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PRINTER'S NO. 1310
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
924
Session of
2019
INTRODUCED BY FARNESE, BAKER, FONTANA, SCHWANK, BREWSTER, COSTA,
YUDICHAK, BROWNE, PITTMAN, MARTIN AND AUMENT,
OCTOBER 24, 2019
REFERRED TO JUDICIARY, OCTOBER 24, 2019
AN ACT
Amending Title 20 (Decedents, Estates and Fiduciaries) of the
Pennsylvania Consolidated Statutes, in incapacitated persons,
providing for guardianship for medically disabled adult
children.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Chapter 55 of Title 20 of the Pennsylvania
Consolidated Statutes is amended by adding a subchapter to read:
SUBCHAPTER G
GUARDIANSHIP FOR MEDICALLY
DISABLED ADULT CHILDREN
Sec.
5561. Definitions.
5562. Procedure.
5563. Determination of medical disability and appointment of
guardian.
5564. Review of guardianship.
5565. Annual report.
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5566. Powers, duties and liabilities.
5567. Effect of determination.
5568. Notice.
5569. Sample petitions and notices.
§ 5561. 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:
"Medically disabled adult child." An adult whose ability to
receive and evaluate information effectively is or has been
impaired by any of the following occurring during childhood,
rendering the adult partially or totally unable to manage
financial resources or to meet essential requirements for
physical health and safety:
(1) A medical condition.
(2) Treatment for a medical condition.
(3) Developmental delay.
(4) Physical or mental disability.
§ 5562. Procedure.
(a) Procedure.--The court, no less than 20 days after
receipt of the petition, affidavit of medical disability,
affidavit of accountability by the proposed guardian and notice
to the individual alleged to be a medically disabled adult child
and other party under this subchapter, may find by a clear and
convincing standard an individual to be a medically disabled
adult child and appoint a guardian or guardians of the medically
disabled adult's person or estate.
(b) Petitioner.--The petitioner may be any individual who
the court has determined is providing at least 50% financial
responsibility or 50% physical custody for the medically
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disabled adult child.
(c) Petition contents.--The petition, which shall be in
plain language, shall include:
(1) The name, age, marital status, residence and post
office address of the medically disabled adult child.
(2) The names and addresses of parents or guardians of
the medically disabled adult child if they are not the
petitioner.
(3) The name and address of the spouse of the medically
disabled adult child, if any.
(4) The name and address of the person or institution
providing residential services to the medically disabled
adult child.
(5) The names and addresses of the medically disabled
adult child's service providers, including treating
physician, home care service and rehabilitative caregiver.
(6) The name and address of the individual or entity
whom the petitioner asks to be appointed guardian.
(7) An averment that the proposed guardian has no
interest adverse to the medically disabled adult child.
(8) The reasons why guardianship is sought.
(9) A description of the functional limitations and
physical and mental condition of the medically disabled adult
child.
(10) The specific areas of incapacity over which it is
requested that the guardian be assigned powers.
(11) The qualifications of the proposed guardian.
(d) Notice.--The following apply:
(1) Written notice of the petition shall be given in
large type and in simple language to the alleged medically
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disabled adult child. The following apply:
(i) The notice shall indicate the purpose and
seriousness of the proceeding and the rights which can be
lost as a result of the proceeding.
(ii) The notice shall include an explanation of each
right, 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 counsel paid for if
it cannot be afforded.
(iii) The Supreme Court of Pennsylvania shall
establish a uniform citation for the purpose.
(iv) A copy of the petition shall be attached.
(v) Personal service shall be made on the medically
disabled adult child, 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.
(vi) Service shall be no less than 20 days in
advance of the petition being granted.
(2) Written notice of the petition shall be made by
personal service to the following, except if the party is the
petitioner, no less than 20 days in advance of the petition
being granted:
(i) Biological parents of the alleged medically
disabled adult child.
(ii) Guardians of the alleged medically disabled
adult child, if any.
(iii) Spouse of the alleged medically disabled adult
child, if any.
(iv) A person who provides at least 50% of the
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physical or financial support for the alleged medically
disabled adult child.
(v) An entity providing residential services for a
fee to the alleged medically disabled adult child.
(e) Guardian.--The court may appoint as guardian any person
who is providing for at least 50% of the physical or financial
support of the medically disabled adult child. The court shall
not appoint an individual or entity providing residential
services for a fee to the medically disabled adult child or any
other person whose interests conflict with those of the
medically disabled adult child. A family relationship to an
individual shall not, by itself, be considered as an interest
adverse to the medically disabled adult child.
