THE COURTS
Title 255—LOCAL COURT RULES
WESTMORELAND COUNTY
Guardianship Rules; No. 3 of 2019
[49 Pa.B. 3476]
[Saturday, July 6, 2019]
Administrative Order of Court
And Now, this 10th day of June, 2019, It Is Hereby Ordered that Westmoreland County Guardianship Rules WO14.1(c), WO14.3, WO14.6, WO14.10 and WO14.14 are hereby adopted. This change is effective 30 days after publication in the Pennsylvania Bulletin.
By the Court
RITA DONOVAN HATHAWAY,
President Judge
Rule WO14.1(c). Petition to Invade Principal Assets and Petition for Compromise of Claim (Incapacitated Persons).
(i) A Petition to Invade Principal Assets shall be presented to the court in all situations where the guardian intends to invade the principal assets of an incapacitated person. Such Petition to Invade Principal Assets shall contain, at minimum, the following averments of fact:
(1) Name, age and residence of the incapacitated person.
(2) A reference to the original date of the guardian's appointment.
(3) Whether the guardian is bonded and, if so, for what amount.
(4) An itemized listing of the assets of the incapacitated person.
(5) An itemized listing of the income and expenses of the incapacitated person.
(6) A listing of the names and addresses of all creditors, and the amount due each.
(7) The purpose for the proposed invasion of principal.
(8) Whether any prior Petitions to Invade Principal Assets have been presented.
(9) In those cases where the guardianship estate is expected to be insolvent, that the creditors of the incapacitated person have been notified of the presentation of the Petition to Invade Principal Assets.
(10) The maximum amount estimated to be needed per month or per year, and the time period during which such invasion will be necessary (e.g., $500.00 per month for the period January 1, 2019 through December 31, 2019).
(ii) A Petition for Compromise of Claim shall be presented to the court in all situations where the guardian proposes to compromise a claim by or against an incapacitated person. Such Petition for Compromise of Claim shall contain, at minimum, the following averments of fact:
(1) A reference to the original date of the guardian's appointment.
(2) Whether the guardian is bonded and, if so, for what amount.
(3) An itemized listing of the assets of the incapacitated person.
(4) An itemized listing of the income of the incapacitated person.
(5) A listing of the names and addresses of all creditors, and the amount due each.
(6) A concise description of the claim which is proposed to be compromised.
(7) Whether any prior Petitions for Compromise of Claim have been presented.
(8) That the next-of-kin of the incapacitated person have been notified of the presentation of the Petition for Compromise of Claim.
(9) In those cases where the guardianship estate is expected to be insolvent, that the creditors of the incapacitated person have been notified of the presentation of the Petition for Compromise of Claim.
Cross References: For subparagraph (i), see 20 Pa.C.S. § 5536(a), which permits the expenditure of income for the care and maintenance of an incapacitated person without the necessity of court approval, but which requires court authorization for the expenditure of principal.
For subparagraph (ii), see 20 Pa.C.S. § 5521(b), relating to the guardian's powers, duties and liabilities.
See Pa.R.C.P. No. 2051, et seq., for the settlement procedures applicable to actions commenced in the civil division.
Explanatory Comments: The time period for which an invasion of principal may be requested may generally not exceed 1 year.
Under 20 Pa.C.S. § 5536(a), court approval is required to use income for anyone other than the minor or incapacitated person. In such cases, a petition in essentially the same form as provided by this rule should be filed.
Subparagraph (a) adopted February 1, 1996, effective May 1, 1996. Rule WO503 Renumbered 2016, effective 2016. Rescinded and new rule adopted , 2019. Subparagraph (b) adopted February 1, 1996, effective May 1, 1996. Rule WO505 renumbered 2016, effective 2016. Rescinded and new rule adopted , 2019.
Rule WO14.3. Medical Testimony—Guardianships.
(a) It is presumed that the testimony of physicians, psychologists and other medical professionals may be taken in the courtroom by speaker telephone in all guardianship cases, unless objections are filed at least 10 days before the hearing.
