THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY HENNESSEY, BAKER, CALTAGIRONE, CLYMER, CURRY, DALEY, DONATUCCI, GILLEN, GILLESPIE, GINGRICH, HALUSKA, HARHART, HESS, HORNAMAN, KAVULICH, KILLION, KOTIK, MILLER, MURT, RAPP, READSHAW, REICHLEY, ROSS, TAYLOR, VEREB, WATSON, MARSICO AND VULAKOVICH, JUNE 24, 2011

AS REPORTED FROM COMMITTEE ON AGING AND OLDER ADULT SERVICES, HOUSE OF REPRESENTATIVES, AS AMENDED, OCTOBER 19, 2011   

AN ACT

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

Pennsylvania Consolidated Statutes, providing for uniform

adult guardianship and protective proceedings jurisdiction.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Title 20 of the Pennsylvania Consolidated

Statutes is amended by adding a chapter to read:

CHAPTER 59

UNIFORM ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS

JURISDICTION

Subchapter

A.  General Provisions

B.  Jurisdiction

C.  Transfer of Guardianship or Conservatorship

D.  Registration and Recognition of Orders from Other States

E.  Miscellaneous Provisions

SUBCHAPTER A

GENERAL PROVISIONS

Sec.

5901.  Short title of chapter.

5902.  Definitions.

5903.  International application of chapter.

5904.  Communication between courts.

5905.  Cooperation between courts.

5906.  Taking testimony in another state.

§ 5901.  Short title of chapter.

This chapter shall be known and may be cited as the Uniform

Adult Guardianship and Protective Proceedings Jurisdiction Act.

§ 5902.  Definitions.

The following words and phrases when used in this chapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Adult."  An individual who has attained 18 years of age.

"Conservator."  A person appointed by the court to administer

the property of an adult, including a person appointed under

Chapter 55 (relating to incapacitated persons) as the guardian

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of the estate of an adult.

"Guardian."  A person appointed by the court to make

decisions regarding the person of an adult, including a person

appointed under Chapter 55 (relating to incapacitated persons) 

as the guardian of the person of an adult.

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"Guardianship order."  An order appointing a guardian.

"Guardianship proceeding."  A judicial proceeding in which an

order for the appointment of a guardian is sought or has been

issued.

"Incapacitated person."  An adult for whom a guardian has

been appointed.

"Party."  The respondent, petitioner, guardian, conservator

or any other person allowed by the court to participate in a

guardianship or protective proceeding.

"Person."  Notwithstanding 1 Pa.C.S. § 1991 (relating to

definitions) and except in the term "incapacitated person" or

"protected person," any:

(1)  individual;

(2)  corporation;

(3)  business trust;

(4)  estate;

(5)  trust;

(6)  partnership;

(7)  limited liability company;

(8)  association;

(9)  joint venture;

(10)  public corporation;

(11)  government or governmental subdivision, agency or

instrumentality; or

(12)  other legal or commercial entity.

"Protected person."  An adult for whom a protective order has

been issued.

"Protective order."  An order appointing a conservator or

other order related to management of an adult's property.

"Protective proceeding."  A judicial proceeding in which a

protective order is sought or has been issued.

"Record."  Information that is inscribed on a tangible medium

or that is stored in an electronic or other medium and is

retrievable in perceivable form.

"Respondent."  An adult for whom a protective order or the

appointment of a guardian is sought.

"State."  A state of the United States, the District of

Columbia, Puerto Rico, the Virgin Islands, a federally

recognized Indian tribe or any territory or insular possession

subject to the jurisdiction of the United States.

§ 5903.  International application of chapter.

A court of this Commonwealth may treat a foreign country as

if it were a state for the purpose of applying this subchapter

and Subchapters B (relating to jurisdiction), C (relating to

transfer of guardianship or conservatorship) and E (relating to

miscellaneous provisions).

§ 5904.  Communication between courts.

(a)  Authorization.--A court of this Commonwealth may

communicate with a court in another state concerning a

proceeding arising under this chapter. The court may allow the

parties to participate in the communication. Except as otherwise

provided in subsection (b), the court shall make a record of the

communication. The record may be limited to the fact that the

communication occurred.