(f) Dismissal of petition.--The court may dismiss a
proceeding if the court determines that the proceeding has not
been instituted to aid or benefit the medically disabled adult
child or if the petition is incomplete or fails to provide
sufficient facts to proceed. A dismissal shall not impact the
ability of petitioner to file a petition under any other
subchapter.
(g) Grant of petition.--If, upon review of the petition and
supporting evidence, the court finds that there is clear and
convincing evidence of the need for guardianship services, the
court may grant the petition for limited or plenary guardianship
without a hearing. If the alleged medically disabled adult child
or any other party provided notice under this subchapter objects
to the petition, a hearing shall be scheduled to permit those
parties to present evidence in support of the objection before
guardianship is granted.
§ 5563. Determination of medical disability and appointment of
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guardian.
(a) Determination of medical disability.--The petitioner
shall provide the court evidence of medical disability which
shall include the following:
(1) An affidavit from the treating physician, including
a description of the medical condition or disability that
impairs the medically disabled adult child's capacity to make
and communicate decisions.
(2) An affidavit from the treating physician or other
qualified professional who has been treating the medically
disabled adult child explaining the extent of the medically
disabled adult child's capacity to make and communicate
decisions.
(3) A statement from the petitioner of the need for
guardianship services, including reasonable limitations to
encourage a successful transition to adulthood and
independence.
(4) The type of guardian, limited or plenary, individual
needed based on the nature of a condition or disability of
the medically disabled adult child and the medically disabled
adult child's capacity to make and communicate decisions.
(5) The requested duration of the guardianship.
(b) Limited guardianship.--The court shall prefer limited
guardianship.
(c) Limited guardian of medically disabled adult child.--On
a finding that there is clear and convincing evidence of the
need for guardianship services after review of the petition and
supporting evidence or after a hearing, the court shall enter an
order appointing a limited guardian of the medically disabled
adult child with powers consistent with the court's findings of
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limitations, which may include:
(1) General care, maintenance and custody of the
medically disabled adult child.
(2) Designating the place for the medically disabled
adult child to live.
(3) Ensuring that the medically disabled adult child
receives training, education, medical and psychological
services and social and vocational opportunities, as
appropriate.
(4) Assisting the medically disabled adult child in the
development of maximum self-reliance and independence.
(5) Providing required consents or approvals on behalf
of the medically disabled adult child.
(d) Plenary guardian of the medically disabled adult
child.--The court may appoint a plenary guardian of the
medically disabled adult child only upon a finding after review
of the petition and supporting evidence or a hearing that there
is clear and convincing evidence that the medically disabled
adult child is totally incapacitated and in need of plenary
guardianship services.
(e) Legal rights retained.--If a limited guardian is
appointed, the medically disabled adult child shall retain all
legal rights except in the areas designated by court order as
areas over which the limited guardian has power.
(f) Information as to rights.--At the conclusion of a
proceeding in which a medically disabled adult child has been
assigned a guardian, the court shall ensure that the medically
disabled adult child is informed of the medically disabled adult
child's right to appeal and to petition to modify or terminate
the guardianship.
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§ 5564. Review of guardianship.
(a) Review by affidavit.--If there has been no change in the
capacity of the medically disabled adult child, the court may
require an updated affidavit of medical disability in lieu of a
hearing if no change to the guardianship is sought.
(b) Review hearing.--The court may set a date for a review
hearing in the court's order establishing the guardianship or
hold a review hearing at any time. The court shall conduct a
review hearing promptly if the medically disabled adult child,
guardian or an interested party petitions the court for a
hearing for reason of a significant change in the medically
disabled adult child's capacity, a change in the need for
guardianship services or the guardian's failure to perform the
guardian's duties in accordance with the law or to act in the
best interest of the medically disabled adult child. The court
may dismiss a petition for review hearing if the court
determines that the petition is frivolous.
(c) To fill vacancy.--The court, after notice to parties in
interest as the court shall direct, may, without a hearing,
appoint a succeeding guardian to fill a vacancy in the office of
guardian or may appoint a coguardian of the medically disabled
adult child. If the vacating guardian was a parent who is now
deceased, a testamentary nominee of the parent shall be given
preference by the court.
(d) Burden of proof and rights.--The medically disabled
adult child shall have all of the rights enumerated under this
chapter. Except when the hearing is held to appoint a successor
guardian, the burden of proof, by clear and convincing evidence,
shall be on the party advocating modification of guardianship.
