Regular Session 2019-2020 Senate Bill 0924 P.N. 1337

PRIOR PRINTER'S NO. 1310

PRINTER'S NO. 1337

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

924

Session of

2019

INTRODUCED BY FARNESE, BAKER, FONTANA, SCHWANK, BREWSTER, COSTA,

YUDICHAK, BROWNE, PITTMAN, MARTIN, AUMENT AND BARTOLOTTA,

OCTOBER 24, 2019

SENATOR BAKER, JUDICIARY, AS AMENDED, OCTOBER 29, 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.

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 EVIDENCE an individual to be a medically

disabled adult child and appoint a guardian or guardians of the

medically disabled adult's person or estate. THE COURT MAY MAKE

THE FINDING NO LESS THAN 20 DAYS AFTER RECEIPT OF:

(1) THE PETITION;

(2) THE AFFIDAVIT OF MEDICAL DISABILITY;

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(3) THE AFFIDAVIT OF ACCOUNTABILITY BY THE PROPOSED

GUARDIAN;

(4) THE NOTICE TO THE INDIVIDUAL ALLEGED TO BE A

MEDICALLY DISABLED ADULT CHILD; AND

(5) ANY OTHER NOTICE REQUIRED BY THIS SUBCHAPTER TO BE

SENT TO A PARTY.

(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

disabled adult child.

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.

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(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

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 UNDER THIS SUBCHAPTER , 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 FORM FOR THE

NOTICE .

(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

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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

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 ONLY appoint as guardian UNDER

THIS SUBCHAPTER 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 DENIAL of petition.--The court may dismiss

DENY a proceeding PETITION if the court determines that the

proceeding PETITION 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 DENIAL shall not impact the ability of petitioner to

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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

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 REQUIRED, based on the nature of a condition or

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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.

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

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

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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.

(G) DURATION OF GUARDIANSHIP.--THE COURT SHALL ESTABLISH THE

DURATION OF THE LIMITED OR PLENARY GUARDIANSHIP FOR A TIME NOT

TO EXCEED FIVE YEARS. AFTER THE DURATION, THE GUARDIANSHIP MUST

BE RENEWED BY AFFIDAVIT OR REVIEW HEARING, AS DETERMINED BY THE

COURT.

§ 5564. Review of guardianship.

(a) Review by affidavit.-- If there has been no change in the

capacity of the medically disabled adult child, the 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

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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 DENY a petition for review hearing if the court

determines that the petition is frivolous.

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.

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

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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.

may not grant to a guardian powers controlled by other statute,

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

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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:

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:

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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

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:

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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.

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.

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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:

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.

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(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.

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

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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:

Signature:

Typed name:

Section 2. This act shall take effect in 60 days.

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