THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY GREENLEAF, BROWNE, COSTA AND STACK, OCTOBER 15, 2012

REFERRED TO JUDICIARY, OCTOBER 15, 2012  

AN ACT

Amending Title 20 (Decedents, Estates and Fiduciaries) of the

Pennsylvania Consolidated Statutes, in orphans' court

divisions, further providing for appointment and purpose and

for compensation; and, in incapacitated persons, providing

for venue and for confidentiality and disclosure of 

information; further providing for petition and hearing and

independent evaluation; repealing provisions relating to

county of appointment and qualifications; further providing

for review hearing; providing for affidavit in uncontested

termination matters and for counsel; further providing for

emergency guardian; repealing provisions relating to

provisions similar to other estates; providing for removal

and discharge of guardian, for appointment of guardian in

conveyance and for bond; further providing for evidence of

incapacity, for cross-examination of witnesses and for

provisions concerning powers, duties and liabilities;

providing for protection of person dealing with guardian; and

further providing for when accounting filed, for

distributions of income and principal during incapacity and

for guardianship services.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 751 of Title 20 of the Pennsylvania

Consolidated Statutes is amended by adding paragraphs to read:

§ 751.  Appointment; purpose.

The orphans' court division may appoint:

* * *

(7)  Examiners of actions of guardian of estate.--By

general rule or special order, an examiner to make periodic

or special examinations of expenditures, disbursements and

withdrawals of a guardian of the estate of an incapacitated

person and to require the guardian of the estate to present

financial records for examination.

(8)  Mediators or arbitrators.--A mediator or arbitrator

if the parties desire mediation or arbitration but do not

mutually agree on an independent mediator or arbitrator. The

meeting place shall be in this Commonwealth in a location

selected by the mediator or arbitrator. The mediator or

arbitrator may extend the date of the meeting for good cause

shown by either party or upon stipulation of both parties.

All files, records, reports, documents or other papers

received or prepared by the mediator or arbitrator while

serving as such shall be classified as confidential. Payment

from an incapacitated person's estate for mediation or

arbitration shall be subject to approval by the court.

Section 2.  Section 752 of Title 20 is amended to read:

§ 752.  Compensation.

[The compensation of any master, auditor, examiner, guardian

ad litem, or trustee ad litem, subject to any inconsistent

general rule shall be paid from such source as the court shall

direct.] Subject to any inconsistent general rule of court, the

compensation of any master, auditor, examiner, guardian ad litem

or trustee ad litem shall be paid from such source and in such

amounts as the court directs.

Section 3.  Title 20 is amended by adding sections to read:

§ 5503.  Venue.

(a)  Applicability.--This section is subject to Chapter 59

(relating to uniform adult guardianship and protective

proceedings jurisdiction).

(b)  Guardian of person.--Venue for a guardianship proceeding

for an incapacitated person or an alleged incapacitated person

is in the judicial district of this Commonwealth in which the

person resides and, if the person has been admitted to an

institution by order of a court of competent jurisdiction, in

the judicial district in which the institution is located. Venue

for the appointment of an emergency guardian of an incapacitated

person or an alleged incapacitated person is also in the

judicial district in which the person is present.

(c)  Guardian of estate.--Venue for a proceeding regarding a

guardianship of the estate of an incapacitated person or alleged

incapacitated person is in the judicial district of this

Commonwealth in which the incapacitated person or alleged

incapacitated person resides, whether or not a guardian of the

person has been appointed in another place or, if the person

does not reside in this Commonwealth, in any judicial district

of this Commonwealth in which property owned by the person is

located.

(d)  Multiple judicial districts.--If a proceeding under this

chapter is brought in more than one judicial district in this

Commonwealth, the court of the judicial district in which the

proceeding is first brought has the exclusive right to proceed

unless that court determines that venue is properly in another

court or that the interests of justice otherwise require that

the proceeding be transferred.

§ 5504.  Confidentiality and disclosure of information.

Confidentiality and the disclosure of information under this

chapter shall be governed by applicable court rule or as the

court determines. The Supreme Court may prescribe uniform rules

relating to confidentiality and the disclosure of information.

Section 4.  Section 5511(a), (e) and (f) of Title 20 are

amended and the section is amended by adding subsections 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)  Resident.--

(1)  Upon petition and hearing and the presentation of

clear and convincing evidence, the court may find an

individual domiciled in this Commonwealth to be incapacitated

and appoint a guardian of the person or guardian of the

estate for the individual.

(2)  The petitioner under this subsection may be any

person interested in the alleged incapacitated person's

welfare. If the petitioner is a guardianship support agency,

the petition shall disclose the agency's financial

information and a list of its current guardianships.

(3)  The court may dismiss a proceeding if it determines

that:

(i)  the proceeding has not been instituted to aid or

benefit the alleged incapacitated person; or

(ii)  the petition is incomplete or fails to provide

sufficient facts to proceed.

