Who is KMA GUARDIANSHIP SERVICES?

KMA Guardianship Services (KGS) is a division of Kreisher Marshall & Associates, LLC, an elder law firm dedicated to assisting seniors and individuals with special needs. With employees headquartered in Columbia, Centre and Elk Counties, we provide guardianship, power of attorney and other fiduciary services throughout the northern tier and central Pennsylvania.

All fiduciary services are directly supervised by one of the two certified elder law attorneys in our office.

Our National Certified Guardians, Certified Elder Law Attorneys, Elder Care Coordinators, Certified Medicaid Planners, Accredited Case Manager and support staff have years of experience in assisting seniors and disabled individuals. We take a personal approach to our cases and participate in continuing education throughout the year. Every employee has a clean criminal record check which is updated every 6 months. KGS employees are covered by professional liability insurance with coverage of $1,000,000 and a $5,000 deductible.

KGS staff participates in face-to-face visits, either in-person, FaceTime or Zoom, with all of our clients at a minimum of least once every quarter. KGS also conducts monthly, and oftentimes even more frequent, status updates/check-ins. We are available as needed Monday through Friday 9 am-5 pm and 24 hours per day, 7 days per week on an emergency basis.

What Is Guardianship?

Every adult is assumed to be capable of making his or her own decisions unless a court determines otherwise. If an adult becomes incapable of making responsible decisions and has not executed a power of attorney document authorizing someone to act on his/her behalf, the court will appoint a substitute decision maker – a Guardian.

Guardianship is a legal relationship between a competent adult or organization (the “guardian”) and a person who because of incapacity is no longer able to take care of his or her own affairs (the “alleged incapacitated person – AIP”). The guardian can be authorized to make legal, financial, and healthcare decisions for the AIP.

Incapacity

In Pennsylvania, incapacity is found when an AIP’s ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he/she is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety. A person cannot be declared incompetent simply because he or she makes irresponsible or foolish decisions, but only if the person is shown to lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because he spends money in ways that seem odd to someone else. Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent.

In order to prove incapacity, the following must be demonstrated:

• Evidence from individuals qualified by training and experience in evaluating individuals with incapacities of the type alleged by the petitioner, which establishes the nature and extent of the alleged incapacities and disabilities and the person’s mental, emotional, and physical condition, adaptive behavior and social skills;
• evidence regarding the types of assistance required by the person and as to why no less restrictive alternatives would be appropriate; and
• evidence regarding the probability that the extent of the person’s incapacities may significantly lessen or change.

Who is Involved & What is the Process for Guardianship?

The Petitioner – the individual/organization interested in the alleged incapacitated person’s well-being who is asking the court to declare the AIP incapacitated and appoint a guardian, normally retains an attorney to file the petition requesting the appointment of a guardian. The petition will suggest a Proposed Guardian.

After the petition is filed, the court appoints an attorney to represent the interests of the AIP if the AIP does not have his/her own attorney or cannot afford an attorney. A hearing date is scheduled. The petition must be served on the AIP at least 20 days before the scheduled hearing date and must also be served on interested parties. Generally, the AIP is required to attend the hearing.

At the hearing, the court attempts to determine if the AIP is incapacitated and, if so, to what extent the individual requires assistance. If the court determines that the AIP is indeed incapacitated, the court then decides if the person seeking the role of guardian will be a responsible guardian.

A guardian can be any competent adult — the ward’s spouse, another family member, a friend, a neighbor, or a professional guardian (an unrelated person who has received special training). A competent individual may nominate a proposed guardian through a durable power of attorney in case she ever needs a guardian.

The guardian need not be a person at all — it can be a nonprofit agency or a public or private corporation. In naming someone to serve as a guardian, courts give first consideration to those who play a significant role in the ward’s life — people who are both aware of and sensitive to the ward’s needs and preferences. If two individuals wish to share guardianship duties, courts can name co-guardians.

Kreisher Marshall & Associates, LLC and KMA Guardianship Services can serve as either the attorney representing the Petitioner or the Proposed Guardian. We have expansive experience serving in both capacities.

Reporting Requirements

Guardians are expected to act in the best interests of the ward, but given the guardian’s often broad authority, there is the potential for abuse. For this reason, courts hold guardians accountable for their actions to ensure that they do not take advantage of or neglect the AIP.

The guardian of the property inventories the ward’s property, invests the ward’s funds so that they can be used for the ward’s support, and files regular, detailed reports with the court. A guardian of the property also must obtain court approval for certain financial transactions. Guardians must file an annual account of how they have handled the ward’s finances. Guardians must offer proof that they made adequate residential arrangements for the ward, that they provided sufficient health care and treatment services, and that they made available educational and training programs, as needed. Guardians who cannot prove that they have adequately cared for the ward may be removed and replaced by another guardian.

Alternatives to Guardianship

Because guardianship involves a profound loss of freedom and dignity, state laws require that guardianship be imposed only when less restrictive alternatives have been tried and proven to be ineffective. Less restrictive alternatives that should be considered before pursuing guardianship include:

• Power of Attorney. A power of attorney is the grant of legal rights and powers by a person (the principal) to another (the agent or attorney-in-fact). The attorney-in-fact, in effect, stands in the shoes of the principal and acts for him or her on financial, business or other matters. In most cases, even when the power of attorney is immediately effective, the principal does not intend for it to be used unless and until he or she becomes incapacitated.
• Representative or Protective Payee. This is a person appointed to manage Social Security, Veterans’ Administration, Railroad Retirement, welfare or other state or federal benefits or entitlement program payments on behalf of an individual.

Whether you need to petition for guardianship for a loved one or are looking for someone to serve as Guardian, we have you covered. To find out more information, please reach out to us at (570) 798-1084 or [email protected].

FIDUCIARY SERVICES

For those individuals with capacity and no family they can rely upon to handle his/her financial affairs, KGS is available to serve in a fiduciary capacity as Agent under a Power of Attorney or Trustee. To find out more information about our services and fees, please reach out to us at (570) 798-1084 or [email protected]