1.
Incapacitated
Person” means an adult whose ability to
receive and evaluate information effectively and
communicate decisions in any way is impaired to such a significant extent that
he is partially or totally unable to manage his financial resources or to meet
essential requirements for his physical health and safety.
1. The court, upon petitioned hearing and
upon the
presentation of clear and convincing evidence, may find a person
domiciled in the Commonwealth to e incompetent and appoint a guardian or
guardians of his person or estate.
2. The
petitioner may be any person interested in the alleged incapacitated person’s
welfare.
3. Written
notice of the petition and hearing is to be given to the alleged incapacitated
person.
4. The
hearing is to be closed and with or without a jury if the person alleged to be
incapacitated or his counsel so requests.
5. If
the alleged incapacitated person is unable to pay for counsel or for the
evaluation, the court shall order the county to pay those costs.
6. The
court, upon its own motion or upon petition by the alleged incapacitated person
for cause shown, shall order an independent evaluation of the alleged
incapacitated person.
7. The
court may appoint as guardian any qualified individual, a corporate fiduciary,
a non-profit corporation, a guardianship support agency or a county agency.
8. The
court may not appoint a person or entity providing residential services for a
fee to the incapacitated person or any other person whose interests
conflict with those of the incapacitated person except where it is clearly
demonstrated that no guardianship support agency or other alternative exists.
9. Any
family relationship to such individual shall not by itself, be considered as an
interest adverse to the alleged incapacitated person.
10. If
appropriate, the court shall give preference to a nominee of the incapacitated
person.
1. The
guardian of the person or estate of an incapacitated person may be appointed by
the court of a county in which the incapacitated person is domiciled, is a
resident or is residing in a long-term care facility.
2. A
guardian of the estate within the Commonwealth of an incapacitated person domiciled
outside of the Commonwealth may be appointed by the court of the judicial
district having jurisdiction of a decedent’s estate or of a trust in which the
incapacitated person has an interest.
When the non-resident incapacitated person’s estate is derived otherwise
than from a decedent’s estate or a trust within the Commonwealth, a guardian
may be appointed by the court of any county where an asset of the incapacitated
person is located.
3. Exclusive
Of Appointment – When a court has appointed a guardian of the person or
estate of an incapacitated person, no other court shall appoint a similar
guardian for the incapacitated person within the Commonwealth.
1, In all cases the court shall consider and make specific
findings of fact concerning:
a.)
the nature of any condition or disability which impairs
the individual’s capacity to make and communicate decisions.
b.)
The extent of
the individual’s capacity to make and communicate decisions.
c.)
The need for
guardianship services, if any, in light of such factors as the availability of
family, friends and other supports to assist the individual in making decisions
and in light of the existence, if any, of advance directives such as durable
powers of attorney or trust.
d.)
The type of
guardian, limited or plenary, of the person or estate needed based on the
nature of any condition or disability and the capacity to make and communicate
decisions.
e.)
The duration of
the guardianship.
f.)
The court shall
prefer a limited guardianship.
1.
Limited
Guardian of the Person - Upon a finding that the person is partially
incapacitated and in need of guardianship services, the court shall enter an
order appointing a limited guardian of the person with powers consistent with
the court’s findings of limitations which may include:
a.)
general care, maintenance and custody of the incapacitated
person.
b.)
Designating the
place for the incapacitated person to live.
c.)
Assuring the
incapacitated person receives such training, education, medical and
psychological services and social and vocational opportunities as appropriate.
d.)
Providing
required consents or approvals on behalf of the incapacitated person.
2.
Plenary
Guardian of the Person – The court
may appoint a
plenary
guardian of the person only upon a finding that the person is totally
incapacitated and in need of a plenary guardianship service.
3.
Limited
Guardian of the Estate - Upon a finding that the person
is
partially incapacitated and in need of guardianship services, the court shall
enter an order appointing a limited guardian of the estate with powers
consistent with the court’s findings of limitation.
4.