(4)  The Supreme Court shall establish a uniform citation

for the written notice of the petition and hearing, which

shall:

(i)  Be given in large type and in simple language to

the alleged incapacitated person.

(ii)  Indicate the purpose and seriousness of the

proceeding and the rights that can be lost as a result of

the proceeding.

(iii)  Include the date, time and place of the

hearing and an explanation of all rights, including the

appointment of counsel as set forth in subsection (a.2).

(iv)  Be attached to the petition.

(5)  Service of the petition and notice shall be as

follows:

(i)  Personal service of the petition and notice

shall be made on the alleged incapacitated person. The

contents and terms of the petition shall be explained to

the maximum extent possible in language and terms the

person is most likely to understand. Service shall be not

less than 20 days in advance of the hearing.

(ii)  Notice of the petition and hearing shall be

given to the following in the manner as the court

directs:

(A)  Any person:

(I)  whose existence and whereabouts are

known or could be readily obtained;

(II)  who is sui juris; and

(III)  who would be entitled to share in the

estate of the alleged incapacitated person if the

person died intestate at that time.

(B)  The person or institution providing

residential services to the alleged incapacitated

person.

(C)  Another party as the court directs,

including another service provider.

(6)  The hearing:

(i)  may be closed to the public and without a jury,

unless the alleged incapacitated person or the person's

counsel objects;

(ii)  shall be closed to the public and with or

without a jury, if the alleged incapacitated person or

the person's counsel so requests; or

(iii)  may be held at the residence of the alleged

incapacitated person.

(7)  The alleged incapacitated person shall be present at

the hearing unless:

(i)  upon the deposition or testimony of or sworn

statement by a physician or licensed psychologist, the

court is satisfied that the person's physical or mental

condition would be harmed by being present, but the

inability of the person to comprehend the proceedings

does not, by itself, constitute harm; or

(ii)  it is impossible for the person to be present

because of the person's absence from this Commonwealth.

It shall not be necessary for the person to be

represented by a guardian ad litem in the proceeding.

(8)  The court may grant standing to any person on whom

the notice and petition are served under paragraph (5).

(a.2)  Appointment of counsel.--

(1)  If counsel has not been retained by or on behalf of

the alleged incapacitated person, the petitioner under

subsection (a) shall notify the court at least seven days

prior to the hearing.

(2)  The court shall appoint counsel to represent the

alleged incapacitated person in any matter for which counsel

has not been retained by or on behalf of the alleged

incapacitated person:

(i)  in appropriate cases as the court determines;

and

(ii)  in all cases in which the court knows in

advance that the alleged incapacitated person is not

expected to be present at the hearing, either in person

or by videoconference.

* * *

(e)  Petition contents.--

(1)  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.

(2)  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.

(3)  A petition that is filed for the appointment of a

guardian of the person on or after (in preparing this act for

printing in the Laws of Pennsylvania and the Pennsylvania

Consolidated Statutes, the Legislative Reference Bureau shall

insert here, in lieu of this statement, the effective date of

this paragraph) shall state whether it is proposed that the

guardian of the person shall have the power to make health

care decisions and, if so, whether the guardian shall have

all the powers of a health care representative to make health

care decisions as defined under section 5422 (relating to

definitions), including decisions involving health care

necessary to preserve life if the incapacitated person were

to be in an end-stage medical condition or be permanently

unconscious, and any limitation of those powers.

(f)  Who may be appointed guardian.--[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.] 

(1)  The court may appoint any one or more of the

following to be an alleged incapacitated person's guardian of

the person or guardian of the estate, or both:

(i)  Any qualified individual.

(ii)  A corporate fiduciary. If a person is a

corporate entity doing business in this Commonwealth and

serving as a guardian of the estate of an incapacitated

person, the person shall have an office in this

Commonwealth.

(iii)  A nonprofit corporation.

(iv)  A guardianship support agency under Subchapter

F (relating to guardianship support).

(v)  A county agency.

(2)  If the alleged incapacitated person is a resident of

a State facility, the court may appoint the guardian office

at the facility as the alleged incapacitated person's

guardian of the estate.

(g)  Who may not be appointed guardian.--

(1)  Subject to paragraph (2), unless it is clearly

demonstrated that no guardianship support agency or other

alternative exists, the court may not appoint the following

as the alleged incapacitated person's guardian of the person

or guardian of the estate:

(i)  A person or entity providing residential

services for a fee to the alleged incapacitated person.

(ii)  Any other person whose interests conflict with

those of the alleged incapacitated person.

(2)  Any family relationship to the alleged incapacitated

person shall not, by itself, be considered in conflict with

the interest of the alleged incapacitated person.

