PA joins majority of states in establishing RTC for guardianships

Guardianship establishment, review, modification, and termination matters

In 2023, the Pennsylvania legislature enacted SB 506, which provides the right to counsel to adult respondents in guardianship establishment, modification, and termination proceedings, regardless of ability to pay. 20 Pa. Stat. § 5511(a.1)(2) provides:

Regardless of the ability of the alleged incapacitated person to pay, the court shall appoint counsel to represent the alleged incapacitated person in any matter for which counsel has not been retained by the alleged incapacitated person, including in all proceedings under subsection (a) and in any subsequent proceedings to consider, modify or terminate a guardianship.

“Subsequent proceedings” include review hearings, which shall be held automatically in situations where the evidence indicates that the “circumstances of the person’s incapacity may change.” 20 Pa. Stat. § 5512.2(A).  In other situations, “any interested person may file a petition with the court to terminate or modify the guardianship.” Id. at (A.1).

The new also specifies that counsel is client-directed, requiring that “[c]ounsel for an alleged incapacitated person shall, as far as reasonably possible, maintain a normal client-attorney relationship with the client[,]” and “shall advocate for the client’s expressed wishes and consistent with the client’s instructions, to the extent the client is able to express wishes and provide instructions.” 20 Pa. Stat. § 5511(a.1)(3).

Prior to SB 506, the law provided only for discretionary appointment of counsel in situations where the court deemed it “appropriate” and where the respondent was unable to afford counsel.  

Right to counsel in matters related to expanding guardian’s scope of authority and where respondent resides in state mental hospital

The right may also apply at hearings where the guardian seeks authority to act beyond their typical source of authority.  A guardian cannot consent for certain medical treatment, including abortion and experimental medical procedures, nor to marriage or divorce, “unless specifically included in the guardianship order after specific findings of fact or otherwise ordered after a subsequent hearing.” 20 Pa. Stat. Ann. § 5521(d) (emphasis added).  Based on the broad language in 20 Pa. Stat. § 5511(a.1)(2) regarding “any subsequent proceedings”, the right to counsel presumably also applies to hearings related to these matters.

Additionally, if guardianship is sought for a person in a state mental hospital, “[t]he alleged incompetent and his guardian shall be represented by counsel and, unless private estate counsel exists or is appointed by the Court of Common Pleas, the Court Administrator shall take necessary steps to insure that such counsel is provided.”  204 Pa. Stat. Ann. § 29.41(3).