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PRINTER'S NO. 356
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
384
Session of
2021
INTRODUCED BY A. DAVIS, SANCHEZ, HARRIS, DeLUCA, O'MARA AND
BURGOS, FEBRUARY 3, 2021
REFERRED TO COMMITTEE ON JUDICIARY, FEBRUARY 3, 2021
AN ACT
Amending Title 20 (Decedents, Estates and Fiduciaries) of the
Pennsylvania Consolidated Statutes, in incapacitated persons,
further providing for provisions concerning powers, duties
and liabilities.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 5521(g) of Title 20 of the Pennsylvania
Consolidated Statutes is amended and the section is amended by
adding a subsection to read:
ยง 5521. Provisions concerning powers, duties and liabilities.
* * *
(d.1) Mental health care decisions.--
(1) Subject to the following, a guardian of the person
shall have the same authority to make mental health care
decisions on behalf of the incapacitated person as a mental
health care agent under Chapter 58 (relating to mental health
care), and a mental health care decision by the guardian of
the person shall be effective without court approval as with
a mental health care agent under section 5834(d) (relating to
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operation):
(i) Any limitations and conditions provided in the
order of appointment.
(ii) The same mental health care decision-making
process as prescribed under section 5836(d) (relating to
authority of mental health care agent).
(iii) Section 5836(b).
(iv) Section 5836(c).
(v) The designation of a person other than the
guardian to act as mental health care agent by the
incapacitated person in a mental health power of
attorney.
(vi) A mental health declaration made by the
incapacitated person while of sound mind.
(vii) Any other provision regarding mental health
care agents provided under Chapter 58 Subch. C (relating
to mental health powers of attorney).
(2) To the extent practicable, a guardian of the person
shall consult with close family members of the incapacitated
person in making a mental health care decision.
(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 the
effective date of this subsection shall state whether it is
proposed that the guardian of the person shall have the power
to make mental health care decisions and, if so, whether the
guardian shall have all the powers of a mental health care
agent to make mental health care decisions, including the
power to consent to electroconvulsive therapy or to
experimental procedures of research.
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(4) Notice of a petition or hearing under section 5511
shall contain the information under paragraph (3).
(5) An order of appointment of a guardian of the person
that is issued on or after the effective date of this
subsection shall specify whether the guardian of the person
shall have the power to make mental health care decisions
and, if so, whether the guardian shall have all the powers of
a mental health care agent to make mental health care
decisions and any limitation of those powers.
(6) A guardian of the person appointed before the
effective date of this subsection shall have the same powers
as a mental health care agent regarding mental health care
decisions unless:
(i) a prior court order has limited the power of the
guardian of the person to make mental health care
decisions; or
(ii) a mental health care agent is available and
assumes authority to act by agreement between the mental
health care agent and the guardian of the person, in
which case the guardian of the person shall thereafter
have no mental health care decision-making powers.
(7) The authority of a guardian to make mental health
care decisions on behalf of an incapacitated person under
this subsection shall apply when the incapacitated person is
subject to involuntary examination and treatment under
Article III of the act of July 9, 1976 (P.L.817, No.143),
known as the Mental Health Procedures Act.
(8) This subsection shall not apply to a guardian
granted limited guardianship.
* * *
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(g) [Criminal and civil immunity] Liability of guardian of
person.--In the absence of gross negligence, recklessness or
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.
Section 2. This act shall take effect in 60 days.
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