Role of Counsel in an Incapacity Proceeding

Many eldercare professionals have observed or have in someway been involved in an incapacity proceeding. The roles of the parties are not always clear. As a lawyer involved in over 350 incapacity proceedings the one concern/ambiguity I have always had is the role or counsel appointed for the alleged incapacitated person.


In Pennsylvania the lawyer who represents the petitioning party in an incapacity proceeding is required to notify the judge in the matter if he or she believes counsel should be appointed by the Court for the alleged incapacitated person. The lawyer representing the petitioning party, while ostensibly is seeking the appointment of a guardian to protect the alleged incapacitated person, does not represent the alleged incapacitated person. A guardianship is an adversarial proceeding.


But what is the role of counsel for the alleged incapacitated person? Is it a staunch advocate, to use every legal tool to fight the appointment of a guardian, even if counsel believes that is in the best interest of the individual to have a guardian to protect them? Or is it someone to act to be another set of eyes and ears for the court to help assess what is in the best interest of the alleged incapacitated person? Or is it both or neither? Appointed counsel is put in a very difficult position legally and ethically.


In practice I see courts asking counsel to perform both roles, as advocate and protector, for the alleged incapacitated person. They ask appointed counsel to assure that the petitioner has met his or her burden to provide evidence of incapacity to meet the statutory definition so that the alleged incapacitated person is treated fairly by the system. But most judges also seek appointed counsel to give their frank opinion, based on their time with the alleged incapacitated person and other due diligence, to make a recommendation if the alleged incapacitated person needs a guardian.


However, legally and ethically, the job seems clear. Nothing in the guardianship statute suggests that appointed counsel should act as anything but an advocate to represent the alleged incapacitated person’s rights and fight the guardianship if that is the wish of his or her client. The role has morphed into a parental one because the courts are getting overwhelmed by these cases and appointed counsel are human beings who do not want to see their efforts to thwart the guardianship proceedings harm their client.


The law needs to be changed. Either the statute needs to be amended to clarify the role to one or the other, or it needs to allow the court to appoint guardians ad litem which are more a protective role than an advocacy role. Until then the counsel who are appointed are put in a very difficult position both legally and ethically and it is unfair.


About The Author

Named One of the Main Line’s Top Elder Law Attorneys
by Main Line Today
Robert M. Slutsky has practiced Elder Law since 1992 and was one of the area’s first elder law attorneys. Rob Slutsky advises clients on Medicaid and Asset Protection Planning, Guardianships, Wills, Trusts, Powers of Attorney, Estate Administration, Special Needs Planning and General Estate Planning. He has represented for profit and non-profit elder care providers and the Pennsylvania Department of Aging. Rob Slutsky has been the solicitor for the Montgomery County Office of Aging and Adult Services, the Area Agency on Aging for Montgomery County, for more than 15 years.