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PRINTER'S NO. 541
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
568
Session of
2015
INTRODUCED BY GREENLEAF, HUGHES, PILEGGI AND BROWNE,
FEBRUARY 25, 2015
REFERRED TO JUDICIARY, FEBRUARY 25, 2015
AN ACT
Amending Title 20 (Decedents, Estates and Fiduciaries) of the
Pennsylvania Consolidated Statutes, in orphans' court
divisions, further providing for appointment and purpose and
for compensation; and, in incapacitated persons, providing
for venue and for confidentiality and disclosure of
information, further providing for petition and hearing and
independent evaluation, repealing provisions relating to
county of appointment and qualifications, further providing
for review hearing, providing for affidavit in uncontested
termination matters and for counsel, further providing for
emergency guardian, repealing provisions relating to
provisions similar to other estates, providing for removal
and discharge of guardian, for appointment of guardian in
conveyance and for bond, further providing for evidence of
incapacity, for cross-examination of witnesses and for
provisions concerning powers, duties and liabilities,
providing for protection of person dealing with guardian, and
further providing for when accounting filed, for
distributions of income and principal during incapacity and
for guardianship services.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 751 of Title 20 of the Pennsylvania
Consolidated Statutes is amended by adding paragraphs to read:
§ 751. Appointment; purpose.
The orphans' court division may appoint:
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(7) Examiners of actions of guardian of estate.--By
general rule or special order, an examiner to make periodic
or special examinations of expenditures, disbursements and
withdrawals of a guardian of the estate of an incapacitated
person and to require the guardian of the estate to present
financial records for examination.
(8) Mediators or arbitrators.--A mediator or arbitrator
if the parties desire mediation or arbitration but do not
mutually agree on an independent mediator or arbitrator. The
meeting place shall be in this Commonwealth in a location
selected by the mediator or arbitrator. The mediator or
arbitrator may extend the date of the meeting for good cause
shown by either party or upon stipulation of both parties.
All files, records, reports, documents or other papers
received or prepared by the mediator or arbitrator while
serving as such shall be classified as confidential. Payment
from an incapacitated person's estate for mediation or
arbitration shall be subject to approval by the court.
Section 2. Section 752 of Title 20 is amended to read:
§ 752. Compensation.
[The compensation of any master, auditor, examiner, guardian
ad litem, or trustee ad litem, subject to any inconsistent
general rule shall be paid from such source as the court shall
direct.] Subject to any inconsistent general rule of court, the
compensation of any master, auditor, examiner, guardian ad litem
or trustee ad litem shall be paid from such source and in such
amounts as the court directs.
Section 3. Title 20 is amended by adding sections to read:
§ 5503. Venue.
(a) Applicability.--This section is subject to Chapter 59
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(relating to uniform adult guardianship and protective
proceedings jurisdiction).
(b) Guardian of person.--Venue for a guardianship proceeding
for an incapacitated person or an alleged incapacitated person
is in the judicial district of this Commonwealth in which the
person resides and, if the person has been admitted to an
institution by order of a court of competent jurisdiction, in
the judicial district in which the institution is located. Venue
for the appointment of an emergency guardian of an incapacitated
person or an alleged incapacitated person is also in the
judicial district in which the person is present.
(c) Guardian of estate.--Venue for a proceeding regarding a
guardianship of the estate of an incapacitated person or alleged
incapacitated person is in the judicial district of this
Commonwealth in which the incapacitated person or alleged
incapacitated person resides, whether or not a guardian of the
person has been appointed in another place or, if the person
does not reside in this Commonwealth, in any judicial district
of this Commonwealth in which property owned by the person is
located.
(d) Multiple judicial districts.--If a proceeding under this
chapter is brought in more than one judicial district in this
Commonwealth, the court of the judicial district in which the
proceeding is first brought has the exclusive right to proceed
unless that court determines that venue is properly in another
court or that the interests of justice otherwise require that
the proceeding be transferred.
§ 5504. Confidentiality and disclosure of information.
Confidentiality and the disclosure of information under this
chapter shall be governed by applicable court rule or as the
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court determines. The Supreme Court may prescribe uniform rules
relating to confidentiality and the disclosure of information.
Section 4. Section 5511(a), (e) and (f) of Title 20 are
amended and the section is amended by adding subsections to
read:
§ 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
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
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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
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) Resident.--
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(1) Upon petition and hearing and the presentation of
clear and convincing evidence, the court may find an
individual domiciled in this Commonwealth to be incapacitated
and appoint a guardian of the person or guardian of the
estate for the individual.
(2) The petitioner under this subsection may be any
person interested in the alleged incapacitated person's
welfare. If the petitioner is a guardianship support agency,
the petition shall disclose the agency's financial
information and a list of its current guardianships.
(3) The court may dismiss a proceeding if it determines
that:
(i) the proceeding has not been instituted to aid or
benefit the alleged incapacitated person; or
(ii) the petition is incomplete or fails to provide
sufficient facts to proceed.
(4) The Supreme Court shall establish a uniform citation
for the written notice of the petition and hearing, which
shall:
(i) Be given in large type and in simple language to
the alleged incapacitated person.
(ii) Indicate the purpose and seriousness of the
proceeding and the rights that can be lost as a result of
the proceeding.
(iii) Include the date, time and place of the
hearing and an explanation of all rights, including the
appointment of counsel as set forth in subsection (a.2).
(iv) Be attached to the petition.
(5) Service of the petition and notice shall be as
follows:
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(i) Personal service of the petition and notice
shall be made on the alleged incapacitated person. The
contents and terms of the petition shall be explained to
the maximum extent possible in language and terms the
person is most likely to understand. Service shall be not
less than 20 days in advance of the hearing.
