CHAPTER 5
 

PROCEEDINGS
INVOLVING MINORS

 

 
 
 
 

B.

Procedure for Appointment
     
   
1.

Jurisdiction and Venue

     
   

The Orphans’ Court has mandatory jurisdiction over the administration and distribution of real and personal property of minors’ estates and the appointment, control and removal of guardians of the person of minors. See PEF Code §§711(4) and (6). A guardian of the person or of the estate of a minor may be appointed by the Court of the county in which the minor resides, or if the minor is a non resident, in the county having jurisdiction of a decedent’s estate or of a trust from which the minor’s estate is derived. If the derivative source is other than a decedent’s estate or trust, proceedings may be instituted in any county where an asset of the minor’s estate is located. See PEF Code §§5111 (a) and (b).

     
2.   Petition
     
      a. In General: A guardian of the estate or person of a minor is appointed by petition to the Orphans’ Court. Pa.O.C. Rule 12.5 sets forth requirements applicable to both types of petitions. When the petitioner seeks to appoint the same guardian to act in both capacities, it is appropriate to file a single petition. Generally, a petition for the guardian of a minor’s person is required when the minor is an orphan and the deceased parents made no provision for the appointment of a guardian by will. See PEF Code §2519(a).
           
      b. Parties: When the same guardian is sought for more than one (1) minor with the same parents, a single petition is filed. See Pa.O.C. Rule 12.5(d).

A minor over the age of fourteen (14) years may present his or her own petition for the appointment of a guardian. In other cases, the minor’s parents or the party (either individual or institutional) having custody of his or her person will usually act as the petitioner. However, anyone with an interest in the minor’s welfare may petition for the appointment of a guardian. See Pa.O.C. Rule 12.5(a).

           
      c. The Guardian: The Court has no authority to appoint a parent as guardian of a minor’s estate, except as a co guardian. See PEF Code §5112(3). The Court is generally reluctant to appoint any individual with whom the minor resides as guardian of the minor’s estate. But see Phila.O.C. Rule 12.5.B(2)(c). Preference will be given to the nominee of a minor over the age of fourteen (14) years. See PEF Code §5113.
           
      d. Allowances: Requests for allowances to pay for the support or education of the minor or for counsel costs and fees may not be included in a petition to appoint guardian. These must be presented to the Court in a separate petition after the guardian is appointed. This will be treated in greater depth below.
           
      e. Consents of Interested Parties: Phila.O.C. Rule 12.5.B(1) requires the written consents of the parents (or surviving parent) of the minor to the presentation of the petition. If the minor is an orphan, consent must be obtained from an adult person with whom he or she resides or the person in charge of an institution having his or her custody. The rule also requires a spouse’s consent in the case of a minor who is married.
           
      f. Other Exhibits: The required consents must be annexed to the petition as exhibits. Other required exhibits are: (i) consent of an individual guardian (Phila.O.C. Rule 12.5.B(2)); (ii) copies of Court decrees approving distribution to minors who are parties to litigation or were parties to litigation (Phila.O.C. Rule 12.5.B(3)); and (iii) a copy of notice to Unites States Veterans Administration if the minor is the child of a veteran and funds of the Veterans Administration are payable to him or her.
           
      g. Security: A Court appointed guardian must enter security. The amount of the security must be adequate to cover the personal estate “which will come into the control of the guardian.” See PEF Code §5121. This amount is initially determined by reference to the allegation in the petition as to the contents of the estate, and is subject to adjustment by the Court. See PEF Code §5123. The bond requirements (as well as other administrative aspects) may be avoided by depositing the funds in a restricted bank account. This procedure is covered in depth below in section F.
           
      h. Notice and Decree: An appropriate decree must be annexed to the front of the petition. If all requirements are satisfied, the Court will enter a decree appointing a guardian without the necessity of a hearing. If an interested party will not consent or cannot be located, notice must be given and a hearing may be necessary. There is no prescribed form of notice in this type of proceeding. The Court in each case will determine which type of notice is adequate. In some cases this will involve a citation on the non-consenting party to show cause why the proposed guardian should not be appointed. In other instances, counsel may be permitted to proceed by petition and notice. See Chapter 2.
 

 


 
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