PRIOR PRINTER'S NO. 1607 PRINTER'S NO. 3436
No. 1380 Session of 1989
INTRODUCED BY KUKOVICH, STUBAN, RYBAK, WASS, HALUSKA, KOSINSKI,
ROBINSON, BILLOW, TIGUE, COWELL, MORRIS, GODSHALL, JOSEPHS,
MICHLOVIC, MERRY, NAHILL, DeLUCA, MELIO, J. TAYLOR, FOX,
SEMMEL, TANGRETTI, MAINE, STABACK, BUNT, LEVDANSKY, COLAIZZO,
MAIALE, HOWLETT, BELARDI, RITTER, ITKIN, SERAFINI, DeWEESE,
OLASZ, SCRIMENTI, TRELLO, BISHOP, BLAUM, DOMBROWSKI, WESTON,
KASUNIC, RICHARDSON, J. H. CLARK, VEON AND JAMES, MAY 2, 1989
AS REPORTED FROM COMMITTEE ON YOUTH AND AGING, HOUSE OF
REPRESENTATIVES, AS AMENDED, APRIL 24, 1990
AN ACT
1 Amending Title 20 (Decedents, Estates and Fiduciaries) of the
2 Pennsylvania Consolidated Statutes, adding provisions
3 relating to guardians of incapacitated persons, and making
4 conforming amendments to Titles 13, 18, 23 and 42.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Sections 102, 302, 711(10), 712, 721, 777(b),
8 2206, 2514(16.1) and (16.2), 3122(b), 3155(b), 3182, 3324, 3504,
9 4112, 4121, 5115, 5144, the headings of Chapter 55 and
10 Subchapter A of Chapter 55 and section 5501 of Title 20 of the
11 Pennsylvania Consolidated Statutes are amended to read:
12 § 102. Definitions.
13 Subject to additional definitions contained in subsequent
14 provisions of this title which are applicable to specific
15 provisions of this title, the following words and phrases when
16 used in this title shall have, unless the context clearly
1 indicates otherwise, the meanings given to them in this section:
2 "Clerk." Means the clerk of the orphans' court division of
3 the court of common pleas.
4 "Court, orphans' court, or orphans' court division." Means
5 the court of common pleas exercising the jurisdiction referred
6 to in this title through its orphans' court division.
7 "Fiduciary." Includes personal representatives, guardians,
8 and trustees, whether domiciliary or ancillary, individual or
9 corporate, subject to the jurisdiction of the orphans' court
10 division.
11 "First complete advertisement of the grant of letters." In
12 counties having no legal publication, means the first of the
13 three times that the grant of letters is advertised in a
14 newspaper, and, in counties having a legal publication, it means
15 when it has been advertised, on at least one occasion, in both
16 the newspaper and in the legal publication.
17 "Foreign fiduciary." Means a personal representative,
18 guardian of a minor or [incompetent] incapacitated person,
19 trustee or one performing the functions of any such fiduciary,
20 who is subject primarily to the control of the court of another
21 jurisdiction and has not received ancillary authority in the
22 Commonwealth.
23 "Foreign guardian." Means a guardian, or one performing the
24 function of a guardian, who is subject primarily to the control
25 of the court of another jurisdiction and has not received
26 ancillary authority in the Commonwealth.
27 "General rule or rule of court." A rule or order promulgated
28 by the governing authority, as defined in 42 Pa.C.S. § 102
29 (relating to definitions), of the unified judicial system.
30 "Guardian." Means a fiduciary who has the care and
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1 management of the estate or person of a minor or an
2 [incompetent] incapacitated person.
3 "[Incompetent] Incapacitated person." Means a person
4 determined to be [incompetent] an incapacitated person under the
5 provisions of Chapter 55 (relating to [incompetents]
6 incapacitated persons).
7 "Letters." Means letters testamentary or letters of
8 administration of any description.
9 "Minor." Means an individual under the age of 18 years.
10 "Personal representative." Means an executor or
11 administrator of any description.
12 "Register." Means the register of wills having jurisdiction
13 of granting of letters testamentary or of administration.
14 "Trust." Means any trust, whether testamentary or inter
15 vivos, subject to the jurisdiction of the orphans' court
16 division.
17 "Will." Means a written will, codicil or other testamentary
18 writing.
19 § 302. Title to real and personal estate of an [incompetent]
20 incapacitated person.
21 Legal title to all real estate and personal property of an
22 [incompetent] incapacitated person shall remain in him, subject,
23 however, to all the powers granted to his guardian by this title
24 and lawfully by a governing instrument and to all orders of the
25 court.
26 § 711. Mandatory exercise of jurisdiction through orphans'
27 court division in general.
28 Except as provided in section 712 (relating to nonmandatory
29 exercise of jurisdiction through the orphans' court division)
30 and section 713 (relating to special provisions for Philadelphia
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1 County), the jurisdiction of the court of common pleas over the
2 following shall be exercised through its orphans' court
3 division:
4 * * *
5 (10) [Incompetents'] Incapacitated persons' estates.--
6 The administration and distribution of the real and personal
7 property of the estates of [incompetents] incapacitated
8 persons, except where jurisdiction thereof was acquired by
9 the court of common pleas prior to January 1, 1969 unless the
10 president judge of such court orders the jurisdiction of the
11 estate to be exercised through the orphans' court division.
12 * * *
13 § 712. Nonmandatory exercise of jurisdiction through orphans'
14 court division.
15 The jurisdiction of the court of common pleas over the
16 following may be exercised through either its orphans' court
17 division or other appropriate division:
18 (1) Title to real estate.--The determination of the
19 persons to whom the title to real estate of a decedent or of
20 the creator of an estate or trust has passed by devise or
21 descent or by the terms of the trust instrument where
22 jurisdiction of such estate or trust is exercised through the
23 orphans' court division: Provided, That nothing herein shall
24 be construed to restrict the provisions of section 711
25 (relating to mandatory exercise of jurisdiction through
26 orphans' court division in general) relating to distribution
27 of real estate in an estate or trust.
28 (2) Guardian of person.--The appointment, control and
29 removal of the guardian of the person of any [incompetent]
30 incapacitated person.
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1 (3) Other matters.--The disposition of any case where
2 there are substantial questions concerning matters enumerated
3 in section 711 and also matters not enumerated in that
4 section.
5 (4) Powers of attorney.--All matters pertaining to the
6 exercise of powers by attorneys in fact or agents acting
7 under powers of attorney as provided in Chapter 56 (relating
8 to powers of attorney) when the principal is or may be
9 deceased, disabled or incapacitated.
10 § 721. Venue of decedents', minors' and [incompetents']
11 incapacitated persons' estates.
12 When a Pennsylvania court has jurisdiction of a decedent's, a
13 minor's, or an [incompetent's] incapacitated person's estate,
14 except as otherwise provided by law, the venue for all purposes
15 shall be as follows:
16 (1) Decedents' estates.--In the case of a decedent's
17 estate, in the county where the letters are granted to the
18 personal representative, and in the absence of such letters,
19 then where the decedent had his last family or principal
20 residence, and if the decedent had no domicile in the
21 Commonwealth, then in any county where any of his property is
22 located.
23 (2) Minors' and [incompetents'] incapacitated persons'
24 estates.--In the case of a guardian of a minor or [incompetent]
25 incapacitated person appointed by the court, in the county whose
26 court appointed the guardian. In the case of a guardian of a
27 minor or [incompetent] incapacitated person not appointed by the
28 court, or when there is a minor's or [incompetent's]
29 incapacitated person's estate but no guardian, in the county
30 whose court at the time proceedings are first initiated would
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1 have jurisdiction to appoint a guardian of the estate.
2 § 777. Right to jury trial; discretion of orphans' court
3 division.
4 * * *
5 (b) Determination of [incompetency] incapacity.--Any person
6 against whom proceedings have been instituted to establish his
7 [incompetency] incapacity shall be entitled to a trial of such
8 issue by a jury. The verdict of the jury shall have the same
9 effect as the verdict of a jury in a case at law.
10 * * *
11 § 2206. Right of election personal to surviving spouse.
12 The right of election of the surviving spouse may be
13 exercised in whole or in part only during his lifetime by him or
14 by his attorney-in-fact in accordance with section 5603(d)
15 (relating to implementation of power of attorney). In the case
16 of a minor spouse, the right of election may be exercised in
17 whole or in part only by the spouse's guardian; in the case of
18 an [incompetent] incapacitated spouse, the right of election may
19 be exercised in whole or in part only by the spouse's guardian
20 or by his attorney-in-fact in accordance with section 5603(d) if
21 the power of attorney qualifies as a durable power of attorney
22 under section 5604 (relating to durable powers of attorney);
23 provided, that, in each case, the election shall be exercised
24 only upon order of the court having jurisdiction of the minor's
25 or the [incompetent's] incapacitated person's estate, after
26 finding that exercise of the right is advisable.
27 § 2514. Rules of interpretation.
28 In the absence of a contrary intent appearing therein, wills
29 shall be construed as to real and personal estate in accordance
30 with the following rules:
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1 * * *
2 (16.1) Nonademption; [incompetency] incapacity.--If
3 property of an adjudicated [incompetent] incapacitated person
4 specifically devised or bequeathed is sold or exchanged or if
5 a condemnation award or insurance proceeds are paid to the
6 estate of an [incompetent] incapacitated person as a result
7 of condemnation, fire or casualty, the specific legatee or
8 devisee has the right to the net sale price, the property
9 received in exchange, the condemnation award or the insurance
10 proceeds. This paragraph does not apply if subsequent to the
11 sale, exchange, condemnation, or casualty, the testator has
12 been adjudicated [competent] an incapacitated person and
13 survives the adjudication by one year.
14 (16.2) Nonademption; attorney-in-fact.--If an attorney-
15 in-fact, during the time that his principal is [incompetent]
16 an incapacitated person within the meaning of section 5501
17 (relating to meaning of [incompetent] incapacitated person),
18 sells or exchanges property of the principal which is
19 specifically devised or bequeathed, the specific legatee or
20 devisee has the right to the net sale price or the property
21 received in exchange. For the purposes of this paragraph, a
22 sale or exchange of property made by an attorney-in-fact
23 shall be deemed to have been made during the time that the
24 principal is [incompetent] an incapacitated person, unless
25 shown to the contrary. This paragraph does not apply if it is
26 shown that for a period of at least one year subsequent to
27 the sale or exchange the principal was not [incompetent] an
28 incapacitated person within the meaning of section 5501.
29 * * *
30 § 3122. Payment or delivery of exemption.
