PRIOR PRINTER'S NO. 455 PRINTER'S NO. 2642
No. 412 Session of 1975
INTRODUCED BY MRS. FAWCETT, MESSRS. IRVIS, SCIRICA, BERSON,
McGINNIS, O'DONNELL, M. E. MILLER,JR., NOYE, LYNCH, TADDONIO,
W. D. HUTCHINSON, MRS. WHITTLESEY, MR. McCLATCHY, MRS. KELLY,
MR. OLIVER, MRS. CRAWFORD, MR. HILL, MRS. TOLL, MESSRS.
POLITE, COHEN, HAMMOCK, MEBUS, SPENCER, RENNINGER AND
HALVERSON, FEBRUARY 11, 1975
AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF
REPRESENTATIVES, AS AMENDED, JANUARY 27, 1976
AN ACT
1 Amending Title 20 (Decedents, Estates and Fiduciaries) of the
2 Pennsylvania Consolidated Statutes, further defining
3 incompetent; adding and changing provisions relating to
4 guardians of incompetents.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 SECTION 1. SECTION 5501 OF TITLE 20, ACT OF NOVEMBER 25, <--
8 1970 (P.L.707, NO.230), KNOWN AS THE PENNSYLVANIA CONSOLIDATED
9 STATUTES, AMENDED DECEMBER 10, 1974 (P.L.899, NO.295), IS
10 AMENDED TO READ:
11 § 5501. MEANING OF INCOMPETENT.
12 "INCOMPETENT" MEANS A PERSON WHO, BECAUSE OF INFIRMITIES OF
13 OLD AGE, MENTAL OR OTHER ILLNESS, INJURY, MENTAL DEFICIENCY OR
14 RETARDATION, DRUG ADDICTION OR INEBRIETY:
15 (1) IS UNABLE TO MANAGE HIS PROPERTY, OR IS LIABLE TO
16 DISSIPATE IT OR BECOME THE VICTIM OF DESIGNING PERSONS; OR
1 (2) LACKS SUFFICIENT CAPACITY TO MAKE OR COMMUNICATE
2 RESPONSIBLE DECISIONS CONCERNING HIS PERSON.
3 Section 1 2. Section 5511 of Title 20, act of November 25, <--
4 1970 (P.L.707, No.230), known as the Pennsylvania Consolidated
5 Statutes, amended December 10, 1974 (No.293), is amended and
6 subsections are added to read:
7 § 5511. Petition and hearing; examination by court-appointed
8 physician.
9 (a) Resident.--The court, upon petition and a hearing at
10 which good cause is shown, may find a person resident or
11 domiciled in the Commonwealth to be incompetent and appoint a
12 guardian or guardians of his person or estate or both. The
13 petitioner may be any person interested in the alleged
14 incompetent's welfare, including in the case of a petition
15 alleging mental retardation, the county guardian ADMINISTRATOR <--
16 for the mentally retarded or his nominee. The court may dismiss
17 a proceeding where it finds as a fact that the proceeding has
18 not been instituted to aid or benefit the alleged incompetent.
19 Notice of the petition and hearing shall be given in such manner
20 as the court shall direct to the alleged incompetent, to all
21 persons residing within the Commonwealth who are sui juris and
22 would be entitled to share in the estate of the alleged
23 incompetent if he died intestate at that time, and to such other
24 parties as the court may direct. In the case of a petition
25 alleging mental retardation, the county guardian ADMINISTRATOR <--
26 for the mentally retarded, if not the petitioner, shall be a
27 party to the proceeding and receive notice of it. The county
28 guardian ADMINISTRATOR, after receipt of notice may petition the <--
29 court to represent the alleged retarded incompetent as a
30 guardian ad litem. The hearing may be closed to the public and
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1 without a jury unless the alleged incompetent or his counsel
2 objects. The hearing shall be closed and with or without a jury
3 if the person alleged to be incompetent or his counsel so
4 requests. The alleged incompetent shall be present at the
5 hearing unless:
6 (i) the court is satisfied, upon the presentation of
7 positive testimony, that because of his physical or
8 mental condition his welfare would not be promoted by his
9 presence; or
10 (ii) it is impossible for him to be present because
11 of his absence from the Commonwealth. It shall not be
12 necessary for the alleged incompetent to be represented
13 by a guardian ad litem in the proceeding.
14 (b) Nonresident.--The court may find a person [not] NEITHER <--
15 domiciled NOR RESIDENT in the Commonwealth, having property in <--
16 the Commonwealth, to be incompetent and may appoint a guardian
17 of his estate IN THE COMMONWEALTH. The appointment may be made <--
18 after petition, hearing and notice, as in the case of a person
19 domiciled OR RESIDENT in the Commonwealth, or upon the <--
20 submission of an exemplified copy of a decree establishing his
21 incompetency in another jurisdiction. The court shall give
22 preference in its appointment to the foreign guardian of the
23 nonresident incompetent, unless it finds that such appointment
24 will not be for the best interests of the incompetent.
