Guardianship of Incapacitated Persons

When an adult becomes unable to make decisions for themselves (due to dementia, traumatic brain injury, stroke, or other conditions) Pennsylvania law provides for the appointment of a guardian through Orphans' Court (20 Pa.C.S. Chapter 55).

Types of Guardianship

Pennsylvania recognizes two distinct types of guardianship, each covering a different sphere of the incapacitated person's life. The court can appoint one, the other, or both depending on the person's needs.

Guardian of the Person

A guardian of the person makes decisions about the incapacitated person's physical care and daily life. Under 20 Pa.C.S. § 5521(a), the guardian's duty is to assert the rights and best interests of the incapacitated person. The statute requires the guardian to respect the person's expressed wishes and preferences to the greatest possible extent, and to encourage the person to participate in decisions and act on their own behalf whenever they are able to do so.

Specific powers may include deciding where the person lives, consenting to or refusing medical treatment, arranging for training and education, securing social services, and providing for general care, maintenance, and custody (§ 5512.1(b)).

Guardian of the Estate

A guardian of the estate manages the incapacitated person's financial affairs: paying bills, managing bank accounts and investments, filing tax returns, collecting income, and handling real property. Section 5521(b) gives the guardian of the estate the powers, duties, and liabilities set out in a specific list of PEF Code sections on personal representatives and guardians of minors' estates, including the power to continue a business, compromise controversies, and manage investments. That list is limited and does not carry over every power a personal representative holds.

This is a fiduciary role with real teeth. The guardian must file an inventory within three months after estate property comes into the guardian's possession, provide annual reports to the court, and cannot disburse principal or sell real estate without court approval. Mismanagement can result in surcharge.

Limited vs. Plenary Guardianship

For both types, the court must decide how much authority to grant. Under § 5512.1, a limited guardian is appointed when the person is partially incapacitated. The court's order specifies exactly which powers the guardian has; the person retains all legal rights in areas not covered by the order. A plenary guardian is appointed only upon a finding that the person is totally incapacitated and in need of plenary guardianship services.

Pennsylvania courts prefer the least restrictive option. No presumption of incapacity arises from the person's institutionalization (§ 5512.1(f)), and a person found partially incapacitated retains all rights not specifically assigned to the guardian (§ 5512.1(g)). For families whose child with a disability is approaching adulthood, our guide to turning 18 with a disability applies this least-restrictive framework to that transition, including the alternatives a court must consider before appointing a guardian.

It is common for someone to need a guardian of the person but not of the estate (for example, a person with dementia who has a valid financial power of attorney but lacks a healthcare directive). The reverse also occurs: a person who can make their own medical and living decisions but can no longer manage complex finances.

Emergency Guardianship

When there is an immediate threat to the person's health, safety, or assets, the court can appoint an emergency guardian under § 5513. An emergency guardianship of the person lasts up to 72 hours and may be extended for up to 20 additional days. An emergency guardianship of the estate lasts up to 30 days. After that, a full guardianship proceeding must be initiated under § 5511.

Naming Guardians in Your Will

The guardianship process above applies when no planning has been done. But Pennsylvania allows you to get ahead of it. Under 20 Pa.C.S. § 2519, you can nominate both a guardian of the person and a guardian of the estate in your will. The rules differ: only the sole surviving parent, and only one who has not for a year or more before death willfully neglected, deserted, or failed to perform parental duties toward the child, can nominate a guardian of the person (§ 2519(a)); anyone leaving property to a minor can nominate a guardian of the estate (§ 2519(b)).

For families with minor children, the guardian nomination is often the most important provision in the will, and the choice between a guardian of the estate, a UTMA custodianship, and a testamentary trust for managing the child's inheritance has significant practical consequences. Our Wills article covers these planning decisions in detail, including when court-supervised guardianship of the estate makes more sense than a trust and when it doesn't.

The Bucks County Guardianship Process

A verified petition must be filed with the Clerk of the Orphans' Court. The petition should use simple language easily understood by a layperson. Under Pa.R.O.C.P. 14.2 and Bucks County local practice, the Court enters a preliminary decree, awards a citation, and sets a hearing date at least one month out to ensure the required 20-day notice period.

The citation and a copy of the petition must be personally served on the alleged incapacitated person at least 20 days before the hearing. The contents must be explained in language the individual is most likely to understand. Neither the Clerk nor the Court sends the citation; petitioner's counsel is responsible for service.

Right to counsel: The alleged incapacitated person has a statutory right to legal representation. If the person does not have their own attorney, the court must appoint counsel to represent them, regardless of the person's ability to pay (20 Pa.C.S. § 5511(a.1)(2), added by Act 61 of 2023). This is mandatory, not discretionary. Court-appointed counsel serves as an advocate for the person's stated wishes, not as a guardian ad litem evaluating the person's best interests.

Preference is given to a nominee of the incapacitated person. A proposed guardian's family relationship to the incapacitated person does not, by itself, count as an interest adverse to them (20 Pa.C.S. § 5511(f)).

Filing Checklist: From the Clerk of Orphans' Court

A full legal review of guardianship filings is conducted by the Court Administration Guardian Review Officer, Eric Marttila, Esquire: (215) 348-6038 | egmarttila@buckscounty.org. The Clerk's office reviews for procedural completeness but does not review for substantive compliance.

After Appointment

• The guardian must file an inventory within three months after estate property comes into the guardian's possession (using Form G-05, the Guardian's Inventory for an Incapacitated Person)
• Annual reports are required, both a Report of Guardian of the Person and, if applicable, a Report of Guardian of the Estate
• Principal may not be disbursed without court order
• Real estate may not be sold without court approval

Legal and factual content on this page was last verified: Sep. 2026. If you are reading this significantly after that date, confirm key provisions with current statute text or contact our office.