(h)  Preference in appointing guardian of person.--

(1)  If a nomination regarding guardian of the person has

been made in a power of attorney, the court may determine

that an adjudication of incapacity is not necessary or that

an adjudication of incapacity is necessary but the

appointment of a guardian of the person is not necessary. If

the court makes an adjudication of incapacity and determines

that a guardian of the person shall be appointed, the court

shall appoint the nominated person in accordance with the

terms of the power of attorney or health care power of

attorney, except for good cause or disqualification.

(2)  Subject to paragraph (1), in appointing a qualified

person to be guardian of the person, the court shall consider

the following order of preference:

(i)  A guardian, other than a temporary or emergency

guardian, currently acting for the estate.

(ii)  The spouse of the person.

(iii)  An adult child of the person.

(iv)  A parent of the person.

(v)  The nominee of a deceased or living parent of an

unmarried alleged incapacitated person.

(vi)  Another suitable and qualified person.

(3)  With respect to persons having equal preference, the

court shall select the person or persons that it considers

best qualified in that class.

(4)  Subject to paragraph (1), in acting in the best

interest of the alleged incapacitated person, the court may

decline to appoint a person having a higher preference and

appoint a person having a lower preference or no preference.

(i)  Preference in appointing guardian of estate.--

(1)  If a nomination regarding guardian of the estate has

been made in a power of attorney, the court may determine

that an adjudication of incapacity is not necessary or that

an adjudication of incapacity is necessary but the

appointment of a guardian of the estate is not necessary.

Subject to paragraph (5), if the court makes an adjudication

of incapacity and determines that a guardian of the estate

shall be appointed, the court shall appoint the nominated

person in accordance with the terms of the power of attorney,

except for good cause or disqualification.

(2)  Subject to paragraphs (1) and (5), in appointing a

qualified person to be guardian of the estate, the court

shall consider the following order of preference:

(i)  A guardian, other than a temporary or emergency

guardian, currently acting for the person.

(ii)  The spouse of the person.

(iii)  An adult child of the person.

(iv)  A parent of the person.

(v)  The nominee of a deceased or living parent of an

unmarried alleged incapacitated person.

(vi)  Another suitable and qualified person,

including a corporate fiduciary, a nonprofit corporation,

a guardianship support agency under Subchapter F and a

county agency.

(3)  With respect to persons having equal preference, the

court shall select the person or persons that it considers

best qualified in that class.

(4)  Subject to paragraph (1), in acting in the best

interest of the alleged incapacitated person, the court may

decline to appoint a person having a higher preference and

appoint a person having a lower preference or no preference.

(5)  The court may appoint a corporate fiduciary or other

appropriate person as a guardian of the estate of the

incapacitated person in appropriate cases, if the

incapacitated person's estate contains substantial assets or

involves complex financial matters.

Section 5.  Section 5512 of Title 20 is repealed:

[§ 5512.  County of appointment; qualifications.

(a)  Resident incapacitated person.--A guardian of the person

or estate of an incapacitated person may be appointed by the

court of the county in which the incapacitated person is

domiciled, is a resident or is residing in a long-term care

facility.

(b)  Nonresident incapacitated person.--A guardian of the

estate within the Commonwealth of an incapacitated person

domiciled outside of the Commonwealth may be appointed by the

court of the judicial district having jurisdiction of a

decedent's estate or of a trust in which the incapacitated

person has an interest. When the nonresident incapacitated

person's estate is derived otherwise than from a decedent's

estate or a trust within the Commonwealth, a guardian may be

appointed by the court of any county where an asset of the

incapacitated person is located.

(c)  Exclusiveness of appointment.--When a court has

appointed a guardian of the person or estate of an incapacitated

person pursuant to subsection (a) or (b), no other court shall

appoint a similar guardian for the incapacitated person within

the Commonwealth.]

Section 6.  Section 5512.2(a) of Title 20 is amended and the

section is amended by adding a subsection to read:

§ 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] person interested in the

incapacitated person's welfare 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.

* * *

(c)  Independent evaluation.--In a review hearing under this

section, the court may order an independent evaluation in

accordance with section 5511(d) (relating to petition and

hearing; independent evaluation).

Section 7.  Title 20 is amended by adding sections to read:

§ 5512.4.  Affidavit in uncontested termination matters.

In an uncontested matter concerning the termination of a

guardianship, whether or not a hearing is held regarding the

termination, the court may terminate the guardianship based on

an affidavit of the incapacitated person's attending physician

stating that the guardianship is no longer necessary.

§ 5512.5.  Counsel.

Following an adjudication of incapacity, counsel for the

incapacitated person acting as such before the individual was

adjudicated incapacitated, or counsel subsequently engaged by or

on behalf of the incapacitated person, may act on behalf of the

incapacitated person for a matter or at any proceeding regarding

the interest of the incapacitated person under this chapter. For

cause shown, the court may terminate the services of counsel

acting for an incapacitated person and appoint new counsel or a

guardian ad litem for a proceeding for which the incapacitated

person's interest is involved.

