PRINTER'S NO. 2621
No. 2074 Session of 1979
INTRODUCED BY YOHN AND SCIRICA, DECEMBER 5, 1979
REFERRED TO COMMITTEE ON JUDICIARY, DECEMBER 5, 1979
AN ACT
1 Amending Title 20 (Decedents, Estates and Fiduciaries) of the
2 Pennsylvania Consolidated Statutes, further defining
3 incompetent and 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. Sections 5501, 5511, 5512(a), 5515 and 5517 of
8 Title 20, act of November 15, 1970 (P.L.707, No.230), known as
9 the Pennsylvania Consolidated Statutes, are amended to read:
10 § 5501. Meaning of incompetent.
11 "Incompetent" means a person who, because of infirmities of
12 old age, mental or other illness, injury, mental deficiency or
13 retardation, drug addiction or inebriety:
14 (1) is unable to manage his property, or is liable to
15 dissipate it or become the victim of designing persons; or
16 (2) lacks sufficient capacity to make or communicate
17 responsible decisions concerning his person.
18 § 5511. Petition and hearing; examination by court-appointed
1 physician.
2 (a) Resident.--The court, upon petition and a hearing at
3 which good cause is shown, may find a person resident or
4 domiciled in [the] this Commonwealth to be incompetent and
5 appoint a guardian or guardians of his person or estate or both.
6 The petitioner may be any person interested in the alleged
7 incompetent's welfare. The court may dismiss a proceeding where
8 it finds as a fact that the proceeding has not been instituted
9 to aid or benefit the alleged incompetent. Notice of the
10 petition and hearing shall be given in such manner as the court
11 shall direct to the alleged incompetent, to all persons residing
12 within [the] this Commonwealth who are sui juris and would be
13 entitled to share in the estate of the alleged incompetent if he
14 died intestate at that time, and to such other parties as the
15 court may direct. The hearing may be closed to the public and
16 without a jury unless the alleged incompetent or his counsel
17 objects. The hearing shall be closed and with or without a jury
18 if the person alleged to be incompetent or his counsel so
19 requests. The alleged incompetent shall be present at the
20 hearing unless:
21 [(i)] (1) the court is satisfied, upon the presentation
22 of positive testimony, that because of his physical or mental
23 condition his welfare would not be promoted by his presence;
24 or
25 [(ii)] (2) it is impossible for him to be present
26 because of his absence from [the] this Commonwealth. It shall
27 not be necessary for the alleged incompetent to be
28 represented by a guardian ad litem in the proceeding.
29 (b) Nonresident.--The court may find a person [not] neither
30 domiciled nor resident in [the] this Commonwealth, having
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1 property in [the] this Commonwealth, to be incompetent and may
2 appoint a guardian of his estate in this Commonwealth. The
3 appointment may be made after petition, hearing and notice, as
4 in the case of a person domiciled or resident in [the] this
5 Commonwealth, or upon the submission of an exemplified copy of a
6 decree establishing his incompetency in another jurisdiction.
7 The court shall give preference in its appointment to the
8 foreign guardian of the nonresident incompetent, unless it finds
9 that such appointment will not be for the best interests of the
10 incompetent.
11 (c) Court-appointed physician.--[Upon] After the filing of a
12 petition the alleged incompetent may be examined by a physician
13 or psychologist appointed by the court who shall submit his
14 report in writing to the court and to the parties before the
15 hearing.
16 (d) Contents of petition.--The contents of the petition
17 shall be determined by rule.
18 (e) Rights of an alleged incompetent.--If the alleged
19 incompetent is not represented by counsel, the court may appoint
20 counsel to represent him. No inference that a guardian is
21 necessary or unnecessary shall be derived from the fact that the
22 alleged incompetent has been admitted or committed to the care
23 of an institution.
24 (f) Dismissal of petition.--When it is found that it is not
25 in the best interests of the alleged incompetent to appoint a
26 guardian, the court shall dismiss the petition requesting the
27 appointment.
28 § 5512. County of appointment.
29 (a) Resident incompetent.--A guardian of the person or
30 estate of an incompetent may be appointed by the court of the
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1 county in which the incompetent resides or is domiciled.
