Rule *2064 - Procedure to Compromise, Settle, Discontinue or Distribute Funds in Matters Involving Incapacitated Persons. See also Pa.R.C.P. Nos. 2064 and 2206(A)When Petition Required. No action in which an incapacitated person is a party shall be compromised, settled, or discontinued except after the filing of a Petition for Approval of the Compromise, Settlement, Discontinuance or Distribution. In addition to the requirements set forth in this Rule, Petitions for Approval of dispositions of Wrongful Death or Survival Actions involving incapacitated persons must also comply with Pa.R.C.P. No. 2206.(B)Situs of the Filing of the Petition. Petitions for Approval of Settlements in which incapacitated persons have an interest shall be served on all parties of record and filed as follows:(1) For cases in which a civil action has been initiated in the Trial Division, Petitions for Approval of Settlements shall be electronically filed with the Office of Judicial Records, Civil (formerly the ''Prothonotary''). Upon expiration of the Response period, the Petition shall be assigned to a Judge of the Orphans' Court Division for disposition and the entry of an appropriate final appealable order. The Order shall be docketed and served on all interested parties by the Office of Judicial Records. (2) For cases in which a civil action has not been initiated in the Trial Division, and no civil docket number has been assigned, Petitions for Approval of Settlement shall be electronically filed with the Clerk of the Orphans' Court Division. Upon expiration of the Response period, the Petition shall be assigned to a Judge of the Orphans' Court Division for disposition and the entry of an appropriate final appealable order. The Order shall be docketed and served on all interested parties by the Clerk of the Orphans' Court Division.(C)Appointment of Guardian ad Litem. In any case where an incapacitated person, de facto or de jure, has an interest and the Settlement Judge or the Trial Judge has not appointed a guardian ad litem, and the Judge of the Orphans' Court Division believes it necessary that the incapacitated person be represented separately, the Orphans' Court Judge shall appoint a guardian ad litem, who shall be an attorney in good standing who is admitted to practice law in the Commonwealth of Pennsylvania, to represent the incapacitated person's interest. A guardian ad litem may be appointed if required by the circumstances without regard to whether a guardian of the person or of the estate of the incapacitated person has been appointed.(D)Content of the Petition. The Petition shall be substantially in the form set forth hereunder, and shall: (1) Set forth the date of birth and the address of the incapacitated person, the names and addresses of all guardians of the person, the estate and/or ad litem of the incapacitated person, and the appointing court, and a factual recitation of the salient facts which form the basis of the cause of action;(2) State the terms of the settlement, including the specific provisions of any annuity, if applicable, including the credit rating of the entity assuming responsibility for future payments, the present cost of the annuity, as well as the schedule and amount of periodic and lump sum payments;(3) State the amount of counsel fees and provide an itemization of the expenses to be paid out of settlement proceeds;(4) State whether a lien or claim has been raised on behalf of any medical care provider or payer, including the Department of Human Services and Medicare; and(5) Contain or be accompanied by the following:(a) A written report of a physician setting forth the present physical and mental condition of the incapacitated person;(b) A verified statement by the guardian of the person of the incapacitated person, or the guardian ad litem, if appointed, certifying the present physical and mental condition of the incapacitated person, and a copy or the decree appointing the guardian of the person or guardian ad litem;(c) A verified statement by the guardian of the estate of the incapacitated person, or the guardian ad litem, if appointed, certifying approval of the proposed settlement and distribution thereof; and a copy of the decree appointing the guardian of the estate or guardian ad litem;(d) A statement of the professional opinion of counsel as to the reasonableness of the proposed settlement and the basis for such opinion;(e) If there is to be an allocation between a sui juris adult and an incapacitated person, a statement of the amounts allocated to each party and specific reasons for such proposed allocation;(f) If a guardian ad litem has been appointed, a statement of the professional opinion of the guardian ad litem as to the reasonableness of the proposed allocation, and the basis for such opinion. The guardian ad litem shall give specific reasons for his or her approval or disapproval of any proposed allocation of the proceeds;(g) Statement of the final lien amount from the Department of Human Services; (h)(1) Statement of the amount paid by Medicare for medical costs as reflected on the relevant Explanations of Benefits received from the Medicare payers and Conditional Payment letters received from the Medicare Secondary Payer Recovery Contractor. This amount should constitute the maximum Medicare reimbursement exposure to the plaintiff for which funds from the settlement amount should be reserved. Should the actual reimbursement to Medicare be less than the reserved amount as a result of allowances by Medicare for the fees, costs or other factors, the balance shall be distributed in accordance with the Court Order, and shall be reflected in the Affidavit of Compliance filed with the Court. (2) In the event that compliance with the Court's Order is not fully accomplished, the attorney shall describe the extent of compliance and any reasons for delay in an Affidavit filed within 60 days of the entry of the Order. A subsequent Affidavit shall be filed upon complete satisfaction of the terms of the Order. (i) Statement from medical care providers agreeing to compromised amount(s), if any; (j) Any other information which might be helpful for the orderly disposition of the Petition; and (k) A proposed Order of Distribution, etc., substantially in the form set forth in (K) below.