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1 * * *
2 (b) Property set aside for minors or [incompetents]
3 incapacitated persons.--When any spouse, child or parent
4 entitled to all or part of the exemption is a minor or
5 [incompetent] an incapacitated person, the guardian of his
6 estate, and if no such guardian has been appointed then the
7 personal representative, without request made to him by anyone,
8 shall select, for the use and benefit of the minor or
9 [incompetent] incapacitated person, real or personal property to
10 the full value to which he is entitled, and in so doing the
11 guardian or personal representative shall be governed by the
12 necessities of the minor or [incompetent] incapacitated person
13 in the circumstances of each case.
14 * * *
15 § 3155. Persons entitled.
16 * * *
17 (b) Letters of administration.--Letters of administration
18 shall be granted by the register, in such form as the case shall
19 require, to one or more of those hereinafter mentioned and,
20 except for good cause, in the following order:
21 (1) Those entitled to the residuary estate under the
22 will.
23 (2) The surviving spouse.
24 (3) Those entitled under the intestate law as the
25 register, in his discretion, shall judge will best administer
26 the estate, giving preference, however, according to the
27 sizes of the shares of those in this class.
28 (4) The principal creditors of the decedent at the time
29 of his death.
30 (5) Other fit persons.
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1 (6) If anyone of the foregoing shall renounce his right
2 to letters of administration, the register, in his
3 discretion, may appoint a nominee of the person so renouncing
4 in preference to the persons set forth in any succeeding
5 paragraph.
6 (7) A guardianship support agency serving as guardian of
7 an incapacitated person who dies during the guardianship
8 administered pursuant to Subchapter F of Chapter 55(relating
9 to guardianship support).
10 * * *
11 § 3182. Grounds for removal.
12 The court shall have exclusive power to remove a personal
13 representative when he:
14 (1) is wasting or mismanaging the estate, is or is
15 likely to become insolvent, or has failed to perform any duty
16 imposed by law; or
17 [(2) has been adjudged a lunatic, a habitual drunkard, <--
18 or a weakminded person; or
19 (3)] (2) has become [incompetent] incapacitated to <--
20 discharge the duties of his office because of sickness or
21 physical or mental incapacity and his [incompetency]
22 incapacity is likely to continue to the injury of the estate;
23 or
24 [(4)] (3) has removed from the Commonwealth or has <--
25 ceased to have a known place of residence therein, without
26 furnishing such security or additional security as the court
27 shall direct; or
28 [(5)] (4) when, for any other reason, the interests of <--
29 the estate are likely to be jeopardized by his continuance in
30 office.
19890H1380B3436 - 9 -
1 § 3324. Death or [incompetency] incapacity of fiduciary.
2 The personal representative of the estate of a deceased
3 fiduciary or the guardian of an adjudged [incompetent]
4 incapacitated fiduciary by reason of his position shall not
5 succeed to the administration of, or have the right to possess,
6 any asset of an estate which was being administered by the
7 deceased or [incompetent] incapacitated fiduciary, except to
8 protect it pending its delivery to the person entitled to it.
9 The account of the deceased or [incompetent] incapacitated
10 fiduciary may be filed by the fiduciary of his estate and it
11 shall be filed if the court shall so direct. The court may
12 direct the fiduciary of a deceased or [incompetent]
13 incapacitated fiduciary to make the distribution and to make the
14 transfers and assignments necessary to carry into effect a
15 decree of distribution.
16 § 3504. Representation of parties in interest.
17 Persons interested in the estate as beneficiary, heir, or
18 next of kin, if minors or otherwise legally [incompetent]
19 incapacitated, and possible unborn or unascertained persons,
20 when not already represented by a fiduciary, may be represented
21 in an accounting by a guardian or trustee ad litem, if the court
22 deems it necessary. The court may dispense with the appointment
23 of a guardian or trustee ad litem for a person legally
24 [incompetent] incapacitated, unborn, or unascertained, when
25 there is a living person sui juris having a similar interest or
26 when such person is or would be issue of a living ancestor sui
27 juris and interested in the estate whose interest is not adverse
28 to his. If the whereabouts of any beneficiary or next of kin is
29 unknown, or if there is doubt as to his existence the court
30 shall make such provision for service of notice and
19890H1380B3436 - 10 -
1 representation in the accounting as it deems proper.
2 § 4112. To foreign trustee, guardian or committee.
3 When a share of an estate administered in the Commonwealth is
4 distributable to a nonresident minor, a trustee subject to the
5 jurisdiction of a foreign court, or a nonresident [incompetent]
6 incapacitated person, the court may award it to the guardian or
7 committee of the nonresident appointed in the foreign
8 jurisdiction, or to such trustee: Provided, That the court shall
9 be satisfied, in all cases where an applicable will or trust
10 instrument does not direct distribution to the foreign guardian,
11 committee or trustee, that adequate security or other protection
12 has been provided in the domiciliary jurisdiction by the
13 domiciliary law for the protection of the persons beneficially
14 interested in the share so awarded.
15 § 4121. Award to foreign guardian when minor or [incompetent]
16 incapacitated person becomes a nonresident.
17 When the minor or [incompetent] incapacitated person for
18 whose estate a guardian has been appointed by the court is or
19 becomes a nonresident of the Commonwealth, the court, upon
20 satisfactory proof that it will be for the best interests of the
21 minor or [incompetent] incapacitated person and that no rights
22 of a resident of the Commonwealth will be adversely affected and
23 that removal of the property will not conflict with any
24 limitations upon the right of the minor or [incompetent]
25 incapacitated person to such property, may direct the locally
26 appointed guardian to transfer the assets of the minor or
27 [incompetent] incapacitated person within his control to a duly
28 qualified guardian or guardians in the jurisdiction where the
29 minor or [incompetent] incapacitated person resides.
30 § 5115. Appointment of guardian in conveyance.
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1 Any person, who makes a deed or gift inter vivos or exercises
2 a right under an insurance or annuity policy to designate the
3 beneficiary to receive the proceeds of such policy, may in such
4 deed or in the instrument creating such gift or designating such
5 beneficiary, appoint a guardian of the estate or interest of
6 each beneficiary named therein who shall be a minor or otherwise
7 [incompetent] incapacitated. Payment by an insurance company to
8 the guardian of such beneficiary so appointed shall discharge
9 the insurance company to the extent of such payment to the same
10 effect as payment to an otherwise duly appointed and qualified
11 guardian.
12 § 5144. Powers, duties and liabilities identical with personal
13 representatives.
14 The provisions concerning the powers, duties and liabilities
15 of a guardian appointed by the court shall be the same as those
16 set forth in the following provisions of this title for the
17 administration of a decedent's estate:
18 Section 3313 (relating to liability insurance).
19 Section 3314 (relating to continuation of business).
20 Section 3315 (relating to incorporation of estate's
21 business).
22 Section 3317 (relating to claims against co-fiduciary).
23 Section 3318 (relating to revival of judgments against
24 personal representative).
25 Section 3319 (relating to power of attorney; delegation
26 of power over subscription rights and fractional shares;
27 authorized delegations).
28 Section 3320 (relating to voting stock by proxy).
29 Section 3321 (relating to nominee registration; corporate
30 fiduciary as attorney-in-fact; deposit of securities in a
19890H1380B3436 - 12 -
1 clearing corporation; book-entry securities).
2 Section 3322 (relating to acceptance of deed in lieu of
3 foreclosure).
4 Section 3323 (relating to compromise of controversies).
5 Section 3324 (relating to death or [incompetency]
6 incapacity of fiduciary).
7 Section 3327 (relating to surviving or remaining personal
8 representatives).
9 Section 3328 (relating to disagreement of personal
10 representatives).
11 Section 3331 (relating to liability of personal
12 representatives on contracts).
13 Section 3332 (relating to inherent powers and duties).
14 CHAPTER 55
15 [INCOMPETENTS]
16 INCAPACITATED PERSONS
17 * * *
18 SUBCHAPTER A
19 [MEANING OF INCOMPETENT]
20 GENERAL PROVISIONS
21 * * *
22 § 5501. Meaning of [incompetent] incapacitated person.
23 ["Incompetent" means a person who, because of infirmities of
24 old age, mental illness, mental deficiency or retardation, drug
25 addiction or inebriety:
26 (1) is unable to manage his property, or is liable to
27 dissipate it or become the victim of designing persons; or
28 (2) lacks sufficient capacity to make or communicate
29 responsible decisions concerning his person.]
30 "Incapacitated person" means an adult whose ability to
19890H1380B3436 - 13 -
1 receive and evaluate information effectively and communicate
2 decisions in any way is impaired to such a significant extent
3 that he is partially or totally unable to manage his financial
4 resources or to meet essential requirements for his physical
5 health and safety.
6 Section 2. Title 20 is amended by adding a section to read:
7 § 5502. Purpose of chapter.
8 Recognizing that every individual has unique needs and
9 differing abilities, it is the purpose of this chapter to
10 promote the general welfare of all citizens by establishing a
11 system which permits incapacitated persons to participate as
12 fully as possible in all decisions which affect them; which
13 assists these persons in meeting the essential requirements for
14 their physical health and safety, protecting their rights,
15 managing their financial resources and developing or regaining
16 their abilities to the maximum extent possible; and which
17 accomplishes these objectives through the use of the least
18 restrictive alternative; and recognizing further that when
19 guardianship services are necessary, it is important to
20 facilitate the finding of suitable individuals or entities
21 willing to serve as guardians.
22 Section 3. Sections 5505, 5511 and 5512 of Title 20 are
23 amended to read:
24 § 5505. Provisions similar to small estates of minors.
25 The provisions concerning small estates of [incompetents]
26 incapacitated persons shall be the same as are set forth in the
27 following provisions of this title relating to minors' estates:
28 Section 5101 (relating to when guardian unnecessary).
29 Section 5102 (relating to power of natural guardian).
30 Section 5103 (relating to sequestered deposit).
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1 § 5511. Petition and hearing; [examination by court-appointed
2 physician] independent evaluation.
