PRINTER'S NO. 1774
No. 1475 Session of 1999
INTRODUCED BY SNYDER, CAWLEY, BUNT, E. Z. TAYLOR, PETRARCA,
DEMPSEY, ALLEN, PRESTON, COY, GEORGE, LEH, LYNCH, ZUG,
BELARDI, SATHER, WOJNAROSKI, TRAVAGLIO, RUBLEY, WILT, NAILOR,
CLARK, BELFANTI, YOUNGBLOOD, GIGLIOTTI, KENNEY, SERAFINI,
HESS, BATTISTO, KREBS, SHANER, BUXTON, SAINATO, HALUSKA,
WALKO, MAHER, HERMAN, TIGUE, MAJOR, FORCIER, MUNDY, ORIE,
BAKER, STERN, HARHAI, DeLUCA, STEELMAN, SEYFERT, HERSHEY,
STEVENSON, SAYLOR, S. MILLER, ADOLPH, LAUGHLIN, HENNESSEY,
McNAUGHTON, SANTONI, McCALL, STABACK, L. I. COHEN, B. SMITH,
RAMOS, MELIO, SEMMEL, TRUE, GEIST, FARGO, CIVERA, WILLIAMS,
TRELLO, J. TAYLOR, CLYMER, DALEY, ROSS, ROHRER, DALLY,
BENNINGHOFF, BLAUM AND BARD, MAY 11, 1999
REFERRED TO COMMITTEE ON JUDICIARY, MAY 11, 1999
AN ACT
1 Amending Title 20 (Decedents, Estates and Fiduciaries) of the
2 Pennsylvania Consolidated Statutes, further providing for
3 mandatory jurisdiction of the court over guardianship support
4 agencies and attorneys-in-fact; further providing for
5 incapacitated persons with regard to notice of petition,
6 hearings, appointment of guardians, emergency guardians,
7 evidence of incapacity, reports of guardians, powers of
8 guardians to enter into leases and accountings; and making
9 technical changes.
10 The General Assembly of the Commonwealth of Pennsylvania
11 hereby enacts as follows:
12 Section 1. Section 711 of Title 20 of the Pennsylvania
13 Consolidated Statutes is amended by adding paragraphs to read:
14 § 711. Mandatory exercise of jurisdiction through orphans'
15 court division in general.
16 Except as provided in section 712 (relating to nonmandatory
1 exercise of jurisdiction through the orphans' court division)
2 and section 713 (relating to special provisions for Philadelphia
3 County), the jurisdiction of the court of common pleas over the
4 following shall be exercised through its orphans' court
5 division:
6 * * *
7 (22) Guardianship support agencies.--The administration
8 of a guardianship support agency formed under Subchapter F of
9 Chapter 55 (relating to guardianship support). In exercising
10 the jurisdiction of the court over the affairs of a
11 guardianship support agency, the venue shall be the same as
12 provided for nonprofit corporations in section 726 (relating
13 to venue of nonprofit corporations).
14 (23) Attorney-in-fact.--All matters pertaining to the
15 exercise of powers by attorneys-in-fact or agents acting
16 under powers of attorney as provided in Chapter 56 (relating
17 to powers of attorney).
18 Section 2. Sections 712(4), 5511(a) and (f), 5512.1(a), (c)
19 and (e), 5513, 5518, 5518.1, 5521(c), 5522 and 5531 of Title 20
20 are amended to read:
21 § 712. Nonmandatory exercise of jurisdiction through orphans'
22 court division.
23 The jurisdiction of the court of common pleas over the
24 following may be exercised through either its orphans' court
25 division or other appropriate division:
26 * * *
27 [(4) Powers of attorney.--All matters pertaining to the
28 exercise of powers by attorneys in fact or agents acting
29 under powers of attorney as provided in Chapter 56 (relating
30 to powers of attorney).]
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1 § 5511. Petition and hearing; independent evaluation.