25 (c) Court appointed physician.--Upon the filing of a
26 petition the alleged incompetent may be examined by a physician
27 appointed by the court who shall submit his report in writing to
28 the court and to the parties before the hearing.
29 (d) Contents of petition.--The petition shall be executed
30 under oath and set forth the following:
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1 (1) Name and residence of the person initiating the
2 petition.
3 (2) Name, birthdate, sex and residence of the alleged
4 incompetent.
5 (3) Names and residences of the alleged incompetent's
6 spouse, parents and children, if any.
7 (4) A concise statement of facts rendering the
8 appointment of a guardian appropriate, INCLUDING, IF <--
9 APPROPRIATE, AN ALLEGATION OF MENTAL RETARDATION.
10 (5) A concise statement of the alleged incompetent's
11 property and its approximate value.
12 (6) A concise statement of whether the guardianship
13 sought is to be of the ALLEGED incompetent's estate, his <--
14 person, or both. and whether it is to be plenary or limited, <--
15 and, if the latter, a suggestion of the limitations to be
16 placed upon the guardian.
17 (7) A STATEMENT OF WHETHER THE GUARDIANSHIP SOUGHT IS TO <--
18 BE PLENARY OR LIMITED AND, IF LIMITED:
19 (I) THE RESTRICTIONS TO BE IMPOSED ON THE ALLEGED
20 INCOMPETENT'S FREEDOM OR THE UNRESTRICTED RIGHTS TO BE
21 RETAINED BY THE ALLEGED INCOMPETENT, AND
22 (II) THE SPECIFIC POWERS AND DUTIES OF THE GUARDIAN
23 OR THE LIMITATIONS TO BE IMPOSED ON THE OTHERWISE PLENARY
24 POWERS AND DUTIES OF THE GUARDIAN.
25 (7) (8) Such other information as the court by rule may <--
26 deem appropriate.
27 (e) Rights of an alleged incompetent.--If the alleged
28 incompetent is not represented by counsel, the court may appoint
29 counsel to represent him. No inference that a guardian is
30 NECESSARY OR unnecessary shall be derived from the fact that the <--
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1 alleged incompetent has been admitted or committed to the care
2 of an institution.
3 (f) Dismissal of petition.--When it is found that it is not
4 in the best interests of the alleged incompetent to appoint a
5 guardian, the court shall dismiss the petition requesting the
6 appointment. If the court believes that appointment of a
7 guardian may not be necessary, it may condition a dismissal of
8 the petition upon the alleged incompetent voluntarily seeking
9 consultation and advice from those agencies, public and private,
10 offering appropriate services.
11 Section 3. Subsection (a) of section 5512 and sections 5515
12 and 5517 of Title 20 are amended to read:
13 § 5512. County of appointment.
14 (a) Resident incompetent.--A guardian of the person or
15 estate of an incompetent may be appointed by the court of the
16 county in which the incompetent resides or is domiciled.
17 * * *
18 § 5515. Provisions similar to other estates.
19 The [grounds and the procedure for the removal or discharge
20 of] provisions relating to a guardian of an incompetent and his
21 surety [and the effect of such removal or discharge] shall be
22 the same as are set forth in this code relating to [the removal
23 and discharge of] a personal representative or a guardian of a
24 minor and their sureties, with regard to the following:
25 (1) Service of process on nonresident guardian, as in
26 section 5114 (relating to service of process on nonresident
27 guardian).
28 (2) Appointment of guardian in conveyance, as in section
29 5115 (relating to appointment of guardian in conveyance).
30 (3) Necessity of bond; form and amount, as in section
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1 5121 (relating to necessity, form and amount).
2 (4) When bond not required, as in section 5122 (relating
3 to when bond not required).
4 (5) Requiring or changing amount of bond, as in section
5 5123 (relating to requiring or changing amount of bond).
6 (6) Grounds for removal, as in section 3182 (relating to
7 grounds for removal), and in addition thereto, the court may
8 remove or discharge a guardian when for any reason the
9 interests of the incompetent are likely to be promoted by
10 such action.
11 (7) Procedure for and effect of removal, as in section
12 3183 (relating to procedure for and effect of removal), for
13 which purpose the incompetent shall be deemed a party in
14 interest.
15 (8) Discharge of guardian and surety, as in section 3184
16 (relating to discharge of personal representative and
17 surety).
18 § 5517. Adjudication of competency; review.
19 (a) Adjudication of competency.--The court, upon petition
20 and after such notice as it shall direct, may find, after a
21 hearing at which good cause is shown, that a person previously
22 adjudged incompetent has become competent.
