CHAPTER 8

 
 
PROCEEDINGS INVOLVING
INCAPACITATED PERSONS
 
 

8.1
Petition for Adjudication of Incapacity and for Appointment of Guardian of the Estate and Person in Accordance with 20 Pa. C.S.A. 5511

 
 
 
 

[SEE CAPTION AT 1.3.1]

 
 

PRELIMINARY DECREE

 
 

Now, this _____ of ______________, 20____ upon consideration of the annexed Petition to Adjudicate Jane R. Dunn an Incapacitated Person and to Appoint a Plenary Guardian of her Person and Estate, it is hereby ORDERED and DECREED as follows:

 
1.

A Citation is awarded, directed to Jane R. Dunn, to show cause why:

 

  a.

She should not be adjudged an Incapacitated Person;

         

  b.

Why Joan Smith should not be appointed Plenary Guardian of her Person; and

         

  c.

Why Henry Doe should not be appointed Plenary Guardian of her Estate.

     
2.

The hearing on the said Petition shall be held in Courtroom ________, City Hall, Philadelphia, Pennsylvania, on ____________________, 20____ , at _____ ___.m.

     
3.

Petitioners shall cause to be served (by personal service) the Citation with Notice and Petition, pursuant to the provisions of 20 Pa. C.S.A. 5511(a), upon Jane R. Dunn, the alleged incapacitated person, at least twenty (20) days prior to the court hearing. The contents and terms of the Citation with Notice and Petition shall be read and explained to the maximum extent possible in language and terms the alleged incapacitated person is most likely to understand in accordance with the provisions of 20 Pa. C.S.A. 5511(a). An Affidavit of Service containing specific averments as to the above requirements shall be presented at the beginning of the court hearing.

     
4.
 

At least twenty (20) days prior notice of the court hearing, together with a copy of the Petition, shall be given personally or by certified mail to all persons who are sui juris and who would be entitled to share in the estate of the alleged incapacitated person if she died intestate at this time, to the person believed to be an agent under the alleged incapacitated person's limited power of attorney, and to the institution providing residential services to the alleged incapacitated person, as follows:

     
    Joan Smith
1200 Locust Way
Philadelphia, PA 19103
     
    Henry Doe
P.O. Box 1234
Boston, MA 12345
     
    Barbara Friend
9 Wondering Place
Philadelphia, PA 19103
     
   

The Best Nursing Home
900 Lombard Street
Philadelphia, PA 19103

   
  in accordance with the provisions of 20 Pa. C.S.A. 5511(a).
   
5.
  Petitioners and/or counsel for Petitioners shall notify the Court, in writing, at least seven (7) days prior to the court hearing if counsel has not been retained by or on behalf of the alleged incapacitated person in accordance with the provision of 20 Pa. C.S.A. 5511(a). This notice shall also contain all pertinent information which would indicate to the Court whether or not counsel should be appointed to represent the interests of the alleged incapacitated person.
   
6.
  The alleged incapacitated person shall be present at the court hearing unless it is established by clear and convincing medical evidence that her physical or mental condition would be harmed by her presence in court, in accordance with the provisions of 20 Pa. C.S.A. 5511(a). Petitioners may retain a physician for a physical and mental examination.
 
 
 
   
 
J.
 
 
Note: The Court may direct that notice be given to other parties, such as other service providers.
 
 
 

 
 
 

[SEE CAPTION AT 1.3.1]

 
 

DECREE

 
 

Now, this _____ of ______________, 20____, upon consideration of the Petition and after hearing held following due service of the Citation with Notice and a copy of the Petition, upon Jane R. Dunn, this Court finds by clear and convincing evidence that:

 
1. Jane R. Dunn is 60 years of age and is a domiciliary of the City and County of Philadelphia.
   
  2. Jane R. Dunn suffers from stroke and senile dementia which totally impairs her capacity to receive and evaluate information effectively and to make and communicate decisions concerning management of her financial affairs or to meet essential requirements for her physical health and safety.
     
  3. She is totally dependent upon others for assistance in her daily activities.
 

Accordingly, it is hereby ORDERED and DECREED that Jane R. Dunn is adjudged a totally incapacitated person and the Henry Doe is appointed Plenary Guardian of the Estate and Joan Smith is appointed Plenary Guardian of the Person of Jane R. Dunn.

