Frequently Asked Questions

A: There is an overwhelming amount of information about adoptions and the adoption process on the internet, in magazines, and books, etc. Which is the best way to go?

The best adoption plan for you is the one that will:

1. Achieve your family goal for adoption
2. Be within your family’s parameters financially, emotionally, and physically
3. Finds the right child for your family and the right family for the child!

It is recommended that you meet with your adoption attorney at the very beginning of your journey into adoption. We typically have an initial consultation with Adoptive Parents to discuss the different types of adoptions, the legal process, legal risks, costs of the different types of adoptions, the time frames you can expect, and the different options you can choose. Our goal is to equip Adoptive Parents and Birthparents with the clarity and information needed for them to make the decision about what type of adoption is best for their family and what direction to proceed in, so that they can navigate through this “overwhelming” body of adoption information and begin a successful adoption process.

Adoptions take many forms:

• Adult Adoption – where an adult is adopted by a Adoptive Parent(s). An example would be a person who was a foster child of the Adoptive Parents, who, when they reach age 18, the Adoptive Parents and Foster Child want to have a legal Parent-Child relationship.
• Agency – An adoption agency provides services to birthparents and adoptive parents and assists in the birthparents placing their child with an adoptive family. An adoption agency may be public or private, profit or non-profit, secular or religious.
• Closed (or confidential) adoption or Open adoption – the birth family and adoptive family will choose what amount of contact they will have and what amount of information will be exchanged between them.
• Domestic – Adoption of a child within the United States.
• Foreign or International – Adoption of a child outside of the United States.
• Interstate – Where the Adoptive Parents and Birthmother are from different states.
• Private (also referred to as independent, identified or non-agency) – Adoptive Parents adopt a child who has been located through “private” channels and not through an adoption agency. For example, the birthmother may know a friend or relative of the adoptive parents, or the birthmother’s doctor may know the adoptive parents, or the birth parent may locate the adoptive parents through an internet site or newspaper ad, etc. There are many different ways that private adoptions come about.
• Single parent adoption – where a single unmarried parent adopts a child.
• Step-parent or Relative adoptions – where the adoptive parents are related to the child that is being adopted, either as a step-parent wanting to adopt the child of his or her spouse, or as a relative (grandparent, aunt, uncle, cousin, etc.) wanting to adopt the child.

A: What should you look for in an adoption attorney? You need to be an educated consumer of legal services. While there are many excellent attorneys, not all of them are adoption attorneys. Some questions to ask:

• How long have you been handling adoptions?
• How many adoptions do you handle per year?
• What percentage of your practice is devoted to adoptions?
  • What types of adoptions do you regularly handle? (ie. Step-parent only? Agency? Private? Interstate? Foreign? Contested? SWAN?)
  • Do you represent any adoption agencies? Which ones?
  • Do you teach or speak to any groups about adoptions? Which ones?
  • Are you a member of any adoption organizations? Which ones?
  • Why did you choose to handle adoption cases?
  • Are you available outside normal business hours if necessary?
  • How do you charge for your legal services?
  • Can you give me an estimate of the total cost?
  • What types of services do you provide to adoptive parents?
  • What types of services do you provide to birthmothers and birthfathers?
• Do you have support staff available to assist in the adoption process?

A: By no means! You should contact an attorney as soon as you have a potential placement. There are many things that need to be done prior to the birth of a child or the placement of a child with the adoptive parents. Oftentimes, you may even be in violation of the law if you do not take certain steps prior to receiving the child.

For example, you may be required to have a home study, you may be required to do certain clearances such as child abuse, criminal and FBI clearances, and you may be required to get preliminary approval of an adoption agency or court.

You may need the approval of the Interstate Compact on the Placement of Children (when adopting a child from another state).

Your attorney will help you identify all steps necessary for a successful completion of an adoption and help you identify all legal risks and costs.

If you are in the beginning stages as an adoptive parent who wants to adopt, I suggest that you consult with your adoption attorney as early as possible in your journey through adoption.

The reasons for this include:

1. To help you understand the different options you have;
2. To help you identify and understand the law and the legal risks;
3. To give you an idea of the costs involved as well as to advise you on what Birthmother expenses are legal to pay in your state;
4. To establish a relationship with a trusted adoption attorney that will be ready for your call when you are contacted about a potential placement or when you are about to receive adoptive placement of your child.

A: All of the Birth Mothers and Birth Fathers that we have worked with have an unselfish love for their child. They are exploring the options that will be best for their child under their circumstances, because they want what is going to be best for their child’s future.

As you consider what is best for your child, we will help you understand the adoption process by:

• discussing options of agency adoption and private adoption, the process of choosing an adoptive family, arranging for counseling and support, legal and financial concerns, or making referrals for resources should you choose to parent your child.

• talking with you about options of a closed confidential adoption, a semi-open adoption, or an open adoption.

• discussing how you want the hospital experience to be, ie, whether you choose to spend time with your child at the hospital, whether you want the adoptive family to visit at the hospital, discharge of the baby to the adoptive family, etc. We do not believe in pressuring you to make any particular choice because we want you to have a complete peace and confidence in the decision you make.

• providing references for birthparent counseling and support as you consider your options.

Normally the attorney fees, counseling and medical expenses not covered by insurance, are paid for by the adoptive family or other resources, not by the birthparent. In some states, birth mothers may be entitled to living expenses as well (such as rent, food, maternity clothing, etc.), although each state has its own law regulating this, and it varies from state to state.

We have great respect for all of the Birthparents that we are privileged to serve and strive to take great care in helping you navigate through, emotionally as well as legally, the adoption process.

A: A “closed adoption,” often referred to as a confidential adoption, is one where the birth parent and adoptive parents choose to exchange very limited, non-identifying information only, choose not to meet, and choose not to have continuing contact with each other.

An “open adoption” can take on many forms, and involves some degree of exchange of more information and may involve different forms of contact between the birth parents and the adoptive parents. Generally, the birth parents and adoptive parents will choose the nature and extent of the relationship between them and the child. This can range from just having an initial meeting between the birth parents and the adoptive parents (with or without exchanging identifying information), to exchanging letters/pictures throughout the child’s life, to having continued personal contact (telephone, email, or family visits) throughout the child’s life. It is important that the families discuss what they expect of each other and are in agreement as to what is best for the child.

It is best to outline this in writing so that everyone understands clearly the expectations. That being said, it is important to note that in Pennsylvania, agreements for “open adoptions” are not legally binding <u>unless</u> the parties enter into a written agreement (“Post Adoption Contact Agreement”) that specifically follows the Pennsylvania law (Act 101 of 2010), has the requisite statutory language, and is signed by the Court.

A Post Adoption Contact Agreement (23 Pa. C.S.A. Sections 2731-2742) must have all of the requirements set forth in this statute before a court will sign an order approving it, which will make it legally enforceable. The agreement can be between the Birthparent(s), certain family members of the Birthparent’s family as set forth in the law, the Adoptive Parents and the Child being adopted.

