Adult Decision-Making

Decision-Making Power Given by the Courts or Government Agencies

Guardianship results from a legal proceeding in which a court finds that a person is unable to make independent decisions for themselves; the court then appoints a guardian to make those decisions for the person. A guardian of the estate has the power to make decisions about a person’s property or estate, which means anything that the person owns. A guardian of the person has the power to make decisions about the person’s health, safety, housing arrangements, etc. The law in Pennsylvania allows for either a limited or plenary guardianship. Under a limited guardianship, the court determines that the person, or ward, is unable to do some, but not all, of the things necessary to take care of their person or property. In such a case, the guardian can only exercise the legal powers specifically listed by the court order. However, in almost all cases, the courts find that the person, or ward, is totally incapable of caring for themself or property. In these cases, the court appoints a plenary guardian, who is given the power to exercise almost all of the person’s legal rights and powers. There are a few powers—things like consenting to admission to a mental institution, giving up parental rights, or consenting to sterilization—which the guardian cannot exercise on behalf of the ward. Guardianship is the most restrictive kind of substitute decision making; it often leaves the person being represented with almost no control over their own life.

A father and two daughters with down syndrome doing homework. The girls are sitting at a table, writing with pencils. Father is standing behind them with an open book in his hand.
Leah and Katherine plan for their financial future with their father.

representative payee is an individual or organization named by a government agency, such as the Social Security Administration or the Veterans Administration, to manage governmental payments for the benefit of the beneficiary, who is the person entitled to receive the benefits. When someone wants to become a representative payee, they must file a petition with the relevant agency to demonstrate the need. In general, it is a simpler process to be named a representative payee than it is to be named a guardian. It also requires less ongoing paperwork. Becoming a representative payee does not give a person any power over other assets of the beneficiary or of their person. However, for many people with disabilities, their main source of income is governmental benefits (such as supplemental security income or social security disability insurance), so having a representative payee for those benefits may make other substitute decision-making, such as guardianship, unnecessary.

For individuals who do not have a court-appointed guardian, a doctor may, in the course of treatment, determine that the patient is not competent to make healthcare decisions (because they don’t understand the consequences of the medical choices and/or because they can’t communicate a consistent medical choice to the doctor). In that situation—assuming that the patient hasn’t already created a living will or healthcare power of attorney that would provide the necessary guidance—Pennsylvania law allows certain family members of the patient (the health care representative) to make medical decisions on the patient’s behalf. Under the statute, priority in decision-making authority goes first to the patient’s spouse, then adult children, then parents, then adult siblings, and then adult grandchildren.