PRIOR PRINTER'S NO. 2763 PRINTER'S NO. 3327
No. 2162 Session of 1978
INTRODUCED BY MESSRS. BERSON, SCIRICA, O'DONNELL, RHODES, YOHN
AND HASKELL, MARCH 15, 1978
AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF
REPRESENTATIVES, AS AMENDED, JUNE 5, 1978
AN ACT
1 Amending Title 20 (Decedents, Estates and Fiduciaries) of the
2 Pennsylvania Consolidated Statutes, further defining
3 incompetent and adding and changing provisions relating to
4 guardians of incompetents.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Sections 5501, 5511, 5512(a), 5515 and 5517 of
8 Title 20, act of November 15, 1970 (P.L.707, No.230), known as
9 the Pennsylvania Consolidated Statutes, are amended to read:
10 § 5501. Meaning of incompetent.
11 "Incompetent" means a person who, because of infirmities of
12 old age, mental or other illness, injury, mental deficiency or
13 retardation, drug addiction or inebriety:
14 (1) is unable to manage his property, or is liable to
15 dissipate it or become the victim of designing persons; or
16 (2) lacks sufficient capacity to make or communicate
17 responsible decisions concerning his person.
18 § 5511. Petition and hearing; examination by court-appointed
1 physician.
2 (a) Resident.--The court, upon petition and a hearing at
3 which good cause is shown, may find a person resident or
4 domiciled in [the] this Commonwealth to be incompetent and
5 appoint a guardian or guardians of his person or estate or both.
6 The petitioner may be any person interested in the alleged
7 incompetent's welfare. The court may dismiss a proceeding where
8 it finds as a fact that the proceeding has not been instituted
9 to aid or benefit the alleged incompetent. Notice of the
10 petition and hearing shall be given in such manner as the court
11 shall direct to the alleged incompetent, to all persons residing
12 within [the] this Commonwealth who are sui juris and would be
13 entitled to share in the estate of the alleged incompetent if he
14 died intestate at that time, and to such other parties as the
15 court may direct. The hearing may be closed to the public and
16 without a jury unless the alleged incompetent or his counsel
17 objects. The hearing shall be closed and with or without a jury
18 if the person alleged to be incompetent or his counsel so
19 requests. The alleged incompetent shall be present at the
20 hearing unless:
21 [(i)] (1) the court is satisfied, upon the presentation
22 of positive testimony, that because of his physical or mental
23 condition his welfare would not be promoted by his presence;
24 or
25 [(ii)] (2) it is impossible for him to be present
26 because of his absence from [the] this Commonwealth.
27 It shall not be necessary for the alleged incompetent to be
28 represented by a guardian ad litem in the proceeding.
29 (b) Nonresident.--The court may find a person [not] neither
30 domiciled nor resident in [the] this Commonwealth, having
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1 property in [the] this Commonwealth, to be incompetent and may
2 appoint a guardian of his estate in this Commonwealth. The
3 appointment may be made after petition, hearing and notice, as
4 in the case of a person domiciled or resident in [the] this
5 Commonwealth, or upon the submission of an exemplified copy of a
6 decree establishing his incompetency in another jurisdiction.
7 The court shall give preference in its appointment to the
8 foreign guardian of the nonresident incompetent, unless it finds
9 that such appointment will not be for the best interests of the
10 incompetent.
11 (c) Court-appointed physician.--[Upon] After the filing of a
12 petition the alleged incompetent may be examined by a physician
13 or psychologist appointed by the court who shall submit his
14 report in writing to the court and to the parties before the
15 hearing.
16 (d) Contents of petition.--The CONTENTS OF THE petition <--
17 shall be excuted under oath and set forth the following: <--
18 DETERMINED BY RULE. <--
19 (1) Name and residence of the person initiating the <--
20 petition.
21 (2) Name, birthdate, sex and residence of the alleged
22 incompetent.
23 (3) Names and residences of the alleged incompetent's
24 spouse, parents and children, if any, and the names and
25 residences of any persons residing in this Commonwealth,
26 known to the petitioner, who are sui juris and would be
27 entitled to share in the estate of the alleged incompetent if
28 he died intestate at that time.
29 (4) A concise statement of facts rendering the
30 appointment of a guardian appropriate.
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1 (5) A concise statement of the alleged incompetent's
2 property and its approximate value.
3 (6) A concise statement of whether the guardianship
4 sought is to be of the alleged incompetent's estate, his
5 person, or both.
6 (7) A statement of whether the guardianship sought is to
7 be plenary or limited and, if limited:
8 (i) The restrictions to be imposed on the alleged
9 incompetent's freedom or the unrestricted rights to be
10 retained by the alleged incompetent.