It is important that the birth parents and adoptive parents are honest with each other as to the level of “openness” that they each are comfortable with, and that they at all times keep the child’s “best interests” as the priority.

A: The adoption agency fees will vary greatly depending on the agency. The fees can range anywhere from $1,000 to $35,000. If you are involved in an international or foreign adoption, the cost is typically between $25,000 to $40,000.

If you have an adoption through The State Wide Adoption Network (SWAN) or through a local child protective services agency, you may pay no adoption agency fees at all as it may be subsidized. Once you determine your financial parameters, then you will be able to evaluate different adoption agencies for the one that will best meet your needs.

You need to be a good consumer of adoption agency services also and to do your homework to evaluate the ones you are considering. Your attorney will often be able to assist you in this process and be able to provide you with references to adoption agencies he/she has worked with. Birthparents do not pay the adoption agency fees.

A: Although the adoptive parents in the private adoption (also referred to as independent, identified, non-agency adoption) may not be paying the placement fees of an adoption agency, they will still have certain costs. They typically need a home study or family study; criminal, FBI and child abuse clearances, and the services of an attorney.

A: If your adoption is a private adoption (also referred to as independent, identified, or non-agency adoption), you will typically not have any adoption agency placement fees. However, you may still be required to have a home study or family study completed by an adoption agency or by a licensed social worker. As a result, a private adoption is often much less expensive to the adoptive parents than the costs of an adoption agency placement fee. This may differ in states other than Pennsylvania, as there are some states that will require an agency involvement even if it is a private adoption.

A: Adoption Attorney fees will vary based on the type of adoption you have and the services that the attorney will have to provide. This should be discussed in detail with your adoption attorney, as often your attorney may not be able to give you a definite set fee because of the variables in your adoption legal proceedings.

However, your attorney should be able to give you their hourly rate, an estimate of costs that you will have to pay, and an estimate, or estimated range, of the attorney fees. For example, it is usually much less expensive for your attorney to finalize an adoptive placement you received through an adoption agency, as opposed to the attorney navigating you through an interstate adoption placement.

Your attorney should have a clear fee agreement with you which sets forth all of your agreement with your attorney as to the fee, such as the attorney’s hourly rate, paralegal rate, what costs you will be billed for (copying costs, facsimile costs, postage, process server, etc.), is there a retainer (an amount that you pay in advance of the attorney providing legal services, which amount the attorney will draw from for your monthly bills), is the retainer refundable, etc.

In certain adoptions, such as SWAN or county child protective services, there may be adoption assistance or subsidy available to reimburse your attorney fees.

Birthparents typically do not pay any attorney fees as these are paid by the adoptive family.

We strive to give our clients the best possible estimate of their expected fees based on their particular case, and are usually able to stay within that estimate barring unforeseen circumstances, as we have done so many cases that we have a good sense of what is needed.

A: The medical bills of the birthmother related to the pregnancy and birth, as well as the baby’s medical bills, which are not covered by health insurance, are allowed to be paid by the adoptive parents in most states.

However, a majority of the time, the adoptive parents do not need to pay for these expenses because the birthmother will have some type of health insurance coverage that pays for this (such as her own private health insurance, her parent’s health insurance, or medical assistance through the state she resides in).

If the birthmother has no private insurance, then she will be assisted in applying for medical assistance. If she has no insurance and cannot obtain medical assistance, then the cost of non-covered medical expenses will depend on her health providers and whether there are any complications during the pregnancy and birth.

Typically, for an uncomplicated vaginal delivery, you can expect at least $15,000 for prenatal care, lab work, ultrasounds, hospital charges for birthmother, anesthesiologists charge, hospital charges for the baby, pediatrician charges at the hospital.

The adoptive parents and birthmother should have a written agreement about what the adoptive parents will be paying for and when they will be paying for the medical expenses, as they are typically paid after the birthparent’s rights are terminated or the consents to adoption are irrevocable.

A: This will vary from state to state, because each state has its own adoption laws. It is therefore critical to evaluate the law for the state(s) involved in the adoption before you begin to pay any costs or monies. For example, in many states (including Pennsylvania) it is illegal to pay living expenses (rent, food, clothes, etc.) to birthparents, while other states will allow it, but may have certain restrictions on how much and who you can pay.

Pennsylvania law typically allows Adoptive Parents to pay their own attorney fees, to pay reasonable adoption agency fees, and to pay medical bills for the child and mother that are related to pregnancy and birth and that are not covered by health insurance.

Living expenses to the birthmother are not allowed under Pennsylvania law; however, if your birthmother lives in a state that allows payment of living expenses, you need to speak with your attorney as to whether you will be allowed to pay them.

A: Every state has standards that adoptive parents must meet before they are allowed to adopt. Usually the adoption screening process involves a home study, or family study, being conducted on the adoptive family (although there are some exceptions: You should discuss this with your attorney). This will involve a social worker meeting with the family, obtaining criminal, FBI and child abuse clearance reports on the family, obtaining references, medical and financial information. Once it is determined that the family is recommended for adoption, a report will be prepared, called a family study or home study, which will be provided to the court and other authorities involved in the adoption process.

The cost of this report to the adoptive family will vary depending on who or where it is being prepared, and typically averages between $1,500 to $3,000. However, if it is being done through a county children & youth agency, it may be significantly less. If it is being done in connection with a SWAN adoption, it may be subsidized and be done at no cost to the adoptive family.

To obtain your FBI, Criminal and Child Abuse Clearances in Pennsylvania, go to the following links:

1. Criminal Clearance Application Form http://www.epatch.pa.gov
2. Child Abuse Clearance Application Form http://www.compass.state.pa.us/cwis/public/home
3. FBI Clearance Application Process: https://www.uenroll.identogo.com

A: A home study or family study is a process of both educating the adoptive family about adoption and evaluating the adoptive family to ensure that they will provide the safe, nurturing and appropriate home for a child. This study is usually done by a licensed adoption agency or licensed social worker, depending on the requirements of the court.

It will include the adoptive parents obtaining criminal, FBI and child abuse clearances. It also will include the home study caseworker following up on medical and personal references of the adoptive family. Evaluations of the financial, physical and mental health of the adoptive family will also be a part of this study.

The family will receive education on adoption options to determine what type of adoptive placement would be appropriate for that family. This process usually involves the home study caseworker visiting the adoptive family’s home, and meeting the other members of the household as well as inspecting the home for safety and appropriateness.

Once the study is complete and the adoptive family is approved, a report will be prepared, referred to as the home study, or family study, or family profile. This home study will then be available to the agency that the adoptive family is working with, to the courts, and to any other necessary agency in the adoption process.

The cost will vary, but an estimate is $1,500-$3,000. This could be significantly lower if the home study is done through a county child protective services agency or the SWAN program.

If you are involved in a SWAN adoption or county child protective services adoption, the cost may be subsidized so that it is at no cost to the adoptive family.

