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Determining incapacity in Pennsylvania

No one in Pittsburgh wants to lose their decision-making ability and become incapacitated. Typically, guardianships are established at the request of concerned parties who feel that a loved one has become incapable of caring for themselves. The trouble is that "incapacity" may seem like such a subjective term, with some defining it as any limitation that makes conducting seemingly mundane tasks more difficult to a complete inability to function without assistance.

Fortunately, state law has established a standard to determine incapacity. According to the Pennsylvania General Assembly, one is considered to be incapacitated if their "ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that" they are "partially or totally unable to manage" their "financial resources or to meet essential requirements for" their "physical health and safety."

Given all that is at stake in a guardianship, however, such a determination cannot be made without significant evidence. The law requires that one petitioning for a guardianship be able to present testimony from one qualified (either through work experience or training) to evaluate individuals for the incapacities that the petitioner is alleging. In Allegheny County, the Orphans' Court Division usually requires that that individual be a doctor.

Furthermore, state law requires that petitioners also submit the following evidence:

  • The extent to which the services meant to meet the allegedly incapacitated individual's needs are being utilized
  • The probability that the allegedly incapacitated individual's limitations will change
  • Any less restrictive alternatives to guardianship, such as powers of attorney (and why they may or may not be appropriate)

Only with such evidence can the court fairly and reasonably consider a request for guardianship, which is why it is important to have advice and help from an elder law attorney before deciding to pursue guardianship.

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