3 (a) Resident.--The court, upon petition [and a hearing at
4 which good cause is shown], hearing and clear and convincing
5 evidence, may find a person domiciled in the Commonwealth to be
6 [incompetent] incapacitated and appoint a guardian or guardians
7 of his person or estate. The petitioner may be any person
8 interested in the alleged [incompetent's] incapacitated person's
9 welfare. The court may dismiss a proceeding where it [finds as a
10 fact] determines that the proceeding has not been instituted to
11 aid or benefit the alleged [incompetent. Notice] incapacitated
12 person, or that the petition is incomplete or fails to provide
13 sufficient facts to proceed. Written notice of the petition and
14 hearing shall be given in large type and in simple language to
15 the alleged incapacitated person. The notice shall indicate the
16 purpose and seriousness of the proceeding and the rights that
17 can be lost as a result of the proceeding. It shall include the
18 date, time and place of the hearing and an explanation of all
19 rights, including the right to counsel and to an independent <--
20 evaluation, the right to have counsel and an independent <--
21 evaluation paid for if it cannot be afforded. The Supreme Court
22 shall establish a uniform citation for this purpose. A copy of
23 the petition shall be attached. Personal service shall be made
24 on the alleged incapacitated person and the contents and terms
25 of the petition shall be explained to the maximum extent
26 possible in language and terms the individual is most likely to
27 understand. Service shall be no less than 20 days in advance of
28 the hearing. In addition, notice of the petition and hearing
29 shall be given in such manner as the court shall direct [to the
30 alleged incompetent,] to all persons residing within the
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1 Commonwealth who are sui juris and would be entitled to share in
2 the estate of the alleged [incompetent] incapacitated person if
3 he died intestate at that time, to the person or institution
4 providing residential services to the alleged incapacitated
5 person and to such other parties as the court may direct,
6 including other service providers. The hearing may be closed to
7 the public and without a jury unless the alleged [incompetent]
8 incapacitated person or his counsel objects. The hearing shall
9 be closed and with or without a jury if the person alleged to
10 be [incompetent] incapacitated or his counsel so requests. The
11 hearing may be held at the residence of the alleged
12 incapacitated person. No presumption of incapacity shall be
13 raised from the alleged incapacitated person's
14 institutionalization. The alleged [incompetent] incapacitated
15 person shall be present at the hearing unless:
16 [(i)] (1) the court is satisfied, upon the
17 [presentation of positive testimony, that because of]
18 deposition or testimony of, or sworn statement by a physician
19 or licensed psychologist, that his physical or mental
20 condition [his welfare would not be promoted] would be harmed
21 by his presence[; or] and the court finds that an
22 alternative, such as conducting the hearing at the residence
23 of the incapacitated person would not alleviate the harm;
24 [(ii)] (2) it is impossible for him to be present
25 because of his absence from the Commonwealth. It shall not be
26 necessary for the alleged [incompetent] incapacitated person
27 to be represented by a guardian ad litem in the
28 proceeding[.]; or
29 (3) the alleged incapacitated person states through
30 counsel that he does not wish to attend.
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1 Petitioner shall be required to notify the court at least seven
2 days prior to the hearing if counsel has not been retained by or
3 on behalf of the alleged incapacitated person. Counsel, as
4 advocate, shall be appointed to represent the alleged
5 incapacitated person in any matter for which independent counsel
6 has not been retained by or on behalf of that individual. If the
7 alleged incapacitated person is unable to pay for counsel or if
8 payment would result in substantial financial hardship, the
9 court shall order the county to pay the cost of counsel. COSTS <--
10 OF SUCH COURT-APPOINTED COUNSEL SHALL BE REIMBURSED BY THE
11 COMMONWEALTH IN THE FOLLOWING FISCAL YEAR. The court may reduce
12 counsel fees where it finds that such fees were excessive.
13 (b) Nonresident.--The court may find a person not domiciled
14 in the Commonwealth, having property in the Commonwealth, to be
15 [incompetent] incapacitated and may appoint a guardian of his
16 estate. The appointment may be made after petition, hearing and
17 notice, as in the case of a person domiciled in the
18 Commonwealth, or upon the submission of an exemplified copy of a
19 decree establishing his [incompetency] incapacity in another
20 jurisdiction. The court shall give preference in its appointment
21 to the foreign guardian of the nonresident [incompetent]
22 incapacitated person, unless it finds that such appointment will
23 not be for the best interests of the [incompetent] incapacitated
24 person.
25 [(c) Court-appointed physician.--Upon the filing of a
26 petition the alleged incompetent may be examined by a physician
27 appointed by the court who shall submit his report in writing to
28 the court and to the parties before the hearing.]
29 (c) Role of counsel.--Counsel shall zealously advocate the <--
30 course of action chosen by the client. When the client does not
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1 oppose the appointment of a guardian, the attorney's role as
2 advocate is to assure that evidence is presented to enable the
3 court to appropriately limit areas of incapacity and to examine
4 the appropriateness of the nominated guardian.
5 (d) Independent evaluation.--The court, upon its own motion
6 or upon petition by the alleged incapacitated person for cause
7 shown, shall order an independent evaluation which shall meet
8 the requirements of section 5518 (relating to evidence of
9 incapacity). The court shall give due consideration to the
10 appointment of an evaluator nominated by the alleged
11 incapacitated person. If the alleged incapacitated person is
12 unable to pay for the independent evaluation or if payment would
13 result in substantial financial hardship, the court shall assign <--
14 costs to the county, or if the person is in a Commonwealth
15 facility, to the Commonwealth. COSTS OF THE INDEPENDENT <--
16 EVALUATION SHALL BE PAID BY THE COURT AND BE REIMBURSED BY THE
17 COMMONWEALTH IN THE FOLLOWING FISCAL YEAR.
18 (e) Petition contents.--The court shall develop an easy to
19 use form for guardianship petitions. The petition shall include
20 the name, age, residence and post office address of the alleged
21 incapacitated person; the names and addresses of the spouse,
22 parents and presumptive adult heirs of the alleged incapacitated
23 person; the name and address of the person or institution
24 providing residential services to the alleged incapacitated
25 person; the names and addresses of other service providers; the
26 name and address of the person or entity whom petitioner asks to
27 be appointed guardian; the proposed guardian's averment that
28 there is no interest adverse to the alleged incapacitated
29 person; the reasons why guardianship is sought; a description of
30 the functional limitations and physical and mental condition of
19890H1380B3436 - 18 -
1 the alleged incapacitated person; the steps taken to find less
2 restrictive alternatives; the specific areas of incapacity over
3 which it is requested that the guardian be assigned powers; and
4 the qualifications of the proposed guardian. If a limited or
5 plenary guardian of the estate is sought, the petition shall
6 also include the gross value of the estate and net income from
7 all sources to the extent known.
8 § 5512. County of appointment.
9 (a) Resident [incompetent] incapacitated person.--A guardian
10 of the person or estate of an [incompetent] incapacitated person
11 may be appointed by the court of the county in which the
12 [incompetent] incapacitated person is domiciled, is a resident,
13 or is residing in a long-term care facility.
14 (b) Nonresident [incompetent] incapacitated person.--A
15 guardian of the estate within the Commonwealth of an
16 [incompetent] incapacitated person domiciled outside of the
17 Commonwealth may be appointed by the court of the judicial
18 district having jurisdiction of a decedent's estate or of a
19 trust in which the [incompetent] incapacitated person has an
20 interest. When the nonresident [incompetent's] incapacitated
21 person's estate is derived otherwise than from a decedent's
22 estate or a trust within the Commonwealth, a guardian may be
23 appointed by the court of any county where an asset of the
24 [incompetent] incapacitated person is located.
25 (c) Exclusiveness of appointment.--When a court has
26 appointed a guardian of [an incompetent's] the person or estate
27 of an incapacitated person pursuant to subsection (a) or (b) [of
28 this section], no other court shall appoint a similar guardian
29 for the [incompetent] incapacitated person within the
30 Commonwealth.
19890H1380B3436 - 19 -
1 Section 4. Title 20 is amended by adding sections to read:
2 § 5512.1. Determination of incapacity and appointment of
3 guardian.
4 (a) Determination of incapacity.--In response to a petition
5 for the appointment of a guardian of the person or estate, the
6 court shall consider and make specific findings of fact
7 concerning:
8 (1) The nature of any condition or disability which
9 impairs the individual's capacity to make and communicate
10 decisions.
11 (2) The extent of the individual's capacity to make and
12 communicate decisions.
13 (3) The need for guardianship services, if any, in light
14 of such factors as the availability of family, friends and
15 other supports to assist the individual in making decisions;
16 and in light of the existence, if any, of advance directives
17 such as durable powers of attorney or trusts.
18 (4) The type of guardian, limited or plenary, of the
19 person or estate, needed based on the nature of any condition
20 or disability and the capacity to make and communicate
21 decisions; the court shall prefer limited guardianship.
22 (5) The duration of the guardianship.
23 (b) Limited guardian of the person.--Upon a finding that the
24 person is partially incapacitated and in need of guardianship
25 services, the court shall enter an order appointing a limited
26 guardian of the person with powers consistent with the court's
27 findings of limitations, which may include:
28 (1) General care, maintenance and custody of the
29 incapacitated person.
30 (2) Designating the place for the incapacitated person
19890H1380B3436 - 20 -
1 to live, except as provided in section 5521(c)(4) (relating
2 to provisions concerning powers, duties and liabilities).
3 (3) Assuring that the incapacitated person receives such
4 training, education, medical and psychological services and
5 social and vocational opportunities, as appropriate, as well
6 as assisting the incapacitated person in the development of
7 maximum self-reliance and independence.
8 (4) Providing required consents or approvals on behalf
9 of the incapacitated person.
10 (c) Plenary guardian of the person.--The court may appoint a
11 plenary guardian of the person only upon a finding that the
12 person is totally incapacitated and in need of plenary
13 guardianship services.
14 (d) Limited guardian of the estate.--Upon a finding that the
15 person is partially incapacitated and in need of guardianship
16 services, the court shall enter an order appointing a limited
17 guardian of the estate with powers consistent with the courts
18 finding of limitations, which shall specify the portion of
19 assets or income over which the guardian of the estate is
20 assigned powers and duties.
21 (e) Plenary guardian of the estate.--A court may appoint a
22 plenary guardian of the estate only upon a finding that the
23 person is totally incapacitated and in need of plenary
24 guardianship services.
25 (f) Legal rights retained.--Except in those areas designated
26 by court order as areas over which the limited guardian has
27 power, a partially incapacitated person shall retain all legal
28 rights.
29 (g) Information as to rights.--At the conclusion of a
30 proceeding in which the person has been adjudicated
19890H1380B3436 - 21 -
1 incapacitated, the court shall assure that the person is
2 informed of his right to appeal and to petition to modify or
3 terminate the guardianship.
4 § 5512.2. Review hearing.
5 (a) Time of hearing.--The court may set a date for a review
6 hearing in its order establishing the guardianship, or hold a
7 review hearing at any time it shall direct. The court shall
8 conduct a review hearing promptly if:
9 (1) the incapacitated person or any interested party
10 petitions the court for a hearing for reason of a significant
11 change in the person's capacity, a change in the need for
12 guardianship services, or the guardian's failure to perform
13 his duties in accordance with the law or to act in the best
14 interest of the incapacitated person; or
15 (2) the guardian petitions the court for a hearing
16 because of a significant change in the person's capacity, or
17 change in the need for guardianship services.
18 The court may dismiss a petition for review hearing if it
19 determines that the petition is frivolous. A petition from the
20 incapacitated person may be made by informal written
21 communication.