(ii) Notice of the petition and hearing shall be
given to the following in the manner as the court
directs:
(A) Any person:
(I) whose existence and whereabouts are
known or could be readily obtained;
(II) who is sui juris; and
(III) who would be entitled to share in the
estate of the alleged incapacitated person if the
person died intestate at that time.
(B) The person or institution providing
residential services to the alleged incapacitated
person.
(C) Another party as the court directs,
including another service provider.
(6) The hearing:
(i) may be closed to the public and without a jury,
unless the alleged incapacitated person or the person's
counsel objects;
(ii) shall be closed to the public and with or
without a jury, if the alleged incapacitated person or
the person's counsel so requests; or
(iii) may be held at the residence of the alleged
incapacitated person.
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(7) The alleged incapacitated person shall be present at
the hearing unless:
(i) upon the deposition or testimony of or sworn
statement by a physician or licensed psychologist, the
court is satisfied that the person's physical or mental
condition would be harmed by being present, but the
inability of the person to comprehend the proceedings
does not, by itself, constitute harm; or
(ii) it is impossible for the person to be present
because of the person's absence from this Commonwealth.
It shall not be necessary for the person to be
represented by a guardian ad litem in the proceeding.
(8) The court may grant standing to any person on whom
the notice and petition are served under paragraph (5).
(a.2) Appointment of counsel.--
(1) If counsel has not been retained by or on behalf of
the alleged incapacitated person, the petitioner under
subsection (a) shall notify the court at least seven days
prior to the hearing.
(2) The court shall appoint counsel to represent the
alleged incapacitated person in any matter for which counsel
has not been retained by or on behalf of the alleged
incapacitated person:
(i) in appropriate cases as the court determines;
and
(ii) in all cases in which the court knows in
advance that the alleged incapacitated person is not
expected to be present at the hearing, either in person
or by videoconference.
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(e) Petition contents.--
(1) 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 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.
(2) 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.
(3) A petition that is filed for the appointment of a
guardian of the person on or after (in preparing this act for
printing in the Laws of Pennsylvania and the Pennsylvania
Consolidated Statutes, the Legislative Reference Bureau shall
insert here, in lieu of this statement, the effective date of
this paragraph) shall state whether it is proposed that the
guardian of the person shall have the power to make health
care decisions and, if so, whether the guardian shall have
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all the powers of a health care representative to make health
care decisions as defined under section 5422 (relating to
definitions), including decisions involving health care
necessary to preserve life if the incapacitated person were
to be in an end-stage medical condition or be permanently
unconscious, and any limitation of those powers.
(f) Who may be appointed guardian.--[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.]
(1) The court may appoint any one or more of the
following to be an alleged incapacitated person's guardian of
the person or guardian of the estate, or both:
(i) Any qualified individual.
(ii) A corporate fiduciary. If a person is a
corporate entity doing business in this Commonwealth and
serving as a guardian of the estate of an incapacitated
person, the person shall have an office in this
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Commonwealth.
(iii) A nonprofit corporation.
(iv) A guardianship support agency under Subchapter
F (relating to guardianship support).
(v) A county agency.
(2) If the alleged incapacitated person is a resident of
a State facility, the court may appoint the guardian office
at the facility as the alleged incapacitated person's
guardian of the estate.
(g) Who may not be appointed guardian.--
(1) Subject to paragraph (2), unless it is clearly
demonstrated that no guardianship support agency or other
alternative exists, the court may not appoint the following
as the alleged incapacitated person's guardian of the person
or guardian of the estate:
(i) A person or entity providing residential
services for a fee to the alleged incapacitated person.
(ii) Any other person whose interests conflict with
those of the alleged incapacitated person.
(2) Any family relationship to the alleged incapacitated
person shall not, by itself, be considered in conflict with
the interest of the alleged incapacitated person.
(h) Preference in appointing guardian of person.--
(1) If a nomination regarding guardian of the person has
been made in a power of attorney, the court may determine
that an adjudication of incapacity is not necessary or that
an adjudication of incapacity is necessary but the
appointment of a guardian of the person is not necessary. If
the court makes an adjudication of incapacity and determines
that a guardian of the person shall be appointed, the court
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shall appoint the nominated person in accordance with the
terms of the power of attorney or health care power of
attorney, except for good cause or disqualification.
(2) Subject to paragraph (1), in appointing a qualified
person to be guardian of the person, the court shall consider
the following order of preference:
(i) A guardian, other than a temporary or emergency
guardian, currently acting for the estate.
(ii) The spouse of the person.
(iii) An adult child of the person.
(iv) A parent of the person.
(v) The nominee of a deceased or living parent of an
unmarried alleged incapacitated person.
(vi) Another suitable and qualified person.
(3) With respect to persons having equal preference, the
court shall select the person or persons that it considers
best qualified in that class.
(4) Subject to paragraph (1), in acting in the best
interest of the alleged incapacitated person, the court may
decline to appoint a person having a higher preference and
appoint a person having a lower preference or no preference.
(i) Preference in appointing guardian of estate.--
(1) If a nomination regarding guardian of the estate has
been made in a power of attorney, the court may determine
that an adjudication of incapacity is not necessary or that
an adjudication of incapacity is necessary but the
appointment of a guardian of the estate is not necessary.
Subject to paragraph (5), if the court makes an adjudication
of incapacity and determines that a guardian of the estate
shall be appointed, the court shall appoint the nominated
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person in accordance with the terms of the power of attorney,
except for good cause or disqualification.
(2) Subject to paragraphs (1) and (5), in appointing a
qualified person to be guardian of the estate, the court
shall consider the following order of preference:
(i) A guardian, other than a temporary or emergency
guardian, currently acting for the person.
(ii) The spouse of the person.
(iii) An adult child of the person.
(iv) A parent of the person.
(v) The nominee of a deceased or living parent of an
unmarried alleged incapacitated person.
(vi) Another suitable and qualified person,
including a corporate fiduciary, a nonprofit corporation,
a guardianship support agency under Subchapter F and a
county agency.