(b) When an emergency guardianship petition is presented, the testimony of a physician or psychologist shall be taken in the courtroom by speaker telephone unless otherwise directed by order of court.
(c) All documents in a foreign language shall be translated into English. The translation shall be typed and a certificate of accurate translation shall be attached.
Cross References: See 20 Pa.C.S. § 5518 for provisions regarding testimony by qualified professionals. See 20 Pa.C.S. § 5513 regarding emergency guardianships.
Adopted February 1, 1996, effective May 1, 1996. Rule WO501 renumbered 2016, effective 2016. Rescinded and new rule adopted , 2019.
Rule WO14.6. Petition.
(a) In addition to the allegations required by statute or Supreme Court Rule, when the Petitioner has knowledge that the alleged incapacitated person is a fiduciary, the Petitioner shall indicate this to the Court by averment.
Cross References: See 20 Pa.C.S. § 5511(e) for current required allegations for petitions. See 20 Pa.C.S. § 5511(a) regarding the requirement of notice.
Adopted February 1, 1996, effective May 1, 1996. Rule WO501 amended and renumbered , 2016, effective 2016. Subparagraph (1) is taken from prior Rule WO19(a)(1). Subparagraph (2) is taken from prior Supreme Court Orphans' Court Rule 14.2(a)(5). Subparagraph (3) is taken from prior Supreme Court Orphans' Court Rule 14.2(a)(9). Rescinded and new rule adopted , 2019.
Rule WO14.10. Petition for Sale of Assets.
A Petition for Sale of Assets shall be presented to the court in all situations where the guardian intends to sell real or tangible personal property of an incapacitated person. Such Petition for Sale of Assets shall contain, at minimum, the following averments of fact:
(a) A reference to the original date of the guardian's appointment.
(b) Whether the guardian is bonded and, if so, for what amount.
(c) An itemized listing of the assets of the incapacitated person.
(d) An itemized listing of the income and expenses of the incapacitated person.
(e) The reason for the proposed sale and the proposed distribution of proceeds. If the property is real estate, (i) whether the property is expensive to maintain; (ii) whether the property is occupied and/or generating income; (iii) whether the guardian needs the proceeds for the care of the incapacitated person.
(f) If the purpose for the proposed sale is the payment of debts, a listing of the names of all creditors, and the amount due each.
(g) If the property is tangible personal property, one appraisal shall be attached. If the property is real estate, the petition shall be accompanied by a valuation of two appraisers not related to any of the parties, setting forth the fair market value of the property claimed. The appraisers shall state their profession and shall certify that by virtue of their profession, they are familiar with values of real estate in the vicinity of the subject property.
(h) If the property is the incapacitated person's residence,
(1) That the incapacitated person will not be returning to the property to live. (Indicate where the incapacitated person is currently living, i.e., nursing home, personal care home, etc.)
(2) If a private sale, that the price is greater than could be obtained at a public sale. If not, or if the price is less than the appraisal, indicate whether a commission is being charged.
(i) Notice of the presentation of the Petition for Sale of Assets shall be given to all next of kin of the incapacitated person, whose written consents to the sale are not attached.
(j) The proposed decree shall contain a provision regarding the posting of bond.
Cross References: See Rules 5.10 and 5.11 the Pa. O.C. Rules regarding sales of property. See the 1949 Official Comment to 20 Pa.C.S. § 5521, which discusses 20 Pa.C.S. §§ 5151 and 5155 and the concerns regarding the sale of property.
Adopted February 1, 1996, effective May 1, 1996. Rule WO504 amended and renumbered , 2016, effective 2016. Rescinded and new rule adopted , 2019.
Rule WO14.14. Forms.