(b)  Exception.--Courts may communicate concerning schedules,

calendars, court records and other administrative matters

without making a record.

§ 5905.  Cooperation between courts.

(a)  Initiation.--In a guardianship or protective proceeding

in this Commonwealth, a court of this Commonwealth may request

the appropriate court of another state to do any of the

following:

(1)  Hold an evidentiary hearing.

(2)  Order a person in that state to produce evidence or

give testimony pursuant to procedures of that state.

(3)  Order that an evaluation or assessment be made of

the respondent.

(4)  Order any appropriate investigation of a person

involved in a proceeding.

(5)  Forward to the court of this Commonwealth a

certified copy of the transcript or other record of a hearing

under paragraph (1) or any other proceeding, any evidence

otherwise produced under paragraph (2) and any evaluation or

assessment prepared in compliance with an order under

paragraph (3) or (4).

(6)  Issue any order necessary to assure the appearance

in the proceeding of a person whose presence is necessary for

the court to make a determination, including the respondent

or the incapacitated or protected person.

(7)  Issue an order authorizing the release of medical,

financial, criminal or other relevant information in that

state, including protected health information as defined in

45 CFR 160.103 (relating to definitions).

(8)  Take or refrain from taking any other action to

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facilitate the prompt and fair resolution of matters subject

to this chapter.

(b)  Response.--If a court of another state in which a

guardianship or protective proceeding is pending requests

assistance of the kind provided in subsection (a), a court of

this Commonwealth has jurisdiction for the limited purpose of

granting the request or making reasonable efforts to comply with

the request.

§ 5906.  Taking testimony in another state.

(a)  General procedures.--In a guardianship or protective

proceeding, in addition to other procedures that may be

available, testimony of a witness who is located in another

state may be offered by deposition or other means allowable in

this Commonwealth for testimony taken in another state. The

court on its own motion may order that the testimony of a

witness be taken in another state and may prescribe the manner

in which and the terms upon which the testimony is to be taken.

(b)  Means.--In a guardianship or protective proceeding, a

court in this Commonwealth may permit a witness located in

another state to be deposed or to testify by telephone or

audiovisual or other electronic means. A court of this

Commonwealth shall cooperate with the court of the other state

in designating an appropriate location for the deposition or

testimony.

SUBCHAPTER B

JURISDICTION

Sec.

5911.  Definitions; significant connection factors.

5912.  Exclusive basis.

5913.  Jurisdiction.

5914.  Special jurisdiction.

5915.  Exclusive and continuing jurisdiction.

5916.  Appropriate forum.

5917.  Jurisdiction declined by reason of conduct.

5918.  Notice of proceeding.

5919.  Proceedings in more than one state.

§ 5911.  Definitions; significant connection factors.

(a)  Definitions.--The following words and phrases when used

in this subchapter shall have the meanings given to them in this

section unless the context clearly indicates otherwise:

"Emergency."  A circumstance:

(1)  which likely will result in substantial harm to a

respondent's health, safety or welfare; and

(2)  for which the appointment of a guardian is necessary

because no other person has authority and is willing to act

on the respondent's behalf.

"Home state."  One of the following:

(1)  The state in which the respondent was physically

present, including any period of temporary absence, for at

least six consecutive months immediately before the filing of

a petition for a protective order or the appointment of a

guardian.

(2)  If the requirement of paragraph (1) is not met, the

state in which the respondent was physically present,

including any period of temporary absence, for at least six

consecutive months ending within the six months prior to the

filing of the petition.

"Significant-connection state."  A state, other than the home

state, with which a respondent has a significant connection

other than mere physical presence and in which substantial

evidence concerning the respondent is available.

(b)  Significant connection factors.--In determining under

sections 5913 (relating to jurisdiction) and 5921(e) (relating

to transfer of guardianship or conservatorship to another state)

whether a respondent has a significant connection with a

particular state, the court shall consider all of the following:

(1)  The location of the respondent's family and other

persons required to be notified of the guardianship or

protective proceeding.

(2)  The length of time the respondent at any time was

physically present in the state and the duration of any

absence.

(3)  The location of the respondent's property.

