Order Rescinding and Replacing Rules 14.1 Through 14.5 and Forms G-01 Through G-04, and Amending Rules 1.5, 5.10 Through 5.12 and Index to Appendix of PA Orphans' Court Rules ( 2018 )

Orphans’ Court Procedural Rules Committee Report
Amendment of Pa. O.C. Rules 1.5 & 5.10-5.12; Rescission of Pa. O.C. Rules 14.1-
14.5 and Orphans’ Court Forms G-01 through G-04; Adoption of New Pa. O.C.
Rules 14.1-14.14 and Orphans’ Court Forms G-01 through G-07; and Amendment
of the Index to the Appendix
On June 1, 2018, the Supreme Court of Pennsylvania adopted a comprehensive
rewrite of the Pennsylvania Orphans’ Court Rules related to guardianship proceedings
pursuant to Title 20, Chapters 55 and 59. The rules were previously published for
comment at 47 Pa.B. 5930 (September 23, 2017); 47 Pa.B. 4815 (August 19, 2017);
and 46 Pa.B. 7934 (December 17, 2016).
Contained within this Report is the Orphans’ Court Procedural Rules
Committee’s commentary related to the new rules. Please note that the Court does not
adopt the Committee’s commentary.
Rule 1.5 Local Rules
Through amendment of Rule 1.5 and operation of Order, No. 771 Supreme Court
Rules Docket (June 1, 2018), all previously promulgated local rules concerning
guardianship proceedings are vacated, effective June 1, 2019. For a local guardianship
rule of procedure to be effective on June 1, 2019, it must be deemed necessary by the
judicial district in light of the new statewide rules and be submitted to the Orphans’
Court Procedural Rules Committee no later than December 1, 2018. This deadline is
calculated to afford the Committee sufficient time to review the local rules, respond to
the judicial district, and permit publication in the Pennsylvania Bulletin pursuant to
Pa.R.J.A. No. 103(d). Submissions after December 1, 2018 will be accepted; however,
the Committee may not be able to give late submissions sufficient priority to clear the
review process before June 1, 2019. The effective date of the new local rules and new
Chapter IV rules should coincide, i.e., June 1, 2019.
Rules 5.10-5.12 Transactions Related to Real Property
Cross-references to Rule 14.10 were added to the Notes when the transaction
involves the real property of an incapacitated person.
Rule 14.1 Guardianship Petition Practice and Pleading
A number of comments inquired as to the extent that the requirements in Chapter
III of the Pennsylvania Orphans’ Court Rules concerning petition practice and pleading
requirements would apply to guardianship proceedings. Rule 14.1 was crafted to place
different requirements on petitions for the adjudication of incapacity and appointment of
a guardian on one hand and all other petitions on the other hand. Paragraph (a)
incorporated by reference and applied specific aspects of Chapter III to petitions for
adjudication and appointment. Paragraph (b) provided for the filing of responsive
pleadings in these proceedings, but does so on a limited basis and subject to a shorter
time frame than Chapter III. While the Committee did not believe that such pleadings
were going to be used frequently, a procedural mechanism should exist for contested
guardianship proceedings.
It should be noted that responsive pleadings under paragraph (b) are permissive
and not required – there are no “default judgments” with respect to the adjudication of
incapacity. Further, the paragraph was not intended to preclude the judge from hearing
objections first raised at the adjudicatory hearing. Finally, the judge was to decide the
objections at the adjudicatory hearing rather than delaying that hearing with another to
determine objections.
For all other petitions, paragraph (c) operates to apply the Chapter III
requirements to those pleadings, subject to the modification of “interested party.” The
Committee recognizes that Chapter III imposes more formal requirements on what were
often informal proceedings. However, the provisions of Chapter III were designed to
afford due process to all involved, and the Committee believes that petition practice in
guardianship matters required no less protection. As observed in the Explanatory
Comment, the requirements were not intended to preclude a petitioner from seeking
relief on an emergency or expedited basis when circumstances warrant departure from
strict adherence to the Chapter III requirements.