2 * * *
3 § 5515. Provisions similar to other estates.
4 The provisions relating to a guardian of an incompetent and
5 his surety shall be the same as are set forth in the following
6 provisions of this title relating to a personal representative
7 or a guardian of a minor and their sureties[, with regard to the
8 following]:
9 [(1) Service of process on nonresident guardian, as in
10 section 5114 (relating to service of process on nonresident
11 guardian).
12 (2) Appointment of guardian in conveyance, as in section
13 5115 (relating to appointment of guardian in conveyance).
14 (3) Necessity of bond; form and amount, as in section
15 5121 (relating to necessity, form and amount).
16 (4) When bond not required, as in section 5122 (relating
17 to when bond not required).
18 (5) Requiring or changing amount of bond, as in section
19 5123 (relating to requiring or changing amount of bond).
20 (6) Grounds for removal, as in section 3182 (relating to
21 grounds for removal).
22 (7) Procedure for and effect of removal, as in section
23 3183 (relating to procedure for and effect of removal), for
24 which purpose the incompetent shall be deemed a party in
25 interest.
26 (8) Discharge of guardian and surety, as in section 3184
27 (relating to discharge of personal representative and
28 surety).]
29 Section 3182 (relating to grounds for removal), and in
30 addition thereto, the court may remove or discharge a
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1 guardian when for any reason the interests of the
2 incompetent are likely to be promoted by such action.
3 Section 3183 (relating to procedure for and effect of
4 removal), for which purpose the incompetent shall be
5 deemed a party in interest.
6 Section 3184 (relating to discharge of personal
7 representative and surety).
8 Section 5114 (relating to service of process on nonresident
9 guardian).
10 Section 5115 (relating to appointment of guardian in
11 conveyance).
12 Section 5121 (relating to necessity, form and amount).
13 Section 5122 (relating to when bond not required).
14 Section 5123 (relating to requiring or changing amount of
15 bond).
16 § 5517. Adjudication of competency; review of guardianship.
17 (a) Adjudication of competency.--The court, upon petition
18 and after such notice as it shall direct, may find, after a
19 hearing at which good cause is shown, that a person previously
20 adjudged incompetent has become competent.
21 (b) Review of guardianship.--The order appointing a guardian
22 may specify a date on which the incompetent's need for
23 guardianship shall be reviewed.
24 (c) Request for review.--The guardian of an incompetent's
25 person or estate, or the incompetent himself may petition the
26 court to review any issue involving the guardianship at any
27 time.
28 Section 2. Title 20 is amended by adding sections to read:
29 § 5519. Scope of decree appointing guardian.
30 (a) General rule.--The court shall set forth in its decree
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1 appointing a guardian:
2 (1) A finding of incompetency.
3 (2) Whether the guardianship is of the person or of the
4 estate or both.
5 (3) Whether the guardianship is plenary or limited, and,
6 if limited:
7 (i) The restrictions imposed upon the incompetent's
8 freedom or the unrestricted rights to be retained by the
9 incompetent.
10 (ii) The specific powers and duties of the guardian
11 or the limitations imposed on the otherwise plenary
12 powers and duties of the guardian.
13 (b) Standards.--In framing its decree, the court shall
14 impose thereby the least restrictions on the freedom and
15 activities of the incompetent, consistent with the incompetent's
16 welfare, and may consider the following:
17 (1) Plenary guardianship.--In general, plenary
18 guardianship of the person and estate shall be utilized for
19 those incompetent persons:
20 (i) who are unable to make adequate routine day-to-
21 day decisions and are incapable of basic management of
22 themselves and their affairs; and
23 (ii) whose best interests would be served by such
24 plenary guardianship.
25 (2) Limited guardianship of the person.--In general,
26 limited guardianship of the person shall be utilized for
27 those incompetent persons who are over the age of 18 years
28 and substantially capable of caring for themselves, but whose
29 best interests require guardianship with regard to one or
30 more specific activities which they are incapable of managing
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1 for themselves.