§ 5565. Annual report.
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The court shall annually file with the Administrative Office
of Pennsylvania Courts on forms furnished by the office a
statistical and descriptive report to assist in evaluating the
operation and costs of the guardianship system.
§ 5566. Powers, duties and liabilities.
(a) Duty of guardian.--It shall be the duty of the guardian
of the medically disabled adult child to assert the rights and
best interests of the medically disabled adult child. Expressed
wishes and preferences of the medically disabled adult child be
respected to the greatest possible extent. If appropriate and to
meet the needs of the medically disabled adult child, the
guardian shall ensure and participate in the development of a
plan of supportive services which shall include an explanation
of how services may be obtained. The guardian shall also
encourage the medically disabled adult child to participate to
the maximum extent of the medically disabled adult child's
abilities in all decisions affecting the medically disabled
adult child, to act on the medically disabled adult child's own
behalf and to develop or regain, to the maximum extent possible,
the medically disabled adult child's capacity to manage personal
affairs.
(b) Powers and duties only granted by court.--Unless
specifically included in the guardianship order after specific
findings of fact or otherwise ordered after a subsequent hearing
with specific findings of fact, a guardian shall not have the
power and duty to consent on behalf of the medically disabled
adult child to an abortion, sterilization, psychosurgery,
electroconvulsive therapy or removal of a healthy body organ.
(c) Powers and duties not granted to guardian.--The court
may not grant to a guardian powers controlled by other statute,
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including the power:
(1) To admit the medically disabled adult child to an
inpatient psychiatric facility or State facility that
provides mental health and intellectual disability services.
(2) To consent on behalf of the medically disabled adult
child to the relinquishment of the medically disabled adult
child's parental rights.
§ 5567. Effect of determination.
A medically disabled adult child may not make a contract or
gift or an instrument in writing in the specific areas in which
medical disability has been determined to impact. This section
shall not impair the interest in real estate acquired by a bona
fide grantee of, or a bona fide holder of a lien on, real estate
in a county other than that in which the decree establishing
limited capacity is entered, unless the decree or a duplicate
original or certified copy thereof is recorded in the office of
the recorder of deeds in the county in which the real estate
lies before the recording or entering of the instrument or lien
under which the grantee or lienholder claims.
§ 5568. Notice.
When the Commonwealth or a political subdivision of the
Commonwealth has a claim for maintaining a medically disabled
adult child in an institution, the guardian, within three months
of the guardian's appointment, shall give notice of the claim to
the Department of Human Services or the proper officer of a
political subdivision, as appropriate.
§ 5569. Sample petitions and notices.
(a) Petition for adjudication.--The following is an example
of a petition for adjudication as medically disabled adult child
and appointment of guardian:
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PETITION FOR ADJUDICATION AS MEDICALLY DISABLED ADULT CHILD AND
APPOINTMENT OF GUARDIAN
This petition is filed to request an adjudication of a
medically disabled adult child and the appointment of a guardian
for an alleged medically disabled adult child under 20 Pa.C.S. §
5563.
Part 1
General information.
(1) The name and address of the petitioner and the
petitioner's relationship to the alleged medically disabled
adult child.
Name:
Address:
Relationship:
Are you responsible for 50% or more of the financial
support of the alleged medically disabled adult child?
Are you responsible for 50% or more of the physical
custody of the alleged medically disabled adult child?
(2) The name, date of birth, residence and post office
address of the alleged medically disabled adult child, together
with other vital information relating to the alleged medically
disabled adult child are:
Name:
Date of birth:
Residence:
Post office address:
Maiden name:
Marital status:
(3) The names and addresses of each parent or guardian of
the alleged medically disabled adult child if different from
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petitioner.
Name:
Address:
Name:
Address:
(4) The name and address of the spouse of the alleged
medically disabled adult child, if any.
Name:
Address:
(5) The name and address of the individual or institution
providing residential services to the alleged medically disabled
adult child.
Name:
Address:
(6) The names and addresses of the individuals or entities,
if any, providing other support services to the alleged
medically disabled adult child, for example, attending
physician, home care aide or rehabilitative caregiver.
Name:
Address:
Part 2
Request for appointment of guardian.
(7) List the medical diagnoses of the alleged medically
disabled adult child the effect of which or the treatment of
which are allegedly impacting the alleged medically disabled
adult child's ability to make effective decisions.