11 (ii) The specific powers and duties of the guardian
12 or the limitations to be imposed on the otherwise plenary
13 powers and duties of the guardian.
14 (8) Such other information as the court by rule may deem
15 appropriate.
16 (e) Rights of an alleged incompetent.--If the alleged
17 incompetent is not represented by counsel, the court may appoint
18 counsel to represent him. No inference that a guardian is
19 necessary or unnecessary shall be derived from the fact that the
20 alleged incompetent has been admitted or committed to the care
21 of an institution.
22 (f) Dismissal of petition.--When it is found that it is not
23 in the best interests of the alleged incompetent to appoint a
24 guardian, the court shall dismiss the petition requesting the
25 appointment.
26 § 5512. County of appointment.
27 (a) Resident incompetent.--A guardian of the person or
28 estate of an incompetent may be appointed by the court of the
29 county in which the incompetent resides or is domiciled.
30 * * *
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1 § 5515. Provisions similar to other estates.
2 The provisions relating to a guardian of an incompetent and
3 his surety shall be the same as are set forth in the following
4 provisions of this title relating to a personal representative
5 or a guardian of a minor and their sureties[, with regard to the
6 following]:
7 [(1) Service of process on nonresident guardian, as in
8 section 5114 (relating to service of process on nonresident
9 guardian).
10 (2) Appointment of guardian in conveyance, as in section
11 5115 (relating to appointment of guardian in conveyance).
12 (3) Necessity of bond; form and amount, as in section
13 5121 (relating to necessity, form and amount).
14 (4) When bond not required, as in section 5122 (relating
15 to when bond not required).
16 (5) Requiring or changing amount of bond, as in section
17 5123 (relating to requiring or changing amount of bond).
18 (6) Grounds for removal, as in section 3182 (relating to
19 grounds for removal).
20 (7) Procedure for and effect of removal, as in section
21 3183 (relating to procedure for and effect of removal), for
22 which purpose the incompetent shall be deemed a party in
23 interest.
24 (8) Discharge of guardian and surety, as in section 3184
25 (relating to discharge of personal representative and
26 surety).]
27 Section 3182 (relating to grounds for removal), and in
28 addition thereto, the court may remove or discharge a
29 guardian when for any reason the interests of the
30 incompetent are likely to be promoted by such action.
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1 Section 3183 (relating to procedure for and effect of
2 removal), for which purpose the incompetent shall be
3 deemed a party in interest.
4 Section 3184 (relating to discharge of personal
5 representative and surety).
6 Section 5114 (relating to service of process on nonresident
7 guardian).
8 Section 5115 (relating to appointment of guardian in
9 conveyance).
10 Section 5121 (relating to necessity, form and amount).
11 Section 5122 (relating to when bond not required).
12 Section 5123 (relating to requiring or changing amount of
13 bond).
14 § 5517. Adjudication of competency; review of guardianship.
15 (a) Adjudication of competency.--The court, upon petition
16 and after such notice as it shall direct, may find, after a
17 hearing at which good cause is shown, that a person previously
18 adjudged incompetent has become competent.
19 (b) Review of guardianship.--The order appointing a guardian
20 may specify a date on which the incompetent's need for
21 guardianship shall be reviewed.
22 (c) Request for review.--The guardian of an incompetent's
23 person or estate, or the incompetent himself may petition the
24 court to review any issue involving the guardianship at any
25 time.
26 Section 2. Title 20 is amended by adding sections to read:
27 § 5519. Scope of decree appointing guardian.
28 (a) General rule.--The court shall set forth in its decree
29 appointing a guardian:
30 (1) A finding of incompetency.
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1 (2) Whether the guardianship is of the person or of the
2 estate or both.
3 (3) Whether the guardianship is plenary or limited, and,
4 if limited:
5 (i) The restrictions imposed upon the incompetent's
6 freedom or the unrestricted rights to be retained by the
7 incompetent.
8 (ii) The specific powers and duties of the guardian
9 or the limitations imposed on the otherwise plenary
10 powers and duties of the guardian.
11 (b) Standards.--In framing its decree, the court shall
12 impose thereby the least restrictions on the freedom and
13 activities of the incompetent, consistent with the incompetent's
14 welfare, and may consider the following:
15 (1) Plenary guardianship.--In general, plenary
16 guardianship of the person and estate shall be utilized for
17 those incompetent persons:
18 (i) who are unable to make adequate routine day-to-
19 day decisions and are incapable of basic management of
20 themselves and their affairs; and
21 (ii) whose best interests would be served by such
22 plenary guardianship.
23 (2) Limited guardianship of the person.--In general,
24 limited guardianship of the person shall be utilized for
25 those incompetent persons who are over the age of 18 years
26 and substantially capable of caring for themselves, but whose
27 best interests require guardianship with regard to one or
28 more specific activities which they are incapable of managing
29 for themselves.