22 (b) Burden of proof and rights.--The incapacitated person
23 shall have all of the rights enumerated in this chapter. Except
24 when the hearing is held to appoint a successor guardian, the
25 burden of proof shall be on the party advocating continuation of
26 guardianship or expansion of areas of incapacity.
27 (c) Court determination.--If the court determines that a
28 person is no longer an incapacitated person or is no longer in
29 need of guardianship, the court shall terminate the
30 guardianship. If the court finds that the guardian has failed to
19890H1380B3436 - 22 -
1 perform his duties and obligations in accordance with law, or a
2 guardian has failed to act in the best interest of the
3 incapacitated person, the court may remove a guardian and
4 appoint a successor. If the court determines that the
5 incapacitated person has regained or lost capacity in certain
6 areas, the court may modify the duties of the guardian.
7 § 5512.3. Reports.
8 (a) Time and content.--The court order shall specify the
9 date for an initial report from the guardian. This date shall be
10 no later than six months after the date of the order
11 establishing the guardianship. The court shall require reports
12 at least every 12 months thereafter. The court shall require the <--
13 filing of a final report within 60 days of the death or
14 restoration to capacity of the incapacitated person. The court
15 shall review the reports or ensure their review. The report
16 shall include the following:
17 (1) The name and addresses of the incapacitated person
18 and the guardian.
19 (2) A description of significant actions, if any, taken
20 for the incapacitated person by the guardian during the
21 reporting period.
22 (3) A description of the extent of contact, if any, with <--
23 the incapacitated person during the reporting period.
24 (4) An explanation of significant problems, if any,
25 relating to the guardianship which have arisen during the
26 reporting period.
27 (5) (3) The opinion of the guardian as to whether the <--
28 guardianship should continue or be terminated or modified,
29 and the reasons therefor.
30 (6) (4) A statement of any compensation requested and <--
19890H1380B3436 - 23 -
1 expenses incurred by the guardian.
2 THE COURT SHALL REQUIRE THE FILING OF A FINAL REPORT WITHIN 60 <--
3 DAYS OF THE DEATH OR RESTORATION TO CAPACITY OF THE
4 INCAPACITATED PERSON.
5 (b) Personal incapacity.--When the order includes areas of
6 personal incapacity, the report shall also include the
7 following:
8 (1) A description of significant changes, if any, in the
9 capacity of the incapacitated person to make and communicate
10 responsible decisions about his person. <--
11 (2) A brief description of the incapacitated person's
12 living arrangements and the social, medical, psychological
13 and other support services he is receiving.
14 (3) A description of the supportive services obtained
15 and how they meet the needs as set forth in section 5521
16 (relating to provisions concerning powers, duties and
17 liabilities).
18 (c) Financial incapacity.--When the order includes areas of
19 financial incapacity, the report shall also include a financial
20 statement of resources under the control of the guardian and an
21 accounting of receipts and disbursements since the last report.
22 § 5512.4. ANNUAL REPORT. <--
23 THE COURT SHALL ANNUALLY FILE WITH THE SUPREME COURT
24 ADMINISTRATORS OFFICE ON FORMS FURNISHED BY THE OFFICE A
25 STATISTICAL AND DESCRIPTIVE REPORT TO ASSIST IN EVALUATING THE
26 OPERATION AND COSTS OF THE GUARDIANSHIP SYSTEM.
27 Section 5. Sections 5513, 5514, 5515, 5516, 5517 and 5518 of
28 Title 20 are amended to read:
29 § 5513. [Temporary] Emergency guardian.
30 Notwithstanding the provisions of section 5511 (relating to
19890H1380B3436 - 24 -
1 petition and hearing; independent evaluation), the court, upon
2 petition and a hearing at which [good cause] clear and
3 convincing evidence is shown, may appoint [a temporary] an
4 emergency guardian or guardians of the person or estate of a
5 person alleged to be [incompetent] incapacitated, when it
6 appears that the person lacks capacity, is in need of a
7 guardian, and a failure to make such appointment will result in
8 irreparable harm to the person or estate of the alleged
9 [incompetent] incapacitated person. The provisions of section
10 5511, including those relating to counsel, shall be applicable
11 to such proceedings, except [that only such notice of the
12 petition and hearing shall be required as shall appear to the
13 court to be] when the court has found that it is not feasible in
14 the circumstances[, and need not be given at such times or to
15 such persons as would be required by the provisions of section
16 5511 in a proceeding for the appointment of a guardian. A
17 temporary]. An emergency guardian so appointed for the person or
18 estate of an alleged [incompetent] incapacitated person shall
19 only have and be subject to such powers, duties and liabilities
20 and serve for such time as the court shall direct in its decree.
21 An emergency order may be in effect for up to 72 hours. After 72
22 hours, a full guardianship proceeding must be initiated pursuant
23 to section 5511. If the emergency continues, then the emergency
24 order may be extended for no more than 20 days from the
25 expiration of the initial emergency order.
26 § 5514. To fill vacancy; co-guardian.
27 The court, after such notice to parties in interest as it
28 shall direct, may without a hearing appoint a succeeding
29 guardian to fill a vacancy in the office of guardian or may
30 appoint a co-guardian of the estate of [a person found to be
19890H1380B3436 - 25 -
1 incompetent without a hearing.] an incapacitated person. Where
2 the vacating guardian was a parent who is now deceased, any
3 testamentary nominee of the parent shall be given preference by
4 the court.
5 § 5515. Provisions similar to other estates.
6 The provisions relating to a guardian of an [incompetent]
7 incapacitated person and his surety shall be the same as are set
8 forth in the following provisions of this title relating to a
9 personal representative or a guardian of a minor and their
10 sureties:
11 Section 3182 (relating to grounds for removal).
12 Section 3183 (relating to procedure for and effect of
13 removal).
14 Section 3184 (relating to discharge of personal
15 representative and surety).
16 Section 5115 (relating to appointment of guardian in
17 conveyance).
18 Section 5121 (relating to necessity, form and amount).
19 Section 5122 (relating to when bond not required).
20 Section 5123 (relating to requiring or changing amount of
21 bond).
22 § 5516. Fiduciary estate.
23 The court, in its discretion, upon the application of any
24 party in interest, in addition to any bond required for the
25 [incompetent's] incapacitated person's individual estate, may
26 require a separate bond in the name of the Commonwealth, with
27 sufficient surety, in such amount as the court shall consider
28 necessary for the protection of the parties in interest in an
29 estate of which the [incompetent is] incapacitated person is
30 serving in the capacity as a fiduciary and conditioned in the
19890H1380B3436 - 26 -
1 following form:
2 (1) When one guardian.--The condition of this obligation
3 is that, if the said guardian shall well and truly account
4 for property held by the [incompetent] incapacitated person
5 as fiduciary according to law, this obligation shall be void;
6 but otherwise it shall remain in force.
7 (2) When two or more guardians.--The condition of this
8 obligation is that, if the said guardians or any of them
9 shall well and truly account for property held by the
10 [incompetent] incapacitated person as fiduciary according to
11 law, this obligation shall be void as to the guardian or
12 guardians who shall so account; but otherwise it shall remain
13 in force.
14 § 5517. [Adjudication of competency] Appointment.
15 [The court, upon petition and after such notice as it shall
16 direct, may find, after a hearing at which good cause is shown,
17 that a person previously adjudged incompetent has become
18 competent.] Any qualified individual or corporate fiduciary,
19 nonprofit corporation, COUNTY AGENCY or the guardian office at a <--
20 State facility may be appointed guardian of an incapacitated
21 person. The court shall not appoint a person or entity providing
22 residential services FOR A FEE to the incapacitated person or <--
23 any other person whose interests conflict with those of the
24 incapacitated person except where it is clearly demonstrated
25 that there is no alternative. If appropriate, the court shall
26 give preference to a nominee of the incapacitated person.
27 § 5518. Evidence of [mental condition] incapacity.
28 [In any hearing relating to the mental condition of a person
29 whose competency is in question, the deposition of, or sworn
30 statement by, a superintendent, manager, physician or
19890H1380B3436 - 27 -
1 psychiatrist of any State-owned mental hospital or veterans'
2 administration hospital or a physician or psychiatrist at any
3 hospital or institution shall be admissible in evidence as to
4 the condition of an inmate of such hospital in lieu of his
5 appearance and testimony, unless by special order, the court
6 directs his appearance and testimony in person.] To establish
7 incapacity, petitioner must present testimony by individuals
8 qualified by training and experience in evaluating individuals
9 with incapacities of the type alleged by petitioner, which
10 establishes the nature and extent of incapacities and
11 disabilities found; the person's mental, emotional and physical
12 condition, adaptive behavior and social skills; the services
13 being utilized to meet essential requirements for physical
14 health and safety or manage financial resources or to develop or
15 regain abilities; an opinion regarding the types of assistance
16 required by the person and why no less restrictive alternatives
17 would be appropriate; an opinion regarding the probability that
18 the extent of the alleged incapacitated person's incapacities
19 may significantly lessen or change.
20 Section 6. Title 20 is amended by adding a section to read:
21 § 5518.1. Cross-examination of witnesses.
22 In any hearing to establish a guardianship, witnesses
23 testifying to the capacity of the alleged incapacitated person
24 or testifying for purposes of section 5511(a)(1) (relating to <--
25 petition and hearing; independent evaluation) to the physical or
26 mental condition of the person shall be subject to cross-
27 examination by counsel for the alleged incapacitated person.
28 Section 7. Sections 5521, 5522, 5524, 5525, 5533, 5534,
29 5535, 5536 and 5537 of Title 20 are amended to read:
30 § 5521. Provisions concerning powers, duties and liabilities.
19890H1380B3436 - 28 -
1 (a) Duty of guardian of the person.--It shall be the duty of
2 the guardian of the person to assert the rights and best
3 interests of the incapacitated person. Expressed wishes and
4 preferences of the incapacitated person shall be respected to
5 the greatest possible extent. Where appropriate, the guardian
6 shall assure and participate in the development of a plan of
7 supportive services to meet the person's needs which explains
8 how services will be obtained. The guardian shall also encourage
9 the incapacitated person to participate to the maximum extent of
10 his abilities in all decisions which affect him, to act on his
11 own behalf whenever he is able to do so, and to develop or
12 regain, to the maximum extent possible, his capacity to manage
13 his personal affairs.
14 (b) Duty of guardian of the estate.--The provisions
15 concerning the powers, duties and liabilities of guardians of
16 [incompetents'] incapacitated persons' estates shall be the same
17 as those set forth in the following provisions of this title
18 relating to personal representatives of decedents' estates and
19 guardians of minors' estates:
20 Section 3313 (relating to liability insurance).
21 Section 3314 (relating to continuation of business).
22 Section 3315 (relating to incorporation of estate's
23 business).
