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Elder Law Prof Blog
Katherine C. Pearson, Editor, and a Member of the Law Professor Blogs Network on LexBlog.com

Guardians Ad Litem vs Counsel for the Alleged Incapacitated Person

By Katherine C. Pearson

Lately I have been receiving quite a few inquiries asking about the roles of “guardians ad litem” versus “counsel” for alleged incapacitated persons.  We spent quite a bit of time on this topic in Pennsylvania during the Supreme Court’s 18 month “Elder Law Task Force.”  At the conclusion of our research in 2014, the Task Force found:

  • [Then] current Pennsylvania law invokes a case-by-case “appropriateness” standard but there is no statutory requirement for counsel on behalf of an AIP [Alleged Incapacitated] in all cases and no guidance as to circumstances making appointment of counsel appropriate.
  • Requiring an AIP to have counsel in all proceedings involving a determination of capacity is consistent Pennsylvania Supreme Court Chief Justice Ronald Castille’s commitment to addressing gap’s in civil justice, where basic human needs for legal representation can make the difference in the outcome of the proceeding.  

Therefore the Task Force recommended amendments to state procedural rules to require that in all cases where the AIP does not have private counsel, counsel should be appointed.  Further, where AIPs do not have sufficient financial resources to hire counsel, the Commonwealth of Pennsylvania should fund the appointment.