[30 Pa.B. 202]

[Continued from previous Web Page]

Rule 12.9.2.  Notice of Public Sale of Real Property.

   (a)  Public notice of any proposed sale under Order of Court shall be given by advertisement one (1) time in at least one newspaper of general circulation published in the County of Somerset and in the legal publication designated by these Rules, and shall be placed under a general heading as follows:

COURT OF COMMON PLEAS OF CARBON COUNTY
ORPHANS' COURT DIVISION
PUBLIC SALE OF REAL ESTATE

IN PURSUANCE OF AN ORDER OF THE ORPHANS' COURT DIVISION, THE REAL ESTATE INDICATED BELOW WILL BE OFFERED FOR SALE AT THE TIME AND PLACE STATED. THE TERMS AND CONDITIONS OF SALE ARE OF RECORD IN THE OFFICE OF THE CLERK OF THE ORPHANS' COURT AT THE CARBON COUNTY COURTHOUSE, JIM THORPE, PENNSYLVANIA, WHERE THEY MAY BE EXAMINED BY THE PARTIES INTERESTED.

   (b)  the advertisement shall give the name of the decedent, trust beneficiary, minor, or incapacitated person, the municipality in which he or she resided, the place in which lies the real estate to be offered for sale, an abridged description of the real estate (including, where possible, the street and house number, and block and lot number), the improvements thereon erected, the place, date, and time of sale, the name and title of the personal representative directed to make the sale, and the name of the attorney representing the fiduciary.

   (c)  At least ten (10) days written notice shall be given to all non-joining parties interested (1) as heirs, devisees, legatees, or lien holders, where the property to be sold is that of a decedents estate; or (2) as heirs and/or the next of kin, where the property to be sold is that of an incapacitated person; or (3) as beneficiaries, including life tenant and remaindermen, of the trust estate where the sale is to be by a trustee; or (4) as the parents or other person maintaining the minor where the property to be sold is that of a minor; or (5) as claimants.

The written notice herein provided for shall be by personal service or by any form of mail requiring a receipt signed by the person to be notified, mailed to the last known address of the person to be notified.

Rule 12.9.3.  Public Sale of Real Property. Return of Sale.

   All returns of sale of real estate sold at public sale shall be in writing and sworn to and shall include:

   (a)  proofs of publication of the notice required by Carbon Co. O.C.R. 12.9.2.(a);

   (b)  when and to whom written notice was given under Carbon Co. O.C.R. 12.9.2.(c); and

   (c)  the name of the purchaser and the purchase price.

Rule 12.9.4.  Public Sale of Real Property. Decree.

   Upon return of sale under Carbon Co. O.C.R. 12.9.3, the Court may enter a Decree of Confirmation Nisi and fix the amount of security or additional security which the personal representative, trustee, or guardian shall be required to enter or the Court may excuse the fiduciary from entering additional security; and the Decree of Confirmation Nisi so entered is FINAL unless exceptions are filed within ten (10) days of the date signed.

Rule 12.10.1.  Private Sale of Real Property.

   A petition of a fiduciary to sell real property at private sale shall also conform as closely as practicable to the requirements of Carbon Co. O.C.R. 12.9 with regard to a petition to sell real property at public sale by the same fiduciary and shall also be supported by the affidavits required under Pa.O.C. Rule 12.10(b).

Rule 12.10.2.  Private Sale of Real Property. Public Notice of Sale. Form of Notice.