24 Section 3317 (relating to claims against co-fiduciary).
25 Section 3318 (relating to revival of judgments against
26 personal representative).
27 Section 3319 (relating to power of attorney; delegation
28 of power over subscription rights and fractional shares;
29 authorized delegations).
30 Section 3320 (relating to voting stock by proxy).
19890H1380B3436 - 29 -
1 Section 3321 (relating to nominee registration; corporate
2 fiduciary as attorney-in-fact; deposit of securities in a
3 clearing corporation; book-entry securities).
4 Section 3322 (relating to acceptance of deed in lieu of
5 foreclosure).
6 Section 3323 (relating to compromise of controversies).
7 Section 3324 (relating to death or [incompetency]
8 incapacity of fiduciary).
9 Section 3327 (relating to surviving or remaining personal
10 representatives).
11 Section 3328 (relating to disagreement of personal
12 representatives).
13 Section 3331 (relating to liability of personal
14 representative on contracts).
15 Section 3332 (relating to inherent powers and duties).
16 Section 3355 (relating to restraint of sale).
17 Section 3356 (relating to purchase by personal
18 representative).
19 Section 3359 (relating to record of proceedings; county
20 where real estate lies).
21 Section 3360 (relating to contracts, inadequacy of
22 consideration or better offer; brokers' commissions).
23 Section 3372 (relating to substitution of personal
24 representative in pending action or proceedings).
25 Section 3374 (relating to death or removal of fiduciary).
26 Section 3390 (relating to specific performance of
27 contracts).
28 Section 5141 (relating to possession of real and personal
29 property).
30 Section 5142 (relating to inventory).
19890H1380B3436 - 30 -
1 Section 5143 (relating to abandonment of property).
2 Section 5145 (relating to investments).
3 Section 5146 (relating to guardian named in conveyance).
4 Section 5147 (relating to proceedings against guardian).
5 Section 5151 (relating to power to sell personal
6 property).
7 Section 5154 (relating to title of purchaser).
8 Section 5155 (relating to order of court).
9 (c) Powers and duties only granted by court.--Unless
10 empowered by the guardianship order after specific findings of
11 fact or otherwise ordered after a subsequent hearing with
12 specific findings of fact and with the incapacitated person
13 represented by counsel, a guardian or emergency guardian shall
14 not have the power and duty to:
15 (1) Consent on behalf of the incapacitated person to an
16 abortion, sterilization, psychosurgery, electroconvulsive
17 therapy or removal of a health body organ.
18 (2) Prohibit the marriage or consent to the divorce of
19 the incapacitated person.
20 (3) Consent on behalf of the incapacitated person to the
21 performance of any experimental biomedical or behavioral
22 medical procedure or participation in any biomedical or
23 behavioral experiment.
24 (4) Consent on behalf of the incapacitated person to
25 placement in a nursing home.
26 (d) Knowledge of Objection.--In a hearing to determine
27 whether a guardian shall be ordered to consent to a specific act
28 or omission, if the guardian knows or has reason to know of the
29 incapacitated person's objection to the action or omission,
30 whether such objection had been expressed prior or subsequent to
19890H1380B3436 - 31 -
1 the determination of incapacity, the guardian shall report to
2 the court such knowledge or information.
3 (e) Powers and duties not granted to guardian.--The court
4 may not grant to a guardian powers controlled by other statute
5 including, but not limited to, the power:
6 (1) To admit the incapacitated person to an inpatient
7 psychiatric facility or State center for the mentally
8 retarded.
9 (2) To consent, on behalf of the incapacitated person,
10 to the relinquishment of the person's parental rights.
11 (F) CRIMINAL AND CIVIL IMMUNITY.--IN THE ABSENCE OF GROSS <--
12 NEGLIGENCE, RECKLESSNESS OR INTENTIONAL MISCONDUCT, A UNIT OF
13 LOCAL GOVERNMENT OR NONPROFIT CORPORATION APPOINTED AS A
14 GUARDIAN SHALL NOT BE CRIMINALLY LIABLE OR CIVILLY LIABLE FOR
15 DAMAGES FOR PERFORMING DUTIES AS A GUARDIAN OF THE PERSON, AS
16 AUTHORIZED PURSUANT TO THIS TITLE.
17 § 5522. Power to lease.
18 A guardian may lease any real or personal property of the
19 [incompetent] incapacitated person for a term not exceeding five
20 years after its execution.
21 § 5524. Effect of determination of [incompetency] incapacity.
22 [An incompetent] A partially incapacitated person shall be
23 incapable of making any contract or gift or any instrument in
24 writing [after he is adjudged incompetent and before he is
25 adjudged to have regained his competency] in those specific
26 areas in which the person has been found to be incapacitated. A
27 totally incapacitated person shall be incapable of making any
28 contract or gift or any instrument in writing. This section
29 shall not impair the interest in real estate acquired by a bona
30 fide grantee of, or a bona fide holder of a lien on, real estate
19890H1380B3436 - 32 -
1 in a county other than that in which the decree establishing the
2 [incompetency] incapacity is entered, unless the decree or a
3 duplicate original or certified copy thereof is recorded in the
4 office of the recorder of deeds in the county in which the real
5 estate lies before the recording or entering of the instrument
6 or lien under which the grantee or lienholder claims.
7 § 5525. Notice to Commonwealth and political subdivisions.
8 When the Commonwealth or a political subdivision thereof has
9 a claim for maintaining an [incompetent] incapacitated person in
10 an institution, the guardian within three months of his
11 appointment, shall give notice thereof to the Department of
12 [Revenue] Public Welfare or the proper officer of such political
13 subdivision, as the case may be.
14 § 5533. Notice, audits, reviews and distribution.
15 The provisions concerning accounts, audits, reviews,
16 distribution and rights of distributees in an [incompetent's]
17 incapacitated person's estate shall be the same as those set
18 forth in the following provisions of this title for the
19 administration of a decedent's or minor's estate:
20 Section 3503 (relating to notice to parties in interest).
21 Section 3504 (relating to representation of parties in
22 interest).
23 Section 3511 (relating to audits in counties having
24 separate orphans' court division).
25 Section 3512 (relating to audits in counties having no
26 separate orphans' court division).
27 Section 3513 (relating to statement of proposed
28 distribution).
29 Section 3514 (relating to confirmation of account and
30 approval of proposed distribution).
19890H1380B3436 - 33 -
1 Section 3521 (relating to rehearing; relief granted).
2 Section 3532(c) (relating to record of risk
3 distributions).
4 Section 3533 (relating to award upon final confirmation
5 of account).
6 Section 3534 (relating to distribution in kind).
7 Section 3536 (relating to recording and registering
8 decrees awarding real estate).
9 Section 3544 (relating to liability of personal
10 representative for interest).
11 Section 3545 (relating to transcripts of balances due by
12 personal representative).
13 Section 5167 (relating to failure to present claim at
14 audit).
15 § 5534. Recognition of claims.
16 Upon the audit of the account of the guardian of a person who
17 has died during [incompetency] incapacity, the auditing judge or
18 auditor passing on the account shall not pass upon any claims
19 against the estate of the [incompetent] incapacitated person
20 other than necessary administration expenses, including
21 compensation of the guardian and his attorney. All claims
22 remaining unpaid at the [incompetent's] incapacitated person's
23 death shall be presented to the personal representative.
24 § 5535. Disposition of trust income.
25 Except as otherwise provided by the trust instrument, the
26 trustee of an inter vivos or testamentary trust, with the
27 approval of the court having jurisdiction of the trust, may pay
28 income distributable to [an incompetent beneficiary] a
29 beneficiary who is an incapacitated person for whose estate no
30 guardian has been appointed directly to the [incompetent]
19890H1380B3436 - 34 -
1 incapacitated person, or expend and apply it for his care and
2 maintenance or the care, maintenance and education of his
3 dependents.
4 § 5536. Distributions of income and principal during
5 [incompetency] incapacity.
6 (a) In general.--All income received by a guardian of the
7 estate of an [incompetent] in incapacitated person, including
8 (subject to the requirements of Federal law relating thereto)
9 all funds received from the Veterans' Administration, Social
10 Security Administration and other periodic retirement or
11 disability payments under private or governmental plans, in the
12 exercise of a reasonable discretion, may be expended in the care
13 and maintenance of the [incompetent] incapacitated person,
14 without the necessity of court approval. The court, for cause
15 shown and with only such notice as it considers appropriate in
16 the circumstances, may authorize or direct the payment or
17 application of any or all of the income or principal of the
18 estate of an [incompetent] incapacitated person for the care,
19 maintenance or education of the [incompetent] incapacitated
20 person, his spouse, children or those for whom he was making
21 such provision before his [incompetency] incapacity, or for the
22 reasonable funeral expenses of the [incompetent's] incapacitated
23 person's spouse, child or indigent parent. In proper cases, the
24 court may order payment of amounts directly to the [incompetent]
25 incapacitated for his maintenance or for incidental expenses and
26 may ratify payments made for these purposes.
27 (b) Estate plan.--The court, upon petition and with notice
28 to all parties in interest, shall have the power to substitute
29 its judgment for that of the [incompetent] incapacitated person
30 with respect to the estate and affairs of the [incompetent]
19890H1380B3436 - 35 -
1 incapacitated person for the benefit of the [incompetent]
2 incapacitated person, his family, members of his household, his
3 friends and charities in which he was interested. This power
4 shall include, but is not limited to, the power to:
5 (1) Make gifts, outright or in trust.
6 (2) Convey, release or disclaim his contingent and
7 expectant interests in property, including marital property
8 rights and any right of survivorship incident to joint
9 tenancy or tenancy by the entirety.
10 (3) Release or disclaim his powers as trustee, personal
11 representative, custodian for minors, or guardian.
12 (4) Exercise, release or disclaim his powers as donee of
13 a power of appointment.
14 (5) Enter into contracts.
15 (6) Create for the benefit of the [incompetent]
16 incapacitated person or others, revocable or irrevocable
17 trusts of his property which may extend beyond his disability
18 or life.
19 (7) Exercise options of the [incompetent] incapacitated
20 person to purchase or exchange securities or other property.
21 (8) Exercise his rights to elect options and change
22 beneficiaries under insurance and annuity policies or
23 surrender the policies for their cash value.
24 (9) Exercise his right to claim or disclaim an elective
25 share in the estate of his deceased spouse and renounce any
26 interest by testate or intestate succession or by inter vivos
27 transfer.
28 (10) Change the [incompetent's] incapacitated person's
29 residence or domicile.