Section 8.  Section 5513 of Title 20 is amended to read:

§ 5513.  Emergency guardian.

[Notwithstanding the provisions of section 5511 (relating to

petition and hearing; independent evaluation), the court, upon

petition and a hearing at which clear and convincing evidence is

shown, may appoint an emergency guardian or guardians of the

person or estate of a person alleged to be incapacitated, when

it appears that the person lacks capacity, is in need of a

guardian and a failure to make such appointment will result in

irreparable harm to the person or estate of the alleged

incapacitated person. The provisions of section 5511, including

those relating to counsel, shall be applicable to such

proceedings, except when the court has found that it is not

feasible in the circumstances. An emergency guardian so

appointed for the person or estate of an alleged incapacitated

person shall only have and be subject to such powers, duties and

liabilities and serve for such time as the court shall direct in

its decree. An emergency order appointing an emergency guardian

of the person may be in effect for up to 72 hours. If the

emergency continues, then the emergency order may be extended

for no more than 20 days from the expiration of the initial

emergency order. After expiration of the emergency order or any

extension, a full guardianship proceeding must be initiated

pursuant to section 5511. The court may also appoint an

emergency guardian of the person pursuant to this section for an

alleged incapacitated person who is present in this Commonwealth

but is domiciled outside of this Commonwealth, regardless of

whether the alleged incapacitated person has property in this

Commonwealth. An emergency order appointing an emergency

guardian of the estate shall not exceed 30 days. After 30 days,

a full guardianship proceeding must be initiated pursuant to

section 5511.]

(a)  Appointment.--

(1)  Notwithstanding the provisions of section 5511

(relating to petition and hearing; independent evaluation),

upon petition and a hearing at which clear and convincing

evidence is shown, the court may appoint an emergency

guardian or guardians of the person or estate of a person

alleged to be incapacitated, when it appears that:

(i)  the person lacks capacity and is in need of a

guardian; and

(ii)  a failure to make such appointment will likely

result in irreparable harm to the person or estate of the

alleged incapacitated person.

(2)  The court may appoint an emergency guardian of the

person under this section for an alleged incapacitated person

who is present in this Commonwealth but domiciled outside

this Commonwealth, regardless of whether the alleged

incapacitated person has property in this Commonwealth.

(b)  Procedures and powers generally.--

(1)  Each provision of section 5511 shall apply to

proceedings under subsection (a), except:

(i)  when the court has found that the application of

the provision is not feasible under the circumstances; or

(ii)  as otherwise provided in this section.

(2)  An emergency guardian so appointed for the person or

estate of an alleged incapacitated person shall only have and

be subject to such powers, duties and liabilities and serve

for such time as the court shall direct in its decree.

(c)  Duration of initial order.--An initial emergency order

appointing an emergency guardian of the person or guardian of

the estate may be in effect for up to 30 days.

(d)  Appointment of counsel.--

(1)  Prior to the expiration of the initial emergency

order, the court may appoint counsel for the alleged

incapacitated person.

(2)  If an extension of the emergency order is sought

under subsection (e), the court shall appoint counsel for the

alleged incapacitated person.

(e)  Extension of order.--An emergency order may be extended

for not more than an additional 60 days upon the consent of the

petitioner, emergency guardian and counsel for the incapacitated

person. At any time after the filing of the petition for

emergency guardianship, upon a determination that the duration

of incapacity of the alleged incapacitated person is likely to

extend longer than the period of emergency guardianship

permitted by this section, the court shall direct that the

petitioner file a petition for a permanent guardianship of the

person or a permanent guardianship of the estate, or both. In

such a case, the period of extension of the emergency order

shall be extended to the date of the order on the permanent

guardianship petition.

Section 9.  Section 5515 of Title 20 is repealed:

[§ 5515.  Provisions similar to other estates.

The provisions relating to a guardian of an incapacitated

person and his surety shall be the same as are set forth in the

following provisions of this title relating to a personal

representative or a guardian of a minor and their sureties:

Section 3182 (relating to grounds for removal).

Section 3183 (relating to procedure for and effect of

removal).

Section 3184 (relating to discharge of personal

representative and surety).

Section 5115 (relating to appointment of guardian in

conveyance).

Section 5121 (relating to necessity, form and amount).

Section 5122 (relating to when bond not required).

Section 5123 (relating to requiring or changing amount of

bond).]

Section 10.  Title 20 is amended by adding sections to read:

§ 5515.1.  Removal and discharge of guardian.