 

The said Guardian shall enter security, with corporate surety, in the amount of $100,000.

 

In the event said incapacitated person has a safe deposit box, an Official Examiner of this Court shall be in attendance when said safe deposit box is opened. The Certificate of the Official Examiner of his examination of the assets in such safe deposit box shall be submitted to the Court, and, when approved by the hearing Judge, shall be filed with the record in this case. The amount and manner of compensation for these services of the Official Examiner shall be determined by the hearing Judge.

 

The said Guardian of the Estate is directed to file an Inventory within ninety (90) days of the date of this decree in accordance with the provisions of 20 Pa. C.S.A. 5521(b) and 5142.

 

The said Guardian is not permitted to expend the principal of the incapacitated person's estate without permission of the Court in accordance with the provisions of 20 Pa. C.S.A. 5536.

 

Any existing general power of attorney, limited power of attorney and/or health care power of attorney executed by the incapacitated person is hereby specifically revoked and rendered null and void.

 

Counsel for the incapacitated person is directed to supply this Court, directly to the undersigned Judge, with the incapacitated person's last Will, and a copy thereof.

 

Furthermore, the said Guardians shall each file a Report at least once within the first twelve months of his or her appointment and at least annually thereafter in accordance with the provisions of 20 Pa. C.S.A. 5521 (c)(1)(i) and (ii).

 

Within sixty (60) days after the death of the incapacitated person or an adjudication of capacity, the Guardians shall each file a Final Report with the Court pursuant to 20 Pa. C.S.A. 5521(c)(2).

 

Jane R. Dunn was not present at the hearing and was not represented by counsel. The Court finds from clear and convincing medical evidence that Jane R. Dunn's physical and mental health would have been harmed by requiring her presence at the hearing. Accordingly, counsel for the Petitioner shall cause to be served upon and read to Jane R. Dunn a copy of this Decree and the Statement of Rights, a copy of which is attached to this Decree as Exhibit "A," and file proof of such service with the Clerk of the Orphans' Court within ten (10) days.

 

Exceptions to this Decree may be filed within twenty (20) days from the entry of the Decree. An appeal from this Decree may be taken to the appropriate appellate court within thirty (30) days from the entry of the Decree. See Phila. O.C. Rule 7.1.A and Pa. O.C. Rule 7.1, as amended, and, Pa. R.A.P. 902 and 903.

 
 
 
   
 
J.
 
 
 
Note: The specimen Decree should be submitted fir the Court's consideration. Ordinarily, the Court will fashion its own Decree following the hearing to adjudicate incapacity.
 
 
 

 
 
 

STATEMENT OF RIGHTS

 
 

AN ORDER HAS BEEN ENTERED WHEREBY YOU HAVE BEEN ADJUDICATED AN INCAPACITATED PERSON AND UNABLE TO CARE FOR YOURSELF AND/OR MANAGE YOUR PERSONAL AFFAIRS. YOU HAVE THE RIGHT TO FILE EXCEPTIONS TO THE COURT'S DECISION WITHIN TWENTY (20) DAYS OF THE COURT'S ORDER OR YOU HAVE THE RIGHT TO APPEAL THE COURT'S DECISION WITHIN THIRTY (30) DAYS OF THE COURT'S ORDER.

 

YOU MAY PETITION THE COURT AT ANY FURTHER TIME TO MODIFY OR TO TERMINATE THE GUARDIANSHIP IF THERE IS A CHANGE IN YOUR CAPACITY OR IF YOUR GUARDIAN FAILS TO PERFORM HIS/HER DUTIES IN ACCORDANCE WITH THE COURT'S ORDER.

 

IF YOU WISH TO APPEAL THE COURT'S ORDER OR PETITION THE COURT TO MODIFY OR TERMINATE THE GUARDIANSHIP, YOU ARE ENTITLED TO BE REPRESENTED BY AN ATTORNEY.