   Public notice of any proposed private sale under Order of Court shall be given by advertisement one (1) time in at least one newspaper of general circulation published in the County of Carbon and in the legal publication designated by these Rules; unless excused by Order of Court, notice shall also be given by personal service or registered mail to the last known address of all nonjoining interested parties as specified in Carbon Co. O.C.R. 12.9.2(c); and shall be in the following form:

   COURT OF COMMON PLEAS OF CARBON COUNTY
   ORPHANS' COURT DIVISION
   PRIVATE SALE OF REAL ESTATE

   In the matter of the Estate of (deceased--a minor--incapacitated person). To the heirs, legatees, devisees, next of kin, and all other persons interested in said estate:

Notice is hereby given that __________ (personal representative--trustee--guardian) has filed in the office of the Clerk of the said Court a petition praying for an order of sale of the real estate of said (decedent--minor--incapacitated person) situate __________ at private sale to ______ for the sum of $ ______ for the purposes in the petition set forth. If no exceptions are riled thereto or objections are made to granting the same, the Court will be asked to take action upon the petition on the ______ day of ______ , ______ , at __ .m., in Courtroom No. ____ , the Carbon County Courthouse, Jim Thorpe, Pennsylvania.

_________________
Attorney for Petitioner

Rule 12.10.4.  Confirmation of Sale.

   If no exceptions are filed or objections made, the Court may enter a decree:

   (1)  fixing the amount of security or additional security which the personal representative, trustee, or guardian shall be required to enter or excusing the fiduciary from entering additional security; and

   (2)  confirming the sale absolutely effective immediately or as of the time the required security or additional security, if any, is approved and filed.

Rule 12.11.1.  Mortgage of Real Property.

   A petition to mortgage real property by a personal representative, trustee, or guardian shall conform as closely as practicable to the requirements of Carbon Co. O.C.R. 12.10.1 with regard to a petition to sell real property at private sale by the same fiduciary.

Rule 12.11.2.  Pledge, Lease, or Exchange of Real Property.

   The practice and procedure governing petitions by a personal representative, trustee, or guardian to pledge, lease, or exchange, or to grant an option for the pledge, lease, or exchange of property under the P.E.F. Code, shall be governed by Carbon Co. O.C.R. 12.10.1, governing the private sale of real property by such fiduciary.

Rule 12.12.1.  Inalienable Property. Public Sale.

   (a)  A petition to sell real property at public sale under Chapter 83 of the P.E.F. Code shall, in addition to other requirements of the statute and Supreme Court Orphans' Court Rules, set forth in separate paragraphs:

   (1)  How title was acquired, stating the date and place of probate of the Will or recording of the deed, as applicable;

   (2)  If presented by a guardian, the method, date and record of appointment, if any, or if none, identity of the petitioner stating the relationship of the petitioner to the person owning the property;

   (3)  A full description of the real property, its improvements, by whom it is occupied, its rental income, if any, and the liens and charges to which it is subject;

   (4)  The interest of the petitioner, if any;

   (5)  A recital and history of the trust, if any; the relevant provisions of the Will or deed pertaining to the real property to be sold; the interest of a minor, if any; and the names of other parties interested in the real estate and the nature of their interest;

   (6)  If for the benefit of a minor, the age of the minor, the names of the minor's next of kin and that notice has been given to them of the presentation of the petition;

   (7)  The names of all parties in interest, their addresses, the nature and extent of their interests, stating which, if any, are minors or incapacitated persons, and giving the names and record of appointment of their guardians, if any,

   (8)  That the purpose of the proceeding is to obtain a decree stating that the title transferred to the purchaser will be indefeasible by any person ascertained or unascertained, or by any class of persons mentioned in the petition or decree having a present or expectant interest in the premises, and unprejudiced by any error in the proceedings of the court;

   (9)  Sufficient facts to enable the court to determine whether the proposed sale will be to the interest and advantage of the parties, and whether the proposed sale may be made without prejudice to any trust, charity, or purpose for which the real property is held, and without violation of any laws which may confer an immunity or exemption from sale or alienation; and

   (10)  The names of any parties who do not voluntarily appear.

   (b)  The petitioner shall attach as exhibits the consents to the sale signed by those parties in interest who consent, and the notice which was given to those parties who do not consent or voluntarily appear.

   (c)  If all parties having an interest do not voluntarily appear as petitioners or respondents, petitioner shall request issuance of a rule to show cause directed to all parties who have not appeared.

   (d)  The practice and procedure with respect to notice, confirmation and entry of security shall conform to the appropriate provisions of the P.E.F. Code and Carbon Co. O.C.R. 12.9.2, 12.9.3 and 12.9.4.

