231 Pa. Code r. 14.6

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

Rule 14.6 - Determination of Incapacity and the Need for Guardianship; Selection of Guardian; Certification of Certain Guardians.

(a)Determination of Incapacity. The procedure for determining incapacity and for appointment of a guardian shall meet all requirements set forth at 20 Pa.C.S. §§ 5511, 5512, and 5512.1. In addition, the petitioner shall present the citation and proof of service at the hearing.

(b)Selection of Guardian. If guardianship services are needed, then the court shall appoint the person nominated as such in a power of attorney, a health care power of attorney, an advance health care directive, a mental health care declaration, or mental health power of attorney, except for good cause shown or disqualification. Otherwise, the court shall consider the eligibility of one or more persons to serve as guardian in the following order:

(1)Guardian of the Person:

(i) The guardian of the estate;

(ii) The spouse, unless estranged or an action for divorce is pending; (iii) An adult child; (iv) A parent;

(v) The nominee of a deceased or living parent of an unmarried alleged incapacitated person;

(vi) An adult sibling;

(vii) An adult grandchild;

(viii) Other adult family member;

(ix) An adult who has knowledge of the alleged incapacitated person's preferences and values, including, but not limited to religious and moral beliefs, and would be able to assess how the alleged incapacitated person would make decisions; or

(x) Other qualified proposed guardian, including an entity as provided in 20 Pa.C.S. § 5511(f)(1).

(2)Guardian of the Estate. If the estate of the incapacitated person consists of minimal assets or the proposed guardian possesses the skills and experience necessary to manage the finances of the estate:

(i) The guardian of the person;

(ii) The spouse unless estranged or an action for divorce is pending;

(iii) An adult child;

(iv) A parent;

(v) The nominee of a deceased or living parent of an unmarried alleged incapacitated person;

(vi) An adult sibling;

(vii) An adult grandchild;

(viii) Other adult family member;

(ix) An adult who has knowledge of the alleged incapacitated person's preferences and values, including, but not limited to religious and moral beliefs, and would be able to assess how the alleged incapacitated person would make decisions; or

(x) If no individual listed in subdivisions (b)(2)(i)-(b)(2)(ix) possesses the skills and experience necessary to manage the finances of the estate, then the guardian of the estate may be any qualified proposed guardian, including an entity as provided in 20 Pa.C.S. § 5511(f)(1).

(c)Certification.

(1)Generally. An individual shall be certified or receive waiver of certification pursuant to this subdivision prior to appointment to a third active guardianship.

(2)Certification by a National Organization.

(i) An individual seeking to serve as a guardian in a third active guardianship shall satisfy the certification requirement in 20 Pa.C.S. § 5511(f)(2) by being certified by a national nonprofit organization that provides a comprehensive certification program for guardians that:

(A) requires submission of education and employment history;

(B) requires submission of Federal and State criminal history record information;

(C) requires passage of a certification exam; and

(D) administers and monitors a compliance and decertification process for certified guardians.

(ii)Continuing duty. A guardian certified by a national organization defined in subdivision (c)(2)(i) shall:

(A) maintain the certification in good standing; and

(B) file with the court:

(I) proof of recertification prior to the expiration date of the current certification; and

(II) written notice of any certification lapse, suspension, termination, or disciplinary action within seven days of such action.

(3)Petition for Waiver of Certification.

(i)Generally.

(A) The certification required by subdivision (c)(2) may be waived by the court in an individual court case following the grant of a petition demonstrating that a proposed guardian has such equivalent licenses or certifications as are necessary to ensure that the proposed guardian is capable of fully, faithfully, and competently performing the obligations of a guardian.

(B) The equivalent licenses or certifications shall be relevant to the form of guardianship sought in the petition.

(C) The petition shall include an averment identifying each judicial district where he or she has been granted a certification waiver and the number of active waivers.

(ii)Prohibition. A license to practice law alone is not an equivalent license or certification for purposes of subdivision (c)(3)(i).

Comment:

The procedure for determining incapacity and for appointment of a guardian includes, among other things, the consideration of and factual findings as to the insufficiency of supports and less restrictive alternatives to guardianship. See20 Pa.C.S. § 5512.1(a)(3); see also In re Peery, 727 A.2d 539 (Pa. 1999) (holding a person does not require a guardian if there is no need for guardianship services). Less restrictive alternatives 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). The findings of fact required by § 5512.1(a)(3) are not publicly available unless included in the order adjudicating a person as incapacitated. See Case Records Public Access Policy of the United Judicial System of Pennsylvania, § 9.0B, 204 Pa. Code § 213.81.

If the alleged incapacitated person has requested a jury trial pursuant to 20 Pa.C.S. § 777(b), then the findings of fact required by 20 Pa.C.S. § 5512.1(a) shall be made by the jury.

If a principal nominates a guardian pursuant to a power of attorney, a health care power of attorney, an advance health care directive, which includes a combination of a living will and a health care power of attorney, a mental health care declaration, or mental health power of attorney, then the court must appoint that person as guardian except for good cause or disqualification. See20 Pa.C.S. § 5604(c)(2) (power of attorney); 20 Pa.C.S. § 5460(b) (health care power of attorney); 20 Pa.C.S. § 5422 (defining "advance health care directive"); 20 Pa.C.S. § 5823 (mental health declaration); 20 Pa.C.S. § 5841(c) (mental health power of attorney); see also20 Pa.C.S. § 5511(f) (who may be appointed guardian).

For guardianship certification and waiver pursuant to subdivision (c), see 20 Pa.C.S. § 5511(f). The Center for Guardianship Certification is an example of an organization that meets the criteria of § 5511(f).

See Pa.R.O.C.P. 14.2(c)(5) pertaining to exhibits to the petition for appointment of guardian to demonstrate compliance with subdivision (c) and 20 Pa.C.S. § 5511(f).

Examples of relevant licenses or certifications for a proposed guardian of the person may include, but are not limited to, health care, nursing, social work, psychology, or care management. Examples of relevant licenses or certifications for a proposed guardian of the estate may include, but are not limited to, accounting, financial management, or retirement income planning.

A license to practice law alone is not an equivalent license or certification for purposes of seeking waiver of certification. 20 Pa.C.S. § 5511(f)(3).

231 Pa. Code r. 14.6

The provisions of this Rule 14.6 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