(a)  Conditions.--The court has the exclusive power to remove

a guardian of the person or guardian of the estate if either

paragraph (1) or (2) applies:

(1)  The guardian:

(i)  is wasting or mismanaging the estate;

(ii)  is or is likely to become insolvent;

(iii)  has failed to perform any duty imposed by law;

(iv)  has become incapacitated to discharge the

duties as guardian because of sickness or physical or

mental incapacity and the incapacity is likely to

continue to the injury of the estate or the incapacitated

person; or

(v)  has removed from this Commonwealth or has ceased

to have a known place of residence herein, without

furnishing a security or additional security as the court

directs.

(2)  For any reason other than that set forth in

paragraph (1), the interests of the estate or the

incapacitated person are likely to be jeopardized by the

guardian's continuance as guardian.

(b)  Procedure.--

(1)  On the court's own motion or on the petition of any

party in interest alleging adequate grounds for removal of a

guardian of the person or guardian of the estate, the court

shall:

(i)  order the guardian to appear and show cause why

the guardian should not be removed; or

(ii)  summarily remove the guardian when necessary to

protect the rights of creditors or parties in interest.

(2)  Upon removal of a guardian of the person or guardian

of the estate, the court shall appoint a successor guardian

and may appoint a co-guardian under section 5514 (relating to

to fill vacancy; co-guardian) and, by summary attachment of

the guardian or other appropriate orders, provide for the

security and delivery of the assets of the estate, together

with all books, accounts and papers relating thereto.

(3)  Any guardian of the person or guardian of the estate

summarily removed under this section may petition to have the

decree of removal vacated and to be reinstated. If the court

vacates the decree of removal and reinstates the guardian, it

shall thereupon make any appropriate orders to accomplish the

reinstatement.

(c)  Discharge of guardian and surety.--After confirmation of

the final account and distribution to the parties entitled, a

guardian of the estate and the guardian's surety may be

discharged by the court from future liability. The court may

discharge only the surety from future liability, allowing the

guardian to continue without surety, upon condition that no

further assets shall come into the control of the guardian until

the guardian files another bond with sufficient surety, if

required.

§ 5515.2.  Appointment of guardian in conveyance.

A deed or instrument creating a gift or designating a

beneficiary in a life insurance policy, annuity contract,

retirement plan, including, but not limited to, any tax

qualified or nonqualified pension, profit sharing, stock bonus,

employee savings and retirement plan, deferred compensation plan

or individual retirement account, or another plan or contractual

arrangement providing for payments to the incapacitated person

or to others after the incapacitated person's death, may contain

an appointment of a guardian of the estate or interest of each

named beneficiary who is incapacitated. Payment by an insurance

or other financial services company to the beneficiary's

guardian so appointed discharges the paying company to the same

effect as payment to an otherwise duly appointed and qualified

guardian.

§ 5515.3.  Bond.

(a)  General rule.--Except as provided in this section, every

guardian of the estate shall execute and file a bond in the name

of the Commonwealth, with sufficient surety, in an amount the

court considers necessary, having regard to the value of the

personal estate which will come into the control of the

guardian, and conditioned in the following form:

(1)  If the guardian administers the estate well and

according to law, this obligation shall be void, but

otherwise it remains in force.

(2)  If a co-guardian administers the estate well and

according to law, this obligation shall be void as to that

co-guardian who so administers the estate, but otherwise it

remains in force.

(b)  Exceptions.--Unless deemed advisable by the court for

cause shown, no bond is required of the following:

(1)  A guardian appointed by or in accordance with the

terms of a will, inter vivos instrument or insurance contract

as to the property acquired under the authority of the

appointment, unless it is required by the conveyance.

(2)  A bank and trust company, a trust company

incorporated in this Commonwealth or a national bank having

its principal office in this Commonwealth.

(c)  Court discretion.--The court has discretion to not

require a bond:

(1)  from a nonresident corporation or a national bank

having its principal office outside this Commonwealth,

otherwise qualified to act as guardian; and

(2)  in all other cases when, for cause shown, it finds

that no bond is necessary.

(d)  Amount.--For cause shown and after such notice, if any,

as it directs, the court may require a surety bond or increase

or decrease the amount of an existing bond or require more or

less security.

Section 11.  Sections 5518 and 5518.1 of Title 20 are amended

to read:

§ 5518.  Evidence of incapacity.

To establish incapacity in a proceeding in which the

incapacity of the alleged incapacitated person is contested, the

petitioner must present testimony, in person or by

teleconference, videoconference or deposition from individuals

qualified by training and experience in evaluating individuals

with incapacities of the type alleged by the petitioner, which

establishes the nature and extent of the alleged incapacities

and disabilities and the person's mental, emotional and physical

condition, adaptive behavior and social skills. In a proceeding

in which the capacity of the alleged incapacitated person is not

contested and at which the person or the person's counsel is

present, the petitioner may establish incapacity by a sworn

statement from the qualified individuals. The [petition]

petitioner must also present evidence regarding the services

being utilized to meet essential requirements for the alleged

incapacitated person's physical health and safety, to manage the

person's financial resources or to develop or regain the

person's abilities; evidence regarding the types of assistance

required by the person and as to why no less restrictive

alternatives would be appropriate; and evidence regarding the

probability that the extent of the person's incapacities may

significantly lessen or change.

