The Pennsylvania Supreme Court convened an Elder Law Task Force on April 16, 2013. This is a blue-ribbon panel chaired by Justice Debra Todd, charged with reviewing and making recommendations on proposed revisions to the Probate, Estates and Fiduciaries Code and Orphan’s Court Rules, monitoring court-appointed fiduciaries, and prevention of elder abuse. The 38-member task force includes judges from all levels of the Pennsylvania court system, prosecutors, Elder Law attorneys, court clerks and other officials, and leaders of organizations that provide services and protection to vulnerable adults. I received the honor of being appointed to the Task Force and was assigned to the committee on monitoring guardians and their counsel.
The Task Force met on April 16 and 17 and will convene again in October. It is expected to produce its report within a year. The issues the Task Force will address are complex and vital. When a person becomes unable to manage his or her affairs, it is necessary for a surrogate, or substitute, to act on the person’s behalf. The person may choose his or her surrogate by signing a power of attorney. Otherwise, the court must appoint a guardian, either of the person or of the estate, or both.
By signing a power of attorney, the person, referred to as the principal, is able to choose a surrogate, the attorney-in-fact or agent, and describe the powers the agent is authorized to exercise. However, an agent under a power of attorney is not subject to court supervision unless there is a petition filed complaining of mistakes or bad acts.
The guardian of the person makes decisions about the person’s living arrangements, personal and medical care, and activities. Once a guardian of the person is appointed, the guardian has substantial control of the person’s life, as delimited by the court’s order of appointment, until the court terminates or changes the guardianship.
The guardian of the estate takes contol of the person’s assets and income and manages them for the person. As with the guardian of the person, the guardian of the estate exercises substantial financial control until the court terminates or changes the guardianship.
An agent under a power of attorney has much more flexibility in managing the principal’s affairs and the principal retains the power to direct the agent’s actions or revoke the power of attorney. However, if the principal is incompetent or under the influence of the agent, the agent has the opportunity to mismanage or misappropriate the principal’s assets. One of the issues before the Task Force is how the power of attorney law can be amended to discourage agents from abusing their powers without impairing the flexibility of these useful estate-planning documents.
The Task Force will be looking at proposed changes in the statutes and court rules for the nomination, appointment, supervision, compensation, and removal of guardians by the Orphan’s Courts in the various counties. Current practice varies greatly from county to county and local rules are not uniform. While this permits the courts to adapt to local needs and conditions, it is difficult for attorneys from other areas of the state to practice there. Local attorneys have a distinct “home court advantage.” The proposed Commonwealth-wide rules would prohibit inconsistent local rules. This will make it easier for the Supreme Court and the Administrative Office of Pennsylvania Courts (AOPC) to determine and institute best practices.
The Task Force will also suggest ways to monitor guardians and their counsel more effectively. While some courts keep close tabs on court-appointed fiduciaries, others rely on guardians to self-regulate. One challenge will be to institute more stringent supervision within current financial constraints. Another will be to avoid making the qualifications and reporting requirements so burdensome that few will be willing to seek appointment.
Improved monitoring of court performance is another Task Force objective. The AOPC presently receives only data related to new filings and the numbers of open cases. The data set provided by the local courts does not include such information as the reasons guardianships are terminated and whether guardians are adhering to reporting requirements. The AOPC needs comprehensive data to determine which courts are performing adequately and whether their budgets and staff are sufficient to handle their caseloads.
The issues before the Task Force represent delicate balances between underprotecting vulnerable adults from malicious agents and guardians and creating protective mechanisms that hinder and discourage competent and well-meaning fiduciaries. The Task Force has an aggressive agenda that will challenge its members to develop new ways of addressing problems that have plagued probate courts since the Elizabethan Era. Comments and suggestons are welcome and may be submitted to the Task Force on the AOPC website.
John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
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