30 (3) Limited guardianship of the estate.--In general,
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1 limited guardianship of the estate shall be utilized for
2 those incompetents who are over the age of 18 years and who
3 are wholly or partly self-supporting through employment or
4 other income sources. In such cases the limited guardian of
5 the estate shall receive, manage, disburse and account for
6 only such property of the incompetent as the court shall
7 direct, and the incompetent shall have the right to receive
8 and expend either all or such portion of his earnings from
9 employment or income from other sources as the court shall
10 direct, and shall have the power to contract or legally bind
11 himself to whatever extent the court may not have expressly
12 disqualified him. Except as the decree otherwise provides, a
13 limited guardian of the estate shall have the same duties and
14 responsibilities as are provided in this chapter for
15 guardians of the estate.
16 § 5520. Eligibility for appointment.
17 In appointing a guardian of an incompetent's person or estate
18 or both, the court shall be guided by the best interests of the
19 incompetent and may consider only the following persons for
20 appointment:
21 (1) A nominee of the incompetent if he has sufficient
22 capacity to make an intelligent choice.
23 (2) His parents, subject to the provisions of Subchapter
24 B of Chapter 51 (relating to appointment of guardian).
25 (3) A nominee in the probated will of the last surviving
26 parent or adopting parent.
27 (4) His spouse and other members of his family.
28 (5) Individuals not associated with the facility caring
29 for the incompetent who are professionally, personally or
30 otherwise particularly qualified.
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1 (6) In the case of a guardian of the estate, a
2 corporation having the corporate powers to act as guardian.
3 Section 3. Section 5524 of Title 20 is amended to read:
4 § 5524. Effect of determination of incompetency.
5 [An] Unless otherwise provided in a decree setting forth the
6 powers and duties of a guardian and the freedom or limitations
7 thereon of an incompetent, an incompetent shall be incapable of
8 making any contract or gift or any instrument in writing after
9 he is adjudged incompetent and before he is adjudged to have
10 regained his competency. This section shall not impair the
11 interest in real estate acquired by a bona fide grantee of, or a
12 bona fide holder of a lien on, real estate in a county other
13 than that in which the decree establishing the incompetency is
14 entered, unless the decree or a duplicate original or certified
15 copy thereof is recorded in the office of the recorder of deeds
16 in the county in which the real estate lies before the recording
17 or entering of the instrument or lien under which the grantee or
18 lienholder claims.
19 Section 4. Title 20 is amended by adding sections to read:
20 § 5526. Powers and duties of a guardian of the person.
21 (a) General rule.--Except as otherwise provided in this
22 title, a guardian of the person of an incompetent shall have the
23 powers and duties of a guardian of the person of a minor.
24 (b) Care and protection of incompetent.--A guardian of the
25 person shall exercise reasonable care to insure that insofar as
26 resources available permit, the incompetent is given the care
27 and protection that his physical, mental and social well-being
28 requires and the maximum opportunity to develop physically,
29 mentally and socially.
30 (c) Reports.--When directed by the court, a guardian of the
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1 person shall prepare and file with the court a report on the
2 activities of the incompetent and the care given to him. and <--
3 shall serve a copy of the report on such persons or agencies as
4 the court shall designate.
5 (d) Authority of court.--Nothing in this subchapter shall
6 limit the authority of the court to require a report on the
7 status and condition of the incompetent from the guardian at any
8 time, or to otherwise supervise the conduct or activities of any
9 guardian.
10 (e) Abortion or sterilization.--A guardian of the person of
11 an incompetent shall not consent to abortion or sterilization to
12 be performed upon the incompetent without court approval, which
13 approval, except in the case of risk to the incompetent's life,
14 may be given only after a hearing at which the incompetent is
15 represented by counsel and, if the court so directs, a guardian
16 ad litem.
17 (f) Commitment.--A guardian of the person of an incompetent <--
18 shall not consent to the commitment of his ward to a State
19 mental hospital or to any other hospital or institution absent
20 action pursuant to the provisions of the law applicable to
21 involuntary treatment procedures for the severely mentally
22 disabled.
23 § 5527. Compensation of guardians.
24 The court shall allow such compensation to the guardian of
25 the person or of the estate from the estate of the incompetent
26 as shall in the circumstances be reasonable and just and, in the
27 case of a guardian of the estate, may calculate such
28 compensation on a graduated percentage.
29 Section 5. Section 5531 of Title 20 is amended to read:
30 § 5531. When accounting filed.
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1 A guardian of an incompetent's estate shall file an account
2 of his administration promptly at the termination of his
3 guardianship or at such earlier time or times as shall be
4 directed or authorized by the court.
5 Section 6. This act shall take effect in 60 days.
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