§ 5518.1.  Cross-examination of witnesses.

[Testimony]  Except as provided for in section 5518 (relating

to evidence of incapacity), testimony as to the capacity of the

alleged incapacitated person shall be subject to cross-

examination [by counsel for the alleged incapacitated person].

Section 12.  Section 5521(b), (c) and (g) of Title 20 are

amended and the section is amended by adding subsections to

read:

§ 5521.  Provisions concerning powers, duties and liabilities.

* * *

(a.1)  Death or removal of guardian.--

(1)  An action or proceeding in which a guardian of the

person or guardian of the estate is a party is not abated by

the death or resignation of the guardian or by the

termination of the guardian's authority.

(2)  The successor of the guardian may be substituted in

the action or proceeding in the manner provided by law.

[(b)  Duty of guardian of the estate.--The provisions

concerning the powers, duties and liabilities of guardians of

incapacitated persons' estates shall be the same as those set

forth in the following provisions of this title relating to

personal representatives of decedents' estates and guardians of

minors' estates:

Section 3313 (relating to liability insurance).

Section 3314 (relating to continuation of business).

Section 3315 (relating to incorporation of estate's

business).

Section 3317 (relating to claims against co-fiduciary).

Section 3318 (relating to revival of judgments against

personal representative).

Section 3319 (relating to power of attorney; delegation

of power over subscription rights and fractional shares;

authorized delegations).

Section 3320 (relating to voting stock by proxy).

Section 3321 (relating to nominee registration; corporate

fiduciary as agent; deposit of securities in a clearing

corporation; book-entry securities).

Section 3322 (relating to acceptance of deed in lieu of

foreclosure).

Section 3323 (relating to compromise of controversies).

Section 3324 (relating to death or incapacity of

fiduciary).

Section 3327 (relating to surviving or remaining personal

representatives).

Section 3328 (relating to disagreement of personal

representatives).

Section 3331 (relating to liability of personal

representative on contracts).

Section 3332 (relating to inherent powers and duties).

Section 3355 (relating to restraint of sale).

Section 3356 (relating to purchase by personal

representative).

Section 3359 (relating to record of proceedings; county

where real estate lies).

Section 3360 (relating to contracts, inadequacy of

consideration or better offer; brokers' commissions).

Section 3372 (relating to substitution of personal

representative in pending action or proceedings).

Section 3374 (relating to death or removal of fiduciary).

Section 3390 (relating to specific performance of

contracts).

Section 5141 (relating to possession of real and personal

property).

Section 5142 (relating to inventory).

Section 5143 (relating to abandonment of property).

Section 5145 (relating to investments).

Section 5146 (relating to guardian named in conveyance).

Section 5147 (relating to proceedings against guardian).

Section 5151 (relating to power to sell personal

property).

Section 5154 (relating to title of purchaser).

Section 5155 (relating to order of court).]

(b.1)  Powers of guardian of the estate without further court

approval.--Except as otherwise qualified, limited or directed by

the court in its order of appointment, a guardian of the estate

of an incapacitated person, without further court authorization

or confirmation, shall have the following powers:

(1)  Insure the assets of the estate against damage or

loss and, at the expense of the estate, protect the

incapacitated person, the guardian of the estate, the

guardian of the person and any agent or employee of the

guardian from liability to a third person that arises from

the administration of the incapacitated person's estate. The

power to purchase insurance at the expense of the estate does

not include insurance to protect the guardian of the estate

from any action ultimately found to be subject to surcharge.

(2)  Take any legal action against a co-guardian of the

estate to protect the estate of the incapacitated person, if

one of two or more guardians of the estate is individually

liable to the estate.

(3)  Employ a custodian, hold property unregistered or in

the name of a nominee, including the nominee of any

institution employed as custodian, without disclosing the

fiduciary relationship and without retaining possession and

control of securities or other property so held or registered

and pay reasonable compensation to the custodian.

(4)  Take for the estate from the owner of property

encumbered by a mortgage owned by the estate a deed in lieu

of foreclosure, in which event the real estate shall be

considered personalty to the same extent as though title were

acquired by foreclosure at sheriff's sale. Any deed

previously accepted is hereby valid in accordance with this

paragraph.

(5)  With respect to the tangible or intangible personal

property of the estate and subject to section 5536 (relating

to distributions of income and principal during incapacity):

(i)  Acquire, take possession of or dispose of the

personal property through the selling or exchanging of

the personal property:

(A)  For cash or on credit.

(B)  At public or private sale.

(C)  Without obligation to repudiate an otherwise

binding agreement in favor of a better offer.