2 (a) Resident.--The court, upon petition and hearing and upon
3 the presentation of clear and convincing evidence, may find a
4 person domiciled in the Commonwealth to be incapacitated and
5 appoint a guardian or guardians of his person or estate. The
6 petitioner may be any person interested in the alleged
7 incapacitated person's welfare. The court may dismiss a
8 proceeding where it determines that the proceeding has not been
9 instituted to aid or benefit the alleged incapacitated person or
10 that the petition is incomplete or fails to provide sufficient
11 facts to proceed. Written notice of the petition and hearing
12 shall be given in large type and in simple language to the
13 alleged incapacitated person. The notice shall indicate the
14 purpose and seriousness of the proceeding and the rights that
15 can be lost as a result of the proceeding. It shall include the
16 date, time and place of the hearing and an explanation of all
17 rights, including the right to request the appointment of
18 counsel and to have counsel appointed if the court deems it
19 appropriate and the right to have such counsel paid for if it
20 cannot be afforded. The Supreme Court shall establish a uniform
21 citation for this purpose. A copy of the petition shall be
22 attached. Personal service shall be made on the alleged
23 incapacitated person, and the contents and terms of the petition
24 shall be explained to the maximum extent possible in language
25 and terms the individual is most likely to understand. Service
26 shall be no less than 20 days in advance of the hearing. In
27 addition, notice of the petition and hearing shall be given in
28 such manner as the court shall direct to all persons [residing
29 within the Commonwealth] whose existence and whereabouts are
30 known and who are sui juris and would be entitled to share in
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1 the estate of the alleged incapacitated person if he died
2 intestate at that time, to the person or institution providing
3 residential services to the alleged incapacitated person and to
4 such other parties as the court may direct, including other
5 service providers. The hearing may be closed to the public and
6 without a jury unless the alleged incapacitated person or his
7 counsel objects. The hearing shall be closed and with or without
8 a jury if the person alleged to be incapacitated or his counsel
9 so requests. The hearing may be held at the residence of the
10 alleged incapacitated person. The alleged incapacitated person
11 shall be present at the hearing unless:
12 (1) the court is satisfied, upon the deposition or
13 testimony of or sworn statement by a physician or licensed
14 psychologist, that his physical or mental condition would be
15 harmed by his presence or that he could not understand and
16 participate in the proceedings; or
17 (2) it is impossible for him to be present because of
18 his absence from the Commonwealth. It shall not be necessary
19 for the alleged incapacitated person to be represented by a
20 guardian ad litem in the proceeding.
21 Petitioner shall be required to notify the court at least seven
22 days prior to the hearing if counsel has not been retained by or
23 on behalf of the alleged incapacitated person. In appropriate
24 cases, counsel shall be appointed to represent the alleged
25 incapacitated person in any matter for which counsel has not
26 been retained by or on behalf of that individual.
27 * * *
28 (f) Who may be appointed guardian.--The court may appoint as
29 guardian any qualified individual, a corporate fiduciary, a
30 nonprofit corporation, a guardianship support agency under
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1 Subchapter F (relating to guardianship support) or a county
2 agency. In the case of residents of State facilities, the court
3 may also appoint, only as guardian of the estate, the guardian
4 office at the appropriate State facility. The court shall not
5 appoint a person or entity providing residential services for a
6 fee to the incapacitated person or any other person whose
7 interests conflict with those of the incapacitated person except
8 where it is clearly demonstrated that no guardianship support
9 agency or other alternative exists. Any family relationship to
10 such individual shall not, by itself, be considered as an
11 interest adverse to the alleged incapacitated person. If
12 appropriate, the court shall give preference to a nominee of the
13 incapacitated person or to the nominee of a parent, living or
14 deceased, of an unmarried incapacitated person. If the
15 incapacitated person has nominated, by a durable power of
16 attorney, a guardian of the estate or person, the court shall
17 make its appointment in accordance with the nomination of the
18 incapacitated person, except for good cause or disqualification.
19 § 5512.1. Determination of incapacity and appointment of
20 guardian.
21 (a) Determination of incapacity.--In all cases, the court
22 shall consider and make specific findings of fact concerning:
23 (1) The nature of any condition or disability which
24 impairs the individual's capacity to make and communicate
25 decisions.
26 (2) The extent of the individual's capacity to make and
27 communicate decisions.
28 (3) The need for guardianship services, if any, in light
29 of such factors as the availability of family, friends and
30 other supports to assist the individual in making decisions
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1 and in light of the existence, if any, of advance directives
2 such as durable powers of attorney or trusts.
3 (4) The type of guardian, limited or plenary, of the
4 person or estate needed based on the nature of any condition
5 or disability and the capacity to make and communicate
6 decisions.
7 (5) The duration of the guardianship.
8 [(6) The court shall prefer limited guardianship.]
9 The court shall prefer limited guardianships.
10 * * *
11 (c) Plenary guardian of the person.--The court may appoint a
12 plenary guardian of the person [only] upon a finding that the
13 person is [totally] incapacitated and in need of plenary
14 guardianship services.
15 * * *
16 (e) Plenary guardian of the estate.--A court may appoint a
17 plenary guardian of the estate [only] upon a finding that the
18 person is [totally] incapacitated and in need of plenary
19 guardianship services.
20 * * *
21 § 5513. Emergency guardian.
