2023 Pennsylvania Consolidated & Unconsolidated Statutes › Act 61 - DECEDENTS, ESTATES AND FIDUCIARIES (20 PA.C.S.) - PETITION AND HEARING AND INDEPENDENT EVALUATION, DETERMINATION OF INCAPACITY AND APPOINTMENT OF GUARDIAN AND REVIEW HEARING

Session of 2023
No. 2023-61
SB 506
AN ACT
Amending Title 20 (Decedents, Estates and Fiduciaries) of the Pennsylvania Consolidated
            Statutes, in incapacitated persons, further providing for petition and hearing and
            independent evaluation, for determination of incapacity and appointment of guardian
            and for review hearing.
The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:
Section 1.  Section 5511(a), (e) and (f) of Title 20 of the Pennsylvania Consolidated Statutes
            are amended and the section is amended by adding a subsection to read:
§ 5511.  Petition and hearing; independent evaluation.
(a)  Resident.--The court, upon petition and hearing and upon the presentation of clear
            and convincing evidence, may find a person domiciled in the Commonwealth to be incapacitated
            and appoint a guardian or guardians of his person or estate. The petitioner may be
            any person interested in the alleged incapacitated person's welfare. The court may
            dismiss a proceeding where it determines that the proceeding has not been instituted
            to aid or benefit the alleged incapacitated person or that the petition is incomplete
            or fails to provide sufficient facts to proceed. Written notice of the petition and
            hearing shall be given in large type and in simple language to the alleged incapacitated
            person. The notice shall indicate the purpose and seriousness of the proceeding and
            the rights that can be lost as a result of the proceeding. It shall include the date,
            time and place of the hearing and an explanation of all rights[, including the right
            to request the appointment of counsel and to have counsel appointed if the court deems
            it appropriate and the right to have such counsel paid for if it cannot be afforded].
            The Supreme Court shall establish a uniform citation for this purpose. A copy of the
            petition shall be attached. Personal service shall be made on the alleged incapacitated
            person, and the contents and terms of the petition shall be explained to the maximum
            extent possible in language and terms the individual is most likely to understand.
            Service shall be no less than 20 days in advance of the hearing. In addition, notice
            of the petition and hearing shall be given in such manner as the court shall direct
            to all persons residing within the Commonwealth who are sui juris and would be entitled
            to share in the estate of the alleged incapacitated person if he died intestate at
            that time, to the person or institution providing residential services to the alleged
            incapacitated person and to such other parties as the court may direct, including
            other service providers. The hearing may be closed to the public and without a jury
            unless the alleged incapacitated person or his counsel objects. The hearing shall
            be closed and with or without a jury if the person alleged to be incapacitated or
            his counsel so requests. The hearing may be held at the residence of the alleged incapacitated
            person. The alleged incapacitated person shall be present at the hearing unless:
(1)  the court is satisfied, upon the deposition or testimony of or sworn statement by
            a physician or licensed psychologist, that his physical or mental condition would
            be harmed by his presence; or
(2)  it is impossible for him to be present because of his absence from the Commonwealth.
            It shall not be necessary for the alleged incapacitated person to be represented by
            a guardian ad litem in the proceeding.
[Petitioner shall be required to notify the court at least seven days prior to the
            hearing if counsel has not been retained by or on behalf of the alleged incapacitated
            person. In appropriate cases, counsel shall be appointed to represent the alleged
            incapacitated person in any matter for which counsel has not been retained by or on
            behalf of that individual.]
(a.1)  Appointment of counsel.--
(1)  If the petitioner under subsection (a) is aware that the alleged incapacitated person
            is represented by counsel, the petitioner shall advise the court that the alleged
            incapacitated person is represented by counsel at the time of filing the petition
            or as soon as the petitioner becomes aware of the representation.
(2)  Regardless of the ability of the alleged incapacitated person to pay, the court shall
            appoint counsel to represent the alleged incapacitated person in any matter for which
            counsel has not been retained by the alleged incapacitated person, including in all
            proceedings under subsection (a) and in any subsequent proceedings to consider, modify
            or terminate a guardianship. Appointed counsel shall be qualified by experience or
            training and shall act without delay under the circumstances.
