PRINTER'S NO. 398
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
506
Session of
2023
INTRODUCED BY BAKER, HAYWOOD, KEARNEY, COLLETT, KANE, SCHWANK,
MILLER, BREWSTER, COSTA, COMITTA AND DILLON, MARCH 7, 2023
REFERRED TO JUDICIARY, MARCH 7, 2023
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:
ยง 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
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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.--
(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
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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.
* * *
(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
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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
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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
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guardian is capable of fully, faithfully and competently
performing the obligations of a guardian.
Section 2. Section 5512.1(a) of Title 20 is amended to read:
ยง 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
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.
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(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
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with third parties.
* * *
Section 3. This act shall take effect in 180 days.
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