When an individual reaches the age of eighteen, he or she attains the legal right to make financial and medical decisions on his or her behalf, regardless of a disability. Families of individuals with disabilities so severe that they cannot manage their own personal and financial affairs commonly seek to obtain guardianship of the individual. Guardianship is a formal legal proceeding where the court of the jurisdiction where the individual resides declares the individual “incapacitated” in the eyes of the law and gives the power to make personal and/or financial decisions for that individual to another person, the guardian. Following this decision, the court retains jurisdiction over all aspects relating to the guardianship. In Pennsylvania and most other states, the guardian must file annual reports to this court to update the court on the individual’s status. If the guardian requires court permission for anything related to the guardianship, the guardian must return to the court that granted the guardianship to seek this approval.
If a guardian and an incapacitated individual move from the state where the guardianship was issued to a new state, the original state still retains jurisdiction. This means that the guardian must continue to file the annual reports with the state of original jurisdiction. Additionally, the new state may not recognize the guardianship. If this move to a new state is permanent, the guardian should transfer the guardianship to the new state of residence so that the guardian and incapacitated individual are afforded all the rights and protections of the new state’s guardianship laws.
To allow for the transfer or acceptance of out-of-state guardianships, Pennsylvania added Sections 5921 and 5922 to the Probate, Estates, and Fiduciaries Code in 2012. To transfer a Pennsylvania guardianship to another jurisdiction, the guardian must petition the Court in the Pennsylvania county that granted the guardianship initially to transfer the guardianship to a new state. The Court may choose to hold a hearing on this matter, which the guardian must attend, and all next-of-kin of the incapacitated individual must be noticed of the petition for transfer and the hearing. The Court will agree to transfer the guardianship to the new state if it is shown that: (1) the incapacitated person is expected to permanently move to the new state; (2) there are no objections to the transfer, or, if there is an objection, that the transfer would not be contrary to the interests of the incapacitated person; and (3) that the guardian has adequate plans for the care of the incapacitated person in the new state. If the Pennsylvania court agrees that all three criteria are met, the Court will issue an order provisionally transferring the guardianship to the new state. The guardian may then use this provisional order to comply with the laws of the new state for accepting the guardianship from Pennsylvania. The Pennsylvania court still retains jurisdiction over the guardianship during this time. Once the guardian presents the Pennsylvania court with an order from the new state accepting the guardianship, the Pennsylvania court will issue a final order relinquishing jurisdiction over the guardianship to the new state. Pennsylvania will not retain any control or involvement in the guardianship following the issuance of this final transfer order.
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