231 Pa. Code r. 14.2

Current through Register Vol. 55, No. 1, January 4, 2025

Rule 14.2 - Petition for Adjudication of Incapacity and Appointment of a Guardian of the Person or Estate of an Incapacitated Person

(a)Petition Contents. A petition to adjudicate an individual as an incapacitated person and appoint a guardian shall state in plain language:

(1) Name, age, address, and mailing address, if different, of the petitioner and the petitioner's relationship to the alleged incapacitated person;

(2) Name, date of birth, residence, and mailing address, if different, of the alleged incapacitated person;

(3) Names and addresses of the spouse, parents, and presumptive intestate heirs of the alleged incapacitated person and whether they are sui juris or non sui juris;

(4) Name and address of the person or institution providing residential services to the alleged incapacitated person;

(5) Names and addresses of other service providers and nature of services being provided;

(6) Whether there is an executed health care power of attorney or advance health care directive pursuant to Title 20, Chapter 54, and if so, the name and address of the person designated in the writing to act as the agent;

(7) Whether there is an executed power of attorney pursuant to Title 20, Chapter 56, and if so, the name and address of the person designated in the writing to act as the agent;

(8) Whether there is any other writing by the alleged incapacitated person pursuant to Title 20, Chapters 54 or 58 authorizing another to act on behalf of the alleged incapacitated person, and if so, the name and address of the person designated;

(9) Whether the alleged incapacitated person is represented by counsel and, if so, the name and address of counsel;

(10) Reason(s) why guardianship is sought, including a description of functional limitations and the physical and mental condition of the alleged incapacitated person;

(11) If not plenary, then specific areas of incapacity over which it is requested that the guardian be assigned powers;

(12) The probability of whether the physical condition and mental condition of the alleged incapacitated person will improve;

(13) Whether there has been a prior incapacity hearing concerning the alleged incapacitated person, and if so, the name of the court, the date of the hearing, and the determination of capacity;

(14) What less restrictive alternatives to a guardianship were considered or tried, and why the alternatives are unavailable or insufficient;

(15) If a guardian of the estate is sought:

(i) the gross value of the estate and net income from all sources, to the extent known; and

(ii) whether there is a prepaid burial account, to the extent known;

(16) Whether the alleged incapacitated person is a veteran of the United States Armed Services or the spouse or dependent of a veteran of the United States Armed Services, and whether the alleged incapacitated person is receiving benefits from the United States Department of Veterans Affairs on behalf of himself or herself or through another person, including a spouse; and

(17) Name and address, if available, of any person that the petitioner proposes should receive notice of the filing of guardianship reports pursuant to Pa.R.O.C.P.14.8(b), which may include any person identified in subdivisions (a)(3)-(a)(9).

(b)Nomination of Guardian.The petition shall also include:

(1) The name, address, and mailing address, if different, of the proposed guardian whom the petitioner nominates to be appointed guardian and the nominee's relationship, if any, to the alleged incapacitated person. If the proposed guardian is an entity, then the name of the person or persons to have direct responsibility for the alleged incapacitated person and the name of the principal of the entity;

(2) Whether the proposed guardian has any adverse interest to the alleged incapacitated person;

(3) Whether the proposed guardian is available and able to visit or confer with the alleged incapacitated person;

(4) Whether the proposed guardian has completed any guardianship training, including the name of the training program, length of the training, and date of completion;

(5) Whether the proposed guardian has any guardianship certification, the current status of the certification, and any disciplinary action related to the certification;

(6) Whether the proposed guardian is, was, or seeks to be a guardian in any other matters and, if so, the number of active matters and the judicial districts where the active matters were filed;

(7) If the proposed guardian is an individual seeking to serve in a third active guardianship and is not currently certified by a national certification organization as defined in 20 Pa.C.S. § 5511(f)(2)(ii)(B)(III), then how the proposed guardian intends to satisfy the certification requirement prescribed in Pa.R.O.C.P. 14.6(c); and

(8) If the petition nominates a different proposed guardian of the estate from the proposed guardian of the person, then the information required in subdivisions (b)(1)-(b)(7) as to each nominee.

(c)Exhibits. The following exhibits shall be appended to the petition:

(1) All writings referenced in subdivisions (a)(6)-(a)(8), if available;

(2) The certified response to a Pennsylvania State Police criminal record check, with Social Security Number redacted, for each proposed guardian issued within six months of the filing of the petition;

(i) If any proposed guardian has resided outside the Commonwealth within the previous five-year period and was 18 years of age or older at any time during that period, then the petition shall include a criminal record check obtained from the statewide database, or its equivalent, in each state in which such proposed guardian has resided within the previous five-year period.

