Regular Session 2021-2022 House Bill 2636 P.N. 3181

PRINTER'S NO. 3181

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

2636

Session of

2022

INTRODUCED BY PARKER, BOBACK, HILL-EVANS, DRISCOLL, SANCHEZ,

KINSEY, ROZZI, SAPPEY, MADDEN AND CIRESI, JUNE 1, 2022

REFERRED TO COMMITTEE ON JUDICIARY, JUNE 1, 2022

AN ACT

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

Pennsylvania Consolidated Statutes, in incapacitated persons,

further providing for petition and hearing and independent

evaluation and for determination of incapacity and

appointment of guardian.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Section 5511(a), (e) and (f) of Title 20 of the

Pennsylvania Consolidated Statutes are amended and the section

is amended by adding a subsection to read:

§ 5511. Petition and hearing; independent evaluation.

(a) Resident.--The court, upon petition and hearing and upon

the presentation of clear and convincing evidence, may find a

person domiciled in the Commonwealth to be incapacitated and

appoint a guardian or guardians of his person or estate. The

petitioner may be any person interested in the alleged

incapacitated person's welfare. The court may dismiss a

proceeding where it determines that the proceeding has not been

instituted to aid or benefit the alleged incapacitated person or

that the petition is incomplete or fails to provide sufficient

facts to proceed. Written notice of the petition and hearing

shall be given in large type and in simple language to the

alleged incapacitated person. The notice shall indicate the

purpose and seriousness of the proceeding and the rights that

can be lost as a result of the proceeding. It shall include the

date, time and place of the hearing and an explanation of all

rights[, including the right to request the appointment of

counsel and to have counsel appointed if the court deems it

appropriate and the right to have such counsel paid for if it

cannot be afforded]. The Supreme Court shall establish a uniform

citation for this purpose. A copy of the petition shall be

attached. Personal service shall be made on the alleged

incapacitated person, and the contents and terms of the petition

shall be explained to the maximum extent possible in language

and terms the individual is most likely to understand. Service

shall be no less than 20 days in advance of the hearing. In

addition, notice of the petition and hearing shall be given in

such manner as the court shall direct to all persons residing

within the Commonwealth who are sui juris and would be entitled

to share in the estate of the alleged incapacitated person if he

died intestate at that time, to the person or institution

providing residential services to the alleged incapacitated

person and to such other parties as the court may direct,

including other service providers. The hearing may be closed to

the public and without a jury unless the alleged incapacitated

person or his counsel objects. The hearing shall be closed and

with or without a jury if the person alleged to be incapacitated

or his counsel so requests. The hearing may be held at the

residence of the alleged incapacitated person. The alleged

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incapacitated person shall be present at the hearing unless:

(1) the court is satisfied, upon the deposition or

testimony of or sworn statement by a physician or licensed

psychologist, that his physical or mental condition would be

harmed by his presence; or

(2) it is impossible for him to be present because of

his absence from the Commonwealth. It shall not be necessary

for the alleged incapacitated person to be represented by a

guardian ad litem in the proceeding.

[Petitioner shall be required to notify the court at least seven

days prior to the hearing if counsel has not been retained by or

on behalf of the alleged incapacitated person. In appropriate

cases, counsel shall be appointed to represent the alleged

incapacitated person in any matter for which counsel has not

been retained by or on behalf of that individual.]

(a.1) Appointment of counsel.--The following shall apply:

(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) 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 each proceeding under subsection (a) and in each

subsequent proceeding to modify or terminate the

guardianship.

(3) Counsel for an alleged incapacitated person shall,

as far as reasonably possible, maintain a normal client-

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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.

* * *

(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 for each lesser restrictive

alternative demonstrating that the alternative was considered or

tried and why the alternative is insufficient. If a limited or

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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 shall provide certification to the

court by the Department of Human Services or a qualified

entity as determined by the Department of Human Services

prior to a third guardianship appointment. The following

apply:

(i) The Department of Human Services shall create

forms and relevant educational documents to implement

certification.

(ii) The Department of Human Services shall meet

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with relevant stakeholders to select the certification

criteria and to develop forms and educational documents

related to this section.

(iii) Certification shall include the following:

(A) Work history and training.

(B) A review of Federal and State criminal

history record information.

Section 2. Section 5512.1(a) of Title 20 is amended to read:

§ 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 [advance directives

such as durable powers of attorney or trusts.] 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

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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.

(x) Availability of family, friends and other

supports to assist the individual in making decisions.

(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 to support the

needs of an incapacitated person or if no lesser

restrictive alternatives were considered.

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(iv) The court shall allow opportunity for an

alleged incapacitated person to enter into less

restrictive alternatives if the alternatives would render

guardianship unnecessary.

(v) When entering an order denying a petition for

guardianship in whole or in part, the court shall

identify the less restrictive alternatives that are in

place to enable the respondent 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.

* * *

Section 3. This act shall take effect in 60 days.

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