Rule 12.12.3.  Inalienable Property. Private Sale.

   (a)  A petition to sell real property at private sale under Chapter 83 of the P.E.F. Code, shall set forth in separate paragraphs:

   (1)  The information required under Carbon Co. O.C.R. 12.12.1(a) and (b), to the extent applicable;

   (2)  The name and address of the proposed purchaser, the price to be paid; the terms of the proposed sale; and that the price offered is better than can be obtained at a public sale; and

   (3)  When the proposed sale is of an undivided interest, that the other parties in interest desire the sale to be made and are willing to join in the deed.

   (b)  In addition to the exhibits referred to in Carbon Co. O.C.R. 12.12.1(b), the petition shall have attached affidavits of two (2) real estate appraisers setting forth the information required by Pa.O.C.R. 12.10(b).

   (c)  If all parties having an interest do not voluntarily appear as petitioners or respondents, petitioners shall request issuance of a rule to show cause directed to all parties who have not appeared.

   (d)  The court, in the decree approving or confirming the sale, will fix the amount of security which the fiduciary shall be required to enter.

Rule 12.12.4.  Inalienable Property. Mortgage.

   (a)  Contents of Petition. A petition by a fiduciary to mortgage real property, under Chapter 83 of the P.E.F. Code, shall conform as closely as practicable to the requirements of Carbon Co. O.C.R. 12.9 with regard to a petition to sell real property at public sale by the same fiduciary; shall set forth the amount and terms of the proposed loan; and shall provide sufficient facts to enable the Court to determine whether the proposed loan should be approved.

   (b)  Exhibits. Security. The exhibits required by Carbon Co. O.C.R. 12.12.3.(b) shall be attached to the petition, with the proviso regarding consents, that if all parties having an interest do not voluntarily appear as petitioners or respondents, a rule to show cause will be granted directed to all parties who have not appeared, as provided by the P.E.F. Code. Security shall be fixed as provided by Rule 12.12.3(d).

RULE 14--GUARDIANSHIP OF INCAPACITATED PERSONS

Rule 14.1.  Form of Preliminary Decree.

   (a)  Form of Preliminary Decree. Each Petition for Adjudication of Incapacity shall have attached thereto a Preliminary Decree for Guardianship substantially in the following form:

IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION

IN RE:      ___________________________ ,                           No. _________________
An Alleged Incapacitated Person

PRELIMINARY DECREE FOR GUARDIANSHIP

   AND NOW, this ______ day of ______ , _____ , to judicially resolve Petitioner's request for the appointment of guardianship, the Court hereby:

   ORDERS and DECREES the following:

   1.  That a Hearing be held on the attached Petition on the ______ day of ______ , _____ , at __ .M. in Courtroom No. ____ , Carbon County Courthouse, Jim Thorpe, Pennsylvania.

   2.  The Court directs the issuance of an appropriate citation with Rule to Show Cause why the above-captioned individual should not be adjudged an Incapacitated Person and why the Court should not appoint appropriate guardians.

   3.  Petitioner shall request a guardianship of the following nature: a limited guardianship of the person, a plenary guardianship of the estate.

   4.  Petitioner shall cause to be served (by personal service) the Rule to show cause and Petition with attached Notice upon the alleged incapacitated person at least twenty (20) days prior to the Court hearing. The contents and terms of the Petition and the Notice shall be explained to the maximum extent possible language and terms the alleged incapacitated person is most likely to understand. An affidavit of service shall be filed before the hearing and offered as an exhibit at the beginning of the Court hearing.

   5.  At least 20 days notice of the Petition and Hearing shall be given by personal service or certified mail to all persons who are sui juris and would be entitled to share in the estate of the alleged incapacitated person's estate if he/she died intestate at the time of finding incompetency. Notice to possible interstate heirs in foreign nations shall be directed by special Order of Court upon petition of the petitioner. Copy of existing wills shall be provided to the court by petitioner and beneficiaries or devisee shall receive notice as hereinbefore provided.