(4)  The extent to which the respondent has ties to the

state. This paragraph includes voting registration, state or

local tax return filing, vehicle registration, driver's

license, social relationship and receipt of services.

§ 5912.  Exclusive basis.

This Notwithstanding any inconsistent provisions of Chapter

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55 (relating to incapacitated persons), this subchapter provides

the exclusive jurisdictional basis for a court of this

Commonwealth to appoint a guardian or issue a protective order

for an adult.

§ 5913.  Jurisdiction.

A court of this Commonwealth has jurisdiction to appoint a

guardian or issue a protective order for a respondent if one of

the following paragraphs applies:

(1)  This Commonwealth is the respondent's home state.

(2)  On the date the petition is filed, all of the

following subparagraphs apply:

(i)  This Commonwealth is a significant-connection

state.

(ii)  One of the following clauses applies:

(A)  The respondent does not have a home state,

or a court of the respondent's home state has

declined to exercise jurisdiction because this

Commonwealth is a more appropriate forum or has

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declined to exercise jurisdiction in a manner not

inconsistent with a determination that this

Commonwealth is a more appropriate forum.

(B)  The respondent has a home state; a petition

for an appointment or order is not pending in a court

of that state or another significant-connection

state; and, before the court makes the appointment or

issues the order:

(I)  a petition for an appointment or order

is not filed in the respondent's home state;

(II)  an objection to the court's

jurisdiction is not filed by a person required to

be notified of the proceeding; and

(III)  the court in this Commonwealth

concludes that it is an appropriate forum under

the factors set forth in section 5916 (relating

to appropriate forum).

(3)  This Commonwealth does not have jurisdiction under

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(3)  All of the following subparagraphs apply:

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(i)  This Commonwealth does not have jurisdiction

under either paragraph (1) or (2), the.

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(ii)  The respondent's home state and all

significant-connection states have declined to exercise

jurisdiction because this Commonwealth is the more

appropriate forum and jurisdiction or has declined to

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exercise jurisdiction in a manner not inconsistent with a

determination that this Commonwealth is a more

appropriate forum.

(iii)  Jurisdiction in this Commonwealth is

consistent with the Constitution of the United States and

the Constitution of Pennsylvania.

(4)  The requirements for special jurisdiction under

section 5914 (relating to special jurisdiction) are met.

§ 5914.  Special jurisdiction.

(a)  Scope.--A Notwithstanding the requirements of section

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5513 (relating to emergency guardian) as it relates to limiting

the duration of an order appointing an emergency guardian of the

person or estate, a court of this Commonwealth lacking

jurisdiction under section 5913(1), (2) or (3) (relating to

jurisdiction) has special jurisdiction to do any of the

following:

(1)  Appoint a guardian in an emergency for a term not

exceeding 90 days for a respondent who is physically present

in this Commonwealth.

(2)  Issue a protective order with respect to real or

tangible personal property located in this Commonwealth, 

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including, in an emergency, a protective order for a term not

exceeding 90 days.

(3)  Appoint a guardian or conservator for an

incapacitated or protected person for whom a provisional

order to transfer the proceeding from another state has been

issued under procedures similar to section 5921 (relating to

transfer of guardianship or conservatorship to another

state).

(b)  Dismissal.--If a petition for the appointment of a

guardian in an emergency is brought in this Commonwealth and

this Commonwealth was not the respondent's home state on the

date the petition was filed, the court shall dismiss the

proceeding at the request of the court of the home state, if

any, whether dismissal is requested before or after the

emergency appointment.

§ 5915.  Exclusive and continuing jurisdiction.

Except as otherwise provided in section 5914 (relating to

special jurisdiction), a court that has appointed a guardian or

issued a protective order consistent with this chapter has

exclusive and continuing jurisdiction over the proceeding until

it is terminated by the court or the appointment or order

expires by its own terms.

§ 5916.  Appropriate forum.

(a)  Decline to exercise jurisdiction.--A court of this

Commonwealth having jurisdiction under section 5913 (relating to

jurisdiction) to appoint a guardian or issue a protective order

may decline to exercise its jurisdiction if it determines at any

time that a court of another state is a more appropriate forum.