30 In the exercise of its judgment for that of the [incompetent]
19890H1380B3436 - 36 -
1 incapacitated person, the court first being satisfied that
2 assets exist which are not required for the maintenance, support
3 and well-being of the [incompetent] incapacitated person, may
4 adopt a plan of gifts which results in minimizing current or
5 prospective income, estate or inheritance taxes, or which
6 carries out a lifetime giving pattern. The court in exercising
7 its judgment may consider the testamentary and inter vivos
8 intentions of the [incompetent] incapacitated person insofar as
9 they can be ascertained.
10 § 5537. Reserve for funeral.
11 (a) In general.--The court may authorize the guardian to
12 retain such assets [not exceeding $1,200 in value] as are deemed
13 appropriate for the anticipated expense of the [incompetent's]
14 incapacitated person's funeral, including the cost of a burial
15 lot or other resting place, which shall be exempt from all
16 claims including claims of the Commonwealth. The court with
17 notice thereof to the institution or person having custody of
18 the [incompetent] incapacitated person may also authorize the
19 guardian or another person to set aside such assets in the form
20 of a savings account in a financial institution which account
21 shall not be subject to escheat during the lifetime of the
22 [incompetent] incapacitated person. Such assets may be disbursed
23 by the guardian or person who set aside such assets or by the
24 financial institution for such funeral expenses without further
25 authorization or accounting. Any part of such assets not so
26 disbursed shall constitute a part of the deceased
27 [incompetent's] incapacitated person's estate. Should the
28 [incompetent become competent] incapacitated person become
29 capacitated or should such assets become excessive, the court,
30 upon petition of any party in interest, may make such order as
19890H1380B3436 - 37 -
1 the circumstances shall require.
2 (b) Definition.--As used in this section "financial
3 institution" includes a bank, a bank and trust company, a trust
4 company, a savings and loan association, a building and loan
5 association, a savings bank, a private bank and a national bank.
6 Section 8. Chapter 55 of Title 20 is amended by adding a
7 subchapter to read:
8 SUBCHAPTER F
9 GUARDIANSHIP SUPPORT
10 Sec.
11 5551. Guardianship support services required DEMONSTRATION <--
12 PROJECT.
13 5552. Services to individuals whose decision-making ability
14 is impaired.
15 5553. Guardianship services.
16 5554. Services to courts, guardians and others.
17 5555. Costs and compensation.
18 § 5551. Guardianship support services required. <--
19 Each county shall use funds appropriated pursuant to this
20 subchapter to contract with one or more nonprofit, private
21 agencies to provide guardianship support services for residents
22 of the county whose decision-making ability is impaired.
23 § 5551. GUARDIANSHIP SUPPORT DEMONSTRATION PROJECT. <--
24 THE DEPARTMENT OF AGING AND THE DEPARTMENT OF PUBLIC WELFARE
25 SHALL JOINTLY INSTITUTE A GUARDIANSHIP SUPPORT DEMONSTRATION
26 PROJECT TO ASSESS THE NEED FOR GUARDIANSHIP SUPPORT SERVICES.
27 THE OBJECTIVE OF THE DEMONSTRATION PROJECT SHALL BE TO TEST
28 PRIVATE AND PUBLIC SERVICE DELIVERY MODELS AND TO EXPLORE
29 FUNDING OPTIONS, INCLUDING REVENUES GENERATED FROM FEES. THE
30 PROVISIONS OF THE REMAINING SECTIONS OF THIS SUBCHAPTER SHALL
19890H1380B3436 - 38 -
1 BECOME OPERATIVE WHEN THE GUARDIANSHIP DEMONSTRATION PROJECT HAS
2 BEEN COMPLETED AND THE DEPARTMENT OF AGING AND THE DEPARTMENT OF
3 PUBLIC WELFARE, ACTING JOINTLY, CAUSE A NOTICE TO BE PUBLISHED
4 IN THE PENNSYLVANIA BULLETIN AUTHORIZING THE ESTABLISHMENT OF
5 GUARDIANSHIP SUPPORT AGENCIES. THEREAFTER, EACH COUNTY MAY
6 CONTRACT WITH ONE OR MORE PRIVATE OR PUBLIC AGENCIES TO PROVIDE
7 GUARDIANSHIP SUPPORT SERVICES FOR RESIDENTS OF THE COUNTY WHOSE
8 DECISIONMAKING ABILITY IS IMPAIRED, AS PROVIDED IN THIS
9 SUBCHAPTER.
10 § 5552. Services to individuals whose decision-making ability
11 is impaired.
12 Guardianship support agencies shall make available a full <--
13 range of services to support and encourage individuals in making
14 and carrying out their own decisions to the maximum extent of
15 their ability and to reduce or eliminate the need for
16 GUARDIANSHIP SUPPORT DEMONSTRATION PROJECTS SHALL INCLUDE <--
17 guardianship services under this act. Such services shall
18 include, but not be limited, to:
19 (1) Assistance to individuals in decision making,
20 including financial management training.
21 (2) Assistance to individuals in securing and
22 maintaining benefits and services.
23 (3) Recruiting, training and maintaining a group of
24 individuals to serve as representative payees or similar
25 fiduciaries established by benefit-issuing agencies,
26 attorneys-in-fact pursuant to a power of attorney, and
27 trustees.
28 § 5553. Guardianship services.
29 (a) In general.--The guardianship support agency shall be
30 available to serve as guardian of the estate or of the person,
19890H1380B3436 - 39 -
1 or both, of an incapacitated person when no less restrictive
2 alternative will meet the needs of the individual and when no
3 other person is willing and qualified to become guardian. The
4 agency itself may be appointed guardian and no individual need
5 be specified by the court. If appointed, the guardianship
6 support agency shall have all of the powers and duties of a
7 corporate fiduciary and shall not be required to post bond.
8 (b) Powers and duties.--The guardianship support agency
9 shall be treated the same as all other guardians in regard to
10 appointment as guardian or successor or co-guardian, reporting,
11 powers and duties, compensation, and in all other respects. In
12 addition to section 5521 (relating to provisions concerning
13 powers, duties, and liabilities) a guardianship support agency
14 shall have the power and duty to:
15 (1) Invest the principal and income of incapacitated
16 persons for whom it is the guardian of the estate. For this
17 purpose, it may pool the principal and income but shall
18 maintain an individual account for each incapacitated person
19 reflecting the person's participation therein.
20 (2) Expend and, if necessary, advance costs necessary to
21 administer guardianships for which it has been appointed
22 guardian.
23 (3) Apply for letters or otherwise administer the estate
24 of any incapacitated person for whom it has been appointed
25 guardian who dies during the guardianship when no one else is
26 willing and qualified to serve.
27 § 5554. Services to courts, guardians and others.
28 (a) Services to courts.--Guardianship support agencies may
29 be available to assist courts on request with reviewing
30 petitions for appointment of a guardian, recommending
19890H1380B3436 - 40 -
1 alternatives to guardianship, investigating petitions,
2 explaining petitions to respondents or reviewing reports and
3 monitoring guardianship arrangements.
4 (b) Services to guardians.--Guardianship support agencies
5 may be available to assist guardians in filing reports,
6 monitoring incapacitated persons and otherwise fulfilling their
7 duties.
8 (c) Services to petitioners and others.--Guardianship
9 support agencies may be available to assist in the filing of
10 petitions for guardianship, to provide information on available
11 alternatives to potential petitioners, to locate and train
12 individuals skilled in providing functional evaluations of
13 alleged incapacitated persons and to perform such other duties
14 as required.
15 § 5555. Costs and compensation.
16 (a) Charges.--Recipients of service shall be charged for
17 services based on their ability to pay.
18 (b) Nonsupplantation.--Commonwealth funding shall not be
19 used to supplant any existing efforts. Guardianship support
20 agencies shall make every effort to minimize costs, including
21 minimizing personnel costs through the use of volunteers.
22 Section 9. Sections 5603(d) and (e), 5604(c), 6202, 7133,
23 7184, 8301 and 8411 of Title 20 are amended to read:
24 § 5603. Implementation of power of attorney.
25 * * *
26 (d) Power to claim an elective share.--A power "to claim an
27 elective share of the estate of my deceased spouse" shall mean
28 that the attorney-in-fact may elect to take against the will and
29 conveyances of the principal's deceased spouse, disclaim any
30 interest in property which the principal is required to disclaim
19890H1380B3436 - 41 -
1 as a result of such election, retain any property which the
2 principal has the right to elect to retain, file petitions
3 pertaining to the election, including petitions to extend the
4 time for electing and petitions for orders, decrees and
5 judgments in accordance with section 2211(c) and (d) (relating
6 to determination of effect of election; enforcement), and take
7 all other actions which the attorney-in-fact deems appropriate
8 in order to effectuate the election: Provided, however, That the
9 election shall be made only upon the approval of the court
10 having jurisdiction of the principal's estate in accordance with
11 section 2206 (relating to right of election personal to
12 surviving spouse) in the case of a principal who has been
13 adjudicated an [incompetent] incapacitated person, or upon the
14 approval of the court having jurisdiction of the deceased
15 spouse's estate in the case of a principal who has not been
16 adjudicated an [incompetent] incapacitated person.
17 (e) Power to disclaim any interest in property.--A power "to
18 disclaim any interest in property" shall mean that the attorney-
19 in-fact may release or disclaim any interest in property on
20 behalf of the principal in accordance with Chapter 62 (relating
21 to disclaimers) or section 6103 (relating to release or
22 disclaimer of powers or interests), provided that any disclaimer
23 under Chapter 62 shall be in accordance with the provisions of
24 section 6202 (relating to disclaimers by fiduciaries) in the
25 case of a principal who shall have been adjudicated an
26 [incompetent] incapacitated person at the time of the execution
27 of the disclaimer.
28 * * *
29 § 5604. Durable powers of attorney.
30 * * *
19890H1380B3436 - 42 -
1 (c) Relation of attorney-in-fact to court-appointed
2 guardian.--
3 (1) If, following execution of a durable power of
4 attorney, the principal is adjudicated an [incompetent]
5 incapacitated person and a guardian is appointed for his
6 estate, the attorney-in-fact is accountable to the guardian
7 as well as to the principal. The guardian shall have the same
8 power to revoke or amend the power of attorney that the
9 principal would have had if he were not [incompetent] an
10 incapacitated person.
11 (2) A principal may nominate, by a durable power of
12 attorney, the guardian of his estate or of his person for
13 consideration by the court if [incompetency] incapacity
14 proceedings for the principal's estate or person are
15 thereafter commenced. The court shall make its appointment in
16 accordance with the principal's most recent nomination in a
17 durable power of attorney except for good cause or
18 disqualification.
19 § 6202. Disclaimers by fiduciaries or attorneys-in-fact.