(3) With respect to persons having equal preference, the
court shall select the person or persons that it considers
best qualified in that class.
(4) Subject to paragraph (1), in acting in the best
interest of the alleged incapacitated person, the court may
decline to appoint a person having a higher preference and
appoint a person having a lower preference or no preference.
(5) The court may appoint a corporate fiduciary or other
appropriate person as a guardian of the estate of the
incapacitated person in appropriate cases, if the
incapacitated person's estate contains substantial assets or
involves complex financial matters.
Section 5. Section 5512 of Title 20 is repealed:
[§ 5512. County of appointment; qualifications.
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(a) Resident incapacitated person.--A guardian of the person
or estate of an incapacitated person may be appointed by the
court of the county in which the incapacitated person is
domiciled, is a resident or is residing in a long-term care
facility.
(b) Nonresident incapacitated person.--A guardian of the
estate within the Commonwealth of an incapacitated person
domiciled outside of the Commonwealth may be appointed by the
court of the judicial district having jurisdiction of a
decedent's estate or of a trust in which the incapacitated
person has an interest. When the nonresident incapacitated
person's estate is derived otherwise than from a decedent's
estate or a trust within the Commonwealth, a guardian may be
appointed by the court of any county where an asset of the
incapacitated person is located.
(c) Exclusiveness of appointment.--When a court has
appointed a guardian of the person or estate of an incapacitated
person pursuant to subsection (a) or (b), no other court shall
appoint a similar guardian for the incapacitated person within
the Commonwealth.]
Section 6. Section 5512.2(a) of Title 20 is amended and the
section is amended by adding a subsection to read:
§ 5512.2. Review hearing.
(a) Time of hearing.--The court may set a date for a review
hearing in its order establishing the guardianship or hold a
review hearing at any time it shall direct. The court shall
conduct a review hearing promptly if the incapacitated person,
guardian or any [interested party] person interested in the
incapacitated person's welfare petitions the court for a hearing
for reason of a significant change in the person's capacity, a
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change in the need for guardianship services or the guardian's
failure to perform his duties in accordance with the law or to
act in the best interest of the incapacitated person. The court
may dismiss a petition for review hearing if it determines that
the petition is frivolous.
* * *
(c) Independent evaluation.--In a review hearing under this
section, the court may order an independent evaluation in
accordance with section 5511(d) (relating to petition and
hearing; independent evaluation).
Section 7. Title 20 is amended by adding sections to read:
§ 5512.4. Affidavit in uncontested termination matters.
In an uncontested matter concerning the termination of a
guardianship, whether or not a hearing is held regarding the
termination, the court may terminate the guardianship based on
an affidavit of the incapacitated person's attending physician
stating that the guardianship is no longer necessary.
§ 5512.5. Counsel.
Following an adjudication of incapacity, counsel for the
incapacitated person acting as such before the individual was
adjudicated incapacitated, or counsel subsequently engaged by or
on behalf of the incapacitated person, may act on behalf of the
incapacitated person for a matter or at any proceeding regarding
the interest of the incapacitated person under this chapter. For
cause shown, the court may terminate the services of counsel
acting for an incapacitated person and appoint new counsel or a
guardian ad litem for a proceeding for which the incapacitated
person's interest is involved.
Section 8. Section 5513 of Title 20 is amended to read:
§ 5513. Emergency guardian.
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[Notwithstanding the provisions of section 5511 (relating to
petition and hearing; independent evaluation), the court, upon
petition and a hearing at which clear and convincing evidence is
shown, may appoint an emergency guardian or guardians of the
person or estate of a person alleged to be incapacitated, when
it appears that the person lacks capacity, is in need of a
guardian and a failure to make such appointment will result in
irreparable harm to the person or estate of the alleged
incapacitated person. The provisions of section 5511, including
those relating to counsel, shall be applicable to such
proceedings, except when the court has found that it is not
feasible in the circumstances. An emergency guardian so
appointed for the person or estate of an alleged incapacitated
person shall only have and be subject to such powers, duties and
liabilities and serve for such time as the court shall direct in
its decree. An emergency order appointing an emergency guardian
of the person may be in effect for up to 72 hours. If the
emergency continues, then the emergency order may be extended
for no more than 20 days from the expiration of the initial
emergency order. After expiration of the emergency order or any
extension, a full guardianship proceeding must be initiated
pursuant to section 5511. The court may also appoint an
emergency guardian of the person pursuant to this section for an
alleged incapacitated person who is present in this Commonwealth
but is domiciled outside of this Commonwealth, regardless of
whether the alleged incapacitated person has property in this
Commonwealth. An emergency order appointing an emergency
guardian of the estate shall not exceed 30 days. After 30 days,
a full guardianship proceeding must be initiated pursuant to
section 5511.]
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(a) Appointment.--
(1) Notwithstanding the provisions of section 5511
(relating to petition and hearing; independent evaluation),
upon petition and a hearing at which clear and convincing
evidence is shown, the court may appoint an emergency
guardian or guardians of the person or estate of a person
alleged to be incapacitated, when it appears that:
(i) the person lacks capacity and is in need of a
guardian; and
(ii) a failure to make such appointment will likely
result in irreparable harm to the person or estate of the
alleged incapacitated person.
(2) The court may appoint an emergency guardian of the
person under this section for an alleged incapacitated person
who is present in this Commonwealth but domiciled outside
this Commonwealth, regardless of whether the alleged
incapacitated person has property in this Commonwealth.
(b) Procedures and powers generally.--
(1) Each provision of section 5511 shall apply to
proceedings under subsection (a), except:
(i) when the court has found that the application of
the provision is not feasible under the circumstances; or
(ii) as otherwise provided in this section.
(2) An emergency guardian so appointed for the person or
estate of an alleged incapacitated person shall only have and
be subject to such powers, duties and liabilities and serve
for such time as the court shall direct in its decree.