(b)  Procedure.--If a court of this Commonwealth declines to

exercise its jurisdiction under subsection (a), it shall either

dismiss or stay the proceeding. The court may impose any

condition the court considers just and proper, including the

condition that a petition for the appointment of a guardian or

issuance of a protective order be filed promptly in another

state.

(c)  Consideration.--In determining whether it is an

appropriate forum, the court shall consider all relevant

factors, including:

(1)  any expressed preference of the respondent;

(2)  whether abuse, neglect or exploitation of the

respondent has occurred or is likely to occur and which state

could best protect the respondent from the abuse, neglect or

exploitation;

(3)  the length of time the respondent was physically

present in or was a legal resident of this Commonwealth or

another state;

(4)  the distance of the respondent from the court in

each state;

(5)  the financial circumstances of the respondent's

estate;

(6)  the nature and location of the evidence;

(7)  the ability of the court in each state to decide the

issue expeditiously and the procedures necessary to present

evidence;

(8)  the familiarity of the court of each state with the

facts and issues in the proceeding; and

(9)  if an appointment were made, the court's ability to

monitor the conduct of the guardian or conservator.

§ 5917.  Jurisdiction declined by reason of conduct.

(a)  Judicial options.--If a court of this Commonwealth

determines that it acquired jurisdiction to appoint a guardian

or issue a protective order because of unjustifiable conduct,

the court may exercise an option under any of the following

paragraphs:

(1)  Decline to exercise jurisdiction.

(2)  Exercise jurisdiction for the limited purpose of

fashioning an appropriate remedy to:

(i)  ensure the health, safety and welfare of the

respondent or the protection of the respondent's

property; or

(ii)  prevent a repetition of the unjustifiable

conduct, including staying the proceeding until a

petition for the appointment of a guardian or issuance of

a protective order is filed in a court of another state

having jurisdiction.

(3)  Continue to exercise jurisdiction after considering:

(i)  the extent to which the respondent and all

persons required to be notified of the proceedings have

acquiesced in the exercise of the court's jurisdiction;

(ii)  whether it is a more appropriate forum than the

court of any other state under the factors set forth in

section 5916(c) (relating to appropriate forum); and

(iii)  whether the court of any other state would

have jurisdiction under factual circumstances in

substantial conformity with the jurisdictional standards

of section 5913 (relating to jurisdiction).

(b)  Costs and fees.--If a court of this Commonwealth

determines that it acquired jurisdiction to appoint a guardian

or issue a protective order because a party seeking to invoke

its jurisdiction engaged in unjustifiable conduct, it may assess

against that party necessary and reasonable expenses, including

attorney fees, investigative fees, court costs, communication

expenses, witness fees and expenses and travel expenses. The

court may not assess fees, costs or expenses of any kind against

the Commonwealth, a political subdivision or an instrumentality

of the Commonwealth unless authorized by law other than this

chapter.

§ 5918.  Notice of proceeding.

If a petition for the appointment of a guardian or issuance

of a protective order is brought in this Commonwealth and this

Commonwealth was not the respondent's home state on the date the

petition was filed, in addition to complying with the notice

requirements of this Commonwealth, notice of the petition must

be given to those persons who would be entitled to notice of the

petition if a proceeding were brought in the respondent's home

state. The notice must be given in the same manner as notice is

required to be given in this Commonwealth.

§ 5919.  Proceedings in more than one state.

Except for a petition for the appointment of a guardian in an

emergency or issuance of a protective order limited to property

located in this Commonwealth under section 5914(a)(1) or (2)

(relating to special jurisdiction), if a petition for the

appointment of a guardian or issuance of a protective order is

filed in this Commonwealth and in another state and neither

petition has been dismissed or withdrawn, all of the following

apply:

(1)  If the court in this Commonwealth has jurisdiction

under section 5913 (relating to jurisdiction), it may proceed

with the case unless a court in another state acquires

jurisdiction under provisions similar to section 5913 before

the appointment or issuance of the order.

(2)  If the court in this Commonwealth does not have

jurisdiction under section 5913, whether at the time the

petition is filed or at any time before the appointment or

issuance of the order, the court shall stay the proceeding

and communicate with the court in the other state. If the

court in the other state has jurisdiction, the court in this

Commonwealth shall dismiss the petition unless the court in

the other state determines that the court in this

Commonwealth is a more appropriate forum.