23 (b) Review of guardianship.--The order appointing a guardian
24 may specify a date on which the incompetent's need for
25 guardianship shall be reviewed. Such review shall include a
26 reevaluation of THE CONDITION OF a mentally retarded incompetent <--
27 by the county guardian ADMINISTRATOR for the mentally retarded. <--
28 (c) Request for review.--The guardian of an incompetent's
29 person or estate, an A PUBLIC OR PRIVATE agency or the <--
30 incompetent himself may petition the court to review any issue
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1 involving the guardianship at any time.
2 Section 4. Title 20 is amended by adding sections to read:
3 § 5519. Scope of decree; extent of guardian's powers and
4 duties.
5 (a) In general.--The court shall set forth in its decree
6 appointing a guardian:
7 (1) A FINDING OF INCOMPETENCY, INCLUDING, IF <--
8 APPROPRIATE, A FINDING OF MENTAL RETARDATION.
9 (1) (2) Whether the guardianship is of the person or of <--
10 the estate, or both.
11 (2) (3) Whether the guardianship is plenary or limited, <--
12 AND IF LIMITED: <--
13 (I) THE RESTRICTIONS IMPOSED UPON THE INCOMPETENT'S
14 FREEDOM OR THE UNRESTRICTED RIGHTS TO BE RETAINED BY THE
15 INCOMPETENT, AND
16 (II) THE SPECIFIC POWERS AND DUTIES OF THE GUARDIAN
17 OR THE LIMITATIONS IMPOSED ON THE OTHERWISE PLENARY
18 POWERS AND DUTIES OF THE GUARDIAN.
19 (3) If limited, the specific nature and extent of the <--
20 guardian's powers and duties; restrictions placed upon the
21 rights of the incompetent; and the unrestricted rights to be
22 retained by the incompetent.
23 (b) Limited guardianship of the person.--The decree may also
24 include in the case of a limited guardianship of the person,
25 whether the incompetent may exercise, without the approval of
26 the guardian, such rights as the right to apply for a license to
27 marry, to change his residence, to register to vote, to obtain
28 medical treatment, to obtain educational or vocational
29 development and to apply for a license to operate a motor
30 vehicle.
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1 (c) (B) Standards.--In framing its decree, the court shall <--
2 impose thereby the least restrictions on the freedom and
3 activities of the incompetent, CONSISTENT WITH THE INCOMPETENT'S <--
4 WELFARE and may consider the following:
5 (1) Plenary guardianship. In general, plenary
6 guardianship of the person and estate shall be utilized for
7 those incompetent persons:
8 (i) who are unable to make adequate routine day-to-
9 day decisions and are incapable of basic management of
10 themselves and their affairs; and
11 (ii) whose best interests would be served by such
12 plenary guardianship.
13 (2) Limited guardianship of the person. In general,
14 limited guardianship of the person shall be utilized for
15 those incompetent persons who are over the age of 18 years
16 and substantially capable of caring for themselves, but whose
17 best interests require guardianship with regard to one or
18 more specific activities which they are incapable of managing
19 for themselves.
20 (3) Limited guardianship of the estate. In general,
21 limited guardianship of the estate shall be utilized for
22 those incompetents who are over the age of 18 years and who
23 are WHOLLY OR PARTLY self-supporting through employment or <--
24 other income sources. In such cases the limited guardian of
25 the estate shall receive, manage, disburse and account for
26 only such property of the incompetent as the court shall
27 direct, and the incompetent shall have the right to receive
28 and expend either all or such portion of his earnings from
29 employment or income from other sources as the court shall
30 direct, and shall have the power to contract or legally bind
19750H0412B2642 - 8 -
1 himself to whatever extent the court may not have expressly
2 disqualified him. Except as the decree otherwise provides, a
3 limited guardian of the estate shall have the same duties and
4 responsibilities as are provided in this chapter for
5 guardians of the estate.
6 § 5519.1. Selection of guardians.
7 In appointing a guardian of an incompetent's person or estate
8 or both, the court shall be guided by the best interests of the
9 incompetent, and may consider ONLY the following persons for <--
10 appointment:
11 (1) A nominee of the incompetent if he has sufficient
12 capacity to make an intelligent choice.
13 (2) His parents, subject to the provisions of Subchapter
14 B of Chapter 51 (relating to appointment of guardian).
15 (3) A nominee in the probated will of the last surviving
16 parent or adopting parent.
17 (4) His spouse and other members of his family.
18 (5) Individuals, not associated with the facility caring
19 for the incompetent, who because of circumstances are <--
20 specifically ARE PROFESSIONALLY, PERSONALLY OR OTHERWISE <--
21 PARTICULARLY qualified.
22 (6) The county guardian for the mentally retarded or his
23 nominee.
24 (7) In the case of a guardian of the estate, a
25 corporation having the corporate powers to act as guardian.
