CHAPTER 6
 

PROCEEDINGS INVOLVING
INCAPACITATED PERSONS

 

 
 
 
 

E.

Procedure for Appointment of
Guardian of Incapacitated Person’s Person and/or Estate
     
   
1.

Petition

 
    a. The procedure is initiated by the filing of a petition with the Clerk of the Orphans’ Court. A fee is paid and the petition is then assigned to a Hearing Judge. The petitioner may be any person interested in the alleged incapacitated person’s welfare. See PEF Code 5511(a).
    b.

The required contents of the petition are set forth in Pa.O.C. Rule 14.2. and Phila.O.C. Rule 14.2.A. See PEPH, Green Book, 8.1.

 
    c. The following must be attached to the petition:
 
        (1) A Preliminary Decree for signature by the Court, awarding a citation directed to the alleged incapacitated person to show cause why he should not be adjudged an incapacitated person and a guardian appointed and provide for a hearing scheduled for a date, hour and place to be filled in by the Court. Generally, the Court sets a hearing date within thirty (30) days from the date of the decree to allow sufficient time to obtain service.
 
        (2) A Final Decree for signature by the Court, which sets forth an adjudication of incapacity, appoints a guardian, directs the guardian to file an inventory and fixes the amount of security, if any. The Philadelphia Court usually requires security in the amount of 150% of the estate’s liquid asset value.
 
        (3) The guardian’s written consent to serve should be attached as an exhibit to the petition, and if the guardian is an individual, a statement as to his domicile and that he is a citizen of the United States and is able to speak, read and write the English language. A family relationship shall not by itself be considered an interest adverse to the alleged incapacitated person.
 
2.   Hearing Judge
 
    The judge to whom the petition is assigned is designated the Hearing Judge. Generally, all matters pertaining to the incapacitated person’s estate should be referred to the Hearing Judge. See Phila.O.C. Rule 14.5.B(2).
 
3.   Notice
 
    At least twenty (20) days before the hearing, notice must be given as follows:
 
    a. The alleged incapacitated person must be personally served with the citation with notice with a copy of the petition attached. At the time of service, the citation and petition must be explained to the maximum extent possible in language the incapacitated person is most likely to understand. See PEF Code §5511(a). The affidavit of service is presented to the Court at the hearing and should verify service in this manner. See Phila.O.C. Rule 14.2.B(4). If the citation cannot be served on the alleged incapacitated person within twenty (20) days before a hearing date, an alias or pluries citation must be obtained and served.
 
    b. A letter of notice of the filing of a petition and of the hearing must be served personally or by certified mail on the incapacitated person’s intestate heirs who are residing in the Commonwealth and who are sui juris, and to such other persons as the Court may direct. See PEF Code §5511. Many attorneys attach a copy of the petition and citation to the letter of notice. See Phila.O.C. Rule 14.2.B(4)(b). If there are no intestate heirs, the practice in Philadelphia County is to give notice to the Deputy Attorney General in Philadelphia, and to such person or institution providing residential services to the alleged incapacitated person.
 
    c. If counsel has not been retained by or on behalf of the alleged incapacitated person, petitioner must notify the Court at least seven (7) days prior to the hearing. See PEF Code §5511(a). In this notice, Petitioner should include information to assist the Court in ascertaining the need for Court-appointed counsel.
 
4.   Hearing
 
    a. The alleged incapacitated person must be present at the hearing unless the Court finds that his physical or mental condition would be harmed by his presence or because of his absence from the Commonwealth. See PEF Code §5511.
 
    b. Evidence is usually submitted as follows:
 
      (1) The affidavit of service.
 
        (2) Testimony of physician or psychiatrist. Petitioner must present, in person or by deposition, the testimony of a physician or licensed psychiatrist qualified by training and experience in evaluating individuals with the incapabilities of the type alleged by the petitioner. See PEF Code §5518; Phila.O.C. Rule14.2.B(8)(a). If the alleged incapacitated person is not present at the hearing, the deposition or testimony of or sworn statement by a physician or psychiatrist, should be introduced to show that the physical or mental condition of the alleged incapacitated person would be harmed by his or her presence. See Phila.O.C. Rule 14.2.B(6)(a).
 
        (3) Testimony of petitioners and other persons as to how the alleged incapacitated person’s care needs and financial needs are currently being met.
 
        (4) Testimony as to the nature and size of the estate, and the qualifications of the proposed guardian.
 
    c. Mental capacity is presumed, and before a person will be deprived of the right to handle his own property, there must be clear and convincing proof of mental incapacity and such proof must be preponderant. See Myers Estate, 395 Pa. 459 (1959).
 
    d. The hearing may be closed to the public and without a jury unless the alleged incapacitated person or his or her counsel objects. The Court may dismiss any proceeding which it finds was not brought to benefit the alleged incapacitated person. See PEF Code 5511(a).
 
    e. The Hearing Judge, upon petition or sua sponte, may order a physician to examine the alleged incapacitated person. The physician’s report will be submitted in writing to the Court and to all parties in interest before the hearing. See PEF Code §5511(d).
 
    f. A non-resident of Pennsylvania will generally not be appointed guardian of the estate.
 
    g. If the evidence at the hearing indicates that the entire estate does not exceed $25,000, it may be awarded directly to the person or institution maintaining the incapacitated person without the appointment of a guardian or may be placed in a restricted bank account. See PEF Code §5505; cf. §§5101-5103; Phila.O.C. Rule 14.2.C.
 
    h. When the Court has appointed a guardian, no other Court shall appoint a similar guardian for the alleged incapacitated person within the Commonwealth. See PEF Code §5512(c).
 

 


 
A | B | C | D | E | F | G | H | I | J | K