To obtain your FBI, Criminal and Child Abuse Clearances in Pennsylvania, go to the following links; however, oftentimes the agency involved will want to obtain these on its own:

1. Criminal Clearance Application Form http://www.epatch.pa.gov
2. Child Abuse Clearance Application Formhttp://www.compass.state.pa.us/cwis/public/home
3. FBI Clearance Application Process
   https://www.uenroll.identogo.com

A: The State Wide Adoption Network (SWAN) is a program across the country designed to support adoption and permanency through a network and management of referrals from county child protective services agencies.

SWAN addresses barriers to permanency for children and responds to the increased number of children that need and deserve a permanent family through adoption. Adoptive parents are involved in the process of matching with the child that best fits their family and the needs of the child and family, and that will be the best family for the child.

Adoptions through SWAN and county child protective services will often have provisions for subsidized costs, including home studies, attorney fees, and adoption assistance or adoption subsidy.

A: The Interstate Compact on the Placement of Children (“ICPC”) is an agreement between states as to how an adoption of a child from one state into the adoptive family of another state will be regulated. Each state will have a state agency with the duty of assuring compliance with the Interstate Compact on the Placement of Children.

The goal is to assure a safe and appropriate placement of a child with a family that is not within the state of residency of the child, and to provide for financial responsibility and planning for the child until the adoption is finalized.

Before an adoptive family may leave the state of residency of the child and return to the adoptive family’s home state, they must have the approval of the ICPC administrators of both the child’s state of residency and the adoptive family’s state of residency. This will involve filing of certain documents with the Interstate Compact on the Placement of Children department of both states.

The basic documents required will be:

• ICPC application (often called the “100A form”)
• home study of the adoptive family including criminal, FBI and child abuse clearance
• medical and social background history of the birth parents
• consent to adoption documents signed by the birth parents
• affidavits as to Native American Ancestry per the Indian Child Welfare Act
• hospital or medical records of the child and birthmother (if applicable)

Depending on the facts of the case and the states involved, there may be other documents required as well.

Your adoption attorney will determine the documents needed and should make prompt application for ICPC approval: The approval process may take anywhere from a couple of days to a couple of weeks, depending on the states involved.

Adoptive parents should discuss the expectations with their adoption attorney in advance so that they may plan appropriately as they will need to remain in the child’s state of residency with the child pending receiving the approval of the ICPC administrators.

A: The adoption legal process will depend on the state(s) involved with the adoption, as each state has its own adoption laws.

The adoption legal process is usually two steps:

First: Termination of Birth Parents’ parental rights

Second: Finalization of the adoption by the Adoptive Parents

First: TERMINATION OF PARENTAL RIGHTS

In Pennsylvania, birthparents rights can be terminated in one of three ways:

1. Confirmation of Consent(s) to Adoption
   • Birthparents usually do not have to go to court
2. Involuntary Termination of Parental Rights
   • There are several grounds under which Involuntary Relinquishments can be granted when a Birthparent does not consent to an adoption: rape, abandonment (4 months or 6 months depending on the facts), or inability to parent are a few examples.
3. Voluntary Relinquishments
   • There are alternate proceedings when a birthparent voluntarily relinquishes parental rights and comes to the court hearing

Following is a summary of the three different ways to proceed with termination of parental rights in Pennsylvania:

1. Confirmation of Consent to Adoption

• After 72 hours expires from birth, Birthparents sign Consents to Adoption: Birthfather may sign Consent prior to birth.
• 30 day waiting period from the date the Consent is signed. Birthparent must notify designated persons during 30 day period if they wish to revoke Consent.
• Once 30 days expire, Birthparent may not revoke Consent. There are special provision in the law for cases of fraud or duress. Parental rights are not yet terminated.
• A Petition to Confirm Consent(s) will be filed with the court. Hearing date is scheduled for approximately 8 weeks later, depending on the court schedule.
• Notice of hearing must be served on Birthparents at least 10 days before hearing by certified mail or personal delivery, unless the Birthparent has waived notice in accordance with the adoption law

Court Hearing

• If a confirmation of consent hearing, the Birthparent need not attend, but the Intermediary does (If no intermediary, then Adoptive Parents attend).
• Adoptive Family notified of legal termination.
• Filing of Petition for Adoption can go forward when Birthparents’ parental rights have been terminated and agency (if applicable) completes post- placement reports

2. Involuntary Termination of Parental Rights

• There are several grounds to terminate a Birthparent’s parental rights when he/she will not consent to the adoption, or is unknown, or cannot be located. These include a six month period of “abandonment”, a four month period of “abandonment” for a newborn, rape, and inability to parent which cannot/will not be remedied.
• A Petition for Involuntary Termination of Parental Rights is filed with the Court. Hearing is scheduled for approximately 8 weeks later.
• Notice of hearing must be served on Birthparent at least 10 days before hearing either by certified mail or personal delivery. In cases of unknown birthparent or birthparents that cannot be located, legal advertisements are placed in newspapers

Court Hearing

• Adoptive Family notified of legal termination.
• Filing of Petition for Adoption can go forward when both Birthparents’ parental rights have been terminated and agency completes post-placement reports

3. Voluntary Relinquishment of Parental Rights

• Prior to 72 hours after baby’s birth, the Birthparent may sign a voluntary relinquishment as long as an “Intent to Place Child for Adoption” form is signed accompanying the relinquishment papers. After 72 hours from the birth, the birthparents need only sign the voluntary relinquishment. In private placement, the Petition for Voluntary Relinquishment can be filed with the court after 72 hours expires from the time of birth.
• A Petition for Voluntary Relinquishment is filed with the court. Hearing date is scheduled for approximately 6 to 8 weeks later.
• Notice of hearing must be served on Birthparents at least 10 days before hearing either by certified mail or personal delivery, unless Birthparent waives notice pursuant to the adoption law.

Court Hearing

• Birthparent must attend.
• Adoptive Family notified of legal termination.
• Filing of Petition for Adoption can go forward when both Birthparent’s parental rights have been terminated and agency (if applicable) completes post-placement reports

Second: FINALIZATION OF THE ADOPTION

Once the birthparents’ parental rights have been terminated, then the Adoptive Parents will be able to proceed to a final adoption hearing.

This will include the filing of a Petition For Adoption with the court and scheduling a court hearing, at which the Adoptive Parents and child(ren) that is (are) being adopted will appear. The Intermediary in the placement will also need to appear at the hearing.

After the adoption is granted, a Certificate of Adoption will be issued and a new birth certificate(s) will be obtained, showing the Adoptive Parents’ names as the parents and the child(ren)’s new name as chosen by the Adoptive Parents.

Once the adoptive parents have the Certificate of Adoption and new birth certificate(s), they can then obtain a social security number(s) for the child(ren) and a passport for the child(ren).

A: Adoption Assistance provides financial assistance in certain defined cases and a county Children & Youth Social Services Agency will determine the child’s eligibility for adoption assistance. See 55 Pa. Code Section 3140.201, et. Seq. and Adoption Opportunities Act 62 P.S. Section 771-774.