22 Notwithstanding the provisions of section 5511 (relating to
23 petition and hearing; independent evaluation), the court, upon
24 petition and a hearing at which clear and convincing evidence is
25 shown, may appoint an emergency guardian or guardians of the
26 person or estate of a person alleged to be incapacitated, when
27 it appears that the person lacks capacity, is in need of a
28 guardian and a failure to make such appointment will result in
29 irreparable harm to the person or estate of the alleged
30 incapacitated person. The provisions of section 5511, including
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1 those relating to counsel, shall be applicable to such
2 proceedings, except when the court has found that it is not
3 feasible in the circumstances. An emergency guardian so
4 appointed for the person or estate of an alleged incapacitated
5 person shall only have and be subject to such powers, duties and
6 liabilities and serve for such time as the court shall direct in
7 its decree. An emergency order appointing an emergency guardian
8 of the person may be in effect for up to 72 hours. If the
9 emergency continues, then the emergency order may be extended
10 for no more than 20 days from the expiration of the initial
11 emergency order. [After expiration of the emergency order or any
12 extension, a full guardianship proceeding must be initiated
13 pursuant to section 5511.] The court may further continue the
14 emergency order if a petition for the appointment of a guardian
15 of the person is filed pursuant to section 5511 prior to the
16 expiration of the emergency order extension and if the failure
17 to continue the emergency order will result in irreparable harm
18 to the incapacitated person. The court may also appoint an
19 emergency guardian of the person pursuant to this section for an
20 alleged incapacitated person who is present in this Commonwealth
21 but is domiciled outside of this Commonwealth, regardless of
22 whether the alleged incapacitated person has property in this
23 Commonwealth. An emergency order appointing an emergency
24 guardian of the estate shall not exceed 30 days. [After 30 days,
25 a full guardianship proceeding must be initiated pursuant to
26 section 5511.] However, the court may continue the emergency
27 order beyond 30 days if a petition for the appointment of a
28 guardian of the estate is filed pursuant to section 5511 prior
29 to the expiration of the emergency order and if failure to
30 continue the emergency order will result in irreparable harm to
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1 the estate of the incapacitated person.
2 § 5518. Evidence of incapacity.
3 To establish incapacity in a proceeding in which the capacity
4 of the alleged incapacitated person is contested, the petitioner
5 must present testimony, in person or by deposition from
6 individuals qualified by training and experience in evaluating
7 individuals with incapacities of the type alleged by the
8 petitioner, which establishes the nature and extent of the
9 alleged incapacities and disabilities and the person's mental,
10 emotional and physical condition, adaptive behavior and social
11 skills. In a proceeding in which the capacity of the alleged
12 incapacitated person is not contested, the petitioner may
13 establish incapacity by a sworn statement from such qualified
14 individuals. The [petition] petitioner must also present
15 evidence regarding the services being utilized to meet essential
16 requirements for the alleged incapacitated person's physical
17 health and safety, to manage the person's financial resources or
18 to develop or regain the person's abilities; evidence regarding
19 the types of assistance required by the person and as to why no
20 less restrictive alternatives would be appropriate; and evidence
21 regarding the probability that the extent of the person's
22 incapacities may significantly lessen or change.
23 § 5518.1. Cross-examination of witnesses.
24 [Testimony] Except as provided for in section 5518 (relating
25 to evidence of incapacity), testimony as to the capacity of the
26 alleged incapacitated person shall be subject to cross-
27 examination by counsel for the alleged incapacitated person.
28 § 5521. Provisions concerning powers, duties and liabilities.
29 * * *
30 (c) Reports of guardians.--
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1 (1) [Each] The court may require a guardian of an
2 incapacitated person [shall] to file [with the court
3 appointing him] a report, at [least once within the first 12
4 months of his appointment and at least annually thereafter]
5 such times as the court shall direct, attesting to such of
6 the following as appropriate:
7 (i) Guardian of the estate:
8 (A) current principal and how it is invested;
9 (B) current income; and
10 (C) expenditures of principal and income since
11 the last report[; and
12 (D) needs of the incapacitated person for which
13 the guardian has provided since the last report].
14 (ii) Guardian of the person:
15 (A) current address and type of placement of the
16 incapacitated person;
17 (B) major medical or mental problems of the
18 incapacitated person;
19 (C) a brief description of the incapacitated
20 person's living arrangements and the social, medical,
21 psychological and other support services he is
22 receiving;
23 (D) the opinion of the guardian as to whether
24 the guardianship should continue or be terminated or
25 modified and the reasons therefor; and
26 (E) number and length of times the guardian
27 visited the incapacitated person in the past year.
28 (2) [Within 60 days of the death of the incapacitated
29 person or an adjudication of capacity and modification of
30 existing orders, the guardian shall file a final report with
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1 the court.] The guardian shall notify the court, in writing,
2 within 60 days of the death of the incapacitated person.
3 * * *
4 § 5522. Power to lease.
5 A guardian may lease any real or personal property of the
6 incapacitated person for a term not exceeding five years after
7 its execution unless a longer term is approved by the court.
8 § 5531. When accounting filed.
9 A guardian shall file an account of his administration
10 whenever directed to do so by the court or may file an account
11 [at the termination of the guardianship, or at any other time or
12 times authorized by the court] at any other time.
13 Section 3. This act shall apply as follows:
14 (1) The amendment of the introductory paragraph of 20
15 Pa.C.S. § 5511(a) shall apply to petitions for the
16 appointment of a guardian filed on or after the effective
17 date of this act.
18 (2) The amendment of 20 Pa.C.S. §§ 5511(a)(1), 5518 and
19 5518.1 shall apply to proceedings commenced on or after the
20 effective date of this act irrespective of when the petition
21 for the appointment of a guardian is filed.
22 (3) The amendment of 20 Pa.C.S. §§ 5511(f) and 5512.1(c)
23 and (e) shall apply to proceedings where a guardian has not
24 yet been appointed irrespective of when the petition for the
25 appointment of a guardian is filed.
26 (4) The remainder of this act shall apply on and after
27 the effective date of this act.
28 Section 4. This act shall take effect in 60 days.
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