Current through Register Vol. 55, No. 1, January 4, 2025
(a)Retention of Counsel.(1) Except as provided in subdivision (a)(3) and if not set forth in the petition filed pursuant to Pa.R.O.C.P. 14.2 or 14.9(c), the petitioner shall file a written notice with the court containing the name and contact information of retained counsel as soon as the petitioner becomes aware that the alleged incapacitated person has retained counsel.(2) The notice shall include the name and contact information of retained counsel.(3) If retained counsel has filed an entry of appearance pursuant to Pa.R.O.C.P. 1.7(a), the petitioner is not required to file the notice in subdivision (a)(1).(b)Private Counsel. If the alleged incapacitated person has retained private counsel, counsel shall prepare a comprehensive engagement letter for the alleged incapacitated person to sign, setting forth when and how counsel was retained, the scope of counsel's services, whether those services include pursuing any appeal, if necessary, how counsel will bill for legal services and costs and the hourly rate, if applicable, who will be the party considered responsible for payment, whether any retainer is required, and if so, the amount of the retainer. Counsel shall provide a copy of the signed engagement letter to the court upon request.(c)Appointed Counsel.(1)Generally. If the alleged incapacitated person has not retained counsel, the court shall appoint counsel to represent the alleged incapacitated person in any matter initiated by a petition filed pursuant to Pa.R.O.C.P. 14.2 and in any proceeding to review, modify, or terminate a guardianship. The appointment required by this subdivision shall be made without regard to the ability of the alleged incapacitated person to pay.(2)Qualifications of Appointed Counsel. Prior to appointing counsel to represent an alleged incapacitated person, the court shall inquire as to the experience and training of counsel to ensure adequate representation of the alleged incapacitated person.(3)Initial Meeting; Certification by Counsel.(i) Appointed counsel shall meet with the alleged incapacitated person as soon as reasonably possible after the appointment.(ii) Within five days of the initial meeting between appointed counsel and the alleged incapacitated person, appointed counsel shall file a certification with the court setting forth the time and place of the meeting.(d)Other Counsel. Counsel for any other party shall enter an appearance in accordance with Pa.R.O.C.P. 1.7(a). Comment:
Reasonable counsel fees, when appropriate, should be paid from the estate of the alleged incapacitated person whenever possible. If the alleged incapacitated person is unable to pay for counsel, then the court may order counsel fees and costs to be paid by the county. See20 Pa.C.S. § 5511(c). Any fee dispute should be resolved in a timely and efficient manner to preserve resources in order to maintain the best possible quality of life for the incapacitated person.
An order adjudicating incapacity and appointing a guardian will identify the scope of representation of court-appointed counsel. See Pa.R.O.C.P. 14.7(a)(1)(v).
See Pa.R.P.C. 1.14 pertaining to the responsibilities of counsel to a client with diminished capacity.
The provisions of this Rule 14.4 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