(c) Duration of initial order.--An initial emergency order
appointing an emergency guardian of the person or guardian of
the estate may be in effect for up to 30 days.
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(d) Appointment of counsel.--
(1) Prior to the expiration of the initial emergency
order, the court may appoint counsel for the alleged
incapacitated person.
(2) If an extension of the emergency order is sought
under subsection (e), the court shall appoint counsel for the
alleged incapacitated person.
(e) Extension of order.--An emergency order may be extended
for not more than an additional 60 days upon the consent of the
petitioner, emergency guardian and counsel for the incapacitated
person. At any time after the filing of the petition for
emergency guardianship, upon a determination that the duration
of incapacity of the alleged incapacitated person is likely to
extend longer than the period of emergency guardianship
permitted by this section, the court shall direct that the
petitioner file a petition for a permanent guardianship of the
person or a permanent guardianship of the estate, or both. In
such a case, the period of extension of the emergency order
shall be extended to the date of the order on the permanent
guardianship petition.
Section 9. Section 5515 of Title 20 is repealed:
[§ 5515. Provisions similar to other estates.
The provisions relating to a guardian of an incapacitated
person and his surety shall be the same as are set forth in the
following provisions of this title relating to a personal
representative or a guardian of a minor and their sureties:
Section 3182 (relating to grounds for removal).
Section 3183 (relating to procedure for and effect of
removal).
Section 3184 (relating to discharge of personal
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representative and surety).
Section 5115 (relating to appointment of guardian in
conveyance).
Section 5121 (relating to necessity, form and amount).
Section 5122 (relating to when bond not required).
Section 5123 (relating to requiring or changing amount of
bond).]
Section 10. Title 20 is amended by adding sections to read:
§ 5515.1. Removal and discharge of guardian.
(a) Conditions.--The court has the exclusive power to remove
a guardian of the person or guardian of the estate if either
paragraph (1) or (2) applies:
(1) The guardian:
(i) is wasting or mismanaging the estate;
(ii) is or is likely to become insolvent;
(iii) has failed to perform any duty imposed by law;
(iv) has become incapacitated to discharge the
duties as guardian because of sickness or physical or
mental incapacity and the incapacity is likely to
continue to the injury of the estate or the incapacitated
person; or
(v) has removed from this Commonwealth or has ceased
to have a known place of residence herein, without
furnishing a security or additional security as the court
directs.
(2) For any reason other than that set forth in
paragraph (1), the interests of the estate or the
incapacitated person are likely to be jeopardized by the
guardian's continuance as guardian.
(b) Procedure.--
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(1) On the court's own motion or on the petition of any
party in interest alleging adequate grounds for removal of a
guardian of the person or guardian of the estate, the court
shall:
(i) order the guardian to appear and show cause why
the guardian should not be removed; or
(ii) summarily remove the guardian when necessary to
protect the rights of creditors or parties in interest.
(2) Upon removal of a guardian of the person or guardian
of the estate, the court shall appoint a successor guardian
and may appoint a co-guardian under section 5514 (relating to
to fill vacancy; co-guardian) and, by summary attachment of
the guardian or other appropriate orders, provide for the
security and delivery of the assets of the estate, together
with all books, accounts and papers relating to assets of the
estate.
(3) Any guardian of the person or guardian of the estate
summarily removed under this section may petition to have the
decree of removal vacated and to be reinstated. If the court
vacates the decree of removal and reinstates the guardian, it
shall thereupon make any appropriate orders to accomplish the
reinstatement.
(c) Discharge of guardian and surety.--After confirmation of
the final account and distribution to the parties entitled, a
guardian of the estate and the guardian's surety may be
discharged by the court from future liability. The court may
discharge only the surety from future liability, allowing the
guardian to continue without surety, upon condition that no
further assets shall come into the control of the guardian until
the guardian files another bond with sufficient surety, if
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required.
§ 5515.2. Appointment of guardian in conveyance.
A deed or instrument creating a gift or designating a
beneficiary in a life insurance policy, annuity contract,
retirement plan, including, but not limited to, any tax
qualified or nonqualified pension, profit sharing, stock bonus,
employee savings and retirement plan, deferred compensation plan
or individual retirement account, or another plan or contractual
arrangement providing for payments to the incapacitated person
or to others after the incapacitated person's death, may contain
an appointment of a guardian of the estate or interest of each
named beneficiary who is incapacitated. Payment by an insurance
or other financial services company to the beneficiary's
guardian so appointed discharges the paying company to the same
effect as payment to an otherwise duly appointed and qualified
guardian.
§ 5515.3. Bond.
(a) General rule.--Except as provided in this section, every
guardian of the estate shall execute and file a bond in the name
of the Commonwealth, with sufficient surety, in an amount the
court considers necessary, having regard to the value of the
personal estate which will come into the control of the
guardian, and conditioned in the following form:
(1) If the guardian administers the estate well and
according to law, this obligation shall be void, but
otherwise it remains in force.
(2) If a co-guardian administers the estate well and
according to law, this obligation shall be void as to that
co-guardian who so administers the estate, but otherwise it
remains in force.
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(b) Exceptions.--Unless deemed advisable by the court for
cause shown, no bond is required of the following:
(1) A guardian appointed by or in accordance with the
terms of a will, inter vivos instrument or insurance contract
as to the property acquired under the authority of the
appointment, unless it is required by the conveyance.
(2) A bank and trust company, a trust company
incorporated in this Commonwealth or a national bank having
its principal office in this Commonwealth.
(c) Court discretion.--The court has discretion to not
require a bond:
(1) from a nonresident corporation or a national bank
having its principal office outside this Commonwealth,
otherwise qualified to act as guardian; and
(2) in all other cases when, for cause shown, it finds
that no bond is necessary.