Paragraph (d) was intended to provide a procedure for a person to seek
permission to intervene in a proceeding. This mechanism was crafted as recognition
that those entitled to service pursuant to Rule 14.2(f) may not include all potentially
aggrieved parties, e.g., business partner, fiancé, best friend.
Rule 14.2 Petition for Adjudication of Incapacity and Appointment of a Guardian
of the Person or Estate of an Incapacitated Person
The required content of a petition set forth in the rule was intended to include
those requisites set forth in 20 Pa.C.S. § 5511(c) as well as information to assist the
court in determining capacity, the need for a guardian, the appointment of a guardian for
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the estate and/or the person, and the scope of a guardianship, as the case may be. An
additional requirement was the identification of any person or persons who are to
receive notice of the filing of reports.
Concerning persons who should be identified in and served with the petition, the
Committee studied the interplay of Chapters 54, 55, 56, and 58 of Title 20. When a
person has nominated a guardian in an instrument or there is a surrogate decision
maker, it opens a number of residual issues. First, if a principal nominates a guardian
pursuant to a power of attorney, a health care power of attorney, an advance health
care directive (which is a combination of a living will and a health care power of
attorney), a mental health care declaration, or mental health power of attorney, then the
court must appoint that person as guardian except for good cause or disqualification.
See 20 Pa.C.S. § 5604(c)(2) (power of attorney); 20 Pa.C.S. § 5460(b) (health care
power of attorney); 20 Pa.C.S. § 5422 (defining “advance health care directive”); 20
Pa.C.S. § 5823 (mental health declaration); 20 Pa.C.S. § 5841(c) (mental health power
of attorney); see also Pa. O.C. Rule 14.6(b). Moreover, the court must determine the
extent to which an agent’s authority to act remains in effect under a power of attorney or
a health care power of attorney. See 20 Pa.C.S. § 5604(c)(3); 20 Pa.C.S. § 5460(a);
see also Pa. O.C. Rule 14.7(a)(1)(ii). Notably, if a principal who has executed a mental
health power of attorney is later adjudicated an incapacitated person, the mental health
power of attorney shall remain in effect. 20 Pa.C.S. § 5841(b)(1).
Second, in addition to the above-agents, there may be surrogate decision
makers pursuant to a living will or by operation of law. See 20 Pa.C.S. § 5447 (a living
will can contain a designation of a health care agent if the principal is incompetent and
has an end-stage medical condition or is permanently unconscious); 20 Pa.C.S. § 5461
(a health care representative can make decisions for an incompetent person if the
person does not have a health care power of attorney or a guardian has not been
appointed for the person). These surrogate decision makers have an interest in the
proceeding because the powers they currently exercise will be affected by a
guardianship.
Therefore, the rules require that all these agents should be first identified in the
petition pursuant to Rule 14.2(a)(6)-(a)(8). Rather than reference the myriad statutes by
individual citation, the rule text references the applicable Chapter in Title 20. To the
extent that writings exist related to the agent’s authority, the writings are to be appended
to the petition pursuant to Rule 14.2(c)(1). Further, these agents are to be served with
the petition pursuant to Rule 14.2(f)(2)(iii).
Rule 14.2(a)(16) is intended to identify in the petition who should receive notice
of the filing of the inventory and reports. This is a new statewide procedure. The
court’s order adjudicating incapacity and appointing a guardian is required to contain
those entitled to receive notice of the filing of those reports. See Pa. O.C. Rule
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14.7(a)(1)(iv). The notice of filing is required to be served on those entitled to receive
notice after a report is filed. See Pa. O.C. Rule 14.8(b). The form of the notice of filing
is set forth in Form G-07. A person entitled to receive the notice of filing may then
access and view the report filed by presenting the notice to the clerk of the orphans’
court.
Paragraph (b)(1) requires the petitioner to identify those individuals who will have
direct responsibility for the alleged incapacitated person if the proposed guardian is an
entity. This paragraph also requires the principal of the entity to be identified.
Designating those persons having direct responsibility may be challenging at this stage
in a guardianship proceeding, but doing so is necessary for the purpose of the criminal
record check requirement. For those entities using a team approach or rotating
assignments, identification of all likely individuals will be necessary.
