CHAPTER 55
INCAPACITATED PERSONS
Subchapter
A. General Provisions
B. Small Estates
C. Appointment of Guardian; Bonds; Removal and Discharge
D. Powers, Duties and Liabilities of Guardians
E. Accounts, Audits, Reviews and Distribution
F. Guardianship Support
Enactment. Chapter 55 was added June 30, 1972, P.L.508, No.164, effective July 1, 1972.
Chapter Heading. The heading of Chapter 55 was amended April 16, 1992, P.L.108, No.24, effective in 60 days.
Cross References. Chapter 55 is referred to in sections 102, 5902, 5912, 5922 of this title; section 4A211 of Title 13 (Commercial Code); section 62A05 of Title 42 (Judiciary and Judicial Procedure).
SUBCHAPTER A
GENERAL PROVISIONS
Sec.
5501. Meaning of incapacitated person.
5502. Purpose of chapter.
Subchapter Heading. The heading of Subchapter A was amended April 16, 1992, P.L.108, No.24, effective in 60 days.
§ 5501. Meaning of incapacitated person.
"Incapacitated person" means an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.
(Dec. 10, 1974, P.L.899, No.295, eff. imd.; Apr. 16, 1992, P.L.108, No.24, eff. 60 days)
1992 Amendment. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
Cross References. Section 5501 is referred to in section 2514 of this title.
§ 5502. Purpose of chapter.
Recognizing that every individual has unique needs and differing abilities, it is the purpose of this chapter to promote the general welfare of all citizens by establishing a system which permits incapacitated persons to participate as fully as possible in all decisions which affect them, which assists these persons in meeting the essential requirements for their physical health and safety, protecting their rights, managing their financial resources and developing or regaining their abilities to the maximum extent possible and which accomplishes these objectives through the use of the least restrictive alternative; and recognizing further that when guardianship services are necessary, it is important to facilitate the finding of suitable individuals or entities willing to serve as guardians.
(Apr. 16, 1992, P.L.108, No.24, eff. 60 days)
1992 Amendment. Act 24 added section 5502. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
SUBCHAPTER B
SMALL ESTATES
Sec.
5505. Provisions similar to small estates of minors.
§ 5505. Provisions similar to small estates of minors.
The provisions concerning small estates of incapacitated persons shall be the same as are set forth in the following provisions of this title relating to minors' estates:
Section 5101 (relating to when guardian unnecessary).
Section 5102 (relating to power of natural guardian).
Section 5103 (relating to sequestered deposit).
(Dec. 10, 1974, P.L.867, No.293, eff. imd.; Feb. 18, 1982, P.L.45, No.26, eff. imd.; Apr. 16, 1992, P.L.108, No.24, eff. 60 days)
1992 Amendment. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
SUBCHAPTER C
APPOINTMENT OF GUARDIAN; BONDS; REMOVAL
AND DISCHARGE
Sec.
5511. Petition and hearing; independent evaluation.
5512. County of appointment; qualifications.
5512.1. Determination of incapacity and appointment of guardian.
5512.2. Review hearing.
5512.3. Annual report.
5513. Emergency guardian.
5514. To fill vacancy; co-guardian.
5515. Provisions similar to other estates.
5516. Fiduciary estate.
5517. Adjudication of capacity and modification of existing orders.
5518. Evidence of incapacity.
5518.1. Cross-examination of witnesses.
Cross References. Subchapter C is referred to in section 5833 of this title; section 3505 of Title 5 (Athletics and Sports).
§ 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. 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.
(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.
(b) Nonresident.--The court may find a person not domiciled in the Commonwealth, having property in the Commonwealth, to be incapacitated and may appoint a guardian of his estate. The appointment may be made after petition, hearing and notice, as in the case of a person domiciled in the Commonwealth, or upon the submission of an exemplified copy of a decree establishing his incapacity in another jurisdiction. The court shall give preference in its appointment to the foreign guardian of the nonresident incapacitated person, unless it finds that such appointment will not be for the best interests of the incapacitated person.
