As you may be aware, Act 61 of 2023 becomes effective on June 11, 2024. The Office of Elder Justice in the Courts (OEJC) wanted to highlight important aspects of Act 61 that may impact family/lay guardians.
- Appointment of counsel for all Alleged Incapacitated Persons (AIPs) and Incapacitated Persons (IPs): Courts will be required to appoint an attorney for the AIP/IP in all guardianship hearings unless the AIP/IP obtains their own representation. Attorney costs can be paid by the estate of the AIP/IP or by the county at the discretion of the judge. Attorneys are to maintain a normal attorney-client relationship with the AIP/IP to advocate for their expressed wishes and be consistent with the AIP/IP’s instruction, to the extent the AIP/IP can express them. The attorney will not be taking the place of the appointed guardian regarding decision making and other responsibilities granted to guardians by court order.
- Mandatory Exploration of Alternatives to Guardianship: In a guardianship hearing, the court must explore possible alternatives to guardianship prior to an adjudication on capacity. Alternatives to guardianship include, but are not limited to, representative payees, financial power of attorney, advance directives for health care decisions, mental health power of attorney, supported decision-making, and more. The court can modify or end a guardianship at any time if the IP regains their capacity or another alternative to guardianship option becomes feasible.
- Review Hearings: Courts must hold a review hearing within one year of appointing a guardian in cases where the AIP’s/IP’s situation could improve.
Thank you for your continued commitment to serving persons with a guardian in Pennsylvania. The OEJC hopes you view these new requirements as a positive step in equipping guardians and in helping to ensure the safety of incapacitated persons. If you have any questions, please contact the OEJC at OEJC@pacourts.us.