Paragraph (b)(4) requires the petition to include whether the proposed guardian
has completed any guardianship training. Paragraph (b)(5) requires disclosure of
whether the proposed guardian is certified and any disciplinary history related to the
certification. Paragraph (b)(6) requires the petitioner to include the current caseload for
the guardian. Such information will assist the judge in the guardian selection process.
Rule 14.2(f)(2)(i) was revised post-publication to specifically limit service to only
sui juris intestate heirs rather than both sui juris and non-sui juris heirs. This aligns the
rule more closely with the statute. See 20 Pa.C.S. § 5511(a).
Rule 14.3 Alternative Proof of Incapacity: Expert Report in Lieu of In-Person or
Deposition Testimony of Expert
In 2015, the Committee published for comment the Task Force’s proposed form
entitled “Deposition by Written Interrogatories of Physician or Licensed Psychologist” as
part of a larger package of forms. See 45 Pa.B. 1070 (March 7, 2015). In 2016, the
Committee published proposed new Rule 14.6 and a revised form for comment. See 46
Pa.B. 2306 (May 7, 2016). Retitled “written deposition,” the proposed form was
intended to be completed by the evaluator and reflect the evaluator’s assessment of the
capacity of the alleged incapacitated person. See also 20 Pa.C.S. § 5518. After
considering additional feedback, the Committee further refined the report and form,
which were republished for comment. See 47 Pa.B. 5930 (September 23, 2017).
Rule 14.4 Counsel
This rule was crafted to establish the scope of counsel’s services before
commencement of the proceedings in order to avoid confusion about the role of
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counsel. While the rule requires private counsel to set forth information regarding fees
in the engagement letter, the reasonableness of all fees incurred on behalf of the
alleged incapacitated person, whether attributed to private counsel or appointed
counsel, are subject to court review.
Paragraph (a) incorporates the statutory requirement that the petitioner inform
the court seven days prior to the adjudicatory hearing whether the alleged incapacitated
person has counsel. See 20 Pa.C.S. § 5511(a). Relatedly, the paragraph contains a
requirement that the petitioner notify the court if the alleged incapacitated person
requested counsel and one has not yet been retained.
Paragraphs (b)-(d) are intended to memorialize the scope of counsel’s services
before commencement of the proceedings in order to avoid confusion about the role of
counsel. Paragraph (b) also requires private counsel to set forth information regarding
fees in the engagement letter.
Rule 14.5 Waiver or Modification of Bond
This rule is not intended to encourage waiver or modification of bonds. Rather, it
is intended to establish a procedure and standard for waiver and modification.
Paragraph (b) permits the waiver or modification for good cause. Examples of “good
cause” are contained in the Explanatory Comment. Paragraph (c) requires the court to
consider the necessity and means of how “good cause” can be demonstrated in the
future to provide assurance that “good cause” continues to exist.
Rule 14.6 Determination of Incapacity and Selection of Guardian
In paragraph (b), the Committee opted to incorporate by reference the statutory
procedures for determining incapacity and appointing a guardian. Within 20 Pa.C.S. §
5511 there are other provisions that also could be replicated within the rules, such as
closed hearings, jury trial, and the authority of the court to order an independent
evaluation. Likewise, 20 Pa.C.S. § 5512.1 sets forth required findings to be made by
the court regarding incapacity and the need for a guardianship. Yet, the Committee
believed that the rules and Chapter 55 of Title 20 should be read in pari materia with
each supplementing the other as to procedure. The Note to paragraph (a) contains
reference to In re Peery, 727 A.2d 539 (Pa. 1999), as a reminder that a guardian is not
required if the person, albeit lacking capacity, does not need guardianship services.
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Rule 14.7 Order and Certificate
Rule 14.7 was created to set forth topics that all orders must address, see
paragraph (a)(1), and language that all orders must contain, see paragraph (a)(2); 20
Pa.C.S. § 5512.1(h) (“At the conclusion of a proceeding in which the person has been
adjudicated incapacitated, the court shall assure that the person is informed of his right
to appeal and to petition to modify or terminate the guardianship.”). Regarding
guardianships of the estate, paragraph (b)(1) requires orders to address bonding
requirements and the authority of the guardian to spend principal without prior court
approval. Paragraph (b)(2) requires all orders for guardian of the estate to contain
language substantially in the form provided. The model language in paragraph (b)(2) is
intended to address a recurring issue with financial institutions not readily permitting a
guardian to have access to the incapacitated person’s accounts or allowing the estate
guardian to conduct transactions on behalf of the incapacitated person. Given that a
financial institution may have branches in multiple counties, the Committee believed that
similar model language should be used in every order to provide for consistent
recognition and uniform effect.