(c) Payment of certain costs.--If the alleged incapacitated person is unable to pay for counsel or for the evaluation, the court shall order the county to pay these costs. These costs shall be reimbursed by the Commonwealth in the following fiscal year.
(d) Independent evaluation.--The court, upon its own motion or upon petition by the alleged incapacitated person for cause shown, shall order an independent evaluation which shall meet the requirements of section 5518 (relating to evidence of incapacity). The court shall give due consideration to the appointment of an evaluator nominated by the alleged incapacitated person.
(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.
(Dec. 10, 1974, P.L.867, No.293, eff. imd.; Apr. 16, 1992, P.L.108, No.24, eff. 60 days; Dec. 14, 2023, P.L.446, No.61, eff. 180 days)
2023 Amendment. Act 61 amended subsecs. (a), (e) and (f) and added subsec. (a.1).
1992 Amendment. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
Cross References. Section 5511 is referred to in sections 5513, 5808, 5822, 5823, 5832, 5833, 7764 of this title; section 3206 of Title 18 (Crimes and Offenses); section 8123 of Title 35 (Health and Safety).
§ 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.
(Apr. 16, 1992, P.L.108, No.24, eff. 60 days)
1992 Amendment. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
§ 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 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.
(b) Limited guardian of the person.--Upon a finding that the person is partially incapacitated and in need of guardianship services, the court shall enter an order appointing a limited guardian of the person with powers consistent with the court's findings of limitations, which may include:
(1) General care, maintenance and custody of the incapacitated person.
(2) Designating the place for the incapacitated person to live.
(3) Assuring that the incapacitated person receives such training, education, medical and psychological services and social and vocational opportunities, as appropriate, as well as assisting the incapacitated person in the development of maximum self-reliance and independence.
(4) Providing required consents or approvals on behalf of the incapacitated person.
(c) Plenary guardian of the person.--The court may appoint a plenary guardian of the person only upon a finding that the person is totally incapacitated and in need of plenary guardianship services.
(d) Limited guardian of the estate.--Upon a finding that the person is partially incapacitated and in need of guardianship services, the court shall enter an order appointing a limited guardian of the estate with powers consistent with the court's finding of limitations, which shall specify the portion of assets or income over which the guardian of the estate is assigned powers and duties.
(e) Plenary guardian of the estate.--A court may appoint a plenary guardian of the estate only upon a finding that the person is totally incapacitated and in need of plenary guardianship services.
(f) No presumption.--No presumption of incapacity shall be raised from the alleged incapacitated person's institutionalization.
(g) Legal rights retained.--Except in those areas designated by court order as areas over which the limited guardian has power, a partially incapacitated person shall retain all legal rights.
(h) Information as to rights.--At the conclusion of a proceeding in which the person has been adjudicated incapacitated, the court shall assure that the person is informed of his right to appeal and to petition to modify or terminate the guardianship.
(Apr. 16, 1992, P.L.108, No.24, eff. 60 days; Dec. 14, 2023, P.L.446, No.61, eff. 180 days)
2023 Amendment. Act 61 amended subsec. (a).
1992 Amendment. Act 24 added section 5512.1. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
Cross References. Section 5512.1 is referred to in section 5512.2 of this title.
§ 5512.2. Review hearing.
(a) 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.
(Apr. 16, 1992, P.L.108, No.24, eff. 60 days; Dec. 14, 2023, P.L.446, No.61, eff. 180 days)
1992 Amendment. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
Cross References. Section 5512.2 is referred to in section 5517 of this title.
§ 5512.3. Annual report.
The court shall annually file with the Supreme Court Administrator's Office on forms furnished by the office a statistical and descriptive report to assist in evaluating the operation and costs of the guardianship system.
(Apr. 16, 1992, P.L.108, No.24, eff. 60 days)
1992 Amendment. Act 24 added section 5512.3. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
§ 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.
(Apr. 16, 1992, P.L.108, No.24, eff. 60 days)
1992 Amendment. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
Cross References. Section 5513 is referred to in section 5914 of this title.
§ 5514. To fill vacancy; co-guardian.
