Guardianship of the Elderly - Salient Associated Aspects and the Law of Incapacity in Pennsylvania

Abstract

ABSTRACT Guardianship was introduced during the ancient Roman times of Cicero. Modern American guardianship law originated in English common law and a statute, De Praerogative Regis, i.e., the king’s prerogative, dating from the beginning of the fourteenth century. Pursuant to this statute, jurisdiction over persons “of unsound mind” is believed to have been taken by the crown from the feudal lords and exercised as part of the royal prerogative. De Praerogative Regis provided that “the King shall have the custody of the lands of natural fools, taking the profits of them … and shall find them their necessaries” and that “the King shall provide when any, that before time hath had his wit and memory, happen to fail of his wit … that their lands and tenements shall be safely kept … and the residue beside their sustentation shall be kept to their use, to be delivered unto them when they come to their right mind …” Thus, it is clear that from a very early date, there was a perceived public interest in looking after the assets of any person “whose wit and memory have failed.” The need for guardianship was determined by an inquisition and an investigation of the facts before a sworn jury composed of twelve men. The emphasis of early guardianship laws on property matters can be found by the exercise of decision-making capacity on behalf of incapacitated persons, through the Exchequer, or Finance Minister, as an aspect of tax collection. The use of guardianship to safeguard a ward’s personal well-being is of more recent vintage. The ethical justification for state legislative and judicial imposition of a surrogate decision maker for an incapacitated individual, with regard to both personal and financial decisions, is found in two fundamental and related principles. The principle of non-maleficence instructs us to “do no harm” to others, while the related precept of beneficence encourages us to help others who need assistance; that is, to affirmatively “do good” unto others. These ethical propositions have been transformed into the legal doctrine of parens patriae, or father of the land; the inherent authority and responsibility of a benevolent society to intervene, even over objection, to protect people who cannot protect themselves. As a result, instead of abandoning cognitively incapacitated individuals to a superficial meaningless autonomy to make self-harmful decisions or to neglect their own basic needs, the state may exercise its authority to protect even unwilling disabled individuals from their own folly or intellectual deficits. This thesis first discusses certain salient associated aspects of guardianship as it relates to the elderly. It then examines the law in Pennsylvania relative to Incapacitated Person, 20 Pa. C.S.A. §5501, et seq., presenting a review for the legal community of Chapter 55 of the Probate, Estates and Fiduciaries Code, in an effort to inform unwitting jurists and practitioners alike, of possible awaiting pitfalls.