WHEREAS, the Philadelphia Bar Association has a long history of promoting access to justice and right to counsel in areas of fundamental rights, particularly in proceedings that may result in a loss of physical liberty1;
WHEREAS, under Pennsylvania law, the Orphans' Court may enter an order of guardianship over a person who is determined to be incapacitated and for whom a guardianship is necessary due to a lack of lesser restrictive alternatives2; and
WHEREAS, there are more than 19,000 active guardianship cases in Pennsylvania with court oversight of more than $1.8 billion in assets;3 and
WHEREAS, guardianship proceedings implicate adults' fundamental constitutional rights to decision-making and autonomy concerning finances, medical treatment, and choice of where to live; and
WHEREAS, Pennsylvania law does not guarantee a right to counsel for an Alleged Incapacitated Person (AIP) and Pennsylvania is one of only six (6) states nationwide in which appointment of counsel is discretionary with the court;4 and
WHEREAS, Pennsylvania law guarantees right to counsel for those facing other vital deprivations of liberty or property, including in the areas of indigent criminal defense, child dependency proceedings, termination of parental rights, and numerous other proceedings involving involuntary treatment and services;5 and
WHEREAS, in conformity with attorney ethical rules and to protect the legal and constitutional rights of the AIP, retained or appointed counsel must act as adversarial counsel - a zealous advocate for the expressed wishes of the AIP to the extent known - rather than as guardian ad litem to express an opinion what is in the best interests of the AIP; and
WHEREAS, Pennsylvania law already recognizes the importance of alternatives to guardianship, which are essential to ensuring that an individual's rights are not unnecessarily removed and that guardianship is only granted as a last resort, when no other alternative(s) meet the needs of the individual; and
WHEREAS, reports of abuse, exploitation, and neglect by Pennsylvania guardians have been reported, including one case in which professional guardians face charges of embezzling more than $1 million from over 108 victims; and
WHEREAS, Pennsylvania law does not currently require any training, certification, or licensure of professional guardians ; and
WHEREAS, a 2014 report of the Pennsylvania Supreme Court's Elder Law Task Force recommended improvements to the guardianship process including appointment of counsel in all guardianship cases where counsel was not retained and implementation of a certification program for professional guardians; and
WHEREAS, a 2021 report of formal recommendations of the Fourth National Guardianship Summit includes ensuring meaningful due process by implementing reforms such as qualified and compensated legal representation, and regulating professional guardians through licensure, certification, or both, with funding for oversight; and
WHEREAS, On March 1, 2022, the Pennsylvania Bar Association's Board of Governors approved its Elder Law Section's Report and Recommendation to support proposed amendments to Title 20 of the Pennsylvania Consolidated Statutes, providing for appointment of counsel in adult guardianship proceedings, use of less restrictive alternatives to guardianship wherever possible, and requiring that guardians serving three or more individuals obtain certification; and
WHEREAS, on September 13, 2022, Senate Bill 1333, Printer's Number 1894 (“SB 1333”), was introduced in the Senate of Pennsylvania and referred to the Senate Judiciary committee; and
WHEREAS, SB 1333 provides that the court shall appoint counsel to represent the AIP in any matter for which counsel has not been retained by the AIP, regardless of ability to pay; and
WHEREAS, SB 1333 also requires appointed counsel to represent the AIP, as far as reasonably possible, to maintain a normal attorney-client relationship and advocate for the client's expressed wishes consistent with the client's instructions, and may not act as guardian ad litem; and
WHEREAS, SB 1333 also mandates that individuals serving as guardian of three or more Incapacitated Persons must be certified in accordance with a process to be established by the Supreme Court of Pennsylvania; and
WHEREAS, SB 1333 heightens the proofs required by the court to support a finding that less restrictive alternatives to guardianship are insufficient before ordering guardianship;
NOW, THEREFORE, BE IT RESOLVED, that the Philadelphia Bar Association supports Senate Bill 1333, Printer's Number 1894, and any similar legislation which provides for amendments to Title 20, Chapter 55 of the Pennsylvania Consolidated Statutes to strengthen due process protections for Incapacitated Persons and Alleged Incapacitated Persons;
AND BE IT FURTHER RESOLVED, that the Board of Governors of the Philadelphia Bar Association authorizes the Chancellor or the Chancellor's designee(s) to communicate the position of this Association to the members of the General Assembly of Pennsylvania, the Governor of Pennsylvania, the legal community, the media and the public, and to take such other action in furtherance of this resolution as may be deemed necessary.
PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
Adopted: October 27, 2022
1 Philadelphia Bar Association Resolution supporting American Bar Association (ABA) Resolution 114, July 18, 2018; Resolution Supporting Efforts to Improve Right to Counsel for Juveniles, May 26, 2011; Resolution to Co-sponsor the ABA Resolutions Adopting the Proposed ABA Model Access Act and ABA Basic Principles of Right to Counsel in Civil Legal Proceedings, May 25, 2010; and Resolution to Cosponsor the Report and Recommendations of the ABA's Presidential Task Force on Access to Justice in Civil Cases, May 25, 2006.
2 Title 20, Chapter 55 of the Pennsylvania Consolidated Statutes.
3 https://www.pacourts.us/Storage/media/pdfs/20220915/194105-pasupremecourtadvisorycouncilreleaseslatestprogressreportanddataonelderabuseandguardianship.pdf
4 http://www.civilrighttocounsel.org/map
5 http://www.civilrighttocounsel.org/major_developments?jurisdiction=Pennsylvania
6 https://www.inquirer.com/news/pennsylvania/guardian-gloria-byars-charged-theft-delaware-county-district-attorney-20191021.html
7 Title 20, Chapter 55 of the Pennsylvania Consolidated Statutes.
8 https://www.pacourts.us/Storage/media/pdfs/20210516/222807-eltf-report.pdf
9 http://law.syr.edu/uploads/docs/academics/Fourth_National_Guardianship_Summit_-_Adopted_Recommendations_%28May_2021%29.pdf