The court, after such notice to parties in interest as it shall direct, may without a hearing appoint a succeeding guardian to fill a vacancy in the office of guardian or may appoint a co-guardian of the estate of an incapacitated person. Where the vacating guardian was a parent who is now deceased, any testamentary nominee of the parent shall be given preference by the court.
(Apr. 16, 1992, P.L.108, No.24, eff. 60 days)
1992 Amendment. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
§ 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).
(Dec. 10, 1974, P.L.867, No.293, eff. imd; Feb. 18, 1982, P.L.45, No.26, eff. imd.; Apr. 16, 1992, P.L.108, No.24, eff. 60 days)
1992 Amendment. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
§ 5516. Fiduciary estate.
The court, in its discretion, upon the application of any party in interest, in addition to any bond required for the incapacitated person's individual estate, may require a separate bond in the name of the Commonwealth, with sufficient surety, in such amount as the court shall consider necessary for the protection of the parties in interest in an estate of which the incapacitated person is serving in the capacity as a fiduciary and conditioned in the following form:
(1) When one guardian.--The condition of this obligation is that, if the said guardian shall well and truly account for property held by the incapacitated person as fiduciary according to law, this obligation shall be void; but otherwise it shall remain in force.
(2) When two or more guardians.--The condition of this obligation is that, if the said guardians or any of them shall well and truly account for property held by the incapacitated person as fiduciary according to law, this obligation shall be void as to the guardian or guardians who shall so account; but otherwise it shall remain in force.
(Apr. 16, 1992, P.L.108, No.24, eff. 60 days)
1992 Amendment. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
§ 5517. Adjudication of capacity and modification of existing orders.
The court, after a hearing under section 5512.2 (relating to review hearing), may order that a person previously adjudged incapacitated is no longer incapacitated or the court may find that the incapacitated person has regained or lost capacity in certain areas in which case the court shall modify the existing guardianship order.
(Apr. 16, 1992, P.L.108, No.24, eff. 60 days)
1992 Amendment. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
Cross References. Section 5517 is referred to in section 8123 of Title 35 (Health and Safety).
§ 5518. Evidence of incapacity.
To establish incapacity, the petitioner must present testimony, in person or by 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. The petition 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.
(Apr. 16, 1992, P.L.108, No.24, eff. 60 days)
1992 Amendment. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
Cross References. Section 5518 is referred to in section 5511 of this title.
§ 5518.1. Cross-examination of witnesses.
Testimony as to the capacity of the alleged incapacitated person shall be subject to cross-examination by counsel for the alleged incapacitated person.
(Apr. 16, 1992, P.L.108, No.24, eff. 60 days)
1992 Amendment. Act 24 added section 5518.1. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
SUBCHAPTER D
POWERS, DUTIES AND LIABILITIES OF GUARDIANS
Sec.
5521. Provisions concerning powers, duties and liabilities.
5522. Power to lease.
5523. Collateral attack.
5524. Effect of determination of incapacity.
5525. Notice to Commonwealth and political subdivisions.
§ 5521. Provisions concerning powers, duties and liabilities.
(a) Duty of guardian of the person.--It shall be the duty of the guardian of the person to assert the rights and best interests of the incapacitated person. Expressed wishes and preferences of the incapacitated person shall be respected to the greatest possible extent. Where appropriate, the guardian shall assure and participate in the development of a plan of supportive services to meet the person's needs which explains how services will be obtained. The guardian shall also encourage the incapacitated person to participate to the maximum extent of his abilities in all decisions which affect him, to act on his own behalf whenever he is able to do so and to develop or regain, to the maximum extent possible, his capacity to manage his personal affairs.
(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).
(c) Reports.--
(1) Each guardian of an incapacitated person shall file with the court appointing him a report, at least once within the first 12 months of his appointment and at least annually thereafter, attesting to the following:
(i) Guardian of the estate:
(A) current principal and how it is invested;
(B) current income;
(C) expenditures of principal and income since the last report; and
(D) needs of the incapacitated person for which the guardian has provided since the last report.