SUBCHAPTER C

TRANSFER OF GUARDIANSHIP OR CONSERVATORSHIP

Sec.

5921.  Transfer of guardianship or conservatorship to another

state.

5922.  Accepting guardianship or conservatorship transferred

from another state.

§ 5921.  Transfer of guardianship or conservatorship to another

state.

(a)  Petition.--A guardian or conservator appointed in this

Commonwealth may petition the court to transfer the guardianship

or conservatorship to another state.

(b)  Notice.--Notice of a petition under subsection (a) must

be given to the persons that would be entitled to notice of a

petition in this Commonwealth for the appointment of a guardian

or conservator.

(c)  Hearing.--The court shall hold a hearing on a petition

filed under subsection (a):

(1)  on its own motion; or

(2)  on request of:

(i)  the guardian or conservator;

(ii)  the incapacitated or protected person; or

(iii)  another person required to be notified of the

petition.

(d)  Provisional guardianship order.--The court shall issue

an order provisionally granting a petition to transfer a

guardianship and shall direct the guardian to petition for

guardianship in the other state if the court is satisfied that

the guardianship will be accepted by the court in the other

state and the court finds that:

(1)  the incapacitated person is physically present in or

is reasonably expected to move permanently to the other

state;

(2)  an objection to the transfer has not been made or,

if an objection has been made, the objector has not

established that the transfer would be contrary to the

interests of the incapacitated person; and

(3)  plans for care and services for the incapacitated

person in the other state are reasonable and sufficient.

(e)  Provisional conservatorship order.--The court shall

issue a provisional order granting a petition to transfer a

conservatorship and shall direct the conservator to petition for

conservatorship in the other state if the court is satisfied

that the conservatorship will be accepted by the court of the

other state and the court finds that:

(1)  the protected person is physically present in or is

reasonably expected to move permanently to the other state,

or the protected person has a significant connection to the

other state considering the factors in section 5911(b)

(relating to definitions; significant connection factors);

(2)  an objection to the transfer has not been made or,

if an objection has been made, the objector has not

established that the transfer would be contrary to the

interests of the protected person; and

(3)  adequate arrangements will be made for management of

the protected person's property.

(f)  Final order.--The court shall issue a final order

confirming the transfer and terminating the guardianship or

conservatorship upon its receipt of:

(1)  a provisional order accepting the proceeding from

the court to which the proceeding is to be transferred which

is issued under provisions similar to section 5922 (relating

to accepting guardianship or conservatorship transferred from

another state); and

(2)  the documents required to terminate a guardianship

or conservatorship in this Commonwealth.

§ 5922.  Accepting guardianship or conservatorship transferred

from another state.

(a)  Petition.--To confirm transfer of a guardianship or

conservatorship transferred to this Commonwealth under

provisions similar to section 5921 (relating to transfer of

guardianship or conservatorship to another state), the guardian

or conservator must petition the court in this Commonwealth to

accept the guardianship or conservatorship. The petition must

include a certified copy of the other state's provisional order

of transfer.

(b)  Notice.--Notice of a petition under subsection (a) must

be given to those persons that would be entitled to notice if

the petition were a petition for the appointment of a guardian

or issuance of a protective order in both the transferring state

and this Commonwealth. The notice must be given in the same

manner as notice is required to be given in this Commonwealth.

(c)  Hearing.--The court shall hold a hearing on a petition

filed under subsection (a):

(1)  on its own motion; or

(2)  on request of:

(i)  the guardian or conservator;

(ii)  the incapacitated or protected person; or

(iii)  another person required to be notified of the

petition.

(d)  Provisional order.--The court shall issue an order

provisionally granting a petition filed under subsection (a)

unless:

(1)  an objection is made and the objector establishes

that transfer of the proceeding would be contrary to the

interests of the incapacitated or protected person; or

(2)  the guardian or conservator is ineligible for

appointment in this Commonwealth.

(e)  Final order.--The court shall issue a final order

accepting the proceeding and appointing the guardian or

conservator as guardian or conservator in this Commonwealth upon

its receipt from the court from which the proceeding is being

transferred of a final order issued under provisions similar to

section 5921 transferring the proceeding to this Commonwealth.