(E)Release of Defendants. After Court approval of the gross amount of the settlement, but before Court approval of the distribution, the plaintiff may sign a release to discharge the settling defendant and the Court may issue an Order to Settle, Discontinue and End to the settling parties. If plaintiff releases and discharges a defendant pursuant to this subsection, defendant's draft or check shall be made payable to the plaintiff and to counsel for the plaintiff and the payees shall deposit the draft or check into a separate insured interest-bearing escrow account or the attorney's Interest on Lawyers Trust Account (IOLTA), pending the issuance of an Order of Distribution by the Court. This subsection is intended to allow prompt tender of settlement proceeds independent of issues involving distribution.(F)Counsel Fees. The proposed Order of Distribution shall include an award of counsel fees. The standard for the award of counsel fees in the representation of incapacitated persons is that such fees must be reasonable in accordance with the guidelines set forth in Rule 1.5 of the Rules of Professional Conduct. Counsel are advised to maintain time records. Counsel fees of one-third (1/3) of the net fund recovered may be considered reasonable, subject to the approval of the Court. The net fund is calculated by subtracting the attorney's reimbursable costs from the gross settlement amount. Counsel fees shall be reduced by the amount of collateral payments received as counsel fees for representation involving the same matter from third parties.
(G)Personal Appearances. The Judge of the Orphans' Court to whom the Petition is assigned may, at his or her discretion, require the personal appearance of the incapacitated person, the guardians of the estate and/or of the person, the guardian ad litem, the physicians, or any other relevant party, as well as the production or any other evidence deemed necessary for the disposition of the Petition.(H)Compliance with Court Order and Proof of Deposit. Within sixty (60) days of the entry of a final Order or Distribution, counsel shall electronically file an Affidavit of Compliance with the Court maintaining the docket of the matter, either with the Office of Judicial Records or with the Clerk of the Orphans' Court Division. The Affidavit of Compliance shall certify compliance with the Order, attach a copy of the said Order and shall submit proof of deposit in the restricted account, annuity, structured settlement or trust. The Affidavit of Compliance shall be substantially in the form set forth in (K) below.(I)Distribution to Incapacitated Persons Pursuant to Pa.R.C.P. No. 2064. Funds allocated by a Court approved incapacitated person's compromise, settlement, or by a judgment entered upon a verdict, for the direct benefit of an incapacitated person shall be payable only to the guardian of the estate of the incapacitated person appointed by the Court with jurisdiction over the incapacitated person, with the express authorization of the Court as to payment of counsel fees and expenses or posting of security. In the alternative, the Court may: (1) Order, as provided in Pa.R.C.P. No. 2064(b)(l), an amount not in excess or twenty-five thousand dollars ($25,000) to be paid for the benefit of the incapacitated person to the guardian of the person of the incapacitated person;(2) Order, as provided in Pa.R.C.P. No. 2064(b)(2),(a) any amount be deposited in one or more restricted savings account(s) in the name of the incapacitated person, in federally insured banks or savings institutions having an office in Philadelphia County, each not to exceed the insured amounts. The savings account shall be titled and restricted as follows: ______, an incapacitated person, not to be withdrawn, except for the payment of local, state and federal income taxes on the interest earned, or upon Order of Court.
Or
(b) the purchase of one or more restricted certificate(s) of deposit in the name of the incapacitated person, in federally insured banks or savings institutions having an office in Philadelphia County, each not to exceed the insured amounts. The certificate shall be titled and restricted as follows: ______, an incapacitated person, not to be redeemed except for renewal in its entirety, not to be withdrawn, assigned, negotiated, or otherwise alienated, except upon Order of Court.
(3) Approve an agreement providing for a structured settlement in the manner provided by Pa.R.C.P. No. 2064(b)(3).(4) Approve a trust agreement to be executed by a corporate fiduciary in the manner provided by Pa.R.C.P. No. 2064(b)(4).(J)Service. Notice. Proof of Service. Petitions filed pursuant to Section (B)(1) above shall be served as provided in Phila.Civ.R. *205.4(f)(7) and Pa.R.C.P. No. 205.4(g). Petitions filedpursuant to Section (B)(2) above shall be noticed as provided in Pa.O.C. Rule 3.5. Service to all parties in interest not effectuated through the Electronic Filing System shall be effectuated by mailing Notice of the filing of the Petition and a copy of the Petition by first-class United States mail, postage prepaid. Proof of Service and a copy of the notice shall be appended to the Petition or filed after service, as appropriate.See forms immediately following Rule *2039.