(ii) Guardian of the person:
(A) current address and type of placement of the incapacitated person;
(B) major medical or mental problems of the incapacitated person;
(C) a brief description of the incapacitated person's living arrangements and the social, medical, psychological and other support services he is receiving;
(D) the opinion of the guardian as to whether the guardianship should continue or be terminated or modified and the reasons therefor; and
(E) number and length of times the guardian visited the incapacitated person in the past year.
(2) Within 60 days of the death of the incapacitated person or an adjudication of capacity and modification of existing orders, the guardian shall file a final report with the court.
(3) No less than quarterly, the clerk of the orphans' court shall transmit to the court a list of guardians who are delinquent at least 30 days in filing the reports required under this section. The court shall take appropriate enforcement action against such guardians.
(4) The court shall develop a procedure for the examination of the annual reports to ensure that the guardians are acting in the best interests of the incapacitated persons.
(d) Powers and duties only granted by court.--Unless specifically included in the guardianship order after specific findings of fact or otherwise ordered after a subsequent hearing with specific findings of fact, a guardian or emergency guardian shall not have the power and duty to:
(1) Consent on behalf of the incapacitated person to an abortion, sterilization, psychosurgery, electroconvulsive therapy or removal of a healthy body organ.
(2) Prohibit the marriage or consent to the divorce of the incapacitated person.
(3) Consent on behalf of the incapacitated person to the performance of any experimental biomedical or behavioral medical procedure or participation in any biomedical or behavioral experiment.
(e) Knowledge of objection.--In a hearing to determine whether a guardian shall be ordered to consent to a specific act or omission, if the guardian knows or has reason to know of the incapacitated person's objection to the action or omission, whether such objection had been expressed prior or subsequent to the determination of incapacity, the guardian shall report to the court such knowledge or information.
(f) Powers and duties not granted to guardian.--The court may not grant to a guardian powers controlled by other statute, including, but not limited to, the power:
(1) To admit the incapacitated person to an inpatient psychiatric facility or State center for the mentally retarded.
(2) To consent, on behalf of the incapacitated person, to the relinquishment of the person's parental rights.
(g) Criminal and civil immunity.--In the absence of gross negligence, recklessness or intentional misconduct, a unit of local government, nonprofit corporation or guardianship support agency under Subchapter F (relating to guardianship support) appointed as a guardian shall not be criminally liable or civilly liable for damages for performing duties as a guardian of the person, as authorized under this chapter.
(Dec. 10, 1974, P.L.867, No.293, eff. imd.; Feb. 18, 1982, P.L.45, No.26, eff. imd.; Apr. 16, 1992, P.L.108, No.24, eff. 60 days; Oct. 12, 1999, P.L.422, No.39, eff. 60 days; Oct. 24, 2018, P.L.724, No.114, eff. 60 days)
2018 Amendment. Act 114 added subsec. (c)(3) and (4).
1999 Amendment. Act 39 amended subsec. (b). See section 13(8) of Act 39 in the appendix to this title for special provisions relating to applicability.
1992 Amendment. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
Cross References. Section 5521 is referred to in section 5553 of this title.
§ 5522. Power to lease.
A guardian may lease any real or personal property of the incapacitated person for a term not exceeding five years after its execution.
(Apr. 16, 1992, P.L.108, No.24, eff. 60 days)
1992 Amendment. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
§ 5523. Collateral attack.
No decree entered pursuant to this chapter shall be subject to collateral attack on account of any irregularity if the court which entered it had jurisdiction to do so.
§ 5524. Effect of determination of incapacity.
A partially incapacitated person shall be incapable of making any contract or gift or any instrument in writing in those specific areas in which the person has been found to be incapacitated. A totally incapacitated person shall be incapable of making any contract or gift or any instrument in writing. This section shall not impair the interest in real estate acquired by a bona fide grantee of, or a bona fide holder of a lien on, real estate in a county other than that in which the decree establishing the incapacity is entered, unless the decree or a duplicate original or certified copy thereof is recorded in the office of the recorder of deeds in the county in which the real estate lies before the recording or entering of the instrument or lien under which the grantee or lienholder claims.