 
 
 
 
 
 
 
 
 
 
 

EXHIBIT "A"

 
 
 

 
 
 

[SEE CAPTION AT 1.3.2]

 
 

PETITION

 
 

To the Honorable, the Judges of the said Court:

 

Petitioners, Jane R. Dunn, Joan Smith and Lawrence Smith, respectfully submit this Petition to the Court to adjudicate Jane R. Dunn an Incapacitated Person and to appoint a Plenary Guardian of the Person and Estate of Jane R. Dunn, an alleged Incapacitated Person, and in support thereof aver the following:

 

Jurisdiction and Venue:

 
1.

The alleged incapacitated person, Jane R. Dunn, was born on November 16, 1940, is 60 years of age, and is single; she has no children.

 
2.

The alleged incapacitated person is domiciled in Philadelphia, Pennsylvania, having resided for many years at 261 Horse Hair Road, Philadelphia, Pennsylvania, until her stroke; she is presently receiving residential services from The Best Nursing Home at Lombard Street, Philadelphia, Pennsylvania 19103.

     
3.

Pursuant to 20 Pa. C.S.A. 5512(a) this Court has jurisdiction over and is the proper venue for the appointment of guardians of the person and estate of the alleged incapacitated person.

     
4.
  No other court has ever assumed jurisdiction in any proceeding to determine the capacity of the alleged incapacitated person and no other guardian has ever been appointed for the estate or person of the alleged incapacitated person.
     

Interested Parties:

     
5.
  Jane R. Dunn was married to Richard Dunn on September 1, 1960, from whom she was divorced on or about July 4, 1975; she has no children or other dependents and her parents are deceased.
     
6.
  To the best of Petitioners' knowledge, information and belief, Petitioners, all of whom are sui juris adults, are the only persons who would be entitled to the alleged incapacitated person's estate if she died intestate at this time; their names, addresses and relationships to the alleged incapacitated person are as follows:
     
   
Joan Smith
1200 Locust Way
Philadelphia, PA 19103
Sister
   
Henry Doe
P.O. Box 1234
Boston, MA 12345
Brother

 
7.

To the best of Petitioners' knowledge, information and belief, the following individual, a friend of the alleged incapacitated person, is the alleged incapacitated person's agent under a power of attorney:

     
   

Barbara Friend
9 Wondering Place
Philadelphia, PA 19103

     
8.

As noted above, the alleged incapacitated person now resides at The Best Nursing Home, 900 Lombard Street, Philadelphia, Pennsylvania 19103.

     
9.
 

The alleged incapacitated person was never a member of the armed services of the United States and is not receiving benefits from the United States Veterans' Administration.

     
10.
  Petitioners are without information as to whether or not the alleged incapacitated person has a valid Will currently in effect.
 
Proposed Plenary Guardians:
 
11.
  Petitioners seek to have Petitioner Joan D. Smith, the alleged incapacitated person's sister, appointed Plenary Guardian of the Person of the alleged incapacitated person. Petitioner Joan D. Smith is 55 years of age and is a resident of Philadelphia, Pennsylvania. Petitioner Joan D. Smith is concerned for her sister's welfare, is a housewife, and is the person best equipped to handle the personal care decisions of the alleged incapacitated person.
 
12.
  Petitioners seek to have Petitioner Henry Doe, the alleged incapacitated person's brother, appointed Plenary Guardian of the Estate of the alleged incapacitated person. Petitioner Henry Doe, is 53 years of age and is a resident of Boston, Massachusetts. He is a certified public accountant and has a college decree. He is the person best equipped to handle the financial decisions of the alleged incapacitated person.
 
13.
  The proposed guardians have no interest adverse to the alleged incapacitated person, although it is acknowledged that Petitioners would be the intestate heirs of the alleged incapacitated person if she were to die intestate at this time.
 
Factual Background / Limitations of Alleged Incapacitated Person:
 
14.
  Because of her mental and/or physical condition, the alleged incapacitated person is totally unable to manage her financial affairs, property and business and to make and communicate responsible decisions relating thereto, including the ability to communicate her need for assistance in these areas. She does not understand the concept of money and verbalizes so little that it is not possible to determine what she does and does not understand. She is not oriented to time.
 
15.
  Because of her impairment mental and/or physical condition, the alleged incapacitated person lacks the capacity to make or communicate responsible decisions concerning her person and is unable to walk, feed herself, clean herself, or perform the usual daily functions. She is emotionally volatile and does not understand her medical condition or the consequences of accepting or rejecting options for her care.
 