Eligibility (Section 3140.202) shall be found for an adoptive child who meets the following requirements:

1. The child is 17 years or younger.
2. Parental rights have been terminated under the Adoption Act.
3. The child is in the legal custody of the county agency or another agency approved by the Department. See also: C.B. & J.B. v. Pa. DPW, 567 Pa. 141, 786 A.2d 176 (2001).
4. The child shall have at least one of the following characteristics:
   • A physical, mental or emotional condition or handicap;
   • A genetic condition which indicates a high risk of developing a disease or handicap;
   • be a member of a minority group;
   • be a member of a sibling group;
   • be 5 years of age or older.

The law requires that prior to certification for adoption assistance, the county agency shall make reasonable efforts to find an adoptive home without providing adoption assistance. Evidence of this effort shall be recorded in the case record and include registration with the Department’s adoption exchange for at least three (3) months. If it would be against the best interests of the child because of factors, such as the existence of significant emotional ties with prospective adoptive parents while in the care of the parents as a foster child, then the requirements of this subsection do not apply.

Note that an agreement for adoption assistance must be executed at or before the final adoption decree. Some of the potential benefits of adoption assistance can be medical coverage, non-recurring adoption expenses (including attorney fees), monthly adoption assistance payments, and mental health/mental retardation services.

The adoption assistance will terminate when:

• the child reaches 18 years of age, or
• the adoptive parents are no longer legally responsible for the support of the child, or
• the child is no longer receiving support from the adoptive parents, or
• the adoptive parents request termination of the assistance.

Other: See Gruzinski v. DPW. 731 A.2d 246, ___ Pa. Cmwlth. ____ (1999) re eligibility to apply for adoption assistance after adoption has been finalized and duty of CYS to notify prospective adoptive parents of child’s eligibility for adoption assistance.

A: Typically, Adoptive Parents do not get a Social Security Number for the adopted child until after the legal proceedings are finalized and a new birth certificate is received.

If you have custody of the child and your adoption is not finalized yet, you can apply for an Adoption Tax Identification Number that you can use in lieu of the Social Security Number until you finalize the adoption.

You will need to file the appropriate IRS Form used to apply for the Adoption Tax Identification Number.

A: The adoption tax credit offsets qualified adoption expenses making adoption possible for some families who could not otherwise afford it.

You may qualify for the adoption tax credit if you adopted or attempted to adopt a child and paid qualified expenses relating to the adoption. The amount of the adoption tax credit varies each year and is phased out over higher incomes. You may be able to claim the credit even if the adoption does not become final. If you adopt a special needs child, you may qualify for the full amount of the adoption tax credit even if you paid few or no adoption-related expenses.

What are qualified adoption expenses?

Qualified adoption expenses are reasonable and necessary adoption fees. They include:

• court costs,
• attorney fees,
• traveling expenses (including amounts spent for meals and lodging while away from home), and
• other expenses directly related to the legal adoption of an eligible child.

Expenses paid in an unsuccessful attempt to adopt an eligible child before finalizing the adoption of another child can qualify for the credit.

Qualified adoption expenses do not include expenses:

• for adopting your spouse’s child,
• for a surrogate parenting arrangement,
• that violate state or federal law,
• paid using funds received from a federal, state, or local program,
• paid or reimbursed by your employer or any other organization, or
• allowed as a credit or deduction on a federal tax return.

You cannot claim a credit for the same adoption expenses used to claim the income exclusion.

A: Yes. A WILL can always be changed throughout your life. A will is not filed with a court until after a person dies.

A: To the commonly asked question, “Do I need a will?” we recommend that every adult have a will to set forth his or her intentions and wishes upon their death.

If you die without a will, the Pennsylvania state law will dictate how your estate will be distributed, which may not be what your wishes are.

You should name the person who you want to handle your affairs after your death. This person is called the Executor.

In addition, if you have children and they are minors, your will should name a guardian, otherwise the court will dictate who will have custody of your minor children.

Preparing your will is just plain good stewardship and planning of your assets and your affairs!

A: The cost of your will depends on how complex your estate matters are. A lawyer could give you the estimate of the cost after consulting with you to determine your needs.

We provide simple wills for senior citizens (age 65 years and older) at no cost as a public service.

A:

Will

A Will is a legal document stating who you want to receive your property upon your death, who you want to settle your estate upon your death, who you want to have custody of any minor child or children that you have at the time of your death, and who you want to take care of any property that is left to your minor children.

Power of Attorney

Financial Power of Attorney:

A Financial Power of Attorney is a written, legal document that authorizes another person to act on your behalf. The financial power of attorney may be narrowly defined, in which case it would be called a limited power of attorney. A power of attorney can be written so that it only takes effect if you become mentally incapacitated. It allows another person to make bank transactions, sign Social Security checks and other income checks, apply for disability, write checks to pay bills, sell property, liquidate assets, etc.

Durable Power of Attorney:

A Durable Power of Attorney is a written, legal document that authorizes another person to act on your behalf. The durable power of attorney is effective as soon as it is signed and will stay in effect even if you become mentally incapacitated. A durable power of attorney allows another person to make bank transactions, sign Social Security checks and other income checks, apply for disability, write checks to pay bills, sell property, liquidate assets, etc.

Health Care Power of Attorney

A Health Care Power of Attorney is a written, legal document that authorizes another person to make medical decisions on your behalf in the case you are not able to do so due to an incapacitating medical or mental health condition, it is different from a living will (advance directive), as the living will directs what medical services you would want if you are in the end stages of life, whereas the medical power of attorney will appoint a person to make decisions for you during those times in your life that you are not in the end stages of life, but times that you are not able to make medical decisions yourself due to your health condition.

Living Will (Advance Directive)

A Living Will is a written, legal document, typically signed in advance while in good health, that specifies the decisions a person wish to be made about his or her medical treatment in his or her end stages of life, in the event he or she is unable to make or communicate them at that time.

Trust

A legal entity to which you transfer your assets for management by a Trustee. It can be either revocable or irrevocable if made during the lifetime, and is often referred to as a Living Trust. A Testamentary Trust is a trust that is established under a person’s will and becomes effective at that person’s death.

A: While you do not have to bring any documents, it is helpful if you know the following information:

1. Names, addresses, phone number(s), email address(es) of:
   • beneficiary(ies),
   • guardian(s),
   • trustee(s),
   • executor(s),
   • power(s) of attorney (financial and medical).
2. Assets you own
3. How the assets are titled (i.e. joint names, sole name, in trust for, beneficiary designation),
4. Approximate value of assets:
   • Assets include real estate, vehicles, life insurance, annuities, 401(k), IRA’s, and businesses in which you have an interest, etc.
5. Debts that you still owe

A: Pennsylvania state law provides for a probate process in order to efficiently administer a decedent’s assets and debts, protect beneficiaries and creditors, and to make sure that the estate is distributed properly.

Probate may not be necessary if there are no assets in the decedent’s name alone, such as when there is a Living Trust which holds title to all of the decedent’s assets and sets forth the distribution of those assets. Other examples of assets that may not have to pass through the probate process are bank accounts that are held jointly with the decedent and another person(s), are held in the decedent’s name “in trust for” or “payable on death” to a beneficiary, or real estate that is titled in the name of decedent with another person jointly “with right of survivorship.”