(Apr. 16, 1992, P.L.108, No.24, eff. 60 days)
1992 Amendment. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
§ 5525. Notice to Commonwealth and political subdivisions.
When the Commonwealth or a political subdivision thereof has a claim for maintaining an incapacitated person in an institution, the guardian, within three months of his appointment, shall give notice thereof to the Department of Public Welfare or the proper officer of such political subdivision, as the case may be.
(Apr. 16, 1992, P.L.108, No.24, eff. 60 days)
1992 Amendment. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
References in Text. The Department of Public Welfare, referred to in this section, was redesignated as the Department of Human Services by Act 132 of 2014.
SUBCHAPTER E
ACCOUNTS, AUDITS, REVIEWS AND DISTRIBUTION
Sec.
5531. When accounting filed.
5532. Where accounts filed.
5533. Notice, audits, reviews and distribution.
5533.1. Account of personal representative of deceased incompetent (Repealed).
5534. Recognition of claims.
5535. Disposition of trust income.
5536. Distributions of income and principal during incapacity.
5537. Reserve for funeral.
§ 5531. When accounting filed.
A guardian shall file an account of his administration whenever directed to do so by the court or may file an account at the termination of the guardianship, or at any other time or times authorized by the court.
(Apr. 28, 1978, P.L.77, No.37, eff. 60 days)
§ 5532. Where accounts filed.
All accounts of guardians shall be filed in the office of the clerk.
§ 5533. Notice, audits, reviews and distribution.
The provisions concerning accounts, audits, reviews, distribution and rights of distributees in an incapacitated person's estate shall be the same as those set forth in the following provisions of this title for the administration of a decedent's or minor's estate:
Section 3503 (relating to notice to parties in interest).
Section 3504 (relating to representation of parties in interest).
Section 3511 (relating to audits in counties having separate orphans' court division).
Section 3512 (relating to audits in counties having no separate orphans' court division).
Section 3513 (relating to statement of proposed distribution).
Section 3514 (relating to confirmation of account and approval of proposed distribution).
Section 3521 (relating to rehearing; relief granted).
Section 3532(c) (relating to record of risk distributions).
Section 3533 (relating to award upon final confirmation of account).
Section 3534 (relating to distribution in kind).
Section 3536 (relating to recording and registering decrees awarding real estate).
Section 3544 (relating to liability of personal representative for interest).
Section 3545 (relating to transcripts of balances due by personal representative).
Section 5167 (relating to failure to present claim at audit).
(Apr. 28, 1978, P.L.77, No.37, eff. 60 days; Apr. 16, 1992, P.L.108, No.24, eff. 60 days)
1992 Amendment. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
References in Text. Section 3504, referred to in this section, is repealed. The subject matter is now contained in section 751(6).
§ 5533.1. Account of personal representative of deceased incompetent (Repealed).
1984 Repeal. Section 5533.1 was repealed October 12, 1984, P.L.929, No.182, effective immediately.
§ 5534. Recognition of claims.
Upon the audit of the account of the guardian of a person who has died during incapacity, the auditing judge or auditor passing on the account shall not pass upon any claims against the estate of the incapacitated person other than necessary administration expenses, including compensation of the guardian and his attorney. All claims remaining unpaid at the incapacitated person's death shall be presented to the personal representative.
(Apr. 16, 1992, P.L.108, No.24, eff. 60 days)
1992 Amendment. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
§ 5535. Disposition of trust income.
Except as otherwise provided by the trust instrument, the trustee of an inter vivos or testamentary trust, with the approval of the court having jurisdiction of the trust, may pay income distributable to a beneficiary who is an incapacitated person for whose estate no guardian has been appointed directly to the incapacitated person, or expend and apply it for his care and maintenance or the care, maintenance and education of his dependents.
(Apr. 16, 1992, P.L.108, No.24, eff. 60 days)
1992 Amendment. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
§ 5536. Distributions of income and principal during incapacity.