(d) Amount.--For cause shown and after such notice, if any,
as it directs, the court may require a surety bond or increase
or decrease the amount of an existing bond or require more or
less security.
Section 11. Sections 5518 and 5518.1 of Title 20 are amended
to read:
§ 5518. Evidence of incapacity.
To establish incapacity in a proceeding in which the
incapacity of the alleged incapacitated person is contested, the
petitioner must present testimony, in person or by
teleconference, videoconference or deposition from individuals
qualified by training and experience in evaluating individuals
with incapacities of the type alleged by the petitioner, which
establishes the nature and extent of the alleged incapacities
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and disabilities and the person's mental, emotional and physical
condition, adaptive behavior and social skills. In a proceeding
in which the capacity of the alleged incapacitated person is not
contested and at which the person or the person's counsel is
present, the petitioner may establish incapacity by a sworn
statement from the qualified individuals. The [petition]
petitioner must also present evidence regarding the services
being utilized to meet essential requirements for the alleged
incapacitated person's physical health and safety, to manage the
person's financial resources or to develop or regain the
person's abilities; evidence regarding the types of assistance
required by the person and as to why no less restrictive
alternatives would be appropriate; and evidence regarding the
probability that the extent of the person's incapacities may
significantly lessen or change.
§ 5518.1. Cross-examination of witnesses.
[Testimony] Except as provided for in section 5518 (relating
to evidence of incapacity), testimony as to the capacity of the
alleged incapacitated person shall be subject to cross-
examination [by counsel for the alleged incapacitated person].
Section 12. Section 5521(b), (c) and (g) of Title 20 are
amended and the section is amended by adding subsections to
read:
§ 5521. Provisions concerning powers, duties and liabilities.
* * *
(a.1) Death or removal of guardian.--
(1) An action or proceeding in which a guardian of the
person or guardian of the estate is a party is not abated by
the death or resignation of the guardian or by the
termination of the guardian's authority.
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(2) The successor of the guardian may be substituted in
the action or proceeding in the manner provided by law.
[(b) Duty of guardian of the estate.--The provisions
concerning the powers, duties and liabilities of guardians of
incapacitated persons' estates shall be the same as those set
forth in the following provisions of this title relating to
personal representatives of decedents' estates and guardians of
minors' estates:
Section 3313 (relating to liability insurance).
Section 3314 (relating to continuation of business).
Section 3315 (relating to incorporation of estate's
business).
Section 3317 (relating to claims against co-fiduciary).
Section 3318 (relating to revival of judgments against
personal representative).
Section 3319 (relating to power of attorney; delegation
of power over subscription rights and fractional shares;
authorized delegations).
Section 3320 (relating to voting stock by proxy).
Section 3321 (relating to nominee registration; corporate
fiduciary as agent; deposit of securities in a clearing
corporation; book-entry securities).
Section 3322 (relating to acceptance of deed in lieu of
foreclosure).
Section 3323 (relating to compromise of controversies).
Section 3324 (relating to death or incapacity of
fiduciary).
Section 3327 (relating to surviving or remaining personal
representatives).
Section 3328 (relating to disagreement of personal
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representatives).
Section 3331 (relating to liability of personal
representative on contracts).
Section 3332 (relating to inherent powers and duties).
Section 3355 (relating to restraint of sale).
Section 3356 (relating to purchase by personal
representative).
Section 3359 (relating to record of proceedings; county
where real estate lies).
Section 3360 (relating to contracts, inadequacy of
consideration or better offer; brokers' commissions).
Section 3372 (relating to substitution of personal
representative in pending action or proceedings).
Section 3374 (relating to death or removal of fiduciary).
Section 3390 (relating to specific performance of
contracts).
Section 5141 (relating to possession of real and personal
property).
Section 5142 (relating to inventory).
Section 5143 (relating to abandonment of property).
Section 5145 (relating to investments).
Section 5146 (relating to guardian named in conveyance).
Section 5147 (relating to proceedings against guardian).
Section 5151 (relating to power to sell personal
property).
Section 5154 (relating to title of purchaser).
Section 5155 (relating to order of court).]
(b.1) Powers of guardian of the estate without further court
approval.--Except as otherwise qualified, limited or directed by
the court in its order of appointment, a guardian of the estate
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of an incapacitated person, without further court authorization
or confirmation, shall have the following powers:
(1) Insure the assets of the estate against damage or
loss and, at the expense of the estate, protect the
incapacitated person, the guardian of the estate, the
guardian of the person and any agent or employee of the
guardian from liability to a third person that arises from
the administration of the incapacitated person's estate. The
power to purchase insurance at the expense of the estate does
not include insurance to protect the guardian of the estate
from any action ultimately found to be subject to surcharge.
(2) Take any legal action against a co-guardian of the
estate to protect the estate of the incapacitated person, if
one of two or more guardians of the estate is individually
liable to the estate.
(3) Employ a custodian, hold property unregistered or in
the name of a nominee, including the nominee of any
institution employed as custodian, without disclosing the
fiduciary relationship and without retaining possession and
control of securities or other property so held or registered
and pay reasonable compensation to the custodian.
(4) Take for the estate from the owner of property
encumbered by a mortgage owned by the estate a deed in lieu
of foreclosure, in which event the real estate shall be
considered personalty to the same extent as though title were
acquired by foreclosure at sheriff's sale. Any deed
previously accepted is hereby valid in accordance with this
paragraph.
(5) With respect to the tangible or intangible personal
property of the estate and subject to section 5536 (relating
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to distributions of income and principal during incapacity):
(i) Acquire, take possession of or dispose of the
personal property through the selling or exchanging of
the personal property:
(A) For cash or on credit.
(B) At public or private sale.
(C) Without obligation to repudiate an otherwise
binding agreement in favor of a better offer.
(ii) Wherever the personal property is located and
until the personal property is distributed or sold:
(A) Maintain and administer the personal
property.
