Pennsylvania's New Guardianship Law: Strengthening Protections, Diminishing Elder Abuse, and Shaping the Future of Guardianship Work
In 2008, Britney Spears was appointed two legal guardians: her father, Jamie Spears, and attorney Andre Wallet. The conservatorship was allegedly born out of Spears’ public deterioration, which included the assault of a paparazzo’s car with an umbrella, inpatient rehabilitation, psychiatric hospitalizations, and the loss of custody of her children. Thirteen years later, and following years of suspected and alleged abuse perpetrated by her father under the guise of guardianship, the viral #FreeBritney movement achieved its goal. In November of 2021, Britney Spears’ conservatorship was officially terminated.
High profile cases like Spears’ have pushed guardianship matters — and the potential for abuse of guardianship arrangements — to the forefront. States like New Jersey, New Mexico, Oregon, and California changed their legal guardianship laws, aiming to reduce the number of people under these arrangements, while simultaneously increasing protection.
Pennsylvania, too, has a new guardianship law that fortifies protections for vulnerable individuals. On December 14, 2023, Governor Josh Shapiro signed into law Act 61 of 2023, sponsored by Senators Lisa Baker (R-20) and Art Haywood (D-4). Act 61 will become effective in June 2024. The law amends Title 20 Decedents, Estates and Fiduciaries of the Pennsylvania Consolidated Statutes, and includes three main provisions: (1) requiring the appointment of counsel for alleged incapacitated individuals subject to a guardianship petition; (2) mandating the certification of professional guardians; and (3) requiring that petitions for guardianships show there are no alternative, less restrictive options for alleged incapacitated individuals besides guardianship. The law also includes measures to prevent long-term guardianship for individuals if their circumstances change.
Guardianship appointments are designed to serve crucial purposes, including assistance to incapacitated individuals in making financial, health, and personal decisions. A plenary guardianship enables the guardian to make all decisions for the incapacitated individual. There are currently over 19,000 active guardianships in Pennsylvania managing over $1.6 billion in assets. Most of these guardianships are plenary. However, an unsettling trend has emerged in the Commonwealth: a rise in the number of guardianships being implemented and an increase in the incidence of abuse and exploitation associated within these arrangements. This guardianship legislation aims to curb this trend.
Before Act 61 of 2023, the guardianship law in Pennsylvania provided alleged incapacitated individuals “the right ... to have counsel appointed if the court deems it appropriate,” but failed to define an appropriate case. Pennsylvania has been one of a few states that has not mandated the appointment of counsel in guardianship proceedings. Now, and regardless of the ability to pay, the court “shall appoint counsel to present the alleged incapacitated person in any matter for which counsel has not been retained by the alleged incapacitated person ....” The new law ensures that alleged incapacitated individuals have zealous advocates by their side throughout the legal process. This provision explicitly distinguishes appointed counsel from a guardian ad litem, whose role focuses on determining the best interests of the individual. Rule 1.14 of the Pennsylvania Rule of Professional Conduct (“Client with Diminished Capacity”) reinforces this distinction, emphasizing that the attorney should maintain a “normal client-lawyer relationship” with an alleged incapacitated individual. The Act’s clarification on this point underscores the importance of providing independent legal representation to safeguard individuals’ rights and autonomy, rather than merely promoting the “best interests” of alleged incapacitated persons.
The mandatory appointment of counsel and the emphasis on less restrictive alternatives will make guardianship proceedings more complex. These measures will lead to the involvement of additional attorneys. Furthermore, guardianship matters are likely to undergo closer scrutiny by judges, potentially leading to an increased number of witnesses being called during hearings. As a result, petitioners may experience more resource-intensive and costly proceedings.
The new guardianship law in Pennsylvania marks a significant milestone in protecting the rights and interests of individuals facing guardianship petitions. The mandatory appointment of counsel ensures that alleged incapacitated individuals have dedicated legal advocates, separate from the role of a guardian ad litem. While this new provision strengthens the guardianship process to ensure that alleged incapacitated persons are protected, it also has introduced a complexity and need for experienced counsel.