Elder abuse has been steadily increasing in Pennsylvania for the past decade, with 28,633 reports of abuse received by the state in fiscal year 2016-2017, according to the Pennsylvania Department of Aging. The increase in the number of elder abuse reports in Pennsylvania is likely the result of both the aging population and efforts to increase awareness of elder abuse by local, state, and national advocates for the elderly.
Elder abuse can be physical, financial, or in the form of neglect and, unfortunately, can be perpetrated by legal guardians -- those appointed to care for the elderly individual.
In 2018, Pennsylvania updated its guardianship rules to create more checks against guardian abuse, to make them more accountable, to allow family and others to intervene on the elderly individual's behalf, and to expand who can object to a guardian's appointment. The revisions go into effect on June 1, 2019.
According to the state's Office of Elder Justice in the Courts, a guardian is responsible for making certain decisions on behalf of an adult of any age who is deemed incapacitated by a court. A guardian can be a family member or an unrelated third party, and the decisions guardians make include financial, medical, and personal matters that the incapacitated person has been determined to be unable to make on his or her own.
The Pennsylvania Supreme Court adopted revised Orphans' Court Rules 14.1 through 14.14, which reform numerous aspects of the guardianship process. According to a report issued by the Advisory Council on Elder Justice in the Courts in January 2019, these reforms include:
Procedures for consideration of potential guardians that favor close family members, but do not exclude other relatives and friends from consideration
Criminal background checks of proposed guardians
Appointment of counsel when appropriate
Verification by counsel of the appointed guardian's representation, scope of employment, and duration of representation
Timely and efficient fee dispute resolution procedures
Mandatory filing of an inventory within 90 days of a guardian's appointment
Mandatory completion of annual reports by the guardian starting one year after appointment
Monitoring of the court's guardianship docket to ensure compliance and notification
Judicial review of filed reports
Recommended remedial actions regarding reporting issues
Caring for an aging individual and handling personal and financial affairs can lead to emotionally fraught and sometimes highly contentious situations within a family. The new rules are intended to ensure the guardian is fulfilling all of the required duties and may help to head off or resolve disputes between families and guardians before they reach court.
The latest ruling in an ongoing battle over the guardianship of Genevieve Bush illustrates how family disputes can turn into a long-running drama, especially in the case of incapacitated family members. (In the Matter of Genevieve Bush, an Incapacitated Person, No. 1686 EDA 2018, Pa. Superior Court, March 19, 2019.)
When Genevieve Bush executed a will in 2004, she named her three sons and one daughter as beneficiaries. Two years later, Bush revised her will to name only her daughter as beneficiary; Bush also executed a durable power of attorney and a durable power of attorney for healthcare, both of which named her daughter as agent. In 2007, Bush executed a pour-over will and revocable trust with the same dispositive scheme as the 2006 will, and another durable power of attorney for healthcare naming her daughter as agent.
In litigation that ensued thereafter in 2011, the trial court determined that Bush suffered from an incapacity at least as early as 2006, adjudicated her an incapacitated person, and named one of her sons and her daughter as co-guardians of her person and another son as guardian of her estate. The trial court also voided the power of attorney under which the daughter was appointed as agent. The trial court did not address the validity of Bush's other documents. The Superior Court affirmed the trial court's decision. A few years later in 2013, the trial court removed the son and daughter as co-guardians of Bush and appointed a third party as guardian of Bush's person. The Superior Court again affirmed.
Most recently in 2018, Bush's sons petitioned the trial court to void their mother's planning documents, arguing interference with the guardian's responsibilities.
The trial court held, and the Superior Court affirmed on March 19, 2019 that the sons did not demonstrate that an actual controversy was imminent such that the court should act on the sons' petition. Those with an interest in her estate "will not be injured by waiting until the ordinary course of judicial proceedings that will occur upon the death of [Bush]," said the trial court.
While the state's new guardianship rules might not have helped to avoid the problems that arose in this case, the increased oversight of the new rules may help reduce or even eliminate issues for other families before they start or before they escalate.