(B) Make all reasonable expenditures necessary
to preserve the personal property.
(C) Maintain any action with respect to the
personal property.
(6) Accept, hold, invest in and retain investments as
provided by Chapter 72 (relating to prudent investor rule).
(7) Advance money for the protection of the estate and
for all expenses, losses and liability sustained in the
administration of the estate or because of the holding or
ownership of any estate asset. The guardian of the estate has
a lien on the estate assets for an advance under this
paragraph, including interest on the advance.
(8) With respect to an incapacitated person's service as
fiduciary, which may include, without limitation, as an
executor, administrator, trustee, guardian, agent or officer
or director of a corporation:
(i) Renounce any fiduciary position to which the
incapacitated person has been appointed.
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(ii) Resign any fiduciary position in which the
incapacitated person is then serving and:
(A) file an accounting with a court of competent
jurisdiction; or
(B) settle on receipt and release or other
informal method as the guardian of the estate deems
advisable.
(9) Vote a security, in person or by general or limited
proxy, with or without power of substitution.
(10) With respect to the real property of the estate:
(i) Manage, repair, improve, maintain, restore,
alter, build, protect or insure.
(ii) Demolish structures.
(iii) Collect rent, earnings and other proceeds.
(iv) Pay, contest, protest and compromise taxes and
assessments.
(v) Grant and obtain easements.
(vi) Develop, dedicate, partition or subdivide.
(vii) File plans, applications or other documents.
(viii) Release in whole or in part, assign the whole
or a part of, satisfy in whole or in part and enforce any
mortgage, encumbrance, lien or other claim to real
property.
(ix) Subject to subsection (b.2)(3) and section
5536, generally exercise all powers that a person who is
not incapacitated could exercise.
(b.2) Powers of guardian of the estate with further court
approval.--A guardian of the estate of an incapacitated person
may have the following powers only with further court
authorization or confirmation:
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(1) Continue any business in which the incapacitated
person has an ownership interest, for the benefit of the
incapacitated person's estate, after the court gives due
regard to the order of appointment and any other factor
deemed relevant, and aided by the report of a master if
necessary. An order by the court under this paragraph may be
with or without notice. If prior notice is not given to all
parties in interest, it shall be given within five days after
the order or within such extended time as the court, for
cause shown, shall allow. Any party in interest may, at any
time, petition the court to revoke or modify the order. The
order may provide:
(i) for the conduct of business by the guardian of
the estate alone or jointly with others, or as a
corporation, partnership, limited liability company or
other entity to be formed;
(ii) the extent of the liability of the estate or
any part thereof, or of the guardian of the estate, for
obligations incurred in the continuation of the business;
(iii) whether liabilities incurred in the conduct of
the business are to be chargeable solely to the part of
the estate set aside for use in the business or to the
estate as a whole;
(iv) the period of time the business may be
conducted;
(v) for the compensation of the guardian of the
estate actively managing, supervising or engaging in the
operation of an entity or business, from the estate's
assets or from the entity or business, as appropriate,
provided that the compensation is reasonably based upon
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the actual responsibilities assumed and performed; and
(vi) other regulations, including accountings, as
the court shall deem advisable.
(2) After notice to all parties in interest and after
the court gives due regard to the order of appointment and
any other factor deemed relevant and aided by the report of a
master if necessary:
(i) Organize a corporation or form a partnership,
limited liability company or other entity to carry on the
business of the incapacitated person, whether the
business was owned solely or with others, with the
guardian of the estate exercising this power alone or
jointly with others.
(ii) Contribute for stock of the corporation, as
capital, or for an interest in a partnership, limited
liability company or other entity, all or part of the
property of the incapacitated person that was invested in
the business.
(3) With respect to the real property of the estate:
(i) Sell or buy any real property at public, private
or judicial sale, exchange any real property or grant or
obtain an option for the sale, purchase or exchange of
any real property. The court may direct:
(A) The terms and security for any of these
powers.
(B) The reasonable notice to the parties in
interest, including heirs of the incapacitated
person.
(ii) Join with the spouse of the incapacitated
person in the performance of any of the acts under
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subparagraph (i) with respect to property held by the
entireties.
(iii) Release the right of the incapacitated person
in the real property of the person's spouse and join in
the deed of the spouse on behalf of the incapacitated
person.
(iv) Abandon any real property.
(b.3) Revival of judgment.--When the estate holds a judgment
that is a lien on the real estate of the guardian, any person
interested in the incapacitated person's estate may bring an
appropriate action to revive it and to continue its lien.
(b.4) Death or incapacity of guardian of estate.--The
personal representative of the estate of a deceased guardian of
the estate or the guardian of an incapacitated guardian of the
estate by reason of the position so held shall not succeed to
the administration of, or have the right to possess, any asset
of the estate that was being administered by the deceased or
incapacitated guardian of the estate, except to protect it
pending its delivery to the person entitled to it. The account
of the deceased or incapacitated guardian of the estate may be
filed by the fiduciary of the guardian's estate and shall be
filed if the court shall so direct. The court may direct the
fiduciary of a deceased or incapacitated guardian of the estate
to make the distribution and to make the transfers and
assignments necessary to carry into effect a decree of
distribution.
(b.5) Surviving or remaining guardians.--Unless the order of
appointment specifies otherwise, surviving or remaining
guardians of the estate shall have all the powers of the
original guardians of the estate.
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(b.6) Disagreement of guardians of the estate.--If a dispute
arises among guardians of the estate, the decision of the
majority shall control unless otherwise provided by the court. A
dissenting guardian of the estate shall join with the majority
to carry out a majority decision requiring affirmative action
and may be ordered to do so by the court. A dissenting guardian
of the estate shall not be liable for the consequences of any
majority decision even though the guardian joins in carrying it
out, if the dissent is expressed promptly in writing to all the
other guardians of the estate, but liability for failure to join
in the further administration of the estate or to prevent a
breach of fiduciary duty may not be thus avoided. If a dispute
arises among guardians of the estate as to the exercise or
nonexercise of any of their powers and there is no agreement of
a majority of them, unless otherwise provided by the court, the
court, upon petition filed by any of the guardians of the estate
or by any party in interest, aided if necessary by the report of
a master, in its discretion, may direct the exercise or
nonexercise of the power as the court shall deem for the best
interest of the estate.