16.
  Barbara Friend, who Petitioners believe to be the alleged incapacitated person's agent under a general power of attorney, is 80 years of age and lives in California. Petitioners aver that it is impractical, if not impossible, for Barbara Friend to serve properly and fully on behalf of the alleged incapacitated person as her agent.
 
17.
  Petitioners aver that the alleged incapacitated person executed a Living Will by which she designated in writing her wishes with regard to health care, including the use or refusal of life-sustaining treatment, which Living Will is still in effect.
 
No Less Restrictive Alternative:
 
18.
  The severity of the alleged incapacitated person's mental and/or physical condition and the lack of viable, less restrictive alternatives necessitate that a Plenary Guardian of her Estate be appointed to manage and handle all aspects of the alleged incapacitated person's estate, specifically including, but not limited to: all issues relating to her cash, checks, and any bank or savings accounts held in her name, her stocks and bonds, her personal property, her real estate, her life and other insurance of which she is a beneficiary, her entitlement to any governmental and non-governmental benefit plans, federal, state and local taxes, claims made or to be made on behalf of her or against her, the execution of documents, entry into contracts affecting her and the payment of reasonable compensation or costs to provide services for her.
 
19.
  The following alternatives to the appointment of a guardian of the person have been considered: (a) power of attorney, and (b) advance health care directive, but these alternatives are ineffective for the following reason: The alleged incapacitated person does not understand the nature of the documents.
 
20.
  The severity of the alleged incapacitated person's mental and/or physical condition and the lack of viable, less restrictive alternatives necessitate that a Plenary Guardian of her Person be appointed to handle all issues relating to the person of the alleged incapacitated person, specifically including, but not limited to: her living arrangements, her medical and psychiatric care, the administration of medication to her, and the employment and discharge of physicians, psychiatrists, dentists, nurses, therapists and other professionals for her physical and mental treatment and care.
 

Assets and Income:

 
21.
  The exact nature and amount of the alleged incapacitated person's assets are not known, but the following is noted:
 
   
  a.

The alleged incapacitated person owns her home at 1200 Locust Way, Philadelphia, Pennsylvania 19103.

   
  b. The alleged incapacitated person receives a pension from her husband's former employer of approximately $800 a month and social security of $900 a month.
 
22.
  To the best of Petitioners' knowledge, information and belief, the alleged incapacitated person is not a beneficiary of any trust created by another for her benefit.
 
Wherefore, Petitioners respectfully request that this Court award a Citation directed to Jane R. Dunn, the alleged incapacitated person, and to such other persons as this Court may direct, to show cause why Jane R. Dunn, should not be adjudged a fully incapacitated person, why Joan Smith should not be appointed Plenary Guardian of her Person and why Henry Doe should not be appointed Plenary Guardian of her Estate.
 
 
      Respectfully submitted,
       
       
       
Dated:      
      Joan Smith, Petitioner
       
       
       
Dated:      
   
Henry Doe
 
 
 

[SEE AFFIDAVIT AT 1.4.1] OR [VERIFICATION AT 1.4.3]

 
 
 

 
 
 

[SEE CAPTION AT 1.3.1]

 
 

CONSENT OF GUARDIAN OF PERSON

 
 

I hereby consent to act as Limited or Plenary Guardian of the Person of Jane R. Dunn, an alleged incapacitated person.

 

I reside at 1200 Locust Way, Philadelphia, Pennsylvania 19103, and am a housewife.

 

I am a citizen of the United States and can speak, read and write the English language.

 
 
 
 
Dated:      
   
Joan Smith
 
 
 

 
 
 

[SEE CAPTION AT 1.3.1]

 
 

CONSENT OF GUARDIAN OF ESTATE

 
 

I hereby consent to act as Limited or Plenary Guardian of the Estate of Jane R. Dunn, an alleged incapacitated person.

 

I reside at P.O. Box 1234, Boston, Massachusetts 12345, and am a certified public accountant and college graduate.

 

I am a citizen of the United States and can speak, read and write the English language.

 
 
 
 
Dated:      
   
Henry Doe
 
 
 

 
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