A: Some of the things that you will want to think about are:

• heart-lung resuscitation (CPR)
• mechanical ventilator (breathing machine)
• dialysis (kidney machine)
• surgery
• chemotherapy
• radiation treatment
• antibiotics
• tube feedings to be given for food
• tube feedings to be given for water
• do you want to be an organ donor

You will always receive medical and nursing care to help make you more comfortable and pain medication to alleviate pain and suffering, unless you directed that you did not want any.

Remember, as long as you are able and competent to make your own medical decisions, you will be the one making them. Your agent will only be making medical decisions for you if you are physically or mentally unable to make your own decisions, and then they would be making those decisions in accordance with the guidance you give them in your living will or medical power of attorney.

A: We do not recommend planning for your future this way.

Estate planning documents will be valid only if they are in conformity with Pennsylvania law. Forms and kits do not ensure that this will be the case.

Estate planning involves a great deal of judgment, planning and skills acquired by professional training and experience. When non-lawyers act as their own lawyers, it often ends up costing their beneficiaries and family more money in legal costs when your intentions do not work the way they were intended.

As the cost of drafting estate planning documents should not be exceptionally high, it is well worth the investment to have it done correctly.

A: Guardian: Who will take custody upon my death? Who will be making decisions about their assets?

Trustee: Often we establish trusts for the minor children in the will and a Trustee will be named to handle to finances while the child(ren) are minors or until an age specified in the trust.

A: A Living Trust is an entity that you transfer your assets to while you are alive, and the Trustee that you name in the trust document will manage your trust. Upon your death, the Trustee will distribute your trust assets in accordance with the provisions you set forth in your trust document.

You should talk to your lawyer about whether a Living Trust would be beneficial for you and discuss the costs of doing one, as this will depend on the complexity of your estate.

Many times a Living Trust is marketed to senior citizens by high-pressured sales pitches that cause people to fear that their assets will all go to the state, or will be “eaten up” by high death taxes and attorney fees. It is prudent to talk to your lawyer about whether a Living Trust makes sense for you and talk about your concerns regarding death taxes, attorney fees, etc., before you fall prey to a marketing scheme that may not truly meet your needs.

A: Yes, often there is some property that is left out of the Living Trust, either purposefully or inadvertently, which will need to pass through the probate process: Your Will then directs what should happen to that property.

A: Generally speaking, in Pennsylvania there will be inheritance tax whenever there are assets transferred upon a person’s death, and assets in a Living Trust will typically be subject to death taxes. Certain types of trusts may have tax advantages: You should discuss this with your lawyer to determine if these types of trusts make sense for your situation.

Although there may not be a need for the probate process when a Living Trust is in place, there is still the need to accumulate assets, pay debts, and administer the Trust estate. There are certain notices required by the law. It is usually necessary to hire a lawyer to help in the administration of the trust estate after death.

A: The probate or estate administration process must occur when someone dies owning property in his or her name alone, requiring the appointment of a personal representative by the court, who will handle the administration of the decedent’s assets and debts, and settle his or her affairs.

If the decedent has a will and appoints a personal representative in the will, that person will be called an Executor.  If there is no appointment in the will, or if the decedent dies without a will, that person will be called the Administrator.

Once the Executor or Administrator is appointed by the court, then a Certificate evidencing the authority of the Executor or Administrator is issued (sometimes called “Short Certificates”) will be issued.  These are certificates of authority issued by the court evidencing that the Executor or Administrator is authorized to act on behalf of the Estate of the decedent, which will allow for liquidating estate assets, opening an estate checking account, selling estate real property, etc.

The probate process in Pennsylvania is not usually very long compared to many other states. The personal representatives have broad authority to efficiently and quickly administer the estate, including liquidation of assets, paying of creditor claims, etc.

While every probate estate is unique, the probate process typically involves the following steps:

• Filing a petition to open the estate and appoint the Executor or Administrator
• Notice to certain heirs as identified in the Pennsylvania statute and the will
• Newspaper advertisements of the estate
• Claim Request Inquiry to Department of Human Services for any claims for Medical assistance recovery
• Inventory and appraisal of estate assets by the Executor/Administrator
• Identification of all debts and expenses, including decedent’s income tax
• Liquidation of/sale of estate assets and payment of debts to rightful creditors
• Payment of death taxes, if any
• Final distribution to the heirs, either by filing a Petition for Distribution with the court for a court order directing the final distribution, or by an informal agreement for the distribution signed by all of the heirs

A: The cost of probate typically involves filing fees with the court, advertising the estate, and filing certain legal documents required by the probate process.

Attorney fees will be incurred for guiding you through the probate process and filing the necessary documents, which may include preparation of an inventory and inheritance tax returns, federal estate tax returns, or fiduciary returns. Attorney fees will vary based on the complexity of the estate.

Be a good consumer of legal services and talk with your attorney about how the attorney fees will be charged, ie, flat fee, percentage fee, or hourly fee, to determine the cost of probate and what will be the best decision for your case.

A: There are certain types of estate legal planning regarding your assets that could potentially avoid probate, although that does not mean that it will avoid death taxes (such as inheritance tax, federal estate tax). For example, the following assets will most likely not pass through probate:

• Property owned as joint tenants with right of survivorship, which passes automatically by law to the joint owner(s) on the death of the decedent (ex: joint bank accounts, real estate titled as joint with right of survivorship, stock in joint names with right of survivorship, etc.)
• Certain retirement assets such as IRAs and 401(k) accounts and annuities which have a designated beneficiary as someone other than the estate of the decedent
• Life insurance policies having a beneficiary other than the estate
• Property that has been transferred to a Living Trust during the lifetime of the decedent
• Certain accounts that are titled “In Trust For” or “Payable on Death” to designated beneficiaries other than the estate

Your attorney will review this planning with you, as there are often pros and cons to this type of planning to avoid probate and you need to be aware of these before you engage in this type of planning.

A: Pennsylvania Inheritance Tax must be filed regardless of the size of the gross estate, even if debts and expenses exceed the value of the gross estate. The debts of the decedent and certain funeral expenses and administration expenses of the estate will be deductions from the gross estate and reduce the amount of inheritance tax due. The Pennsylvania Inheritance Tax Return is due 9 months after date of death. If a payment on account is made within 90 days after date of death, there will be a 5% discount on the tax amount.

Many estates will not be subject to the Federal Estate Tax, depending on the size of the gross estate and the federal estate tax law in effect. Your attorney will guide you in determining which assets are subject to the federal estate tax and in preparing and filing the return.