20 A disclaimer on behalf of a decedent, a minor or an
21 [incompetent] incapacitated person may be made by his personal
22 representative, the guardian of his estate or in the case of an
23 [incompetent] incapacitated person who executed a power of
24 attorney which confers the authority to disclaim upon his
25 attorney-in-fact and which qualifies as a durable power of
26 attorney under section 5604 (relating to durable powers of
27 attorney) by such attorney-in-fact, if, in each case, the court
28 having jurisdiction of the estate authorizes the disclaimer
29 after finding that it is advisable and will not materially
30 prejudice the rights of creditors, heirs or beneficiaries of the
19890H1380B3436 - 43 -
1 decedent, the minor or his creditors, or the [incompetent]
2 incapacitated person or his creditors, as the case may be. A
3 personal representative may make a disclaimer on behalf of his
4 decedent without court authorization if the will of the decedent
5 so authorizes him.
6 § 7133. Powers, duties and liabilities identical with personal
7 representatives.
8 The provisions concerning the powers, duties and liabilities
9 of a trustee shall be the same as those set forth in the
10 following provisions of this title for the administration of a
11 decedent's or a minor's estate:
12 Section 3313 (relating to liability insurance).
13 Section 3314 (relating to continuation of business).
14 Section 3315 (relating to incorporation of estate's
15 business).
16 Section 3317 (relating to claims against co-fiduciary).
17 Section 3318 (relating to revival of judgments against
18 personal representative).
19 Section 3319 (relating to power of attorney; delegation
20 of power over subscription rights and fractional shares;
21 authorized delegations).
22 Section 3320 (relating to voting stock by proxy).
23 Section 3321 (relating to nominee registration; corporate
24 fiduciary as attorney-in-fact; deposit of securities in a
25 clearing corporation; book-entry securities).
26 Section 3322 (relating to acceptance of deed in lieu of
27 foreclosure).
28 Section 3323 (relating to compromise of controversies).
29 Section 3324 (relating to death or [incompetency]
30 incapacity of fiduciary).
19890H1380B3436 - 44 -
1 Section 3327 (relating to surviving or remaining personal
2 representatives).
3 Section 3328 (relating to disagreement of personal
4 representatives).
5 Section 3331 (relating to liability of personal
6 representative on contracts).
7 Section 3332 (relating to inherent powers and duties).
8 Section 3353 (relating to order of court).
9 Section 3354 (relating to power given in governing
10 instrument).
11 Section 3355 (relating to restraint of sale).
12 Section 3356 (relating to purchase by personal
13 representative).
14 Section 3358 (relating to collateral attack).
15 Section 3359 (relating to record of proceedings; county
16 where real estate lies).
17 Section 3360 (relating to contracts, inadequacy of
18 consideration or better offer; brokers' commissions).
19 Section 5147 (relating to proceedings against guardian).
20 § 7184. Disposition of income.
21 Except as otherwise provided by the trust instrument, the
22 trustee with the approval of the court, may pay income
23 distributable to a minor or [incompetent] incapacitated
24 beneficiary for whose estate no guardian has been appointed
25 directly to the minor or [incompetent] incapacitated person, or
26 expend and apply it for his maintenance or education.
27 § 8301. Powers of court to authorize sale, etc. of real
28 property.
29 The court of common pleas, operating through its appropriate
30 division, may authorize the sale, mortgage, lease or exchange of
19890H1380B3436 - 45 -
1 real property:
2 (1) Where the legal title is held:
3 (i) by a person whose spouse is an [incompetent]
4 incapacitated person, or has abandoned him or her for one
5 year, or has been absent in circumstances from which the
6 law would presume his or her decease;
7 (ii) by a tenant of an estate by entireties, when
8 the other tenant of such estate has been absent in
9 circumstances from which the law would presume his or her
10 decease;
11 (iii) by corporations of any kind having no capacity
12 to convey, or by any unincorporated association; or
13 (iv) by any religious, beneficial, or charitable
14 society or association, incorporated or unincorporated,
15 whose title is subject to forfeiture if real property is
16 held in excess of the amount authorized by law.
17 (2) Where the legal title is an estate tail, or is
18 subject to contingent remainders, executory interests, or
19 remainders to a class some or all of whom may not be in being
20 or ascertained at the time of the entry of the decree.
21 (3) Where the legal title is otherwise inalienable.
22 § 8411. Notice of action to United States Veterans' Bureau.
23 In any action brought under any law of this Commonwealth for
24 the appointment of a committee or guardian for a veteran of any
25 war, or a minor child, or [incompetent] incapacitated dependent
26 of a veteran of any war, on whose account benefits of
27 compensation or insurance or other gratuity is payable by the
28 United States Veterans' Bureau, or its successor, or upon the
29 filing of any petition or account by any such committee or
30 guardian of any such person, notice of such action, or of the
19890H1380B3436 - 46 -
1 filing of such petition or account, and of the hearing thereon,
2 shall be mailed the attorney of the United States Veterans'
3 Bureau office having jurisdiction over such person. In all such
4 cases, the United States Veterans' Bureau, or its successor,
5 shall be a party in interest, and a certified copy of each
6 account filed in the court shall be supplied the said bureau by
7 the committee or guardian.
8 Section 10. Sections 3307(a), 3508(g), 4405(a) and 8308(c)
9 of Title 13 are amended to read:
10 § 3307. Burden of establishing signatures, defenses and due
11 course.
12 (a) Proof of effectiveness of signature.--Unless
13 specifically denied in the pleadings each signature on an
14 instrument is admitted. When the effectiveness of a signature is
15 put in issue:
16 (1) the burden of establishing it is on the party
17 claiming under the signature; but
18 (2) the signature is presumed to be genuine or
19 authorized except where the action is to enforce the
20 obligation of a purported signer who has died or become
21 [incompetent] an incapacitated person before proof is
22 required.
23 * * *
24 § 3508. Notice of dishonor.
25 * * *
26 (g) Notice when party dead or [incompetent] incapacitated.--
27 When any party is dead or [incompetent] an incapacitated person
28 notice may be sent to his last known address or given to his
29 personal representative.
30 * * *
19890H1380B3436 - 47 -
1 § 4405. Death or [incompetence] incapacity of customer.
2 (a) Authority of bank unaffected in absence of knowledge.--
3 The authority of a payor or collecting bank to accept, pay or
4 collect an item or to account for proceeds of its collection if
5 otherwise effective is not rendered ineffective by
6 [incompetence] incapacity of a customer of either bank existing
7 at the time the item is issued or its collection is undertaken
8 if the bank does not know of an adjudication of [incompetence]
9 incapacity. Neither death nor [incompetence] incapacity of a
10 customer revokes such authority to accept, pay, collect or
11 account until the bank knows of the fact of death or of an
12 adjudication of [incompetence] incapacity and has reasonable
13 opportunity to act on it.
14 * * *
15 § 8308. Indorsement, how made; special indorsement; indorser
16 not a guarantor; partial assignment.
17 * * *
18 (c) Definition of "appropriate person".--An "appropriate
19 person" in subsection (a) means:
20 (1) the person specified by the security or by special
21 indorsement to be entitled to the security;
22 (2) where the person so specified is described as a
23 fiduciary but is no longer serving in the described
24 capacity,--either that person or his successor;
25 (3) where the security or indorsement so specifies more
26 than one person as fiduciaries and one or more are no longer
27 serving in the described capacity,--the remaining fiduciary
28 or fiduciaries, whether or not a successor has been appointed
29 or qualified;
30 (4) where the person so specified is an individual and
19890H1380B3436 - 48 -
1 is without capacity to act by virtue of death, [incompetence]
2 incapacity, infancy or otherwise, --his executor,
3 administrator, guardian or like fiduciary;
4 (5) where the security or indorsement so specifies more
5 than one person as tenants by the entirety or with right of
6 survivorship and by reason of death all cannot sign,--the
7 survivor or survivors;
8 (6) a person having power to sign under applicable law
9 or controlling instrument; or
10 (7) to the extent that any of the foregoing persons may
11 act through an agent,--his authorized agent.
12 * * *
13 Section 11. Section 311(c) of Title 18 is amended to read:
14 § 311. Consent.
15 * * *
16 (c) Ineffective consent.--Unless otherwise provided by this
17 title or by the law defining the offense, assent does not
18 constitute consent if:
19 (1) it is given by a person who is legally [incompetent]
20 incapacitated to authorize the conduct charged to constitute
21 the offense;
22 (2) it is given by a person who by reason of youth,
23 mental disease or defect or intoxication is manifestly unable
24 or known by the actor to be unable to make a reasonable
25 judgment as to the nature or harmfulness of the conduct
26 charged to constitute the offense;
27 (3) it is given by a person whose improvident consent is
28 sought to be prevented by the law defining the offense; or
29 (4) it is induced by force, duress or deception of a
30 kind sought to be prevented by the law defining the offense.
19890H1380B3436 - 49 -
1 Section 12. Section 509 of Title 18, amended October 21,
2 1988 (P.L.1000, No.115), is amended to read:
3 § 509. Use of force by persons with special responsibility for
4 care, discipline or safety of others.
5 The use of force upon or toward the person of another is
6 justifiable if:
7 (1) The actor is the parent or guardian or other person
8 similarly responsible for the general care and supervision of
9 a minor or a person acting at the request of such parent,
10 guardian or other responsible person and:
11 (i) the force is used for the purpose of
12 safeguarding or promoting the welfare of the minor,
13 including the preventing or punishment of his misconduct;
14 and
15 (ii) the force used is not designed to cause or
16 known to create a substantial risk of causing death,
17 serious bodily injury, disfigurement, extreme pain or
18 mental distress or gross degradation.
19 (2) The actor is a teacher or person otherwise entrusted
20 with the care or supervision for a special purpose of a minor
21 and:
22 (i) the actor believes that the force used is
23 necessary to further such special purpose, including the
24 maintenance of reasonable discipline in a school, class
25 or other group, and that the use of such force is
26 consistent with the welfare of the minor; and
27 (ii) the degree of force, if it had been used by the
28 parent or guardian of the minor, would not be
29 unjustifiable under paragraph (1)(ii).
30 (3) The actor is the guardian or other person similarly
19890H1380B3436 - 50 -
1 responsible for the general care and supervision of an
2 [incompetent] incapacitated, mentally ill or mentally
3 retarded person; and:
4 (i) the force is used for the purpose of
5 safeguarding or promoting the welfare of the
6 [incompetent] incapacitated, mentally ill or mentally
7 retarded person, including the prevention of his
8 misconduct, and there is no reasonable alternative to the
9 use of such force; and
10 (ii) the force used is not designed to cause or
11 known to create a substantial risk of causing death,
12 bodily injury, disfigurement, unnecessary pain, mental
13 distress, or humiliation.