(b.7) Filing of decree.--If a guardian of the estate has the
power to engage in a transaction involving the real estate of an
incapacitated person, a certified copy of the decree appointing
the guardian of the estate may be recorded in the office for the
recording of deeds in any county where the real estate, which is
subject to that power, is located.
(b.8) Inadequacy of consideration.--
(1) Except as provided in paragraphs (2) and (3), when a
guardian of the estate makes a contract, the inadequacy of
consideration or the receipt of an offer to deal on other
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terms does not:
(i) relieve the guardian of the estate of the
obligation to perform the contract, except as otherwise
agreed by the parties; or
(ii) constitute a basis for any court to set aside
the contract or refuse to enforce it by specific
performance or otherwise.
(2) This subsection does not affect or change the
inherent right of the court to set aside a contract for
fraud, accident or mistake.
(3) Nothing in this subsection shall affect the
liability of a guardian of the estate for surcharge on the
ground of negligence or bad faith in making a contract.
(b.9) Substitution of party.--If a party to a pending action
or proceeding has a guardian of the estate appointed, the
guardian of the estate of the incapacitated person may be
substituted as a party as provided by law.
(b.10) Specific performance of contracts.--
(1) If a person enters into an agreement to purchase or
sell real estate or personal estate and a guardian of the
estate is appointed for the person before the consummation of
the agreement, the guardian of the estate may consummate the
agreement. If the guardian of the estate does not consummate
the agreement, the court may order specific performance of
the agreement:
(i) on the application of any party in interest;
(ii) after such notice and with such security, if
any, as the court may direct; and
(iii) if the agreement would have been enforced
specifically had the guardian of the estate not been
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appointed.
(2) The guardian of the estate or other person as the
court directs shall execute any necessary deed or transfer
regarding the agreement under this subsection. The title of
any purchaser under an agreement in which the incapacitated
person was the vendor shall be the same as though the
incapacitated person had conveyed or transferred the property
prior to the appointment of the guardian of the estate.
(3) When any petition for specific performance of an
agreement to purchase or sell real estate is filed, the
prothonotary of the court of common pleas where the real
estate or any part of it lies, upon the receipt of a
certificate of such fact by the clerk of the court where the
petition was filed, shall enter the petition upon either the
judgment or ejectment and miscellaneous indexes against the
defendants as directed by local rules of court and shall
certify it as lis pendens in any certificate of search that
the prothonotary is required to make.
(b.11) Abandonment of property.--Subject to subsection (b.2)
(3):
(1) A guardian of the estate may abandon property of the
incapacitated person if the property is so burdensome or
encumbered or in such condition that it is of no value to the
estate.
(2) The court may authorize the guardian of the estate
to transfer, renounce or release property of the
incapacitated person without consideration if:
(i) the property cannot be abandoned without
transfer of title to another or without a formal
renunciation or release; and
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(ii) the court finds that the transfer, renunciation
or release will be for the best interests of the estate.
(b.12) Title of purchaser.--If the guardian of the estate of
an incapacitated person has given a bond as required in
accordance with this title, any sale, pledge, mortgage or
exchange by the guardian of the estate, whether pursuant to a
decree or to the exercise of a power under this title, shall
pass the full title of the incapacitated person, free of any
right of the incapacitated person's spouse, unless otherwise
specified. Persons dealing with the guardian of the estate shall
have no obligation to see to the proper application of the cash
or other assets given in exchange for the property of the
incapacitated person. A sale or exchange by a guardian of the
estate pursuant to a decree under subsection (b.2)(3) shall have
the effect of a judicial sale as to the discharge of liens, but
the court may decree a sale or exchange freed and discharged
from the lien of any mortgage otherwise preserved from discharge
by existing law if the holder of the mortgage consents by
writing filed in the proceeding. No sale, mortgage, exchange or
conveyance shall be prejudiced by the subsequent dismissal of
the guardian of the estate if the person dealing with the
guardian did so in good faith.
(b.13) Compromise or settlement.--A guardian of the estate
may compromise or settle any claim by or against the estate,
through litigation or otherwise, without court approval. The
guardian may seek court approval of any such compromise or
settlement, subject to the following:
(1) The court may enter a decree authorizing the
compromise or settlement to be made:
(i) On petition by the guardian of the estate or any
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party in interest setting forth all the facts and
circumstances.
(ii) After notice as the court directs.
(iii) Aided if necessary by the report of a master.
(2) For a compromise or settlement of an action in which
damages are sought on behalf of the estate, the court that
has jurisdiction and in which the action is pending may
approve the compromise or settlement, including an agreement
for the payment of counsel fees and other proper expenses
incident to the action, upon:
(i) oral motion by plaintiff's counsel of record in
the action; or
(ii) petition by the guardian of the estate.
(3) The order of the court approving the compromise or
settlement or the agreement for the payment of counsel fees
and other expenses shall not be subject to collateral attack
in the orphans' court division.
(4) The guardian of the estate shall file a copy of the
order of the court approving the compromise or settlement
with the clerk of the court having jurisdiction of the
estate. When the guardian of the estate has been required to
give bond, the guardian may not receive the proceeds of the
compromise or settlement until:
(i) the court of the county having jurisdiction of
the estate has made an order excusing the guardian from
entering additional security; or
(ii) the guardian has entered the additional
security that is required by the court of the county
having jurisdiction of the estate.
