Orphans' Court & Fiduciary Litigation
Guardianship of Incapacitated Persons
Last updated February 2026
Marc R. Lynde, Esq.
7 min read
✓ Verified Feb. 2026
Marc R. Lynde, Esq.
Marc R. Lynde, Esq.
Marc R. Lynde, Esq.
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).
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 specific needs.
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)).
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. The guardian of the estate has the same powers, duties, and liabilities as a personal representative of a decedent's estate under the PEF Code (§ 5521(b)), including the power to continue a business, compromise controversies, and manage investments.
This is a fiduciary role with real teeth. The guardian must file an inventory within 90 days of appointment, provide annual accountings to the court, and cannot disburse principal or sell real estate without court approval. Mismanagement can result in surcharge.
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)).
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.
Testamentary Guardian Nominations
The guardianship process described on this page applies to incapacitated adults. For minor children, parents can nominate both a guardian of the person and a guardian of the estate directly in their will under 20 Pa.C.S. § 2519. This is one of the most important functions of an estate plan for parents with young children. See our wills article for how testamentary guardian nominations work and when a trust may be a better option than a guardian of the estate.
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.
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 can nominate a guardian of the person (§ 2519(a)), but 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.
A verified petition must be filed with the Clerk of the Orphans' Court (20 Pa.C.S. § 5511(e) and Bucks O.C. Rule 14.5A). The petition should use simple language easily understood by a layperson. 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 (20 Pa.C.S. § 5511(a)). 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.
Bucks County prefers to appoint family members as guardians unless they have an irreconcilable conflict with the incapacitated person or are otherwise unqualified. Preference is also given to a nominee of the incapacitated person (20 Pa.C.S. § 5511(f)).
Required Documents for Guardianship Petition
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.
⚠ Prevention is Better
Guardianship is expensive (typically $3,000–$10,000+ in legal fees), intrusive, public, and requires ongoing court oversight including annual reporting. A properly executed power of attorney and healthcare directive can avoid the need for guardianship in most situations. This is one of the strongest arguments for basic estate planning, even if you have few assets.
Statutory content on this page was last verified against Pennsylvania statutes (20 Pa.C.S.) and Orphans' Court Rules: February 2026. If you are reading this significantly after that date, confirm key provisions with current statute text or contact our office.
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