Property passing to a surviving spouse and also life insurance proceeds have a zero (0%) tax rate. If either a payment on account, or the inheritance tax return itself with payment, is filed within 90 days after death, a five (5%) percent discount will apply to the tax due. Currently, the tax rates are as follows:

• Surviving Spouse — 0%
• Children under 21 years of age – 0%
• Grandparents, parents, children over 21 years of age, grandchildren, and certain other lineal descendants of the decedent — 4.5%
• Decedent’s siblings — 12%
• Others (Nieces/Nephews, Friends) — 15%

A: How to get a divorce in Pennsylvania:

There are two basic types of divorce: Fault and No-Fault

Fault: One of the spouses has committed marital misconduct, such as adultery or abuse

No-Fault: Spouse does not have to prove that the other spouse committed marital misconduct

Two (2) ways to obtain a No-Fault divorce:

1. CONSENT DIVORCE: If both parties agree to a divorce, one party files a divorce complaint, and after 90 days expires from the filing and serving of the divorce complaint, both parties can sign a consent to allow the divorce to be granted. A spouse cannot force the other spouse to sign a consent.
2. SEPARATION: If one spouse refuses to consent to the divorce and there are no grounds for a “fault” divorce, the other spouse will have to wait for one year from the “date of separation” after which he/she can proceed to obtain a divorce without the consent of the other spouse.  If the date of separation is before December 4, 2016, the waiting period is two years. The “date of separation” will be an important date in connection with this type of divorce. The parties can be separated but still live together in the same house. As this determination is fact-sensitive, you should discuss this with your attorney as soon as you believe that you want to separate.

A: Divorce issues that a court might address in particular situations:

• Child support – support given to the parent who typically has custody of the child(ren) of the parties; may also be awarded in shared custody cases

• Spousal support – support to the spouse who has less income, awarded if the parties are separated, and prior to a divorce being filed or granted

• Alimony pendente lite – this is similar to spousal support, but is awarded after a divorce complaint has been filed but before a divorce is granted

• Alimony – support given to a spouse after a divorce is granted

• Child custody – the determination of the parenting arrangements for the children (includes both physical and legal)

• Equitable Distribution – the distribution of the property and debts of the parties between the parties. As the court seeks to achieve a fair distribution, the court does not necessarily have to direct an “equal” distribution between the spouses

• Counsel Fees & Expenses – the court can direct that one spouse pays all or part of the other spouse’s attorney fees and costs

Note: Pennsylvania has support guidelines (Pennsylvania Rule of Civil Procedure No. 1910.16) to help determine the amount of child support, spousal support, or alimony pendente lite that can be awarded. There are no specific monetary guidelines for alimony. These guidelines can be deviated upward or downward, to include additional money for a spouse to remain in the marital home and pay the mortgage, for extra-curricular activities for the children, for private school tuition, daycare, unreimbursed medical costs or prescription co-pays, or for other matters that the court may consider under the law.

A: The different types of custody:

• Legal Custody – the authority to make decisions regarding the child(ren) (medical, school, religious, etc.)
• Shared Legal Custody – the parents share this authority to make decisions regarding the child(ren) (medical, school, religious, etc.)
• Physical Custody – where the child(ren) physically resides
• Primary Physical Custody – the parent with whom the child(ren) primarily resides
• Shared Physical Custody – An arrangement by which the residence of the child(ren) is split between the parents’ respective residences
• Partial Custody – Custody time for the parent with whom the child(ren) resides less than 50% of the time (may include supervised or unsupervised, and may not involve keeping a child(ren) overnight)

A: The best way of establishing a custody arrangement is for the parents themselves to discuss what is best for their child(ren) and to work out a mutually agreeable parenting arrangement that best serves their family needs and schedules.

Alternatives to court litigation include the use of the services of a Mediator or a Parent Coordinator to assist in the parties’ achieving this goal.  Custody arrangements often change as the child(ren) grow older, schedules change, etc.

If the parties are unable to achieve a parenting arrangement that they both can agree to, then the court will make this decision for them.  The goal of the court is to do what is in the “best interest” of the child(ren) at all times.  The court will consider all relevant factors, including the level of conflict between the parents, any history of abuse and criminal history of the parents, work schedules of the parents, each parent’s involvement with the child(ren) (including activities, education, etc.), the school district for the child(ren), the age(s) of the child(ren), the living arrangements of the parents, special needs of the child(ren), concerns for the physical and emotional health of the child(ren), etc.

The older and more mature a child(ren) is, the more persuasive that child(ren)’s wishes about custody will be in the court’s decision making.  While there is not a “magic age” that a child(ren) reaches which will allow the child(ren) to dictate the custody schedule, it is to be expected that more weight will be given to the wishes of a 14 year old child(ren) than may be given to the wishes of a 7 year old child(ren).

Nonetheless, the court will listen to what a child(ren) has to say provided that the child(ren) is competent to testify.  The parenting arrangement must “make sense” for the child(ren) and the parents, and must be in the best interests of the child(ren).  When parents cannot agree upon what is in the best interests of their child(ren), the court will make this determination.

There are times that a court will appoint a child psychologist to evaluate the parents and child(ren) to assist in the determination of what is in the best interests of the child(ren).  This cost is usually allocated between the parents, often based upon their respective incomes.  The cost is also often dependent on the total income of the parents if the court uses a sliding scale to determine the cost of the evaluation.

A: In Pennsylvania, the process of distributing property and debts between the spouses is called equitable distribution. As the court seeks to divide these “fairly” between the spouses, it need not be an equal distribution.

The court will take many factors into consideration when determining equitable distribution. The following factors that are relevant for the court to consider include those set forth under Pennsylvania law, 23 Pa. C.S. § 3502 (a):

• The length of the marriage.
• Any prior marriage of either party.
• The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
• The contribution by one party to the education, training or increased earning power of the other party.
• The opportunity of each party for future acquisitions of capital assets and income.
• The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
• The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
• The value of the property set apart to each party.
• The standard of living of the parties established during the marriage.
• The economic circumstances of each party at the time the division of property is to become effective.
• The Federal, State and local tax ramifications associated with each asset to be divided, distributed or assigned, which ramifications need not be immediate and certain.
• The expense of sale, transfer or liquidation associated with a particular asset, which expense need not be immediate and certain.
• Whether the party will be serving as the custodian of any dependent minor children.

A: Some examples of property that is subject to equitable distribution and may be divided between spouses:

• Pension Plans
• 401(K) Plans
• TIAA/CREF Accounts
• Thrift Savings Plans
• Retirement Savings Plans
• Annuities
• IRAs
• Stock Options
• Stocks
• Family Home
• Real Estate
• Bank Accounts
• Money Market Accounts
• Investment Accounts
• Mutual Funds
• Savings Bonds
• Life Insurance (Cash Surrender values)
• Vehicles
• Boats
• Businesses
• Limited Partnerships
• Partnerships
• Collectables, such as antiques, coins, gun collections, tools, etc.
• Household Contents

A: Your attorney will assist you in the ways available to value assets and as to what date will be used to value the assets.

For example, real estate can be valued either by an agreed upon value by the spouses or by a real estate appraiser.

If a spouse has a pension plan, it can be valued by an actuary or by a C.P.A.

If a spouse owns a business, it can be valued by a forensic C.P.A.

Life insurance can be valued by its cash surrender value.

Stock values can be found on internet sites or in the Wall Street Journal.