(ii)  Wherever the personal property is located and

until the personal property is distributed or sold:

(A)  Maintain and administer the personal

property.

(B)  Make all reasonable expenditures necessary

to preserve the personal property.

(C)  Maintain any action with respect to the

personal property.

(6)  Accept, hold, invest in and retain investments as

provided by Chapter 72 (relating to prudent investor rule).

(7)  Advance money for the protection of the estate and

for all expenses, losses and liability sustained in the

administration of the estate or because of the holding or

ownership of any estate asset. The guardian of the estate has

a lien on the estate assets for an advance under this

paragraph, including interest on the advance.

(8)  With respect to an incapacitated person's service as

fiduciary, which may include, without limitation, as an

executor, administrator, trustee, guardian, agent or officer

or director of a corporation:

(i)  Renounce any fiduciary position to which the

incapacitated person has been appointed.

(ii)  Resign any fiduciary position in which the

incapacitated person is then serving and:

(A)  file an accounting with a court of competent

jurisdiction; or

(B)  settle on receipt and release or other

informal method as the guardian of the estate deems

advisable.

(9)  Vote a security, in person or by general or limited

proxy, with or without power of substitution.

(10)  With respect to the real property of the estate:

(i)  Manage, repair, improve, maintain, restore,

alter, build, protect or insure.

(ii)  Demolish structures.

(iii)  Collect rent, earnings and other proceeds.

(iv)  Pay, contest, protest and compromise taxes and

assessments.

(v)  Grant and obtain easements.

(vi)  Develop, dedicate, partition or subdivide.

(vii)  File plans, applications or other documents.

(viii)  Release in whole or in part, assign the whole

or a part of, satisfy in whole or in part and enforce any

mortgage, encumbrance, lien or other claim to real

property.

(ix)  Subject to subsection (b.2)(3) and section

5536, generally exercise all powers that a person who is

not incapacitated could exercise.

(b.2)  Powers of guardian of the estate with further court

approval.--A guardian of the estate of an incapacitated person

may have the following powers only with further court

authorization or confirmation:

(1)  Continue any business in which the incapacitated

person has an ownership interest, for the benefit of the

incapacitated person's estate, after the court gives due

regard to the order of appointment and any other factor

deemed relevant, and aided by the report of a master if

necessary. An order by the court under this paragraph may be

with or without notice. If prior notice is not given to all

parties in interest, it shall be given within five days after

the order or within such extended time as the court, for

cause shown, shall allow. Any party in interest may, at any

time, petition the court to revoke or modify the order. The

order may provide:

(i)  for the conduct of business by the guardian of

the estate alone or jointly with others, or as a

corporation, partnership, limited liability company or

other entity to be formed;

(ii)  the extent of the liability of the estate or

any part thereof, or of the guardian of the estate, for

obligations incurred in the continuation of the business;

(iii)  whether liabilities incurred in the conduct of

the business are to be chargeable solely to the part of

the estate set aside for use in the business or to the

estate as a whole;

(iv)  the period of time the business may be

conducted;

(v)  for the compensation of the guardian of the

estate actively managing, supervising or engaging in the

operation of an entity or business, from the estate's

assets or from the entity or business, as appropriate,

provided that the compensation is reasonably based upon

the actual responsibilities assumed and performed; and

(vi)  other regulations, including accountings, as

the court shall deem advisable.

(2)  After notice to all parties in interest and after

the court gives due regard to the order of appointment and

any other factor deemed relevant and aided by the report of a

master if necessary:

(i)  Organize a corporation or form a partnership,

limited liability company or other entity to carry on the

business of the incapacitated person, whether the

business was owned solely or with others, with the

guardian of the estate exercising this power alone or

jointly with others.

(ii)  Contribute for stock of the corporation, as

capital, or for an interest in a partnership, limited

liability company or other entity, all or part of the

property of the incapacitated person that was invested in

the business.

(3)  With respect to the real property of the estate:

(i)  Sell or buy any real property at public, private

or judicial sale, exchange any real property or grant or

obtain an option for the sale, purchase or exchange of

any real property. The court may direct:

(A)  The terms and security for any of these

powers.

(B)  The reasonable notice to the parties in

interest, including heirs of the incapacitated

person.

(ii)  Join with the spouse of the incapacitated

person in the performance of any of the acts under

subparagraph (i) with respect to property held by the

entireties.

(iii)  Release the right of the incapacitated person

in the real property of the person's spouse and join in

the deed of the spouse on behalf of the incapacitated

person.

(iv)  Abandon any real property.

(b.3)  Revival of judgment.--When the estate holds a judgment

that is a lien on the real estate of the guardian, any person

interested in the incapacitated person's estate may bring an

appropriate action to revive it and to continue its lien.