(3)  Counsel for an alleged incapacitated person shall, as far as reasonably possible,
            maintain a normal client-attorney relationship with the client. Counsel shall advocate
            for the client's expressed wishes and consistent with the client's instructions, to
            the extent the client is able to express wishes and provide instructions. Counsel
            shall comply with the Rules of Professional Conduct governing the attorney-client
            relationship. Retained or appointed counsel may not act as guardian ad litem for the
            alleged incapacitated person. If the court determines that a guardian ad litem is
            necessary, the court shall make a separate appointment. Appointed counsel shall meet
            with the alleged incapacitated person as soon as reasonably possible after the appointment.
            Within five days of the meeting, appointed counsel shall file with the court a certification
            of the time and place that the meeting occurred.
* * *
(e)  Petition contents.--The petition, which shall be in plain language, shall include
            the name, age, residence and post office address of the alleged incapacitated person,
            the names and addresses of the spouse, parents and presumptive adult heirs of the
            alleged incapacitated person, the name and address of the person or institution providing
            residential services to the alleged incapacitated person, the names and addresses
            of other service providers, the name and address of the person or entity whom petitioner
            asks to be appointed guardian, an averment that the proposed guardian has no interest
            adverse to the alleged incapacitated person, the reasons why guardianship is sought,
            a description of the functional limitations and physical and mental condition of the
            alleged incapacitated person, the steps taken to find less restrictive alternatives,
            the specific areas of incapacity over which it is requested that the guardian be assigned
            powers and the qualifications of the proposed guardian.
Petitions must allege specific facts demonstrating that less
restrictive alternatives were considered or tried and why the
alternatives are unavailable or insufficient.
If a limited or plenary guardian of the estate is sought, the petition shall also
            include the gross value of the estate and net income from all sources to the extent
            known.
(f)  Who may be appointed guardian.--
(1)
The court may appoint as guardian any qualified individual, a corporate fiduciary,
            a nonprofit corporation, a guardianship support agency under Subchapter F (relating
            to guardianship support) or a county agency. In the case of residents of State facilities,
            the court may also appoint, only as guardian of the estate, the guardian office at
            the appropriate State facility. The court shall not appoint a person or entity providing
            residential services for a fee to the incapacitated person or any other person whose
            interests conflict with those of the incapacitated person except where it is clearly
            demonstrated that no guardianship support agency or other alternative exists. Any
            family relationship to such individual shall not, by itself, be considered as an interest
            adverse to the alleged incapacitated person. If appropriate, the court shall give
            preference to a nominee of the incapacitated person.
(2)  An individual seeking guardianship of three or more incapacitated persons must be
            certified as provided in this paragraph and provide proof of the certification to
            the court prior to a third guardianship appointment. The following provisions shall
            apply:
(i)  The Supreme Court shall prescribe rules and forms necessary to effectuate the certification
            required under this paragraph, including rules regarding the expiration and renewal
            of certifications.
(ii)  When the Supreme Court prescribes rules relating to requirements for certification:
(A)  The Supreme Court shall provide opportunities for relevant stakeholders to provide
            input.
(B)  The certification shall, at a minimum, require:
(I)  Submission of education and employment history.
(II)  Submission of Federal and State criminal history record information.
(III)  Passage of a certification exam administered by a national nonprofit guardianship
            certification organization. The national nonprofit organization must provide a comprehensive
            certification program for guardians, including supervising a national certification
            process, developing certification exam content and maintaining a decertification process.
(3)  The certification required under paragraph (2) may be waived by a court upon a petition
               demonstrating that a
proposed guardian has such equivalent licenses or certifications as are necessary
               to ensure that the proposed guardian is capable of fully, faithfully and competently
               performing the obligations of a guardian.
For purposes of this paragraph, a license to practice law shall not constitute an
               equivalent license or certification.
Section 2.  Sections 5512.1(a) and 5512.2 of Title 20 are amended to read:
§ 5512.1.  Determination of incapacity and appointment of guardian.
(a)  Determination of incapacity.--In all cases, the court shall consider and make specific
            findings of fact concerning:
(1)  The nature of any condition or disability which impairs the individual's capacity
            to make and communicate decisions.
(2)  The extent of the individual's capacity to make and communicate decisions.
(3)  The need for guardianship services, if any, in light of such factors as the availability
            of family, friends and other supports to assist the individual in making decisions
            and in light of the existence, if any, of [advance directives such as durable powers
            of attorney or trusts.]
less
restrictive alternatives. The court shall make specific
findings of fact based on the evidentiary record of the
absence of sufficient family, friends or other supports and
of the insufficiency of each less restrictive alternative
before ordering guardianship. Less restrictive alternatives
include, but are not limited to:
(i)  Advance directives such as durable power of attorney or trusts.