14 (4) The actor is a doctor or other therapist or a person
15 assisting him at his direction; and:
16 (i) the force is used for the purpose of
17 administering a recognized form of treatment not
18 prohibited by law of this Commonwealth which the actor
19 believes to be adapted to promoting the physical or
20 mental health of the patient; and
21 (ii) the treatment is administered with the consent
22 of the patient, or, if the patient is a minor or an
23 [incompetent] incapacitated person with the consent of
24 his parent or guardian or other person legally competent
25 to consent in his behalf, or the treatment is
26 administered in an emergency when the actor believes that
27 no one competent to consent can be consulted and that a
28 reasonable person, wishing to safeguard the welfare of
29 the patient, would consent.
30 (5) The actor is a warden or other authorized official
19890H1380B3436 - 51 -
1 of a correctional institution; and:
2 (i) he believes that the force used is necessary for
3 the purpose of enforcing the lawful rules or procedures
4 of the institution, unless his belief in the lawfulness
5 of the rule or procedure sought to be enforced is
6 erroneous and his error is due to ignorance or mistake as
7 to the provisions of this title, any other provision of
8 the criminal law or the law governing the administration
9 of the institution;
10 (ii) the nature or degree of force used is not
11 forbidden by law; and
12 (iii) if deadly force is used, its use is otherwise
13 justifiable under this chapter.
14 (6) The actor is a person responsible for the safety of
15 a vessel or an aircraft or a person acting at his direction;
16 and:
17 (i) he believes that the force used is necessary to
18 prevent interference with the operation of the vessel or
19 aircraft or obstruction of the execution of a lawful
20 order, unless his belief in the lawfulness of the order
21 is erroneous and his error is due to ignorance or mistake
22 as to the law defining his authority; and
23 (ii) if deadly force is used, its use is otherwise
24 justifiable under this chapter.
25 (7) The actor is a person who is authorized or required
26 by law to maintain order or decorum in a vehicle, train or
27 other carrier or in a place where others are assembled; and:
28 (i) he believes that the force used is necessary for
29 such purpose; and
30 (ii) the force used is not designed to cause death,
19890H1380B3436 - 52 -
1 or known to create a substantial risk of causing death,
2 bodily injury, or extreme mental distress.
3 Section 13. Sections 2901(b), 2905(b) and 3206(a), (g) and
4 (i) of Title 18 are amended to read:
5 § 2901. Kidnapping.
6 * * *
7 (b) Grading.--Kidnapping is a felony of the first degree. A
8 removal or confinement is unlawful within the meaning of this
9 section if it is accomplished by force, threat or deception, or,
10 in the case of a person who is under the age of 14 years or
11 [incompetent] an incapacitated person, if it is accomplished
12 without the consent of a parent, guardian or other person
13 responsible for general supervision of his welfare.
14 § 2905. Interference with custody of committed persons.
15 * * *
16 (b) Definition.--As used in this section the term "committed
17 person" means, in addition to anyone committed under judicial
18 warrant, any orphan, neglected or delinquent child, mentally
19 defective or insane person, or other dependent or [incompetent]
20 incapacitated person entrusted to the custody of another by or
21 through a recognized social agency or otherwise by authority of
22 law.
23 § 3206. Parental consent.
24 (a) General rule.--Except in the case of a medical
25 emergency, or except as provided in this section, if a pregnant
26 woman is less than 18 years of age and not emancipated, or if
27 she has been adjudged an [incompetent] incapacitated person
28 under 20 Pa.C.S. § 5511 (relating to petition and hearing;
29 examination by court-appointed physician), a physician shall not
30 perform an abortion upon her unless, in the case of a woman who
19890H1380B3436 - 53 -
1 is less than 18 years of age, he first obtains the informed
2 consent both of the pregnant woman and of one of her parents;
3 or, in the case of a woman who is [incompetent] an incapacitated
4 person, he first obtains the informed consent of her guardian.
5 In deciding whether to grant such consent, a pregnant woman's
6 parent or guardian shall consider only their child's or ward's
7 best interests. In the case of a pregnancy that is the result of
8 incest where the father is a party to the incestuous act, the
9 pregnant woman need only obtain the consent of her mother.
10 * * *
11 (g) Coercion prohibited.--Except in a medical emergency, no
12 parent, guardian or other person standing in loco parentis shall
13 coerce a minor or [incompetent] incapacitated woman to undergo
14 an abortion. Any minor or [incompetent] incapacitated woman who
15 is threatened with such coercion may apply to a court of common
16 pleas for relief. The court shall provide the minor or
17 [incompetent] incapacitated woman with counsel, give the matter
18 expedited consideration and grant such relief as may be
19 necessary to prevent such coercion. Should a minor be denied the
20 financial support of her parents by reason of her refusal to
21 undergo abortion, she shall be considered emancipated for
22 purposes of eligibility for assistance benefits.
23 * * *
24 (i) Penalty.--Any person who performs an abortion upon a
25 woman who is an unemancipated minor or [incompetent]
26 incapacitated person to whom this section applies either with
27 knowledge that she is a minor or [incompetent] incapacitated
28 person to whom this section applies, or with reckless disregard
29 or negligence as to whether she is a minor or [incompetent]
30 incapacitated person to whom this section applies, and who
19890H1380B3436 - 54 -
1 intentionally, knowingly or recklessly fails to conform to any
2 requirement of this section is guilty of "unprofessional
3 conduct" and his license for the practice of medicine and
4 surgery shall be suspended in accordance with procedures
5 provided under the act of October 5, 1978 (P.L.1109, No.261),
6 known as the Osteopathic Medical Practice Act, the act of
7 December 20, 1985 (P.L.457, No.112), known as the Medical
8 Practice Act of 1985, or their successor acts, for a period of
9 at least three months. Failure to comply with the requirements
10 of this section is prima facie evidence of failure to obtain
11 informed consent and of interference with family relations in
12 appropriate civil actions. The law of this Commonwealth shall
13 not be construed to preclude the award of exemplary damages or
14 damages for emotional distress even if unaccompanied by physical
15 complications in any appropriate civil action relevant to
16 violations of this section. Nothing in this section shall be
17 construed to limit the common law rights of parents.
18 Section 14. Section 2711(a) of Title 23 is amended to read:
19 § 2711. Consents necessary to adoption.
20 (a) General rule.--Except as otherwise provided in this
21 part, consent to an adoption shall be required of the following:
22 (1) The adoptee, if over 12 years of age.
23 (2) The spouse of the adopting parent, unless they join
24 in the adoption petition.
25 (3) The parents or surviving parent of an adoptee who
26 has not reached the age of 18 years.
27 (4) The guardian of an [incompetent] incapacitated
28 adoptee.
29 (5) The guardian of the person of an adoptee under the
30 age of 18 years, if any there be, or of the person or persons
19890H1380B3436 - 55 -
1 having the custody of the adoptee, if any such person can be
2 found, whenever the adoptee has no parent whose consent is
3 required.
4 * * *
5 Section 15. Section 5322(a) of Title 42 is amended to read:
6 § 5322. Bases of personal jurisdiction over persons outside
7 this Commonwealth.
8 (a) General rule.--A tribunal of this Commonwealth may
9 exercise personal jurisdiction over a person (or the personal
10 representative of a deceased individual who would be subject to
11 jurisdiction under this subsection if not deceased) who acts
12 directly or by an agent, as to a cause of action or other matter
13 arising from such person:
14 (1) Transacting any business in this Commonwealth.
15 Without excluding other acts which may constitute transacting
16 business in this Commonwealth, any of the following shall
17 constitute transacting business for the purpose of this
18 paragraph:
19 (i) The doing by any person in this Commonwealth of
20 a series of similar acts for the purpose of thereby
21 realizing pecuniary benefit or otherwise accomplishing an
22 object.
23 (ii) The doing of a single act in this Commonwealth
24 for the purpose of thereby realizing pecuniary benefit or
25 otherwise accomplishing an object with the intention of
26 initiating a series of such acts.
27 (iii) The shipping of merchandise directly or
28 indirectly into or through this Commonwealth.
29 (iv) The engaging in any business or profession
30 within this Commonwealth, whether or not such business
19890H1380B3436 - 56 -
1 requires license or approval by any government unit of
2 this Commonwealth.
3 (v) The ownership, use or possession of any real
4 property situate within this Commonwealth.
5 (2) Contracting to supply services or things in this
6 Commonwealth.
7 (3) Causing harm or tortious injury by an act or
8 omission in this Commonwealth.
9 (4) Causing harm or tortious injury in this Commonwealth
10 by an act or omission outside this Commonwealth.
11 (5) Having an interest in, using, or possessing real
12 property in this Commonwealth.
13 (6) (i) Contracting to insure any person, property, or
14 risk located within this Commonwealth at the time of
15 contracting.
16 (ii) Being a person who controls, or who is a
17 director, officer, employee or agent of a person who
18 controls, an insurance company incorporated in this
19 Commonwealth or an alien insurer domiciled in this
20 Commonwealth.
21 (iii) Engaging in conduct described in section 504
22 of the act of May 17, 1921 (P.L.789, No.285), known as
23 "The Insurance Department Act of 1921."
24 (7) Accepting election or appointment or exercising
25 powers under the authority of this Commonwealth as a:
26 (i) Personal representative of a decedent.
27 (ii) Guardian of a minor or [incompetent]
28 incapacitated person.
29 (iii) Trustee or other fiduciary.
30 (iv) Director or officer of a corporation.
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1 (8) Executing any bond of any of the persons specified
2 in paragraph (7).
3 (9) Making application to any government unit for any
4 certificate, license, permit, registration or similar
5 instrument or authorization or exercising any such instrument
6 or authorization.
7 (10) Committing any violation within the jurisdiction of
8 this Commonwealth of any statute, home rule charter, local
9 ordinance or resolution, or rule or regulation promulgated
10 thereunder by any government unit or of any order of court or
11 other government unit.
12 * * *
13 Section 16. The sum of $1,000,000 $250,000, or as much <--
14 thereof as may be necessary, is appropriated to the Department
15 of Aging and the Department of Public Welfare to carry out the
16 provisions of 20 Pa.C.S. Ch. 55 Subch. F (relating to
17 guardianship support).
18 Section 17. This act shall apply to all guardianship
19 proceedings in which petitions for the appointment of a guardian
20 are filed subsequent to the effective date of this act.
21 Proceedings for the appointment of a guardian, which are filed
22 prior to the effective date of this act, but which are still in
23 progress, may be amended with leave of court to conform to this
24 act. Existing guardianship may be modified by the court in
25 accordance with this act upon petition of any interested party.
26 Section 18. This act shall take effect in 60 days.
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