SB 506 — An Act amending Title 20 (Decedents, Estates and Fiduciaries) of the Pennsylvania Consolidated Statutes, in incapacitated persons, further providing for petition and hearing and independent evaluation, for determination of incapacity and appointment of guardian and for review hearing.

PRIOR PRINTER'S NO.

398 THEPRINTER'S GENERALNO. ASSEMBLY OF PENNSYLVANIA SENATE BILL Session of No.

506843 2023THE INTRODUCEDGENERAL BYASSEMBLY BAKER,OF HAYWOOD,PENNSYLVANIA KEARNEY,SENATE COLLETT,BILL KANE,Session SCHWANK, MILLER, BREWSTER, COSTA, COMITTA AND DILLON, MARCH 7, 2023 REFERRED TO JUDICIARY, MARCH 7, 2023 AN ACT Amending Title 20 (Decedents, Estates and Fiduciaries) of theNo. Pennsylvania Consolidated Statutes, in incapacitated persons, further providing for petition and hearing and independent evaluation and for determination of incapacity and appointment of guardian.

The506 General2023 AssemblyINTRODUCED BY BAKER, HAYWOOD, KEARNEY, COLLETT, KANE, SCHWANK, MILLER, BREWSTER, COSTA, COMITTA, DILLON AND SANTARSIERO, MARCH 7, 2023 SENATOR BAKER, JUDICIARY, AS AMENDED, JUNE 6, 2023 AN ACT Amending Title 20 (Decedents, Estates and Fiduciaries) of the CommonwealthPennsylvania Consolidated Statutes, in incapacitated persons, further providing for petition and hearing and independent evaluation and, for determination of Pennsylvaniaincapacity herebyand enacts<-- asappointment follows:of guardian AND FOR REVIEW HEARING.

<-- The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:

The alleged 20230SB0506PN039820230SB0506PN0843 - 2 - incapacitated person shall be present at the hearing unless:

Appointed counsel shall be qualified by experience or training and shall act without 20230SB0506PN039820230SB0506PN0843 - 3 - delay under the circumstances.

* * * (e) Petition contents.--The petition, which shall be in plain language, shall include the name, age, residence and post office address of the alleged incapacitated person, the names and addresses of the spouse, parents and presumptive adult heirs of the alleged incapacitated person, the name and address of the person or institution providing residential services to the alleged incapacitated person, the names and addresses of other service providers, the name and address of the person or entity whom petitioner asks to be appointed guardian, an averment that the proposed guardian has no interest adverse to the alleged incapacitated person, the reasons why guardianship is sought, a description of the functional limitations and physical and 20230SB0506PN039820230SB0506PN0843 - 4 - mental condition of the alleged incapacitated person, the steps taken to find less restrictive alternatives, the specific areas of incapacity over which it is requested that the guardian be assigned powers and the qualifications of the proposed guardian.

(2) An individual seeking guardianship of three or more incapacitated persons must be certified as provided in this paragraph and provide proof of the certification to the court 20230SB0506PN039820230SB0506PN0843 - 5 - prior to a third guardianship appointment.

(3) The certification required under paragraph (2) may be waived by a court upon a petition demonstrating that a proposed guardian has such equivalent licenses or certifications as are necessary to ensure that the proposed 20230SB0506PN039820230SB0506PN0843 - 6 - guardian is capable of fully, faithfully and competently performing the obligations of a guardian.

FOR PURPOSES OF <-- THIS PARAGRAPH, A LICENSE TO PRACTICE LAW SHALL NOT CONSTITUTE AN EQUIVALENT LICENSE OR CERTIFICATION.

<-- SECTION 2.

SECTIONS 5512.1(A) AND 5512.2 OF TITLE 20 ARE <-- AMENDED TO READ:

20230SB0506PN0843 - 7 - (iii) Health care powers of attorney.

20230SB0506PN0398 - 7 - (vii) Representative payees for individuals receiving Social Security benefits.

(iv) When entering an order denying a petition for guardianship in whole or in part, the court shall identify the less restrictive alternatives that are available and sufficient to enable the alleged incapacitated person to manage personal financial 20230SB0506PN0843 - 8 - resources or to meet essential requirements of personal physical health and safety.

An order may assist the respondent and any supportive and substitute decision makers involved to effectuate the respondent's decisions 20230SB0506PN0398 - 8 - with third parties.

* * * Section§ 3.5512.2.

REVIEW HEARING.

<-- (A) [TIME OF HEARING.--THE COURT MAY SET A DATE FOR A REVIEW HEARING IN ITS ORDER ESTABLISHING THE GUARDIANSHIP OR HOLD A REVIEW HEARING AT ANY TIME IT SHALL DIRECT.

THE COURT SHALL CONDUCT A REVIEW HEARING PROMPTLY IF THE INCAPACITATED PERSON, GUARDIAN OR ANY INTERESTED PARTY PETITIONS THE COURT FOR A HEARING FOR REASON OF A SIGNIFICANT CHANGE IN THE PERSON'S CAPACITY, A CHANGE IN THE NEED FOR GUARDIANSHIP SERVICES OR THE GUARDIAN'S FAILURE TO PERFORM HIS DUTIES IN ACCORDANCE WITH THE LAW OR TO ACT IN THE BEST INTEREST OF THE INCAPACITATED PERSON.