Rule 14.8 Guardianship Reporting, Monitoring, Review, and Compliance
The requirement and timing of guardian reports and inventory required by
statutes are reflected in Rule 14.8(a). See 20 Pa.C.S. §§ 5142, 5521(b), (c), 5921(f)(2).
The forms to be used for reporting and inventory are set forth in the Appendix.
Paragraph (a)(4) requires the filing of a final report when an order of limited duration has
expired, which is intended to capture guardianships of finite duration pursuant to 20
Pa.C.S. § 5512.1(a)(5) (requiring the court to specify duration of guardianship), rather
than emergency guardianships that terminate as a matter of statute pursuant to 20
Pa.C.S. § 5513.
When a guardian has filed a reporting form or inventory form with the clerk, Rule
14.8(b) requires the guardian to serve notice of the filing on all persons entitled to
receive such notice, as identified in the court’s order. The notice of filing (Form G-07)
instructs the recipient that a copy of the notice along with proper identification will be
required to access and view the filed documents.
The Committee considered a request to include a reference to the “Guardianship
Tracking System” (GTS) in Rule 14.8. The GTS is an online system being developed
by the Administrative Office of Pennsylvania Courts that will provide the means for
guardians to file reports and update information online as opposed to the current paper
process. The GTS is intended to standardize reporting, prevent mistakes, and ensure
complete reports. It will store and carryover information from year-to-year, which is
intended to facilitate the filing of subsequent reports. Further, the GTS can track
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information and flag accounts when inputted data falls outside of established
parameters, which is intended to enhance guardianship monitoring. After the GTS is
implemented on a statewide basis, then the rules will be amended to reflect to the
availability of the system.
Rule 14.9 Review Hearing
Rule 14.9 permits the court to order a review hearing sua sponte or upon petition.
When a review request is initiated by petition, the petitioner must comply with the
requirements of paragraphs (b) and (c) relating to petition contents and service. Notice
of the hearing, whether ordered sua sponte or prompted by petition, should be served
on those who are or would be entitled to service of the guardianship petition.
Rule 14.10 Proceedings Relating to Real Property
Rule 14.10(a) is virtually identical to previous Pa. O.C. Rule 14.4. “Real estate”
was replaced with “real property” to make the Rule consistent with Rules 5.10-5.12.
Given the uniqueness, irreplaceability, and reliance that may be placed upon a sale,
exchange, lease, or option of same, as well as a mortgage, of real property, paragraph
(b) provides the means of bringing potential objections to the court’s attention at the
time of the petition.
Rule 14.11 Transfer of Guardianship of the Person to Another State
In 2012, the Uniform Adult Guardianship and Protective Proceedings Jurisdiction
Act, 20 Pa.C.S. §§ 5901-5992, was enacted to govern the interstate judicial
coordination of guardianships. Within the Act, Subchapter C provides for the transfer of
guardianships from and to Pennsylvania. Rule 14.11 is intended to establish procedural
rules implementing 20 Pa.C.S. § 5921 as it relates to guardianships of the person. Rule
14.12 is intended to establish similar rules for guardianships of the estate.
As indicated in the Explanatory Comment, a petition under Rule 14.11 relating to
the guardianship of the person may also include a transfer request as provided in Rule
14.12 relating to the guardianship of the estate. This ability to present both matters in
one petition was intended to eliminate the need to file multiple petitions. However, this
ability will not relieve the petitioner of pleading all the necessary facts required of each
specific petition.