   6.  Petitioner shall notify the Court, in writing, at least seven (7) days prior to the Court hearing if counsel has NOT been retained by or on behalf of the alleged incapacitated person. This notice shall also contain all pertinent information which indicates whether or not counsel should be appointed to represent the alleged incapacitated person.

   7.  The alleged incapacitated person shall be present at the Court hearing unless it is established that her physical or mental condition would be harmed by her presence, or it is impossible for her to be present because of her absence from the Commonwealth.

BY THE COURT:
___________________________

   (b)  Form of Rule to show cause. Every Petition for Adjudication of Incompetency shall have attached to the Preliminary Decree provided in subsection (a) of this rule a Rule to Show Cause or Citation in the form prescribed by Pa.O.C.R. No. 14.5.

Rule 14.2.  Testimony Regarding Incapacity or Incompetency, Deposition.

   Expert testimony regarding incapacity or incompetency may be presented by deposition in the following form:

IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION

IN RE:	_________________	:
		:	NO. _________________
	An Alleged	:
	Incapacitated Person	:

DEPOSITION BY INDIVIDUAL QUALIFIED IN EVALUATION OF INCAPACITATED PERSON

   The deposition of _________________ , a witness in this matter, on the ______ day of _________________ , at _________________ , Pennsylvania.

1.  What is your name and your professional address?

   A.  My name is _________________ ; my professional address is __________
_______________________________________________ .

2.  Please describe your education, training, and background with particular emphasis on your expertise in evaluating individuals with incapacities. If you prefer to do so, please attach a curriculum vitae to those interrogatories that details this information.

   A.  (Cross out that answer that does not apply.)

      (a)  My curriculum vitae detailing this information is attached or

      (b)  I received my college degree at ______ and my post graduate training at ______ , and I have practiced ______ (e.g. medicine, psychiatry, psychology, gerontological social work etc.) since 19 ______ . My special qualifications and training with respect to evaluating persons with incapacities consist of __________
 
__________
_____________________________________ .

3.  In what states are you licensed to practice medicine?

   A.  I am licensed to practice medicine in the following states: __________

4.  In your capacity as (e.g. physician, psychologist, social worker, etc.) have you had the opportunity to meet with, examine, speak with and otherwise become acquainted with _________________ (name) and if so, upon what occasions and in what fashion have you been able to do so?

   A.  I first became acquainted with _________________ (name) the month of ______ , ______ , when she/he was brought to my attention by means of ______ . I have since that time (visited/spoken with/examined/treated) her/him on ______ other occasions with an average frequency of ______ times per ______ day/week/month/year.

5.  To a reasonable degree of medical certainty, do you have an opinion as to whether the ability of ______ (name) to receive and evaluate information effectively and to communicate decisions is in any way impaired to such significant extent that she/he is:

         (a)  partially unable to manage her/his financial resources,

               or

         (b)  totally unable to manage her/his financial resources.

   A.  __________

6.  To a reasonable degree of medical certainty, do you have an opinion as to whether the ability of ______ (name) to receive and evaluate information effectively and to communicate decisions is in any way impaired to such significant extent that she/he is:

         (a)  partially unable to meet essential requirements for her/his physical health and safety, or

         (b)  totally unable to meet essential requirements for her/his physical health and safety?

   A.  __________

7.  Please describe the type and severity of any impairments of ______(name) are as follows:

	--Check one--
Impairment	None	Mild	Moderate	Severe
a)	[   ]	[   ]	[   ]	[   ]
b)	[   ]	[   ]	[   ]	[   ]
c)	[   ]	[   ]	[   ]	[   ]
d)	[   ]	[   ]	[   ]	[   ]
e)	[   ]	[   ]	[   ]	[   ]
f)	[   ]	[   ]	[   ]	[   ]
g)	[   ]	[   ]	[   ]	[   ]
h)	[   ]	[   ]	[   ]	[   ]

8.  To a reasonable degree of medical certainty, can you express an opinion as to whether ______ (name) is partially or totally unable to manage her/his financial resources?