THE COURT MAY DISMISS A PETITION FOR REVIEW HEARING IF IT DETERMINES THAT THE PETITION IS FRIVOLOUS.] AUTOMATIC REVIEW.-- IF THE EVIDENCE PRESENTED DURING THE GUARDIANSHIP PROCEEDING INDICATES THAT THE CIRCUMSTANCES OF THE PERSON'S INCAPACITY MAY CHANGE, THE COURT SHALL HOLD A REVIEW HEARING TO DETERMINE WHETHER THE GUARDIANSHIP CONTINUES TO BE NECESSARY.

THE COURT SHALL SET THE DATE FOR A REVIEW HEARING UNDER THIS SUBSECTION IN THE COURT'S ORDER ESTABLISHING GUARDIANSHIP.

THE REVIEW HEARING UNDER THIS SUBSECTION SHALL BE HELD NO LATER THAN ONE YEAR FROM THE DATE OF THE ORDER ESTABLISHING THE GUARDIANSHIP.

THE HEARING SHALL BE CONDUCTED IN THE PRESENCE OF THE INCAPACITATED PERSON AND THE PERSON'S ATTORNEY, AND THE COURT SHALL ADHERE TO THE PROCEDURES AND STANDARDS AS OUTLINED IN SECTION 5512.1(A).

IF, FOLLOWING THE PRESENTATION OF EVIDENCE AND TESTIMONY FROM ALL 20230SB0506PN0843 - 9 - PARTIES, THE COURT FINDS THAT GUARDIANSHIP CONTINUES TO BE NECESSARY AND THAT NO LESS RESTRICTIVE ALTERNATIVES EXIST, THE COURT MAY ORDER THAT THE GUARDIANSHIP CONTINUE.

IF THE COURT FINDS THAT GUARDIANSHIP IS NO LONGER NECESSARY OR A LESS RESTRICTIVE ALTERNATIVE EXISTS, THE COURT SHALL DISCHARGE THE GUARDIANSHIP.

IN DETERMINING WHETHER THE CIRCUMSTANCES OF THE PERSON'S INCAPACITY MAY CHANGE, THE COURT MAY CONSIDER ANY OF THE FOLLOWING:

(1) WHETHER THE INCAPACITY COULD BE ADEQUATELY MANAGED BY MEDICATION, REHABILITATION OR OTHER MEANS;

(2) WHETHER THE POTENTIAL EXISTS FOR THE INCAPACITATED PERSON TO REGAIN PHYSICAL OR COGNITIVE CAPACITY;

(3) THE OPINION OF A MEDICAL PROFESSIONAL OR OTHER QUALIFIED EXPERT WHO HAS PERSONALLY EXAMINED THE INCAPACITATED PERSON;

(4) THE CIRCUMSTANCES OF THE INCAPACITATED PERSON'S DAILY LIVING, INCLUDING, BUT NOT LIMITED TO, SUPPORT FROM OTHERS;

AND (5) ANY OTHER FACTOR INDICATING THAT THE INCAPACITATED PERSON'S CONDITION COULD IMPROVE AT A FUTURE TIME.

(A.1) PETITION FOR REVIEW.--AT ANY TIME FOLLOWING THE ISSUANCE OF THE ORDER ESTABLISHING GUARDIANSHIP, ANY INTERESTED PERSON MAY FILE A PETITION WITH THE COURT TO TERMINATE OR MODIFY THE GUARDIANSHIP.

THE COURT SHALL PROMPTLY SCHEDULE A HEARING OR HOLD A REVIEW HEARING AT ANY TIME IT SHALL DIRECT.

THE HEARING SHALL BE HELD IN THE PRESENCE OF THE INCAPACITATED PERSON AND THE INCAPACITATED PERSON'S ATTORNEY, AND THE COURT SHALL ADHERE TO THE PROCEDURES AND STANDARDS AS OUTLINED IN SECTION 5512.1(A).

IF, FOLLOWING THE PRESENTATION OF EVIDENCE AND TESTIMONY FROM ALL PARTIES, THE COURT FINDS THAT GUARDIANSHIP 20230SB0506PN0843 - 10 - CONTINUES TO BE NECESSARY AND THAT NO LESS RESTRICTIVE ALTERNATIVES EXIST, THE COURT MAY ORDER THAT THE GUARDIANSHIP CONTINUE.

IF THE COURT FINDS THAT GUARDIANSHIP IS NO LONGER NECESSARY OR A LESS RESTRICTIVE ALTERNATIVE EXISTS, THE COURT SHALL DISCHARGE THE GUARDIANSHIP.

(B) BURDEN OF PROOF AND RIGHTS.--THE INCAPACITATED PERSON SHALL HAVE ALL OF THE RIGHTS ENUMERATED IN THIS CHAPTER.

EXCEPT WHEN THE HEARING IS HELD TO APPOINT A SUCCESSOR GUARDIAN, THE BURDEN OF PROOF, BY CLEAR AND CONVINCING EVIDENCE, SHALL BE ON THE PARTY ADVOCATING CONTINUATION OF GUARDIANSHIP OR EXPANSION OF AREAS OF INCAPACITY.