THE COURTS
DELAWARE COUNTY
Orphans' Court Rule 14, No. 406-1997
[27 Pa.B. 3671]
Decree And Now, to wit, this 8th day of July, 1997, it is hereby Ordered and Decreed that this Court's Decree dated June 20, 1997 is hereby Vacated;
Further, it is hereby Ordered and Decreed that:
(1) Delaware County Orphans' Court Rules 14-2-1 and 14-2-2 are hereby Repealed effective July 1, 1997;
(2) Rules 14-2-1, 14-2-2, 14-2-3 and 14-2-4, as follows hereto, are approved and adopted, effective July 1, 1997; and
(3) The forms, set forth at the conclusion of these new Rules, designated ''Deposition By Individual Qualified in Evaluation of Incapacitated Persons'' shall be made available to practitioners by the Clerk of Orphans' Court.
By the Court
A. LEO SERENI,
President JudgeRULE 14-2-1. Testamentary Writings.
All testamentary writings of the incapacitated person found by the guardian or in the possession of any other person shall at the time of the filing of the inventory be submitted by the guardian or such other person to the court for its inspection, together with a photographic type copy to be retained by the judge for his private file.
Committee Comment: Neither the will nor a copy thereof nor any description of its provisions should be permitted to become part of a file available for public inspection. See Widener Estate, 437 Pa. 294 (1970).
RULE 14-2-2. Allowances from Incapacitated Person's Estates.
(a) Petitions. Petitions for allowances from an incapacitated person's estate or for the payment of counsel fees shall be governed by the appropriate provisions of Rule 12-5-4 and shall set forth:
(1) The name of the guardian, the date of his appointment; if the petitioner is not the guardian, his relationship to the incapacitated person, and, if not related, the nature of his interest.
(2) A summary of the inventory, the date it was filed, and the nature and present value of the estate.
(3) The address and the occupation, if any, of the incapacitated person.
(4) The names and addresses of the incapacitated person's dependents, if any.
(5) A statement of all claims of the incapacitated person's creditors known to petitioner.
(6) A statement of the requested distribution and the reasons therefor; a statement of all previous distributions allowed by the court.
(b) Notice to Veterans' Administration. If any portion of the incapacitated person's estate is received from the United States Veterans' Administration or its successor, notice of the request for allowance shall be given to this agency.
Note: The following Delaware County Orphans' Court Rule 14 with proposed changes appears with the applicable Supreme Court Orphans' Court Rules as they would appear in the printed version of the rules. The Supreme Court rules are denoted with decimals (14.1; 14.2) and the local rules with hyphen (14-2-1; 14-2-2). The proposed changes are ''highlighted'' in gray for identification purposes. Of course, the Delaware County Common Pleas Court has no authority to change the Supreme Court Rules and no changes are proposed. Please note that the local rule changes utilize the term ''incapacitated person'' as that term is utilized in the statute. The Supreme Court Rules continue to use the term ''incompetent''.
RULE 14-2-3. Certification.
In any petition filed pursuant to 20 Pa.C.S. § 5511, Counsel for petitioner shall file with the Clerk of Orphans' Court at least seven (7) days prior to the Hearing a Certification substantially in compliance with the form set forth in Rule 14-2-4 that provides the following information to the best of counsel's knowledge, information and belief:
1. Whether counsel has been retained by or on behalf of the alleged incapacitated person.
2. Whether the issue of capacity is or is not contested.
3. Whether the testimony on the issue of capacity shall be presented in one or more of the following manners:
a. Deposition by written interrogatory;
b. By videotape deposition;
c. Live testimony in court.
4. Whether the issue relating to the choice of guardian is contested.
5. Whether the alleged incapacitated person will or will not be present at the Hearing pursuant to 20 Pa.C.S. § 5511(a)1 and 2.
Note: Counsel is advised to carefully review the requirements of 20 Pa.C.S. § 5511 in completing the Certification required.
Committee Comment: In uncontested matters the medical or psychological testimony may be provided via verified depositon by written interrogatories. Forms of such written interrogatories approved by the court are available at the Office of the Clerk of Orphans' Court.
RULES 14-2-4. Compliance.
14-2-4 The requirements of Rule 14-2-3 shall be met by the filing of a Certification substantially in compliance with the following:
CAPTION
CERTIFICATIONThe undersigned, ______ , Counsel for the Petitioner in the above captioned matter, hereby certifies that:
1. Counsel has/has not been retained by or on behalf of the alleged incapacitated person.
2. The issue of capacity is/is not contested.
3. The testimony on the issue of capacity shall be presented in one or more of the following manners; as checked below:
a. (______) Deposition by written interrogatory;
b. (______) Videotape deposition;
c. (______) Live testimony in court.
4. The issue of the choice of guardian is/is not contested.
5. It is expected that the alleged incapacitated person will/will not be present at the Hearing in compliance with 20 Pa.C.S. § 5511(a)1 and 2.
I hereby certify that the foregoing statements are true and correct to the best of my knowledge, information and belief.
__________Attorney for Petitioner
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
IN RE: : AN ALLEGED INCAPAITATED PERSON : NO.
DEPOSITION BY INDIVIDUAL QUALIFIED IN EVALUATION OF INCAPACITATED PERSON The deposition of ______ , a witness in this matter, made on the ____ day of ______ , 19______ , 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 consists 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, (Name)
examine, speak with and otherwise become acquainted with __________and if so, upon what occasions and in what fashion have you been able to do so?(Name)
A. I first became acquainted with__________the month of ______ , 19______ , 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 (day/week/month/year)
frequency of ______times per___________________________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. __________
__________(name)
7. Please describe the type and severity of any impairments of_________________A. The 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?(name)
A. The ability of _________________ 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?(name)
A. The ability of _________________ to meet essential requirements for her/his physical health and safety is impaired (not at all, partially, totally) as follows:
__________
__________
__________(name)
10. Can you please evaluate the present condition of _________________ 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 _________________________________________________________ .(name)
11. Is the condition of _________________ such as would make her/him susceptible to be taken advantage of by unscrupulous or designing persons?A. Her/His adaptive behavior is_________________________________________________________ .
Her/His social skills are_________________________________________________________ .12. What recommendations would you make concerning services necessary to meet the essential requirements for the (name)
physical health and safety of _________________ .A. I would recommend that her/his physical health and safety be protected by__________
__________
__________(name)
13. What recommendations would you make concerning management of the financial resources of ______ ?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:__________
__________
__________(name)
15. What types of assistance do you think are required by _________________ ?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____________________
__________(name)
17. What is the probability that the extent of incapacities of _________________ 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:
__________
__________
__________(name)
18. Would the physical or mental condition of _________________ be harmed by her/his persence in open Court?(name)
A. I believe that the presence of _________________ 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
[Pa.B. Doc. No. 97-1179. Filed for public inspection July 25, 1997, 9:00 a.m.]
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