PRIOR PRINTER'S NO. 222 PRINTER'S NO. 1697
No. 227 Session of 1999
INTRODUCED BY SATHER, SCHULER, YOUNGBLOOD, GEIST, BAKER, HERMAN,
PESCI, DEMPSEY, FAIRCHILD, E. Z. TAYLOR, SAYLOR, TRELLO,
STERN, TIGUE, SEYFERT, HESS, McCALL, SEMMEL, HARHAI, CLYMER,
WILT, M. COHEN AND ROSS, FEBRUARY 1, 1999
AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF
REPRESENTATIVES, AS AMENDED, MAY 4, 1999
AN ACT
1 Amending Title 20 (Decedents, Estates and Fiduciaries) of the
2 Pennsylvania Consolidated Statutes, further providing for
3 durable powers of attorney.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Section 5604 of Title 20 of the Pennsylvania
7 Consolidated Statutes is amended by adding a subsection to read:
8 § 5604. Durable powers of attorney.
9 * * *
10 (d) Discovery of information and records regarding actions
11 of attorney-in-fact.--
12 (1) If the Department of Aging believes that a principal <--
13 is unable to properly attend to his affairs, the department
14 may, for the purpose of obtaining information pertinent to
15 the need or propriety of instituting a proceeding
16 terminating, suspending or limiting the authority of an
17 attorney-in-fact, petition the court of common pleas for
1 discovery from the attorney-in-fact of information and
2 records pertaining to actions taken pursuant to powers or
3 authority conferred by a durable power of attorney.
4 (1) IF THE AGENCY, AS DEFINED PURSUANT TO THE ACT OF <--
5 NOVEMBER 6, 1987 (P.L.381, NO.79), KNOWN AS THE OLDER ADULTS
6 PROTECTIVE SERVICES ACT, IS DENIED ACCESS TO RECORDS
7 NECESSARY FOR THE COMPLETION OF A PROPER INVESTIGATION OF A
8 REPORT OR A CLIENT ASSESSMENT AND SERVICE PLAN OR THE
9 DELIVERY OF NEEDED SERVICES IN ORDER TO PREVENT FURTHER
10 ABUSE, NEGLECT, EXPLOITATION OR ABANDONMENT OF THE OLDER
11 ADULT REPORTED TO BE IN NEED OF PROTECTIVE SERVICES, THE
12 AGENCY MAY PETITION THE COURT OF COMMON PLEAS FOR AN ORDER
13 REQUIRING THE APPROPRIATE ACCESS WHEN EITHER OF THE FOLLOWING
14 CONDITIONS APPLIES:
15 (I) THE OLDER ADULT HAS PROVIDED WRITTEN CONSENT FOR
16 CONFIDENTIAL RECORDS TO BE DISCLOSED AND THE KEEPER OF
17 THE RECORDS DENIES ACCESS; OR
18 (II) THE AGENCY CAN DEMONSTRATE THAT THE OLDER ADULT
19 HAS DENIED ACCESS TO THE RECORDS BECAUSE OF INCOMPETENCE,
20 COERCION, EXTORTION OR JUSTIFIABLE FEAR OF FUTURE ABUSE,
21 NEGLECT, EXPLOITATION OR ABANDONMENT.
22 (2) This petition may be filed in the county wherein the
23 attorney-in-fact resides or has his principal place of
24 business, or, if a nonresident, in the county wherein the
25 principal resides, or, if a guardian has been appointed for
26 the principal, in the court which made the appointment. The
27 court, after reasonable notice to the attorney-in-fact and to
28 the principal if no guardian has been appointed, otherwise to
29 the guardian, may conduct a hearing on the petition. The <--
30 court, upon hearing on the petition and consideration of the
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1 interests of the principal and his estate, may dismiss the
2 petition and may award attorney fees to the attorney-in-fact,
3 guardian or principal as a sanction against the department,
4 together with costs, if the court finds that the petition was
5 filed for harassment or other improper motives or may enter
6 such order or orders respecting discovery as it may deem
7 appropriate, including an order that the attorney-in-fact
8 respond to discovery methods as provided in the Pennsylvania
9 Rules of Civil Procedure.
10 (3) Upon the failure of the attorney-in-fact to provide
11 the requested information, the court may make and enforce
12 such further orders respecting discovery. as would be proper <--
13 and may award expenses, including reasonable attorney fees,
14 to the department. Upon completion of discovery, the court,
15 if satisfied that prior to filing the petition the department
16 had requested the information or records that are the subject
17 of ordered discovery, and the attorney-in-fact had been
18 informed of the intention of the department to file a
19 petition under this section, may, in its discretion, order
20 the attorney-in-fact to pay the department's expenses in
21 obtaining discovery, including reasonable attorney fees.
22 (4) A determination to grant or deny in whole or in part
23 discovery sought shall not be considered a finding regarding
24 the competence, capacity or impairment of the principal, nor
25 shall the granting or denial of discovery preclude the
26 availability of other remedies involving protection of the
27 person or estate of the principal or the rights and duties of
28 the attorney-in-fact.
29 (5) As used in this subsection, the following words and <--
30 phrases shall have the meanings given to them in this
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1 paragraph:
2 "Principal believed to be unable to properly attend to his
3 affairs." An individual believed in good faith by the
4 petitioner to be a person who is impaired by reason of mental
5 illness, mental deficiency, physical illness or disability,
6 chronic use of drugs, chronic intoxication or other causes to
7 the extent of lacking sufficient understanding or capacity to
8 make or communicate responsible decisions.
9 "Department of Aging." The Department of Aging of the
10 Commonwealth. The term shall also include, in the case of a
11 principal who is an older adult as defined under the act of
12 November 6, 1987 (P.L.381, No.79), known as the Older Adults
13 Protective Services Act, a designee of the Department of Aging
14 pursuant to its regulatory and investigatory duties under that
15 act.
16 Section 2. This act shall take effect in 60 days <--
17 IMMEDIATELY. <--
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