   A.  The ability of ______ (name) to manage her/his financial resources is impaired (not at all, partially, totally) as follows:
 
__________
 
__________
_______________________________________________ .

9.  To a reasonable degree of medical certainty, can you express an opinion as to whether ______ (name) is able to meet essential requirements for her/his physical health and safety?

   A.  The ability of ______ (name) to meet essential requirements for her/his physical health and safety is impaired (not all, partially, totally) as follows:
 
__________
 
__________
_______________________________________________ .

10. Can you please evaluate the present condition of ______ (name) with respect to incapacities of the type alleged in the Petition. In particular, could you please comment on the nature and extent of the alleged incapacities and disabilities and also, insofar as you are able, the mental, emotional and physical condition of ______ (name), her/his adaptive behavior, and her/his social skills?

   A.   Based upon my education, training and experience, as well as my acquaintance with ______ (name) as stated above, it is my opinion that her/his incapacities and disabilities are
 
__________
_____________________________________ Her/His mental condition is:
 
__________
Her/His emotional and physical condition are:
_______________________________________________ .

11.  Is the condition of ______ (name) such as would make her/him susceptible to being taken advantage of by unscrupulous or designing persons?

   A.  Her/His adaptive behavior is __________
 
__________

   B.  Her/His social skills are __________
 
__________

12.  What recommendations would you make concerning services necessary to meet the essential requirements for the physical health and safety of ______ (name).

   A.  I would recommend that her/his physical health and safety be protected by __________
 
__________
 
__________
_______________________________________________ .

13.  What recommendations would you make concerning management of the financial resources of ______ (name)?

   A.  I would recommend __________
 
__________

14.  What recommendations would you make concerning the development or regaining of physical or mental abilities of ______ (name)?

   A.  I would recommend the following __________ 
__________

15.  What types of assistance do you think are required by ______ (name)?

   A.  I believe she/he needs assistance with __________ 
__________

16.  Why is it that no less restrictive alternatives would be appropriate?

   A.  Less restrictive alternatives would not be appropriate because __________
 
__________

17.  What is the probability that the extent of incapacities of ______ (name) may significantly lessen or change?

   A.  In my judgment, and based upon my training, experience and acquaintance with ______ (name) I believe the probability that her/his incapacities may significantly lessen or change is: __________
 
__________
 
__________

18.  Would the physical or mental condition of ______ (name) be harmed by her/his presence in open Court?

   A.  I believe that the presence of ______(name) in open Court would (not) be harmful to her/him because __________
 
__________
 
__________
NOTE: Pennsylvania law (20 Pa.C.S. § 5511(a)(1) requires that the alleged incapacitated person must be present at the hearing unless a physician or licensed psychologist provides by testimony or statement, an opinion that her/his physical or mental condition would be harmed by her/his presence.

VERIFICATION

   I, ___________________________ verify that the statements made in the foregoing Deposition are true and correct to the best of my knowledge, information and belief. I understand that the statements herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities.

Dated: _________________	___________________________
Signature of Deponent

Rule 14.3.  Accounts of Guardians.

   On or before the first day of March of each year, every guardian of the estate of an incapacitated or incompetent person shall file with the Clerk of the Orphans' Court an account of such guardian's administration of the estate during the preceding calendar year, said account to be substantially in the following form:

IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION

IN RE: _________________

:

NO. _________________

PERIODIC REPORT
FROM ______ , ______ TO ______ , ______
OF THE GUARDIAN OF THE ESTATE

1)  I am the limited/plenary (circle one) guardian of the estate of my ward, named above, and my address, including zip code, is:
 
__________
My telephone number at work is (      ) _________________ and my telephone number at home is (      ) _________________ .

2)  I was appointed guardian by Order of Court dated ______ which was/was not (circle one) modified by Court Order(s) dated ______ .