Condition:
Age at diagnosis:
(8) Describe the functional limitations and physical and
mental condition of the alleged medically disabled adult child.
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An affidavit of the attending physician confirming
the diagnosis and the resulting disability is attached to
this petition.
(9) The petitioner requests that a guardian be appointed
because of the alleged medically disabled adult child's mental
or physical condition, he or she is:
Unable to make responsible decisions concerning his
or her person, health, welfare and safety.
Unable to communicate his or her needs concerning his
or her health, welfare and safety.
Unable to reside alone.
Unable to provide for his or her personal safety.
Unable to care for his or her residence.
Unable to keep himself or herself properly nourished
or hydrated.
Unable to tend to his or her personal hygiene.
Unable to clothe himself or herself.
Unable to make responsible decisions with regard to
his or her medical care, including, but not limited to,
obtaining health care services and entering himself or
herself into a hospital, convalescent home, skilled care
facility or similar institution.
Other:
(10) The petitioner requests that the following individual
be appointed guardian of the alleged medically disabled adult
child.
Name:
Address:
Qualifications of the proposed guardian, which may
include a history of ongoing care:
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The proposed guardian has no interests adverse to
those of the alleged medically disabled adult child. The
consent of the proposed guardian is attached to this
petition.
Wherefore, the petitioner respectfully requests that the
Court appoint the above proposed guardian of the alleged
medically disabled adult child.
Consent of individual to appointment as guardian
I, ,
consent to my appointment as guardian of the
of , an alleged
medically disabled adult child, and certify that:
(1) I am 18 years of age or older.
(2) I reside at:
(3) My occupation is:
(4) I do not have any interest adverse to the
alleged medically disabled adult child:
Date:
Signature:
Typed name:
(b) Notice.--The following is an example of a notice for
declaration as a mentally disabled adult child:
IMPORTANT NOTICE
TO:
A PETITION HAS BEEN FILED WITH THIS COURT TO HAVE YOU
DECLARED A MEDICALLY DISABLED ADULT CHILD. IF THE COURT FINDS
YOU TO BE A MEDICALLY DISABLED ADULT CHILD, YOUR RIGHTS WILL BE
AFFECTED, INCLUDING YOUR RIGHT TO MANAGE MONEY AND PROPERTY AND
TO MAKE DECISIONS. A COPY OF THE PETITION WHICH HAS BEEN FILED
BY IS ATTACHED.
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TO BE A MEDICALLY DISABLED ADULT CHILD MEANS THAT YOU ARE
CURRENTLY UNABLE TO RECEIVE AND EFFECTIVELY EVALUATE INFORMATION
AND/OR COMMUNICATE DECISIONS AND THAT YOU ARE UNABLE TO MANAGE
YOUR MONEY AND/OR OTHER PROPERTY OR TO MAKE NECESSARY DECISIONS
ABOUT WHERE YOU WILL LIVE, WHAT MEDICAL CARE YOU WILL GET OR HOW
YOUR MONEY WILL BE SPENT.
IF YOU OBJECT TO THIS PETITION, YOU HAVE THE RIGHT TO AN
ATTORNEY AND THE RIGHT TO REQUEST THE COURT TO APPOINT AN
ATTORNEY TO REPRESENT YOU AND TO HAVE THE ATTORNEY'S FEES PAID
FOR IF YOU CANNOT AFFORD THEM YOURSELF. YOU ALSO HAVE THE RIGHT
TO REQUEST THAT THE COURT ORDER THAT AN INDEPENDENT EVALUATION
BE CONDUCTED AS TO YOUR ALLEGED MEDICAL DISABILITY.
IF THE COURT DECIDES THAT YOU ARE A MEDICALLY DISABLED ADULT
CHILD, THE COURT MAY APPOINT A GUARDIAN FOR YOU, BASED ON THE
NATURE OF ANY CONDITION OR DISABILITY AND YOUR CAPACITY TO MAKE
AND COMMUNICATE DECISIONS.
BY: Clerk of Orphans' Court Division.
Affidavit of Service
The undersigned verifies that he or she made personal service
of the petition on the alleged medically disabled adult child.
The personal service was made on
at M. at the following location:
The undersigned verifies that, at the time of service, he or
she explained the contents and terms of the petition to the
alleged medically disabled adult child to the maximum extent
possible in language and terms the alleged medically disabled
adult child was most likely to understand.
The above statements are made subject to the penalties of 18
Pa.C.S. § 4904.
Date:
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Signature:
Typed name:
Section 2. This act shall take effect in 60 days.
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