(a) The Final Decree for Permanent/Limited Guardians and the Final Decree for Emergency Guardians shall be in the following form:
IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
* * *
| IN RE: Estate of _________________ | ) | |
| ) | No. 65 ______
|
| an Incapacitated Person | ) | |
* * *
FINAL DECREE
AND NOW, this ______ day of _________________ , 20 _____ , based upon the record and the evidence received, it is HEREBY ORDERED, ADJUDGED and DECREED as follows:
1. This Court finds by clear and convincing evidence that ___________________________ , is adjudicated a totally incapacitated person. The Court finds that _________________ suffers from _____________________________________ , a condition or disability which totally impairs his/her capacity to receive and evaluate information effectively and to make and communicate decisions concerning his/her management of financial affairs or to meet essential requirements for his/her physical health and safety.
2. The Court further finds by clear and convincing evidence that his/her ______ , ______ , is hereby appointed Plenary Permanent Guardian of the Person of ______ . The Guardian of the Person shall file an original report annually from the date of the Final Order on the social, medical and other relevant conditions with the Register of Wills office and this report shall comply with 20 Pa.C.S. Section 5521(C) and Pennsylvania Orphans' Court Rule 14.8(a)(3).
3. His/Her ______ , ___________________________ , is hereby appointed Plenary Permanent Guardian of the Estate of ______ . The Guardian of the Estate (shall) (shall not) be required to post bond in the amount of _________________ and shall file an Inventory within 90 days and shall file a report beginning one year from the date of the appointment of the guardian, and annually thereafter. The reports must be filed at the Register of Wills office and shall comply with 20 Pa.C.S. Section 5521(C) and Pennsylvania Orphans' Court Rules 14.8(a)(1) and 14.8(a)(2).
4. Neither the Guardian of the Person nor the Guardian of the Estate shall have authority to enter a safety deposit box in the name of _________________ , individually or jointly, without written Court authorization.
5. The Guardian of the Person shall have authority and responsibility to decide where ______ shall live and how meals, personal care, transportation and recreation will be provided. The Guardian of the Person shall also have authority to authorize and consent to medical treatment and surgical procedures necessary for the well-being of _________________ , except those powers and duties specifically excluded in 20 Pa.C.S. Section 5521(D).
6. The Guardian of the Estate shall have authority and responsibility to manage and use ______ 's property primarily for his/her benefit in accordance with 20 Pa.C.S. Section 5536(A). 20 Pa.C.S. Section 5536(A) authorizes the Guardian of the Estate to spend income for the aforesaid purposes without the Court's written approval; however, the Guardian of the Estate cannot spend principal assets without written Court approval.
7. All financial institutions, including without limitation, banks, savings and loans, credit unions, and brokerages, shall grant to the guardian of _________________ 's estate access to any and all assets, records, and accounts maintained for the benefit of _________________ , and the guardian of ______ 's estate shall be entitled to transfer, retitle, withdraw, or otherwise exercise dominion and control over any and all said assets, records, and accounts. The failure of any financial institution to honor this Order may lead to contempt proceedings and the imposition of sanctions.
8. The Guardian of the Person and the Guardian of the Estate shall perform his/her functions and exercise his/her authority so as to permit the incapacitated person as much daily activity and as much independence as circumstances will permit with safety.
9. The aforementioned judicial determinations have taken into consideration the matters required by 20 Pa.C.S. Section 5512.1. The Court's findings of fact and conclusions of law have been placed on the record at the evidentiary hearing.
10. _________________ is hereby notified of the right to seek reconsideration of this Order pursuant to Rule 8.2 and the right to appeal this Order within 30 days from the date of this Order by filing a Notice of Appeal with the Clerk of the Orphans' Court. _________________ may also petition the court at any time to review, modify, or terminate the guardianship due to a change in circumstances. _________________ has a right to be represented by an attorney to file a motion for reconsideration, an appeal, or to seek modification or termination of this guardianship. If the assistance of counsel is needed and _________________ cannot afford an attorney, an attorney will be appointed to represent _________________ free of charge.
