensure the incapacitated person is being cared for properly. Sometimes cases deal with indigent and homeless populations. Sometimes they involve family members who are very emotionally invested in the outcomes. And sometimes cases involve people seeking to get access to the incapacitated person’s assets.
According to those who work in this space, it can often be difficult to determine whether the person coming to them for representation, or petitioning to act as a guardian, really has the allegedly incapacitated person’s best interests at heart, or if they are acting in their own self-interest.
Having court-appointed counsel can go a long way toward helping an attorney parse out who is there for the right—or wrong—reasons, practitioners said.
Philadelphia Court of Common Pleas Judge Sheila Woods-Skipper, who oversees the district’s Orphans’ Court, said that overall the rule changes generally encourage judges to be more probative on key issues in the case. While she said she already does much of what is called for in the new rules, such as appointing counsel and questioning whether less restrictive alternatives are available, the changes should create some uniformity and clarity.
However, Woods-Skipper said some questions remain as to how exactly the new changes will work out in practice.
“I think it’s a good starting point to make sure that there’s due process, accessibility and that the allegedly incapacitated person’s rights are being addressed and cared for,” she said. “I think that some of the logistical things will be more challenging.”
Woods-Skipper said the changes are also likely to increase the amount of litigation that takes place, such as challenges to expert reports and filings regarding the least restrictive alternative. Overall, she expects to see more challenges and likely more work for the courts.
“When we do appoint lawyers who have an ethical responsibility, they make sure they’re putting forth the best legal arguments,” she said. “Because of the requirements, we may need more judicial hands to do that.”
With as many as 400 to 500 new petitions filed each year, on top of the ongoing guardianships, the Orphans’ Court in Philadelphia, which has three commissioned judges and one senior judge, is already quite busy, Woods-Skipper said.
And who will pay for the court-appointed counsel is also a large logistical question that remains unanswered in the legislation. Other unanswered questions focus on what qualifications, training and experience counsel will need to take on the work.
“There’s a lot of devil in the details,” Buck said.
Seamus Lavin of Wetzel Gagliardi Fetter & Lavin, who practices mainly in Delaware, Chester and Montgomery counties, said he is generally supportive of the changes, but added that it will be tough to create changes that will catch all the fraud and abuses, given that there are some out there who view guardianships as “a license to steal.”
He said he hoped the increased certification rules would not make it too onerous—or expensive—for the well-meaning guardians to still be interested in taking on the cases.
“Every time you do these things, you’re creating greater hurdles and more costs, and who’s going to bear them?” Lavin said. “If the bad guy’s going to be the bad guy … you can have all the laws in the world.”
One practical question the changes will answer is what role the court-appointed attorneys should play. Rather than being in the position of advocating for the allegedly incapacitated person’s best interest, with the changes, court-appointed attorneys would now clearly be mandated to advocate for the allegedly incapacitated person’s wishes.
“They’re not looking for the best interest, or to ensure the guardianship happens, but that their rights are protected,” Buck said.
One solution to the funding and training question that the SeniorLaw Center is advocating for is a legal-aid model, which, Buck said, has seen great results in Nevada, where nonprofit lawyers have been estimated to provide these services at 30% of the cost of a private sector model. Such a system also ensures standardized training and experience, Buck said.
According to lawmakers, the House bill is expected to be brought to the full House when the legislature comes back into session in September. If no amendments are brought during that process and the bill is approved in that form, it will move on to the governor’s desk to be signed into law. However, if there are amendments, the bill would need to go back to the Senate, to be approved again.
Sen. Lisa Baker, R- Luzerne, is the prime sponsor for the Senate bill, and Rep. Darisha Parker, D-Philadelphia, is the prime sponsor for the House bill.
“I’m looking forward to working on this important issue when we come back to session in September,” Parker said.
Rep. Tim Briggs, chair of the House Judiciary Committee, said he has not heard of any plans to bring amendments to the bill, although it is possible members will propose changes when it comes before the full House.
“My hope is unless they’re really needed, we can run it clean,” he said, noting that the reception so far has been positive.
July 20, 2023 edition of the “The Legal Intelligencer” © 2023 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.