(a) In general.--All income received by a guardian of the estate of an incapacitated person, including (subject to the requirements of Federal law relating thereto) all funds received from the Veterans' Administration, Social Security Administration and other periodic retirement or disability payments under private or governmental plans, in the exercise of a reasonable discretion, may be expended in the care and maintenance of the incapacitated person, without the necessity of court approval. The court, for cause shown and with only such notice as it considers appropriate in the circumstances, may authorize or direct the payment or application of any or all of the income or principal of the estate of an incapacitated person for the care, maintenance or education of the incapacitated person, his spouse, children or those for whom he was making such provision before his incapacity, or for the reasonable funeral expenses of the incapacitated person's spouse, child or indigent parent. In proper cases, the court may order payment of amounts directly to the incapacitated person for his maintenance or for incidental expenses and may ratify payments made for these purposes. For purposes of this subsection, the term "income" means income as determined in accordance with the rules set forth in Chapter 81 (relating to principal and income), other than the power to adjust and the power to convert to a unitrust.
(b) Estate plan.--The court, upon petition and with notice to all parties in interest and for good cause shown, shall have the power to substitute its judgment for that of the incapacitated person with respect to the estate and affairs of the incapacitated person for the benefit of the incapacitated person, his family, members of his household, his friends and charities in which he was interested. This power shall include, but is not limited to, the power to:
(1) Make gifts, outright or in trust.
(2) Convey, release or disclaim his contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety.
(3) Release or disclaim his powers as trustee, personal representative, custodian for minors, or guardian.
(4) Exercise, release or disclaim his powers as donee of a power of appointment.
(5) Enter into contracts.
(6) Create for the benefit of the incapacitated person or others, revocable or irrevocable trusts of his property which may extend beyond his disability or life.
(7) Exercise options of the incapacitated person to purchase or exchange securities or other property.
(8) Exercise all rights and privileges under life insurance policies, annuity contracts or other plans or contractual arrangements providing for payments to the incapacitated person or to others after his death.
(9) Exercise his right to claim or disclaim an elective share in the estate of his deceased spouse and renounce any interest by testate or intestate succession or by inter vivos transfer.
(10) Change the incapacitated person's residence or domicile.
(11) Modify by means of codicil or trust amendment, as the case may be, the terms of the incapacitated person's will or of any revocable trust created by the incapacitated person, as the court may deem advisable in light of changes in applicable tax laws.
In the exercise of its judgment for that of the incapacitated person, the court, first being satisfied that assets exist which are not required for the maintenance, support and well-being of the incapacitated person, may adopt a plan of gifts which results in minimizing current or prospective taxes, or which carries out a lifetime giving pattern. The court in exercising its judgment shall consider the testamentary and inter vivos intentions of the incapacitated person insofar as they can be ascertained.
(July 9, 1976, P.L.836, No.144, eff. imd.; Feb. 18, 1982, P.L.45, No.26, eff. imd.; Apr. 16, 1992, P.L.108, No.24, eff. 60 days; Dec. 16, 1992, P.L.1163, No.152, eff. imd.; May 16, 2002, P.L.330, No.50, eff. 60 days)
2002 Amendment. Act 50 amended subsec. (a). See section 14(a) of Act 50 in the appendix to this title for special provisions relating to applicability.
1992 Amendments. Act 24 amended the entire section and Act 152 amended subsec. (b).
§ 5537. Reserve for funeral.
(a) In general.--The court may authorize the guardian to retain such assets as are deemed appropriate for the anticipated expense of the incapacitated person's funeral, including the cost of a burial lot or other resting place, which shall be exempt from all claims including claims of the Commonwealth. The court with notice thereof to the institution or person having custody of the incapacitated person may also authorize the guardian or another person to set aside such assets in the form of a savings account in a financial institution which account shall not be subject to escheat during the lifetime of the incapacitated person. Such assets may be disbursed by the guardian or person who set aside such assets or by the financial institution for such funeral expenses without further authorization or accounting. Any part of such assets not so disbursed shall constitute a part of the deceased incapacitated person's estate. Should the incapacitated person become capacitated or should such assets become excessive, the court, upon petition of any party in interest, may make such order as the circumstances shall require.