BY THE COURT:
___________________________
Judge
ATTEST:
_________________
Clerk of the Orphans' Court
IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
* * *
| IN RE: Estate of _________________ | ) | |
| ) | No. 65 ______
|
| an Alleged Incapacitated Person | ) | |
* * *
FINAL DECREE FOR EMERGENCY GUARDIAN
AND NOW, this _____ day of ______ , 20 _____ , based upon the record and the evidence received, it is HEREBY ORDERED, ADJUDGED and DECREED:
1. This Court finds by clear and convincing evidence that _________________ 's ability to receive and evaluate information effectively is totally impaired because she/he suffers from _________________ .
2. _________________ 's ability to communicate decisions is totally impaired because of the aforementioned condition.
3. The alleged incapacitated person is in immediate need of an emergency guardian of the person and an emergency guardian of the estate.
4. Failure to make these requested appointments of emergency guardians will result in irreparable harm for reasons set forth on the record.
5. Because ( _________________ is presently confined in _________________ ) of the physical and mental condition of ___________________________ , it would be harmful for her/him to be present and her/his presence is excused. Her/His ______ , ______ , is hereby appointed emergency guardian of the person. The term of this appointment is 72 hours; however, the term of this appointment can be extended for an additional 20 days if the emergency continues beyond the initial 72 hours. (Based upon the evidence this Court has received, the Court finds that the emergency condition will continue beyond the initial 72 hours. Consequently, the authority granted to the emergency guardian of the person is hereby continued and extended for an additional 20 days beyond the initial 72 hours.)
6. The emergency guardian of the person shall have the authority and responsibility to decide where _________________ shall live and how meals, personal care, transportation and recreation will be provided. The emergency guardian of the person shall also have authority to authorize and consent to medical treatment and surgical procedures necessary for the well-being of _________________ , except those powers and duties specifically excluded in 20 Pa.C.S. Section 5521(D).
7. _________________ is hereby appointed emergency guardian of the estate. The term of this appointment is 30 days or when the emergency condition ceases to exist, whichever is shorter. The emergency guardian of the estate (shall) (shall not) be required to post bond in the amount of _________________ . The said emergency guardian of the estate shall have authority and responsibility to manage and use _________________ 's property, primarily for her/his benefit in accordance with 20 Pa.C.S. Section 5536(A). 20 Pa.C.S. Section 5536(A) authorizes the emergency guardian of the estate to spend income for the aforesaid purposes without the Court's written approval; however, the emergency guardian of the estate cannot spend principal assets without written Court approval.
8. All financial institutions, including without limitation, banks, savings and loans, credit unions, and brokerages, shall grant to the guardian of _________________ 's estate access to any and all assets, records, and accounts maintained for the benefit of ___________________________ , and the guardian of _________________ 's estate shall be entitled to transfer, retitle, withdraw, or otherwise exercise dominion and control over any and all said assets, records, and accounts. The failure of any financial institution to honor this Order may lead to contempt proceedings and the imposition of sanctions.
9. The aforementioned judicial determinations have taken into consideration the matters required by 20 Pa.C.S. Section 5512.1. The Court's findings of fact and conclusions of law have been placed on the record at the evidentiary hearing.
10. _________________ is hereby notified of the right to seek reconsideration of this Order pursuant to Rule 8.2 and the right to appeal this Order within 30 days from the date of this Order by filing a Notice of Appeal with the Clerk of the Orphans' Court. _________________ may also petition the court at any time to review, modify, or terminate the guardianship due to a change in circumstances. _________________ has a right to be represented by an attorney to file a motion for reconsideration, an appeal, or to seek modification or termination of this guardianship. If the assistance of counsel is needed and _________________ cannot afford an attorney, an attorney will be appointed to represent _________________ free of charge.
BY THE COURT:
___________________________
Judge
ATTEST:
_________________
Clerk of the Orphans' Court
New rule adopted , 2019.
[Pa.B. Doc. No. 19-1015. Filed for public inspection July 5, 2019, 9:00 a.m.]
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