CHAPTER 6
 

PROCEEDINGS INVOLVING
INCAPACITATED PERSONS

 

 
 
 
 

G.

Powers and Duties of Guardian
     
   
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1. Filing Bond
   
  Every guardian must file a surety bond as the Court may direct, subject to certain exceptions, most notably, corporate fiduciaries. See PEF Code §5515 cf. §§5121-5122. In lieu of entering security, the guardian may be allowed to deposit the funds of a minor’s estate in a restricted bank account. See Phila.O.C. Rule 14.2.B(2) cf. 12.5.C.

In addition, the Court may require a separate bond to protect the assets of an estate of which the incapacitated person is a fiduciary. See PEF Code §5516.
 
2. Right of Possession and Sale
   
  The guardian has the right to possess every real and personal asset of the incapacitated person to which his appointment extends and may sell any personal property of the incapacitated person. Permission of the Court must be secured to convey or encumber real estate in which the incapacitated person has an interest. See PEF Code §5521 cf. §§3353 and 3355. The appropriate procedure is detailed in Chapter 9. The guardian need not petition the Court to approve sales of personal property or for sale or retention of securities except in unusual circumstances, such as when the incapacitated person regains his capacity. See Phila.O.C. Rule 14.2.E(1) and (2).
   
3. Inventory and Production of Will
   
  Within ninety (90) days after the adjudication of incapacity, the guardian must file an inventory on Court approved forms of the assets that have come into his possession and assets anticipated to be received. See PEF Code §5521(b); Phila.O.C. Rule 14.2.B(9). The Court may order an additional security bond based upon the inventory. Except in cases of extreme emergency, requests for allowance will not be approved prior to the filing of the inventory. See Phila.O.C. Rule 14.2.D(1)(d)(i). A supplemental inventory must be filed within ninety (90) days following receipt of additional assets not revealed in the initial inventory.

The incapacitated person’s will, if found, must be submitted to the Hearing Judge, with a copy for retention in the Judge’s private file. In Widener Estate, 437 Pa. 294 (1970), the Court approved the practice of impounding and inspecting the incapacitated person’s will, but disapproved the disclosure of its contents as a violation of the incapacitated person’s right of privacy.
   
4. Notice to Commonwealth
   
  If the incapacitated person has been maintained in a state-owned institution, the guardian must give notice of appointment within ninety (90) days to the proper state official. See PEF Code §5525.
   
5. Expenditures from Estate
   
  The guardian may expend all of the income for the incapacitated person’s care and maintenance without Court approval. The guardian may also, with Court approval, expend income or principal for (i) the care, maintenance or education of the incapacitated person, his spouse, children or those for whom the incapacitated person was making such provision before incapacity, or (ii) the reasonable funeral expenses of the incapacitated person’s spouse, child or indigent parent. See PEF Code §5536. Generally, the Court will authorize principal expenditures of a recurring nature for a period of one (1) to three (3) years, at the end of which period another petition must be filed. Payment of counsel fees from principal, except in a nominal amount, requires Court approval. See Phila.O.C. Rule 14.2.D(1)(a) cf. 12.5.E(1)(a). Also, the Court may authorize the guardian to retain such assets as are deemed appropriate for the anticipated expenses of the incapacitated person’s funeral and burial lot, which assets shall be exempt from all claims including claims of the Commonwealth. See PEF Code §5537.

To obtain Court approval, the guardian should file a petition for allowance with the Clerk for submission to the Hearing Judge. The petition should include all of the information and averments set forth in Phila.O.C. Rule 14.2.D(1). See PEPH, Green Book, 8.5.
   
6. Estate Planning
   
  The Court, upon petition and with notice to all parties in interest and for good cause shown, shall have the power to substitute its own judgment in authorizing estate planning on behalf of the incapacitated person by such techniques as making gifts, creating trusts, purchasing securities, changing insurance beneficiaries, claiming an elective share of a deceased spouse’s estate and changing the incapacitated person’s residence and domicile. See PEF Code §5536(b); PEPH, Green Book, 8.8.
 

 


 
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