(b) Definition.--As used in this section, "financial institution" includes a bank, a bank and trust company, a trust company, a savings and loan association, a building and loan association, a savings bank, a private bank and a national bank.
(Feb. 18, 1982, P.L.45, No.26, eff. imd.; Apr. 16, 1992, P.L.108, No.24, eff. 60 days)
1992 Amendment. See section 21 of Act 24 in the appendix to this title for special provisions relating to applicability.
SUBCHAPTER F
GUARDIANSHIP SUPPORT
Sec.
5551. Guardianship support agencies; legislative intent.
5552. Services to individuals whose decision-making ability is impaired.
5553. Guardianship services.
5554. Services to courts, guardians and others.
5555. Costs and compensation.
Enactment. Subchapter F was added April 16, 1992, P.L.108, No.24, effective in 60 days.
Applicability. See section 21 of Act 24 of 1992 in the appendix to this title for special provisions relating to applicability.
Cross References. Subchapter F is referred to in sections 3155, 5511, 5521 of this title.
§ 5551. Guardianship support agencies; legislative intent.
The General Assembly finds that there is a need for agencies to provide services, as an alternative to guardianship, to individuals whose decision-making ability is impaired, to serve as guardian when an individual is found to need a guardian and no other person is willing and qualified to serve and to provide services to courts, guardians and others.
§ 5552. Services to individuals whose decision-making ability is impaired.
Guardianship support agencies shall provide guardianship services under this chapter. Such services shall include, but not be limited to:
(1) Assistance to individuals in decision making, including financial management training.
(2) Assistance to individuals in securing and maintaining benefits and services.
(3) Recruiting, training and maintaining a group of individuals to serve as representative payees or similar fiduciaries established by benefit-issuing agencies, agents pursuant to a power of attorney, and trustees.
(Oct. 12, 1999, P.L.422, No.39, eff. 60 days)
1999 Amendment. See section 13(8) of Act 39 in the appendix to this title for special provisions relating to applicability.
§ 5553. Guardianship services.
(a) In general.--The guardianship support agency shall be available to serve as guardian of the estate or of the person, or both, of an incapacitated person when no less restrictive alternative will meet the needs of the individual and when no other person is willing and qualified to become guardian. The agency itself may be appointed guardian and no individual need be specified by the court. If appointed, the guardianship support agency shall have all of the powers and duties of a corporate fiduciary and shall not be required to post bond.
(b) Powers and duties.--The guardianship support agency shall be treated the same as all other guardians in regard to appointment as guardian or successor or co-guardian, reporting, powers and duties, compensation and in all other respects. In addition to section 5521 (relating to provisions concerning powers, duties, and liabilities), a guardianship support agency shall have the power and duty to:
(1) Invest the principal and income of incapacitated persons for whom it is the guardian of the estate. For this purpose, it may pool the principal and income, but shall maintain an individual account for each incapacitated person reflecting the person's participation therein.
(2) Expend and, if necessary, advance costs necessary to administer guardianships for which it has been appointed guardian.
(3) Apply for letters or otherwise administer the estate of any incapacitated person for whom it has been appointed guardian who dies during the guardianship when no one else is willing and qualified to serve.
§ 5554. Services to courts, guardians and others.
(a) Services to courts.--Guardianship support agencies may be available to assist courts on request with reviewing petitions for appointment of a guardian, recommending alternatives to guardianship, investigating petitions, explaining petitions to respondents or reviewing reports and monitoring guardianship arrangements.
(b) Services to guardians.--Guardianship support agencies may be available to assist guardians in filing reports, monitoring incapacitated persons and otherwise fulfilling their duties.
(c) Services to petitioners and others.--Guardianship support agencies may be available to assist in the filing of petitions for guardianship, to provide information on available alternatives to potential petitioners, to locate and train individuals skilled in providing functional evaluations of alleged incapacitated persons and to perform such other duties as required.
§ 5555. Costs and compensation.
Recipients of service shall be charged for services based on their ability to pay. Guardianship support agencies shall make every effort to minimize costs, including minimizing personnel costs through the use of volunteers.