(ii) If any proposed guardian is an entity, the person or persons to have direct responsibility for the alleged incapacitated person and the principal of the entity shall comply with the requirements of subdivision (c)(2).

(3) Any proposed orders as required by Pa.R.O.C.P. 3.4(b);

(4) Any consent or acknowledgement of a proposed guardian to serve; and

(5)Certification. If the proposed guardian is an individual required to be certified pursuant to 20 Pa.C.S. § 5511(f)(2) because he or she is seeking appointment to a third active guardianship, then either:

(i) proof of a currently valid national certification pursuant to Pa.R.O.C.P. 14.6(c)(2); or

(ii) a concurrent petition for waiver of the certification requirement pursuant to Pa.R.O.C.P. 14.6(c)(3) accompanied by written proof of equivalent licenses or certifications to ensure the capability of the proposed guardian.

(d)Emergency Guardian. A petition seeking the appointment of an emergency guardian shall aver with specificity the facts giving rise to the emergent circumstances and why the failure to make such an appointment will result in irreparable harm to the person or estate of the alleged incapacitated person.

(e)Separate Petitions. Separate petitions shall be filed for each alleged incapacitated person.

(f)Citation with Notice. A citation with notice using the form provided in the Appendix to these rules shall be attached to and served with the petition and any preliminary order as follows:

(1) By personal service upon the alleged incapacitated person no less than 20 days prior to the hearing.

Additionally, the content and terms of the petition shall be explained to the maximum extent possible in language and terms the alleged incapacitated person is most likely to understand.

(2) In a manner permitted by Pa.R.O.C.P. 4.3 no less than 20 days prior to the hearing upon:

(i) All persons sui juris who would be entitled to an intestate share in the estate of the alleged incapacitated person;

(ii) The person or institution providing residential services to the alleged incapacitated person;

(iii) Any person named in subdivisions (a)(6)-(a)(9); and

(iv) Such other entities and persons as the court may direct, including service providers.

(3) For a petition seeking the appointment of an emergency guardian, the court may direct the manner of service as emergent circumstances warrant. Thereafter, notice shall be served in accordance with Pa.R.O.C.P. 14.2(f)(2).

Comment:

See 20 Pa.C.S. §§ 5421et seq. for health care power of attorney and advance health care directive, which includes a combination of a living will and a health care power of attorney. See 20 Pa.C.S. §§ 5601et seq. for power of attorney. See20 Pa.C.S. §§ 5441-5447 for Living Will Act; 20 Pa.C.S. §§ 5451-5465 for Health Care Agents and Representatives Act; 20 Pa.C.S. §§ 5821-5826 for Advance Directive for Mental Health Act; 20 Pa.C.S. §§ 5831-5845 for Mental Health Care Agents Act.

See 20 Pa.C.S. § 5511(a.1)(1) pertaining to the petitioner's obligation to inform the court if the petitioner learns the alleged incapacitated person is represented by counsel.

As used in subdivision (a)(14), less restrictive alternatives to a guardianship include, but are not limited to, an advance directive, such as a durable power of attorney or trust, a living will, a health care power of attorney, a health care representative, a financial power of attorney, trusts, including special needs trusts, representative payees for individuals receiving Social Security benefits, and mental health advance directives. See20 Pa.C.S. § 5512.1(a)(3).

Petitioner's counsel should consider the Rules of Professional Conduct pertaining to confidentiality and conflicts if he or she has consulted with the alleged incapacitated person regarding the less restrictive alternatives to guardianship set forth in 20 Pa.C.S. § 5512.1(a)(3). See Pa.R.P.C. 1.6 and 1.7; see also Pa.R.P.C. 1.14.

Concerning the requirement of a criminal record check set forth in subdivision (c)(2), the Pennsylvania State Police has created the Pennsylvania Access to Criminal History ("PATCH") System to enable the public to obtain criminal history record checks via Internet request. For information on requesting a criminal record check from the Pennsylvania State Police, see https://epatch.pa.gov/home. The certified response from the Pennsylvania State Police criminal history record check need not be notarized to comply with the requirements of this rule. Any response other than "no record" may require supplementation at the discretion of the court.

An individual seeking appointment to a third active guardianship must be certified pursuant to Pa.R.O.C.P. 14.6(c) prior to the third guardianship appointment. See also 20 Pa.C.S. § 5511(f).

Limitations on emergency guardianships are prescribed by statute. See20 Pa.C.S. § 5513.

For notice to the United States Department of Veterans Affairs, see 20 Pa.C.S. § 8411.

231 Pa. Code r. 14.2

The provisions of this Rule 14.2 adopted June 1, 2018, effective 6/1/2019, 48 Pa.B. 3524.

Amended by Pennsylvania Bulletin, Vol 55, No. 01. January 4, 2025, effective 1/4/2025