Bank account values can be found on bank statements.

Statements for 401(k) plans, IRAs, etc., can be found on the statements issued by the financial institution where the funds are invested.

A car can often be valued by using the Kelly Blue Book value, or having it appraised at a car dealer.

Collectables (antiques, coins, guns, etc.) can be valued by an appraiser familiar with the particular items.

Your attorney will assist in gathering all of the information needed to identify and value assets. This is done either informally between the parties as they voluntarily exchange the necessary documentation, or formally through a legal process called “discovery,” where your attorney can require the other party to produce documentation or answer questions under oath.  The documentation may also be obtained directly from the person or company/institution that has the information.

For example, information on bank accounts or investments can be obtained directly from the investment company or bank. Information on a spouse’s retirement or savings plan can be obtained directly from the employer. This assures that you will have accurate and complete information on the assets and debts to enable you to make confident decisions about distribution of assets and debts.

A: An alimony award is a continuing payment to a spouse even after the divorce is granted and the property and debts are distributed. There are no specific financial guidelines for alimony, as there are for spousal support, alimony pendente lite or child support. Alimony is based on the needs of the spouse. There are many factors that a court must consider when determining an alimony award.

In determining the nature, amount, duration and manner of payment of alimony, the court must consider all relevant factors, including those statutorily prescribed for at 23 Pa. C.S. § 3701 (b), which are as follows:

• The relative earnings and earning capacities of the parties.
• The ages and the physical, mental and emotional conditions of the parties.
• The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
• The expectancies and inheritances of the parties.
• The duration of the marriage.
• The contribution by one party to the education, training or increased earning power of the other party.
• The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child.
• The standard of living of the parties established during the marriage.
• The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
• The relative assets and liabilities of the parties.
• The property brought to the marriage by either party.
• The contribution of a spouse as homemaker.
• The relative needs of the parties.
• The marital misconduct of either of the parties during the marriage. The marital misconduct of either of the parties from the date of final separation shall not be considered by the court in its determinations relative to alimony, except that the court shall consider the abuse of one party by the other party. As used in this paragraph, "abuse" shall have the meaning given to it under section 6102 (relating to definitions).
• The Federal, State and local tax ramifications of the alimony award.
• Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party's reasonable needs.
• Whether the party seeking alimony is incapable of self-support through appropriate employment.

A: While Pennsylvania law does not provide for the issuance of a “legal separation,” spouses can separate without the need to file for divorce.

During the period of separation, a spouse can file for spousal support, child support or child custody.  The court will not deal with issues of property distribution if there is no divorce complaint filed.

Nonetheless, spouses can always reach agreements on all issues arising out of the divorce even if a divorce complaint has not yet been filed.

Often spouses will use the services of a Mediator to reach amicable agreements on all issues relating to their separation and divorce; this can be completed prior to anyone filing for divorce.

It is recommended that you consult with an attorney regarding your intentions to separate prior to actual separation, so that you will know what to expect in connection with your rights and obligations.  It is important to have a strategy in place in order to protect your rights and to prepare for your obligations.

A: A PFA is a Petition for a Protection From Abuse Order. This is available even if there is no separation and no divorce filed. A PFA is to protect a spouse from abuse from the other spouse, from a family member, or from an intimate partner, even if you are not married. A parent may also obtain a PFA on behalf of his/her minor child(ren) against the other parent.

The Pennsylvania PFA Act is set forth in 23 Pa.C.S. Section 6101 et. seq.  The PFA Act defines “Abuse” as the occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood:

• Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incest with or without a deadly weapon.
• Placing another in reasonable fear of imminent serious bodily injury.
• The infliction of false imprisonment pursuant to 18 Pa.C.S. § 2903 (relating to false imprisonment).
• Physically or sexually abusing minor children, including such terms as defined in Chapter 63 (relating to child protective services).
• Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury. The definition of this paragraph applies only to proceedings commenced under this title and is inapplicable to any criminal prosecutions commenced under Title 18 (relating to crimes and offenses).

A: A Prenuptial Agreement is a contract between couples intending to get married. There are different reasons that people will enter into these contracts and different matters that the parties will address in them. Some of the common reasons for a prenuptial agreement include:

• to protect the interests of children from a previous marriage;
• to protect separate assets owned by the parties prior to the marriage;
• to define the intended personal and economic relationships during the marriage;
• to prevent costly divorce litigation in the event of a separation or divorce of the parties;
• to define rights of inheritance in the event of a death of one of the parties.

A Prenuptial agreement often involves the waiver of personal rights in the event of a separation or divorce, or in the event of a death of one of the spouses during the marriage. It can address only one matter, or it can address many matters.

Prenuptial agreements oftentimes address issues of the parties retaining their separate property that they each owned prior to marriage, with the other party waiving any claims to that property. It will often address the rights of support, alimony pendente lite, alimony, equitable distribution, and other rights arising out of a marriage. Many times, a prenuptial agreement will address the rights of the parties in the event of a death of a spouse, including what will happen to that party’s separate property.

It is recommended that you never sign a Prenuptial Agreement until you have had your own attorney thoroughly review it with you.

You need to have an understanding of your rights and what you may be giving up, and the impact that this may have on your future.

It is also recommended that if a couple intends to enter a prenuptial agreement, it should be discussed, drafted and reviewed well in advance to the wedding date, to allow for sufficient time to identify all of the intentions of the parties and to properly draft the agreement, allowing time for all to review and consider.

A: Under Pennsylvania law, a court can appoint a guardian to make decisions for an individual (“incapacitated person”) who cannot care for himself/herself or who needs assistance to care for himself/herself. This typically includes elderly persons or persons with mental or physical limitations that have been diagnosed by a medical provider. A court can also appoint a guardian for a minor child. Guardians have a legal responsibility to make decisions in the best interest of the incapacitated adult or minor child.

A: If appointed as the legal guardian for an adult who cannot care for himself/herself or minor child, the guardian will assume legal responsibility for an incapacitated or elderly adult or minor child. The guardian will be referred to as the “Guardian of the Person” and is responsible for attending to and making decisions on behalf of the incapacitated person. A guardian may also be appointed to make decisions regarding the incapacitated individual’s financial matters, referred to as the “Guardian of the Estate.”

A: A court must determine that the incapacitated individual is legally incompetent before a guardian is appointed. To make this determination, the proposed guardian must file a petition in the “Orphans’ Court” division of Pennsylvania court (this division handles estate administration issues, guardianship issues, adoptions, and other proceedings).

A legal guardian may also be appointed to act as the primary caretaker of a child under the age of 18 when the child’s parents are unable to do so. In some cases, the child’s parents personally select the guardian, which may be a family member or friend. In other cases, a court may appoint a guardian. Parents who create a Will may appoint a guardian for their minor child(ren) in their Will. It is possible to object to the appointment of a guardian for a minor child when the guardian could be unsafe or unable to fulfill his or her duties.