(ii)  Living wills.
(iii)  Health care powers of attorney.
(iv)  Health care representatives.
(v)  Financial powers of attorney.
(vi)  Trusts, including special needs trusts.
(vii)  Representative payees for individuals receiving Social Security benefits.
(viii)  Pennsylvania Achieving a Better Life Experience accounts.
(ix)  Mental health advance directives.
(4)  The type of guardian, limited or plenary, of the person or estate needed based on
            the nature of any condition or disability and the capacity to make and communicate
            decisions.
(5)  The duration of the guardianship.
(6)  The court shall prefer
less restrictive alternatives
to guardianship and, if no less restrictive alternatives are
available and sufficient,
limited guardianship.
The following
apply:
(i)  A determination of incapacity is separate from a determination of whether a guardian
            should be appointed.
(ii)  The court may not use a determination of incapacity alone to justify a guardianship.
(iii)  The court may not appoint a guardian if a lesser restrictive alternative exists that
            is sufficient to support the needs of an incapacitated person.
(iv)  When entering an order denying a petition for guardianship in whole or in part, the
            court shall identify the less restrictive alternatives that are available and sufficient
            to enable the alleged incapacitated person to manage personal financial resources
            or to meet essential requirements of personal physical health and safety. An order
            may assist the respondent and any supportive and substitute decision makers involved
            to effectuate the respondent's decisions with third parties.
* * *
§ 5512.2.  Review hearing.
(a)  [Time of hearing.--The court may set a date for a review hearing in its order establishing
            the guardianship or hold a review hearing at any time it shall direct. The court shall
            conduct a review hearing promptly if the incapacitated person, guardian or any interested
            party petitions the court for a hearing for reason of a significant change in the
            person's capacity, a change in the need for guardianship services or the guardian's
            failure to perform his duties in accordance with the law or to act in the best interest
            of the incapacitated person. The court may dismiss a petition for review hearing if
            it determines that the petition is frivolous.]
Automatic review.--If the evidence presented during the guardianship proceeding indicates
               that the circumstances of the person's incapacity may change, the court shall hold
               a review hearing to determine whether the guardianship continues to be necessary.
               The court shall set the date for a review hearing under this subsection in the court's
               order establishing guardianship. The review hearing under this subsection shall be
               held no later than one year from the date of the order establishing the guardianship.
               The hearing shall be conducted in the presence of the incapacitated person and the
               person's attorney, and the court shall adhere to the procedures and standards as outlined
               in section 5512.1(a) (relating to determination of incapacity and appointment of guardian).
               If, following the presentation of evidence and testimony from all parties, the court
               finds that guardianship continues to be necessary and that no less restrictive alternatives
               exist, the court may order that the guardianship continue. If the court finds that
               guardianship is no longer necessary or a less restrictive alternative exists, the
               court shall discharge the guardianship. In determining whether the circumstances of
               the person's incapacity may change, the court may consider any of the following:
(1)  whether the incapacity could be adequately managed by medication, rehabilitation or
            other means;
(2)  whether the potential exists for the incapacitated person to regain physical or cognitive
            capacity;
(3)  the opinion of a medical professional or other qualified expert who has personally
            examined the incapacitated person;
(4)  the circumstances of the incapacitated person's daily living, including, but not limited
            to, support from others; and
(5)  any other factor indicating that the incapacitated person's condition could improve
            at a future time.
(a.1)  Petition for review.--At any time following the issuance of the order establishing
            guardianship, any interested person may file a petition with the court to terminate
            or modify the guardianship. The court shall promptly schedule a hearing or hold a
            review hearing at any time it shall direct. The hearing shall be held in the presence
            of the incapacitated person and the incapacitated person's attorney, and the court
            shall adhere to the procedures and standards as outlined in section 5512.1(a). If,
            following the presentation of evidence and testimony from all parties, the court finds
            that guardianship continues to be necessary and that no less restrictive alternatives
            exist, the court may order that the guardianship continue. If the court finds that
            guardianship is no longer necessary or a less restrictive alternative exists, the
            court shall discharge the guardianship.
(b)  Burden of proof and rights.--The incapacitated person shall have all of the rights
            enumerated in this chapter. Except when the hearing is held to appoint a successor
            guardian, the burden of proof, by clear and convincing evidence, shall be on the party
            advocating continuation of guardianship or expansion of areas of incapacity.
Section 3.  This act shall take effect in 180 days.
APPROVED--The 14th day of December, A.D. 2023.
JOSH SHAPIRO