(f)  Modification.--Not later than 90 days after issuance of

a final order accepting transfer of a guardianship or

conservatorship, the court shall determine whether the

guardianship or conservatorship requires modification to conform

to the laws of this Commonwealth.

(g)  Recognition of order from other state.--In granting a

petition under this section, the court shall recognize a

guardianship or conservatorship order from the other state,

including the determination of the incapacitated or protected

person's incapacity and the appointment of the guardian or

conservator.

(h)  Effect of denial.--The denial by a court of this

Commonwealth of a petition to accept a guardianship or

conservatorship transferred from another state does not affect

the ability of the guardian or conservator to seek appointment

as guardian or conservator in this Commonwealth under Chapter 55

(relating to incapacitated persons) if the court has

jurisdiction to make an appointment other than by reason of the

provisional order of transfer.

SUBCHAPTER D

REGISTRATION AND RECOGNITION OF ORDERS FROM OTHER STATES

Sec.

5931.  Registration of guardianship orders.

5932.  Registration of protective orders.

5933.  Effect of registration.

§ 5931.  Registration of guardianship orders.

If a guardian has been appointed in another state and a

petition for the appointment of a guardian is not pending in

this Commonwealth, the guardian appointed in the other state,

after giving notice to the appointing court of an intent to

register, may register the guardianship order in this

Commonwealth by filing as a foreign judgment in a court, in any

appropriate judicial district of this Commonwealth, certified

copies of the order and letters of office.

§ 5932.  Registration of protective orders.

If a conservator has been appointed in another state and a

petition for a protective order is not pending in this

Commonwealth, the conservator appointed in the other state,

after giving notice to the appointing court of an intent to

register, may register the protective order in this Commonwealth

by filing as a foreign judgment in a court of this Commonwealth,

in any judicial district in which property belonging to the

protected person is located, certified copies of the order and

letters of office and of any bond.

§ 5933.  Effect of registration.

(a)  Powers.--Upon registration of a guardianship or

protective order from another state, the guardian or conservator

may exercise in this Commonwealth all powers authorized in the

order of appointment except as prohibited under the laws of this

Commonwealth, including maintaining actions and proceedings in

this Commonwealth and, if the guardian or conservator is not a

resident of this Commonwealth, subject to any conditions imposed

upon nonresident parties.

(b)  Relief authorized.--A court of this Commonwealth may

grant any relief available under this chapter and other law of

this Commonwealth to enforce a registered order.

SUBCHAPTER E

MISCELLANEOUS PROVISIONS

Sec.

5991.  Uniformity of application and construction.

5992.  Relation to Electronic Signatures in Global and National

Commerce Act.

§ 5991.  Uniformity of application and construction.

In applying and construing this uniform act, consideration

must be given to the need to promote uniformity of the law with

respect to its subject matter among states that enact it.

§ 5992.  Relation to Electronic Signatures in Global and

National Commerce Act.

(a)  General rule.--Except as set forth in subsection (b),

this chapter modifies, limits or supersedes the Electronic

Signatures in Global and National Commerce Act (Public Law

106-229, 15 U.S.C. § 7001 et seq.).

(b)  Exceptions.--

(1)  This chapter does not modify, limit or supersede

section 101(c) of the Electronic Signatures in Global and

National Commerce Act (15 U.S.C. § 7001(c)).

(2)  This chapter does not authorize electronic delivery

of any of the notices described in section 103(b) of the

Electronic Signatures in Global and National Commerce Act (15

U.S.C. § 7003(b)).

Section 2.  Applicability is as follows:

(1)  Subject to paragraph (2), the addition of 20 Pa.C.S.

Ch. 59 applies to guardianship and protective proceedings

begun on or after the effective date of this act.

(2)  The addition of the following provisions of 20

Pa.C.S. Ch. 59 apply to proceedings begun before the

effective date of this section, regardless of whether a

guardianship or protective order has been issued:

(i)  Subchapter A.

(ii)  Subchapter C.

(iii)  Subchapter D.

(iv)  Subchapter E.

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