Tuesday, May 15, 2018

Pennsylvania Considering Changes to Guardianship Laws for 2018 Passage

Pennsylvania has several interesting bills pending that would make significant changes to the laws governing court-appointed guardians for incapacitated adults, and at least one of these could move forward this legislative session.  I've learned to expect late night action from the Pennsylvania legislature once it reconvenes in late May and before it adjourns in late June or early July.  The pending legislation includes:

  • Senate Bill 884 (Printer's No. 1147), with Senator Greenleaf as the lead sponsor, offered as a comprehensive reform package for adult guardianship laws, relying in large part on model legislation, and drafted before the most recent high profile news stories and editorials that involve allegations of improper appointment of a particular fee-paid guardian in a number of guardianships for incapacitated adults on the eastern side of the Commonwealth.  On April 16, 2018 this bill was referred to the Senate Appropriations Committee.  

I've seen recent drafts of proposed amendments to SB 884 that would require alleged incapacitated persons to be represented by a lawyer during the guardianship proceeding, require criminal background checks through the State Police (without creating automatic disqualifications if there is a history of convictions), and would also mandate "certification" for "professional guardians." Professional guardians are defined to include individuals or entities that are appointed to serve 3 or more incapacitated persons.  The responsibility for certification of the professional guardians would be assigned to the Pennsylvania Department of Human Services, although the proposed language would appear to permit the department to accept certification through an outside program such as that offered by the Center for Guardianship Certifications. 

  • House Bill 2247 (Printer's No. 3296), with Representative Gillen as the lead sponsor, and submitted in April 2018 following the high profile articles, would mandate criminal background checks for all current or prospective guardians and provides that courts "shall disqualify a guardian or prospective guardian convicted of an offense classified as a felony under the laws of this Commonwealth or a substantially similar offense under the laws of another jurisdiction."  

While the proposed amendment to S.B. 884 would require criminal background checks for potential guardians, unlike HB 2247, it stops short of banning appointment of individuals who have any particular criminal history. No doubt this decision reflects a 2003 ruling by the Pennsylvania Supreme Court in Nixon v. Commonwealth.  In that case, a per se ban on employment of individuals as long-term care workers if they were convicted of certain crimes was deemed unconstitutional.  Senate Bill 884, even if amended, would give greater discretion to the courts to consider the individual history and the nature of the offense than would HB 2247.

Neither of the above two bills, nor the proposed amendments I've seen, would mandate any particular education or training for prospective guardians.  While professional guardians would most likely be expected to pass some form of test for certification, the Pennsylvania bills, unlike the recent Maryland rules I reported on earlier, so far stop short of mandating education or training for nonprofessional guardians.  Most appointed guardians are nonprofessionals, usually family members or friends of the alleged incapacitated person.  Some of Pennsylvania's 67 counties, including York, are reportedly offering their own family/law guardian training programs, under local court rules.    

On a parallel (but not necessarily identical) track, since December 2017, the Pennsylvania Supreme Court has had before it a set of proposed changes to the Orphans' Court rules governing court-appointment of guardians for incapacitated adults.  The new rules were drafted following recommendations made in 2014 by the Pennsylvania Supreme Court's Elder Law Task Force, but well before the most recent news stories.  Adoption of the court rules may now be waiting for passage of the statutory reforms.  I actually have not seen the version of the rules pending before the Pennsylvania Supreme Court because changes were reportedly made in response to comments received following a September 2017 Notice of Proposed Rule Making, but the text of the revised version submitted by the Orphans' Court Rules Committee is not required to be circulated publically.  The new rules apparently do anticipate the introduction of a Guardianship Tracking System (GTS) under development by the Administrative Office of the Pennsylvania Courts and also recommended by the Task Force.  At the last report, the projected completion date for the GTS is late 2018 and it would be used by the courts on a statewide basis for filings, management, tracking and reporting on guardianships.  

Some of these bills would also establish a presumption in favor of appointment of designated agents or family members, before any consideration of a professional guardian. 

https://lawprofessors.typepad.com/elder_law/2018/05/pennsylvania-considering-changes-to-guardianship-laws-for-2018-passage-.html

Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink

Comments

Require everyone, family members and professionals, be background checked and certified to serve. We need less guardianships as there are many cheaper, less restrictive, and less risky options available to protect the vulnerable. Your own website promotes free guardianship nomination forms.

Posted by: Rick Black | May 15, 2018 5:12:01 AM

I agree we need fewer guardianships; but not all families have access to advance planning tools. I fear that mandatory background checks would impose another financial barrier to the low income families with which I work. Additionally, my clients overwhelmingly prefer family members as guardians rather than professional agencies- an automatic disqualification for past convictions without regard to how old the convictions are or the nature of the offense would, in many cases, disqualify family caregivers who had trouble with the law in their youth. The idea of mandatory training for guardians is a good one- so long as there is funding for it and that it takes into account the already significant caregiving burdens of many of those family members who serve as guardians.

Posted by: Martha Mannix | May 16, 2018 6:20:17 AM

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