(c) Reports.--
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(1) Each guardian of an incapacitated person shall file
with the court appointing [him] the guardian a report, [at
least once] within the first 12 months of [his] the
appointment and [at least] annually thereafter, attesting to
the following:
(i) Guardian of the estate:
(A) current principal and how it is invested;
(B) current income;
(C) expenditures of principal and income since
the last report; and
(D) needs of the incapacitated person for which
the guardian has provided since the last report.
(ii) Guardian of the person:
(A) current address and type of placement of the
incapacitated person;
(B) major medical or mental problems of the
incapacitated person;
(C) a brief description of the incapacitated
person's living arrangements and the social, medical,
psychological and other support services he is
receiving;
(D) the opinion of the guardian as to whether
the guardianship should continue or be terminated or
modified and the reasons therefor; [and]
(E) number and length of times the guardian or
the guardian's representative personally visited the
incapacitated person in the past year; and
(F) plans for future care, where appropriate.
(2) Within 60 days of the death of the incapacitated
person or an adjudication of capacity and modification of
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existing orders, the guardian shall file a final report with
the court.
(3) Failure of a guardian to file a timely report under
this subsection shall subject the guardian to appropriate
sanctions.
(c.1) Records of guardian.--Each guardian of an
incapacitated person shall keep records regarding the
guardianship and the incapacitated person. Failure of a guardian
to keep records under this subsection shall subject the guardian
to appropriate sanctions.
* * *
(d.1) Health care decisions.--
(1) Subject to the following, a guardian of the person
shall have the same authority to make health care decisions
on behalf of the incapacitated person as a health care
representative under section 5461(c) (relating to decisions
by health care representative), and a health care decision by
the guardian of the person shall be effective without court
approval as with a health care representative under section
5461(j):
(i) Any limitations and conditions set forth in the
order of appointment.
(ii) The same health care decision-making process as
prescribed in section 5456(c) (relating to authority of
health care agent).
(iii) The same limitations under sections 5429
(relating to pregnancy) and 5462(c) (relating to duties
of attending physician and health care provider),
including the requirement that health care necessary to
preserve life be given to an individual who has neither
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an end-stage medical condition nor is permanently
unconscious.
(iv) Subsection (d).
(v) Subsection (f).
(vi) Any other provision regarding health care
representatives as set forth in Chapter 54 (relating to
health care), except section 5461(d) regarding who may
act as health care representative.
(2) To the extent practicable, a guardian of the person
shall consult with close family members of the incapacitated
person in making a health care decision, particularly one
involving end-of-life decision making.
(3) A petition that is filed for the appointment of a
guardian of the person under section 5511 (relating to
petition and hearing; independent evaluation) on or after (in
preparing this act for printing in the Laws of Pennsylvania
and the Pennsylvania Consolidated Statutes, the Legislative
Reference Bureau shall insert here, in lieu of this
statement, the effective date of this subsection) shall state
whether it is proposed that the guardian of the person shall
have the power to make health care decisions and, if so,
whether the guardian shall have all the powers of a health
care representative to make health care decisions as defined
in section 5422 (relating to definitions), including
decisions involving health care necessary to preserve life if
the incapacitated person were to be in an end-stage medical
condition or be permanently unconscious, and any limitation
of those powers.
(4) Notice of a petition or hearing under section 5511
shall contain the information under paragraph (3).
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(5) An order of appointment of a guardian of the person
that is issued on or after (in preparing this act for
printing in the Laws of Pennsylvania and the Pennsylvania
Consolidated Statutes, the Legislative Reference Bureau shall
insert here, in lieu of this statement, the effective date of
this subsection) shall specify whether the guardian of the
person shall have the power to make health care decisions
and, if so, whether the guardian shall have all the powers of
a health care representative to make health care decisions as
defined in section 5422, including decisions involving health
care necessary to preserve life if the incapacitated person
were to be in an end-stage medical condition or be
permanently unconscious, and any limitation of those powers.
(6) A guardian of the person appointed before (in
preparing this act for printing in the Laws of Pennsylvania
and the Pennsylvania Consolidated Statutes, the Legislative
Reference Bureau shall insert here, in lieu of this
statement, the effective date of this subsection) shall have
the same powers as a health care representative unless:
(i) a prior court order has limited the power of the
guardian of the person to make health care decisions; or
(ii) a health care representative is available and
assumes authority to act by agreement between the health
care representative and the guardian of the person, in
which case, the guardian of the person shall thereafter
have no health care decision-making powers.
* * *
(g) [Criminal and civil immunity] Liability of guardian of
person.--
(1) In the absence of gross negligence, recklessness or
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intentional misconduct, a [unit of local government,
nonprofit corporation or guardianship support agency under
Subchapter F (relating to guardianship support) appointed as
a] guardian of the person shall not be criminally liable or
civilly liable for damages for performing duties as a
guardian of the person, as authorized under this chapter.
(2) Except as otherwise agreed, a guardian of the person
is not personally liable on a contract properly entered into
by the guardian of the person in a fiduciary capacity.
(h) Li ability of guardian of estate.--
(1) Except as otherwise agreed, a guardian of the estate
is not personally liable on a contract properly entered into
in a fiduciary capacity in the course of administration of
the estate unless the guardian fails to reveal in the
contract the representative capacity and identify the estate.
(2) If a guardian of the estate fails to exercise
reasonable care, skill and caution for obligations arising
from ownership or control of property of the estate or for
other acts or omissions occurring in the course of
administration of the estate, the guardian of the estate may
be personally liable to the estate. The court shall evaluate
the application of reasonable care, skill and caution in the
context of the identity, background and experience of the
guardian of the estate.
(3) A question of liability between the estate and the
guardian personally may be determined in a proceeding for
accounting, surcharge or indemnification or in another
appropriate proceeding.
(i) Delegation by guardian of estate.--A guardian of the
estate may delegate powers and duties, including discretionary
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