Paragraph (a)(4) contains “likely” with the intention that likelihood may be
established by evidence of the other state having procedures similar to Rule 14.13
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(Acceptance of a Guardianship Transferred from Another State). Per the National
Conference of Commissioners on Uniform State Laws’ website, as of May 24, 2018,
Florida, Texas, Michigan, and Kansas were the only states that had not enacted
legislation based upon the Uniform Adult Guardianship and Protective Proceedings
Jurisdiction Act.
Rule 14.12 Transfer of Guardianship of the Estate to Another State
See the Committee’s remarks regarding Rule 14.11.
Rule 14.13 Acceptance of a Guardianship Transferred from Another State
Rule 14.13 is intended to provide a procedure for the transfer of a guardianship
from another state to Pennsylvania. This rule is intended to implement 20 Pa.C.S. §
5922. Paragraph (a)(3) was added to require the petition and order determining the
initial incapacity be attached. The Committee believed this was important information
for the receiving court to possess. Further, this information might be helpful in
determining whether a modification hearing may be necessary. Consistent with the
reporting requirements applicable to guardianships commenced within Pennsylvania, a
guardian of the transferred estate would be required to file an inventory within 90 days
of the final order.
Rule 14.14 Forms
There are nine statewide forms associated with this Chapter, two of which (OC-
03 and OC-04) are also associated with Pa. O.C. Rule 2.4 in Chapter II. Rule 14.14(f)
and (g) are intended to incorporate those forms by reference. Likewise, Forms OC-03
and OC-04 are not replicated within the Appendix to Chapter XIV; rather, they are
incorporated by reference. Those forms (OC-03 and OC-04), revised and re-
promulgated on September 1, 2016, are not being revised, rescinded, or replaced by
this recommendation.
The Citation with Notice form is largely the same content as the current form with
now 14-point font to address the requirement of “large type.” See 20 Pa.C.S. § 5511(a).
As with all forms, the “footer date” on the form will reflect the effective date as
established by Supreme Court order.
The Report of Guardian of the Estate (G-02), the Report of Guardian of the
Person (G-03), and the Guardian’s Inventory for an Incapacitated Person (G-05) forms
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were previously published for comment at 45 Pa.B. 1070 (March 7, 2015). The forms
were republished at 46 Pa.B. 7934 (December 17, 2016).
Presently, the “inventory form” is a dual use form - it is used for guardianships of
incapacitated persons and for guardianships of minors, 20 Pa.C.S. § 5142 (requiring
filing of an inventory for minors). The new “inventory form” was designed specifically for
guardianships of incapacitated persons under Chapter 55 and the Guardianship
Tracking System. To accommodate the continued use an “inventory form” for
guardianships of minors under Chapter 51, current Form G-04 is retitled and revised to
remove mention of incapacitated persons. Form G-05 will be the new “inventory form”
for incapacitated persons.
The Notice of Filing (G-06) was published for comment at 45 Pa.B. 1070 (March
7, 2015) and 46 Pa.B. 7934 (December 17, 2016). The most significant change to the
form, aside from formatting, was this re-designation from a “certificate of filing” to a
“notice of filing” to make it consistent with the existing Pennsylvania Orphans’ Court
Rules.
The Expert Report (G-07) was republished for comment. See 47 Pa.B. 5930
(September 23, 2017).
These forms will be posted permanently on the UJS website with the other
orphans’ court forms. See http://www.pacourts.us/forms/for-the-public/orphans-court-
forms. The index to the appendix containing the forms is amended to reflect the new
forms.
Effective Dates
There are two effective dates for these amendments with each having a different
critical path. The GTS will rely upon data required by the reporting forms (Report of
Guardian of the Estate (G-02), Report of Guardian of the Person (G-03), and the
Guardian’s Inventory for an Incapacitated Person (G-05)) being entered by users. To
facilitate implementation of the GTS, the reporting forms are effective July 1, 2018.
Additionally, the Guardian’s Inventory for a Minor (G-04) is amended to remove
reference to “incapacitated person.” This amendment is also effective July 1, 2018.
The second effective date is the implementation of the rules and remaining forms
(Citation with Notice (G-01), Notice of Filing (G-06), and Expert Report (G-07)), which
have a longer critical pathway based largely on the submission and review of local
rules. Accordingly, the effective date for the Rules and remaining forms is June 1,
2019.
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