A: Under Pennsylvania law, a court can appoint a guardian to make decisions for an individual (“incapacitated person”) who cannot care for himself/herself or who needs assistance to care for himself/herself. This typically includes elderly persons or persons with mental or physical limitations that have been diagnosed by a medical provider. A court can also appoint a guardian for a minor child. Guardians have a legal responsibility to make decisions in the best interest of the incapacitated adult or minor child.

If appointed as the legal guardian for an adult who cannot care for himself/herself, the guardian will assume legal responsibility for an incapacitated or elderly adult. The guardian will be referred to as the “Guardian of the Person” and is responsible for attending to and making decisions on behalf of the incapacitated person. A guardian may also be appointed to make decisions regarding the incapacitated individual’s financial matters, referred to as the “Guardian of the Estate.”

A court must determine that the incapacitated individual is legally incompetent before a guardian is appointed. To make this determination, the proposed guardian must file a petition in the “Orphans’ Court” division of Pennsylvania court (this division handles estate administration issues, guardianship issues, adoptions, and other proceedings).

A legal guardian may also be appointed to act as the primary caretaker of a child under the age of 18 when the child’s parents are unable to do so. In some cases, the child’s parents personally select the guardian, which may be a family member or friend. In other cases, a court may appoint a guardian. Parents who create a Will may appoint a guardian for their minor child(ren) in their Will. It is possible to object to the appointment of a guardian for a minor child when the guardian could be unsafe or unable to fulfill his or her duties.

A: Guardians of incapacitated adults must ensure that the individual has all of the care and assistance he/she needs. For example, the guardian may need to make living arrangements or schedule medical appointments, as well as attend to the daily care of the incapacitated adult. Guardians will also need to manage finances by arranging for payment of bills, making investments, and purchasing necessary items for the incapacitated individual.

As a guardian of a minor child, in many cases, a legal guardian will also have physical and legal custody of the child. The guardian must make decisions that ensure the child’s safety and wellbeing, such as providing for the child’s basic needs, attending to the child’s medical and educational needs, allowing the child to engage in social activities, etc.

A: Legal guardianship may be temporary, or it may be permanent, depending on the needs of the incapacitated individual or minor child. If an incapacitated individual regains his/her mental or physical competence, legal guardianship may no longer be needed. In most cases, legal guardianship of a minor terminates once the child attains the age of majority (typically 18). The court may also decide that it’s in the individual’s best interest to terminate the guardianship.

A: Mediation is a voluntary dispute resolution process providing an innovative and cost-effective alternative to litigation.

People in conflict are brought together to work out their differences to achieve a mutually agreed upon settlement.

In mediation, the parties negotiate their own settlement.

Individuals experiencing conflict will attend meetings that are facilitated by an experienced, compassionate, neutral and qualified individual referred to as a “Mediator”.

The meetings are facilitated by a trained neutral third-party called a “Mediator”.  The Mediator does not have the authority to force any of the participants to do anything, but instead will help the parties identify and negotiate their issues in an effort to achieve a WIN-WIN resolution for the participants in the mediation.

In the traditional legal process, your lawyers often do the negotiations for you, or you could take issues to a judge for the judge to decide the issues for you.  In mediation, the participants will work together in a cooperative and respectful manner to reach a resolution that they both can agree upon.

Parties in conflict often see their only option as litigation in the courts, with expensive legal fees and costs.  Mediation is another option to provide constructive and confident dispute resolution.

A: Why you should choose mediation:

• Mediation is a cost-saving alternative to avoid expensive and uncertain court litigation and escalating legal fees and costs.
• In mediation, participants have control over the outcome rather than turning matters over to a judge/jury to decide and having their respective attorneys do all of the negotiations.
• Personal negotiation through a cooperative and respectful process to achieve WIN/WIN agreement for all participants of the mediation.
• Mediation reduces stress as parties have more input and are a part of the resolution, as opposed to waiting to hear what their attorneys have said to each other or waiting to hear what a judge or jury may impose upon them.
• The parties are free to come up with solutions that they believe are appropriate for their family or situation, even if these are different solutions than what attorneys or judges/juries may recognize in the traditional legal process.
• During mediation, the parties can present any information that they feel is important: The parties know that they each have a “voice” that will be heard and their concerns and needs will be addressed.
• Preserves relationships for future communication and interaction
• Mediation is confidential: There is no public record, unlike the traditional legal process where the parties’ details of their conflict and often very personal details of their life may be subject to public scrutiny.
• Flexible scheduling to accommodate the schedules of the participants, including evenings and Saturdays.
• We maintain a deep respect for personal faith in the conflict resolution process.

A: A summary of the role of a mediator:

• To provide open lines of communication between the participants, encouraging all participants to be fully involved in the mediation so that no one person dominates the discussions

• Assist the parties in clarifying issues and needs

• A mediator helps parties to “brainstorm” and to explore all possible solutions to conflict resolution

• Provide a safe and respectful environment where participants know that each of them will be heard and each will be a part of resolution

• To facilitate the discussion between the participants, to remain neutral at all times, to help the participants understand each other’s points of view

• Mediators do not give legal advice and do not give their opinion as to the possible outcome of litigation, they do not take sides or tell the parties what to do

A: The cost of mediation is dependent upon each individual situation.

The Mediator can charge their hourly fee for services.

Peacemakers Mediation Services is a non-profit organization founded by Attorney Deborah L. Lesko, and provides for service on a “sliding scale” based on each participant’s income.

This is designed to make the service affordable even for low income families.

Contact us for more information.

A: There are several variables that affect how long mediation will take. The participants determine the frequency of mediation sessions. Meetings scheduled for every other week intervals are often suggested by many participants, as you may have “homework” to prepare for the next meeting (for example, obtaining a real estate appraisal, collecting bank statements, etc.).

Mediation affords great flexibility in scheduling the sessions around the participants’ schedules, including evening and Saturday appointments.

A: If you are getting divorced and are having a mediation, you are not required to have an attorney. An attorney does not usually attend the mediation sessions unless the participants think it is necessary. Nevertheless, we recommend that you each have a divorce mediation attorney for the following reasons:

• You will negotiate the divorce yourselves. For the most successful negotiations, it is important that you are an informed negotiator. Mediators can provide general legal information but cannot give legal advice. Attorneys provide valuable legal advice as to the law, your rights and information so that you will be informed and more comfortable and confident in your negotiations. Your attorney will make sure that you are aware of all of your legal rights and obligations so that you address all of them in your mediation.

• The goal of mediation is a comprehensive and binding agreement. The Mediator is not your attorney and will not be writing these documents, but will draft a non-binding Memorandum of Understanding, that participants will use to have a final binding agreement completed.

• The court system can be very frustrating if you do not know how it works. An attorney can manage the court process and filing for you.

A: After mediation, the mediator will help you discuss what to do next.

Mediation does not interfere with your rights to go to court and it does not waive your legal rights.

You can always choose to stop mediation and have your attorneys negotiate for you or you can choose to go to court.

Oftentimes, mediation will open the door to communication and even if the participants have not reached an agreement, they can continue to communicate and reach a resolution on their own at a later date, after the mediation.