Regular Session 2015-2016 Senate Bill 1384 P.N. 2200

PRINTER'S NO. 2200

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

1384

Session of

2015

INTRODUCED BY EICHELBERGER, VULAKOVICH, COSTA, RESCHENTHALER,

BARTOLOTTA AND RAFFERTY, OCTOBER 25, 2016

REFERRED TO JUDICIARY, OCTOBER 25, 2016

AN ACT

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

Pennsylvania Consolidated Statutes, in incapacitated persons,

providing for communication, visitation and interaction with

other persons and for notice to closest relatives of certain

events.

The General Assembly declares that this act shall be known

and may be cited as the "Peter Falk's Law."

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Chapter 55 of Title 20 of the Pennsylvania

Consolidated Statutes is amended by adding a subchapter to read:

SUBCHAPTER G

RIGHTS OF INCAPACITATED PERSONS

Sec.

5561. Communication, visitation and interaction with other

persons.

5562. Notice to closest relatives of certain events.

§ 5561. Communication, visitation and interaction with other

persons.

(a) Limitation on guardian.--

(1) Unless specifically authorized by court order, no

guardian may restrict an incapacitated person's right of

communication, visitation or interaction with other persons,

including the right to receive visitors, telephone calls or

personal mail.

(2) If an incapacitated person is unable to express

consent to communication, visitation or interaction with a

person due to a physical or mental condition, then consent of

the incapacitated person may be presumed based on the

incapacitated person's prior relationship history with the

person.

(b) Petition by guardian for restrictions.--A guardian may,

for good cause shown, petition the court to place restrictions

on a person's ability to communicate, visit or interact with an

incapacitated person in accordance with subsection (c). Good

cause includes:

(1) whether a protective order has been issued to

protect the incapacitated person from the person seeking

access to the incapacitated person;

(2) whether abuse, neglect or financial exploitation of

the incapacitated person by the person seeking access to the

incapacitated person has occurred or is likely to occur;

(3) documented intention of the incapacitated person to

reject communication, visitation or interaction with specific

persons; or

(4) any other factors deemed relevant by the court.

(1) A court may order restrictions placed on the

communications, visitations or interactions a person may have

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with an incapacitated person upon a showing of good cause by

the guardian.

(2) In determining whether to issue an order in

accordance with paragraph (1), the following factors shall be

considered by the court:

(i) Whether a protective order has been issued to

protect the incapacitated person from the person seeking

access to the incapacitated person.

(ii) Whether the person has been charged with abuse,

neglect or financial exploitation of the incapacitated

person.

(iii) Whether the incapacitated person has expressed

an intention to reject communication, visitation or

interaction with the person.

(iv) If the incapacitated person is unable to

communicate, whether a properly executed living will,

durable power of attorney or advance directive contains a

preference by the incapacitated person with regard to the

person's communication, visitation or interaction with

the incapacitated person.

(v) Any other factors deemed relevant by the court.

(3) Prior to issuing an order under this subsection, the

court shall consider the following:

(i) placing reasonable time, manner or place

restrictions on communication, visitation or interaction

between the incapacitated person and the other person

based on the history between the incapacitated person and

the person or the incapacitated person's expressed

intention, or both;

(ii) requiring that communication, visitation or

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interaction between the incapacitated person and the

other person be supervised; or

(iii) denying communication, visitation or

interaction between the incapacitated person and the

other person, provided that, unless the court finds that

the person poses a threat to the incapacitated person,

supervised communication, visitation or interaction shall

be ordered prior to the denial of any communication,

visitation or interaction.

(d) Other relief by court.--

(1) If an interested person, including the incapacitated

person, reasonably believes that subsection (a) or an order

issued pursuant to subsection (c)(1) has been violated, the

interested person may petition the court to:

(i) require the guardian to grant a person access to

the incapacitated person;

(ii) restrict or further restrict a person's access

to the incapacitated person;

(iii) modify the guardian's duties; or

(iv) discharge and replace the guardian as provided

by law.

(2) Notwithstanding actions available to the court under

paragraph (1), a guardian who is found to be knowingly

isolating an incapacitated person and who has violated

subsection (a) or an order issued under subsection (c), shall

be subject to discharge and replacement as provided by law.

(e) Hearing.--

(1) Except as provided in paragraph (2), the court shall

schedule a hearing on a petition filed under subsection (b)

or (d) no later than 60 days after the date the petition is

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filed. The court may, in its discretion, order mediation to

be conducted between the parties and the incapacitated person

prior to the hearing. If mediation results in agreement of

the parties and the incapacitated person with regard to

communication, visitation or interaction with the

incapacitated person, the agreement shall be approved and

incorporated in an order by the court.

(2) If the petition states that the incapacitated

person's health is in significant decline or that the

incapacitated person's death may be imminent, the court shall

conduct an emergency hearing as soon as practicable, but no

later than 10 days after the petition is filed.

(3) When a scheduling order is issued for a petition

filed under paragraph (2), the court shall also order that

supervised communication, visitation or interaction with the

incapacitated person be granted during the period prior to

the hearing.

(4) Notice of the hearing, a copy of the petition and a

copy of any order issued under paragraph (3), if applicable,

shall be personally served on the incapacitated person and

any person against whom the petition is filed.

(5) Nothing in this subsection shall be construed to

affect the incapacitated person's right to appear and be

heard in the proceedings.

(f) Costs and reasonable attorney fees.--

(1) The court in its discretion may award the prevailing

party in an action brought under this section court costs and

reasonable attorney fees, provided that an award of court

costs and reasonable attorney fees may not be paid out of the

incapacitated person's estate.

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(2) The court, upon petition or upon its own initiative,

may impose upon a guardian who is found to be knowingly

isolating an incapacitated person and who has violated

subsection (a) or an order issued under subsection (c), an

appropriate sanction, including an order to pay court costs

and reasonable attorney fees of the other party or parties,

provided that no sanction may be paid out of the

incapacitated person's estate.

§ 5562. Notice to closest relatives of certain events.

(a) General rule.--A guardian shall promptly notify an

incapacitated person's closest relatives and any person

designated by the incapacitated person to be notified, along

with the appropriate contact information and upon the guardian's

knowledge that:

(1) the incapacitated person's residence has changed;

(2) the incapacitated person is staying at a location

other than the incapacitated person's residence for more than

seven consecutive days;

(3) the incapacitated person is admitted to or

discharged from a nursing home or assisted-care living

facility;

(4) the incapacitated person has been admitted to a

medical facility for:

(i) emergency care in response to a life-threatening

injury or medical condition; or

(ii) acute care; or

(5) the incapacitated person has died, provided that

notification of the incapacitated person's death shall be

made in person or by telephone.

(b) Exception.--

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(1) A guardian shall not be required to provide notice

in accordance with subsection (a) if:

(i) a person who is entitled to notice under

subsection (a) informs the guardian in writing that the

person does not wish to receive the notice; or

(ii) the incapacitated person or a court order has

expressly prohibited the guardian from providing notice

to the person.

(2) A guardian may not provide contact information in

accordance with subsection (a) if an order of protection or

restraining order has been issued pursuant to law against the

person on behalf of the incapacitated person.

Section 2. This act shall take effect in 60 days.

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