3)  My initial Inventory was filed on ______ and listed a total estate value of $ ______
The Inventory listed a total monthly income of $ ______ comprised of the following:
 
__________
 
__________
 
__________

4)  At the beginning date of this reporting period, my initial balance on hand was $ ______ .

5)  During this reporting period, the following reflects all sources of income (other than social security) received by me for my ward: (Add additional pages if needed)

	Date Received	Source of Income	Amount
1.	______	_________________	______
2.	______	_________________	______
3.	______	_________________	______
4.	______	_________________	______
5.	______	_________________	______
6.	______	_________________	______

               TOTAL--______

6)  During this reporting period, the following reflects all payments I have made for my ward: (Add additional pages if needed):

	Date	To Whom Paid	Reason for Payment	Amount
1.	______	_________________	_________________	______
2.	______	_________________	_________________	______
3.	______	_________________	_________________	______
4.	______	_________________	_________________	______
5.	______	_________________	_________________	______
6.	______	_________________	_________________	______
			TOTAL--	______

7)  The present principal assets of my ward are:

	Description of Asset	Present Value
1.	___________________________	_________________
2.	___________________________	_________________
3.	___________________________	_________________
4.	___________________________	_________________
5.	___________________________	_________________
6.	___________________________	_________________

8)  The present amount and sources of income for my ward are:

	Source of Income	Amount of Income
	(Indicate whether monthly, quarterly, annually)
1.	_______________________________________________
_______________________________________________
2.	_______________________________________________
_______________________________________________
3.	_______________________________________________
_______________________________________________
4.	_______________________________________________
_______________________________________________
5.	_______________________________________________
_______________________________________________
6.	_______________________________________________
_______________________________________________

9)  The regular monthly expenses of my ward which I pay are:

	To Whom Paid	Amount
	(annually)
1.	_______________________________________________
2.	_______________________________________________
3.	_______________________________________________
4.	_______________________________________________
5.	_______________________________________________
6.	_______________________________________________

10)  I have/have not (circle one) petitioned the Court for permission to invade principal to meet the needs of my ward.
(If applicable) The following expenses of my ward have been paid from principal:

	To Whom Paid	Purpose	Amount
1.	_________________	_________________	______
2.	_________________	_________________	______
3.	_________________	_________________	______
4.	_________________	_________________	______
5.	_________________	_________________	______
6.	_________________	_________________	______

11)  I have/have not (circle one) paid myself compensation for services I rendered as guardian.

       The amount I paid myself totaled $ ______ and was calculated at the following rate: $ ______ per week/month (circle one).

12)  Circle the correct response and complete, if appropriate.

       There will be no need for extraordinary expenditures on behalf of my ward in the next twelve (12) months.

or

       There will be a need for extraordinary expenditures on behalf of my ward in the next twelve (12) months because:
 
__________ 
__________ 
__________ 
__________ 
__________

13)  Circle the correct response and complete, if appropriate.
A.  My ward receives monthly social security benefits directly.
B.  I am the designated payee to receive my ward's social security benefits.
C.  The designated payee of my ward's social security benefits is __________
 
__________whose address is __________
 
__________and is/is not (circle one) related to my ward as _________________ (insert relationship).

I certify under the penalties of perjury that the information contained in this report is true and correct to the best of my knowledge, information and belief. I further certify that I have sent a copy of this report to all those parties in interest listed in the original Petition to declare my ward incapacitated and that I have added a notice to those parties in the form below.

Date: _________________	_________________
	Signature of Guardian

N O T I C E

Enclosed is a copy of my periodic Report as Guardian of the Estate. If you have any questions regarding this report, please contact me. If you have any Objections to it, you are advised to prepare your Objections, in writing, make reference to the name of the incapacitated person and the court file number, and, within thirty (30) days of receiving this Notice, mail or deliver the Objections to me at the address listed in my Report and to the

Orphans' Court Auditor
Office of the Register of Wills
County Courthouse
Jim Thorpe, PA 18229

___________________________
Guardian of the Estate

[Continued on next Web Page]

---

No part of the information on this site may be reproduced for profit or sold for profit.

This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.

---