26 SECTION 5. SECTION 5524 OF TITLE 20 IS AMENDED TO READ: <--
27 § 5524. EFFECT OF DETERMINATION OF INCOMPETENCY.
28 [AN] UNLESS OTHERWISE PROVIDED IN A DECREE SETTING FORTH THE
29 POWERS AND DUTIES OF A GUARDIAN AND THE FREEDOM OR LIMITATIONS
30 THEREON OF AN INCOMPETENT, AN INCOMPETENT SHALL BE INCAPABLE OF
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1 MAKING ANY CONTRACT OR GIFT OR ANY INSTRUMENT IN WRITING AFTER
2 HE IS ADJUDGED INCOMPETENT AND BEFORE HE IS ADJUDGED TO HAVE
3 REGAINED HIS COMPETENCY. THIS SECTION SHALL NOT IMPAIR THE
4 INTEREST IN REAL ESTATE ACQUIRED BY A BONA FIDE GRANTEE OF, OR A
5 BONA FIDE HOLDER OF A LIEN ON, REAL ESTATE IN A COUNTY OTHER
6 THAN THAT IN WHICH THE DECREE ESTABLISHING THE INCOMPETENCY IS
7 ENTERED, UNLESS THE DECREE OR A DUPLICATE ORIGINAL OR CERTIFIED
8 COPY THEREOF IS RECORDED IN THE OFFICE OF THE RECORDER OF DEEDS
9 IN THE COUNTY IN WHICH THE REAL ESTATE LIES BEFORE THE RECORDING
10 OR ENTERING OF THE INSTRUMENT OR LIEN UNDER WHICH THE GRANTEE OR
11 LIENHOLDER CLAIMS.
12 SECTION 6. TITLE 20 IS AMENDED BY ADDING SECTIONS TO READ:
13 § 5526. Powers and duties of a guardian of the person.
14 (a) In general.--Except as otherwise provided in this code,
15 a guardian of the person of an incompetent shall have the powers
16 and duties of a guardian of the person of a minor.
17 (b) Care and protection of incompetent.--A guardian of the
18 person shall exercise reasonable care to insure that in so far
19 as resources available permit, the incompetent is given the care
20 and protection that his physical, mental and social well-being
21 requires and the maximum opportunity to develop physically,
22 mentally and socially.
23 (c) Report.--When directed by the court a guardian of the
24 person shall prepare and file WITH THE COURT a report A guardian <--
25 of a mentally retarded person shall file a report at least
26 annually. The guardian ON THE ACTIVITIES OF THE INCOMPETENT AND <--
27 THE CARE GIVEN TO HIM AND shall serve a copy of the report on
28 such persons or agencies as the court shall have designated in <--
29 the decree appointing him guardian. The report shall describe
30 the activities of the incompetent and the care given to him and
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1 DESIGNATE. UNLESS OTHERWISE DIRECTED BY THE COURT, A GUARDIAN OF <--
2 THE PERSON OF AN INDIVIDUAL WHO IS INCOMPETENT BECAUSE OF MENTAL
3 RETARDATION SHALL FILE, AT LEAST ANNUALLY, A REPORT THAT shall
4 include:
5 (1) The name and address of all places where the
6 incompetent resided during the preceding year.
7 (2) His length of stay at each place.
8 (3) A resume of the incompetent's educational,
9 vocational and employment activities.
10 (4) A resume of professional treatment, if any, given
11 the incompetent.
12 (5) A resume of the guardian's activities and visits
13 with the incompetent.
14 (6) A statement by the guardian regarding whether or not
15 the competency of the incompetent should be readjudicated and
16 his guardianship program redesigned.
17 (7) Any other similar information that the guardian may
18 deem pertinent.
19 (d) Authority of court.--Nothing in this subchapter shall
20 limit the authority of the court to require a report on the
21 status and condition of the incompetent from the guardian at any
22 time, or to otherwise supervise the conduct or activities of any
23 guardian.
24 (e) Abortion or sterilization.--A guardian of the person of
25 an incompetent shall not consent to abortion or sterilization to
26 be performed upon the incompetent without court approval, which
27 approval, except in the case of risk to the incompetent's life,
28 may be given only after a hearing at which the incompetent is
29 represented by counsel and, if the court so directs, a guardian
30 ad litem.
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1 § 5527. Compensation of guardians.
2 The court shall allow such compensation to the guardian of
3 the person or of the estate from the estate of the incompetent
4 as shall in the circumstances be reasonable and just, and in the
5 case of a guardian of the estate may calculate such compensation
6 on a graduated percentage.
7 Section 7. Section 5531 of Title 20 is amended to read:
8 § 5531. When accounting filed.
9 A guardian of an incompetent's estate shall file an account
10 of his administration promptly at the termination of his
11 guardianship, or at such earlier time or times as shall be
12 directed or authorized by the court.
13 Section 8. This act shall take effect in 60 days.
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