2 (3) Limited guardianship of the estate.--In general,
3 limited guardianship of the estate shall be utilized for
4 those incompetents who are over the age of 18 years and who
5 are wholly or partly self-supporting through employment or
6 other income sources. In such cases the limited guardian of
7 the estate shall receive, manage, disburse and account for
8 only such property of the incompetent as the court shall
9 direct, and the incompetent shall have the right to receive
10 and expend either all or such portion of his earnings from
11 employment or income from other sources as the court shall
12 direct, and shall have the power to contract or legally bind
13 himself to whatever extent the court may not have expressly
14 disqualified him. Except as the decree otherwise provides, a
15 limited guardian of the estate shall have the same duties and
16 responsibilities as are provided in this chapter for
17 guardians of the estate.
18 § 5520. Eligibility for appointment.
19 In appointing a guardian of an incompetent's person or estate
20 or both, the court shall be guided by the best interests of the
21 incompetent and may consider only the following persons for
22 appointment:
23 (1) A nominee of the incompetent if he has sufficient
24 capacity to make an intelligent choice.
25 (2) His parents, subject to the provisions of Subchapter
26 B of Chapter 51 (relating to appointment of guardian).
27 (3) A nominee in the probated will of the last surviving
28 parent or adopting parent.
29 (4) His spouse and other members of his family.
30 (5) Individuals not associated with the facility caring
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1 for the incompetent who are professionally, personally or
2 otherwise particularly qualified.
3 (6) In the case of a guardian of the estate, a
4 corporation having the corporate powers to act as guardian.
5 Section 3. Section 5524 of Title 20 is amended to read:
6 § 5524. Effect of determination of incompetency.
7 [An] Unless otherwise provided in a decree setting forth the
8 powers and duties of a guardian and the freedom or limitations
9 thereon of an incompetent, an incompetent shall be incapable of
10 making any contract or gift or any instrument in writing after
11 he is adjudged incompetent and before he is adjudged to have
12 regained his competency. This section shall not impair the
13 interest in real estate acquired by a bona fide grantee of, or a
14 bona fide holder of a lien on, real estate in a county other
15 than that in which the decree establishing the incompetency is
16 entered, unless the decree or a duplicate original or certified
17 copy thereof is recorded in the office of the recorder of deeds
18 in the county in which the real estate lies before the recording
19 or entering of the instrument or lien under which the grantee or
20 lienholder claims.
21 Section 4. Title 20 is amended by adding sections to read:
22 § 5526. Powers and duties of a guardian of the person.
23 (a) General rule.--Except as otherwise provided in this
24 title, a guardian of the person of an incompetent shall have the
25 powers and duties of a guardian of the person of a minor.
26 (b) Care and protection of incompetent.--A guardian of the
27 person shall exercise reasonable care to insure that insofar as
28 resources available permit, the incompetent is given the care
29 and protection that his physical, mental and social well-being
30 requires and the maximum opportunity to develop physically,
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1 mentally and socially.
2 (c) Reports.--When directed by the court, a guardian of the
3 person shall prepare and file with the court a report on the
4 activities of the incompetent and the care given to him.
5 (d) Authority of court.--Nothing in this subchapter shall
6 limit the authority of the court to require a report on the
7 status and condition of the incompetent from the guardian at any
8 time, or to otherwise supervise the conduct or activities of any
9 guardian.
10 (e) Abortion or sterilization.--A guardian of the person of
11 an incompetent shall not consent to abortion or sterilization to
12 be performed upon the incompetent without court approval, which
13 approval, except in the case of risk to the incompetent's life,
14 may be given only after a hearing at which the incompetent is
15 represented by counsel and, if the court so directs, a guardian
16 ad litem.
17 § 5527. Compensation of guardians.
18 The court shall allow such compensation to the guardian of
19 the person or of the estate from the estate of the incompetent
20 as shall in the circumstances be reasonable and just and, in the
21 case of a guardian of the estate, may calculate such
22 compensation on a graduated percentage.
23 Section 5. Section 5531 of Title 20, amended April 28, 1978
24 (P.L.77, No.37), is amended to read:
25 § 5531. When accounting filed.
26 A guardian of an incompetent's estate shall file an account
27 of his administration promptly [whenever directed to do so by
28 the court or may file an account] at the termination of the
29 guardianship, or at [any other] such earlier time or times
30 authorized by the court.
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1 Section 6. This act shall take effect in 60 days.
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