Plenary
Guardian of the Estate - A court may appoint a plenary
guardian
of the estate only upon a finding that the person is totally incapacitated and
in need of plenary guardianship services.
6. Legal Rights Retained – Except in
those areas designated by court order as areas over which the limited guardian
has power, a partially incapacitated person shall retain all legal rights.
1. The court upon petition and a hearing at which clear
and convincing evidence is shown, may appoint an emergency guardian or guardians of the person or estate of a person alleged to be incapacitated when it appears that the person lacks capacity, is in need of a guardian and a failure to make such appointment will result in irreparably harm to the person or estate of the alleged incapacitated person.
2. After expiration of the emergency order or any
extension,
a full guardianship proceeding must be initiated.
1. The
court upon petition and a hearing at which clear and
convincing
evidence is shown, may appoint an emergency guardian or guardians of the person
or estate of a person alleged to be incapacitated when it appears that the
person lacks capacity, is in need of a guardian and a failure to make such
appointment will result in irreparably harm to the person or estate of the
alleged incapacitated person.
2. After expiration of the emergency order
or any extension, a full guardianship proceeding must be initiated.
1. The court, in its discretion may upon the application of any
party in interest, in addition to any bond required for the incapacitated person’s individual estate, may require a separate bond in the name of the Commonwealth with sufficient surety in such amount as the court shall consider necessary for the protection of the parties in interest.
1. Duty of Guardian of the Person – it shall be the duty of the guardian of the person to assert their rights and thus interests of the incapacitated person.
2. Expressed wishes and preferences of the incapacitated person shall be respected to the greatest possible extend.
3. Duty of Guardian of the Estate – The provisions concerning the powers, duties and liabilities of guardians of incapacitated persons’ estates shall be the same as those set forth for personal representatives of decedents’ estates and guardians of minors’ estates.
1. Each guardian of an incapacitated person shall file with the
court appointing him a report at least once within the first twelve (12) months of his appointment and at least annually thereafter attesting to the following:
a.) current principal and how it is invested;
b.) current income;
c.) expenditures of principal and income since the last report;
d.) needs of the incapacitated person for which the guardian has provided since the last report.
2. Guardian of the Person
a.)
current address
and type of placement of the incapacitated person;
b.)
major medical or
mental problems of the incapacitated person;
c.)
a brief
description of the incapacitated person’s living arrangements;
d.)
the opinion of
the guardian as to whether the guardianship should continue;
e.)
number and length of times the guardian visits the
incapacitated person per year.
included
in the guardianship order after specific findings of fact or otherwise ordered,
a guardian or emergency guardian shall not have the power and duty to:
1.
consent on
behalf of the incapacitated person to an
abortion,
sterilzation, psychosurgery, electro-convulsive
therapy or removal of a healthy body organ.
2. Prohibit the marriage or consent to the
divorce of the incapacitated person.
3. Consent on behalf of the incapacitated
person to the performance of any experimental biomedical or behavioral medical
procedure or participate in any biomedical or behavioral experiment.
K. Powers and Duties Not Granted to Guardian – The
court may not grant to a guardian powers controlled by other statute,
including, but not limited to the power:
1. To admit the incapacitated person to an
in-patient psychiatric facility or state center for the medically retarded.
2. To consent on behalf of the
incapacitated person to the relinquishment of the person’s parental rights.
2.
All income
received by a guardian of the estate of an
incapacitated person including all funds received from the Veteran’s Administration,
Social Security Administration and other periodic retirement or disability
payments under private or governmental plans and the exercise of a reasonable
discretion may be expended in the care and maintenance of the incapacitated
person without the necessity of court approval.
M. Estate Plan – The court, upon petition and with
notice to all parties in interest and for good cause shown, shall have the
power to substitute its judgment for that of the incapacitated person.
N. Reserve for Funeral – The court may authorize the guardian to retain
such assets as deemed appropriate for the anticipated expenses of the
incapacitated person’s funeral.