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Senate of Pennsylvania
Session of 2019 - 2020 Regular Session

MEMORANDUM

Posted: December 13, 2018 09:49 AM
From: Senator Art Haywood
To: All Senate members
Subject: Guardianship and D.L.H. Case
 
In the near future, I will be reintroducing and updating Senator Greenleaf’s SB 884 of the 2017-18 session to comprehensively reform guardianships in Pennsylvania.

In October 2012, the Joint State Government Commission’s Advisory Committee on Decedents’ Estates Laws issued a report entitled “Guardianship Law: Proposed Amendments to the Probate, Estates and Fiduciaries Code.” After a thorough review of Chapter 55 of the Probate, Estates and Fiduciaries Code, Title 20 of the Pennsylvania Consolidated Statutes, and related uniform laws, the Advisory Committee recommended extensive changes on subjects such as the venue for a guardianship proceeding, the petition and hearing for the appointment of a guardian, who may be appointed a guardian, and the removal and discharge of a guardian. The Advisory Committee also specified the powers and duties of a guardian.

In June 2011, the same Advisory Committee issued a report entitled “Powers of Attorney and Health Care Decision-Making.” This report, in part, discussed the case of In re D.L.H., 2 A.3d 505 (Pa. 2010). D.L.H. raised the issue of whether a guardian has the power to make decisions relating to the withholding or withdrawal of health care necessary to preserve life unless there is a specific court order granting that power to the guardian. The Advisory Committee recommended that the health care decision-making powers of a guardian should be equivalent to those of a health care representative. The appointment of a guardian already has significantly more safeguards than the statute requires of health care representatives, so the incapacitated person should be well-protected.

The Joint State Government Commission’s Advisory Committee on Decedents’ Estates Laws is a standing group of attorneys and judges from across the Commonwealth who assist the General Assembly by recommending improvements to the Probate, Estates and Fiduciaries Code and related statutes. The Advisory Committee has been in existence since 1945 and is credited with drafting most of the laws relating to trusts and estates. After reaching consensus on its legislative recommendations, the Advisory Committee presents its recommendations to the Task Force on Decedents’ Estates Laws, which is a bicameral and bipartisan panel of legislators. This bill includes several of these recommendations.

In addition to recommendations by the Advisory Committee above, this bill also includes provisions developed in tandem with the Pennsylvania Supreme Court’s Advisory Council on Elder Justice in the Courts. This non-partisan Council is tasked with implementing the recommendations of the Supreme Court’s Elder Law Task Force that were released in 2014 and considers related measures to protect the rights of seniors in the Commonwealth. The state of guardianships has changed in the years since the Joint State Government Commission’s report. Therefore, the Advisory Council supports further safeguards, such as the right to counsel and giving courts more tools to properly vet an individual before he or she is entrusted with guardianship responsibilities. These are also included in this reintroduction.

Please join me in sponsoring this important legislation.



Introduced as SB23