(b.4)  Death or incapacity of guardian of estate.--The

personal representative of the estate of a deceased guardian of

the estate or the guardian of an incapacitated guardian of the

estate by reason of the position so held shall not succeed to

the administration of, or have the right to possess, any asset

of the estate that was being administered by the deceased or

incapacitated guardian of the estate, except to protect it

pending its delivery to the person entitled to it. The account

of the deceased or incapacitated guardian of the estate may be

filed by the fiduciary of the guardian's estate and shall be

filed if the court shall so direct. The court may direct the

fiduciary of a deceased or incapacitated guardian of the estate

to make the distribution and to make the transfers and

assignments necessary to carry into effect a decree of

distribution.

(b.5)  Surviving or remaining guardians.--Unless the order of

appointment specifies otherwise, surviving or remaining

guardians of the estate shall have all the powers of the

original guardians of the estate.

(b.6)  Disagreement of guardians of the estate.--If a dispute

arises among guardians of the estate, the decision of the

majority shall control unless otherwise provided by the court. A

dissenting guardian of the estate shall join with the majority

to carry out a majority decision requiring affirmative action

and may be ordered to do so by the court. A dissenting guardian

of the estate shall not be liable for the consequences of any

majority decision even though the guardian joins in carrying it

out, if the dissent is expressed promptly in writing to all the

other guardians of the estate, but liability for failure to join

in the further administration of the estate or to prevent a

breach of fiduciary duty may not be thus avoided. If a dispute

arises among guardians of the estate as to the exercise or

nonexercise of any of their powers and there is no agreement of

a majority of them, unless otherwise provided by the court, the

court, upon petition filed by any of the guardians of the estate

or by any party in interest, aided if necessary by the report of

a master, in its discretion, may direct the exercise or

nonexercise of the power as the court shall deem for the best

interest of the estate.

(b.7)  Filing of decree.--If a guardian of the estate has the

power to engage in a transaction involving the real estate of an

incapacitated person, a certified copy of the decree appointing

the guardian of the estate may be recorded in the office for the

recording of deeds in any county where the real estate, which is

subject to that power, is located.

(b.8)  Inadequacy of consideration.--

(1)  Except as provided in paragraphs (2) and (3), when a

guardian of the estate makes a contract, the inadequacy of

consideration or the receipt of an offer to deal on other

terms does not:

(i)  relieve the guardian of the estate of the

obligation to perform the contract, except as otherwise

agreed by the parties; or

(ii)  constitute a basis for any court to set aside

the contract or refuse to enforce it by specific

performance or otherwise.

(2)  This subsection does not affect or change the

inherent right of the court to set aside a contract for

fraud, accident or mistake.

(3)  Nothing in this subsection shall affect the

liability of a guardian of the estate for surcharge on the

ground of negligence or bad faith in making a contract.

(b.9)  Substitution of party.--If a party to a pending action

or proceeding has a guardian of the estate appointed, the

guardian of the estate of the incapacitated person may be

substituted as a party as provided by law.

(b.10)  Specific performance of contracts.--

(1)  If a person enters into an agreement to purchase or

sell real or personal estate and a guardian of the estate is

appointed for the person before the consummation of the

agreement, the guardian of the estate may consummate the

agreement. If the guardian of the estate does not consummate

the agreement, the court may order specific performance of

the agreement:

(i)  on the application of any party in interest;

(ii)  after such notice and with such security, if

any, as the court may direct; and

(iii)  if the agreement would have been enforced

specifically had the guardian of the estate not been

appointed.

(2)  The guardian of the estate or other person as the

court directs shall execute any necessary deed or transfer

regarding the agreement under this subsection. The title of

any purchaser under an agreement in which the incapacitated

person was the vendor shall be the same as though the

incapacitated person had conveyed or transferred the property

prior to the appointment of the guardian of the estate.

(3)  When any petition for specific performance of an

agreement to purchase or sell real estate is filed, the

prothonotary of the court of common pleas where the real

estate or any part of it lies, upon the receipt of a

certificate of such fact by the clerk of the court where the

petition was filed, shall enter the petition upon either the

judgment or ejectment and miscellaneous indexes against the

defendants as directed by local rules of court and shall

certify it as lis pendens in any certificate of search that

the prothonotary is required to make.

(b.11)  Abandonment of property.--Subject to subsection (b.2)

(3):

(1)  A guardian of the estate may abandon property of the

incapacitated person if the property is so burdensome or

encumbered or in such condition that it is of no value to the

estate.

(2)  The court may authorize the guardian of the estate

to transfer, renounce or release property of the

incapacitated person without consideration if:

(i)  the property cannot be abandoned without

transfer of title to another or without a formal

renunciation or release; and

(ii)  the court finds that the transfer, renunciation

or release will be for the best interests of the estate.

(b.12)  Title of purchaser.--If the guardian of the estate of

an incapacitated person has given a bond as required in

accordance with this title, any sale, pledge, mortgage or

exchange by the guardian of the estate, whether pursuant to a