Philadelphia Cnty. C.P. CP-Orphans' Division Rule 14.2A

Guardian of the Person or Estate of an Incapacitated Person

(1) Petition Contents. When the petitioner avers, as required by Pa. O.C. Rule

14.2 (a) (6), (7) and (8), the existence of an executed health care power of

attorney or advance health care directive, or an executed power of attorney, or

any other writing by the alleged incapacitated person pursuant to Title 20,

Chapters 54, 56 or 58, the petition shall state the position of the Petitioner as to

the continuation of the duties of the agent identified under such document(s).

(2) Exhibits.

(a) A Preliminary Decree and a Final Decree, as set forth in the Appendix

maintained pursuant to Phila. O.C. Rule 1.8(c), shall be attached to the

face of a petition for adjudication of incapacity.

(b) Consent of Proposed Guardian. The signed written consent of the

proposed guardian to act as guardian, as set forth in the Appendix

maintained pursuant to Phila. O.C. Rule 1.8(c), shall be attached to the

petition.

(3) Emergency Guardians.

(a) Appointment. The Court, upon petition and hearing at which clear and

convincing evidence is shown, may appoint an emergency guardian or

guardians of the person and the estate of an alleged incapacitated person

when it appears that the person lacks capacity, is in need of a guardian

and a failure to make such appointment would result in irreparable harm to

the person or estate of the alleged incapacitated person. The Court may

also appoint an emergency guardian of the person pursuant to 20 Pa.C.S.

§ 5513, for an alleged incapacitated person who is present in this

Commonwealth but is domiciled outside the Commonwealth, regardless of

whether he or she has property in this Commonwealth.

(b) Applicability of Other Provisions. The provisions of 20 Pa.C.S. §

5511, including those relating to counsel, shall be applicable to such

proceedings, except when the Court has found such provisions to be

impractical.

(c) Duration of Emergency Guardianship.

(i) Person. An emergency order appointing an emergency guardian of

the person may be in effect for up to seventy-two (72) hours. If the

emergency continues, the emergency order may be extended for

no more than twenty (20) days from the expiration of the initial

emergency order, upon application to the Court.

(ii) Estate. The duration of an emergency order appointing an

emergency guardian of the estate shall not exceed thirty (30) days.

(iii) If continuing guardianship of person or estate is necessary, a full

guardianship proceeding must be instituted pursuant to 20 Pa.C.S.

§ 5511 during or after the expiration of the period of the emergency

order or any extension.

(iv) The use of an expert report or deposition testimony in lieu of live

in-person testimony in emergency guardianship proceedings must

be specifically authorized by the court. The use of telephonic live

testimony is left to the discretion of the court.

(4) Citation with Notice.

(a) Issuance of Citation. Upon the issuance of a citation following the

granting of a preliminary decree to a petition for adjudication of incapacity,

Petitioner or their designee shall pick up the original citation from the Clerk

in person, or contact the Clerk to request another arrangement. Such

requests may or may not be honored, at the discretion of the Clerk.

(b) Service. If there are no known intestate heirs, notice shall also be

given to the Attorney General at the Eastern Regional Office in

Philadelphia.

(c) Alias Citation. If the original citation was not personally served on the

alleged incapacitated person at least twenty (20) days prior to the

scheduled hearing date, the Court upon request may issue an alias

citation. The Alias Citation must be served on the alleged incapacitated

person at least twenty (20) days prior to the newly scheduled

hearing date, in the same manner as the original citation.

Note: An Alias Citation is not required if the original citation

has been timely served on the alleged incapacitated person

and a continuance is requested from the originally scheduled

hearing date.

Probate Section Comment: 20 Pa.C.S. § 5512.1 elaborates the basis

upon which the Court shall make a finding of incapacity. The description and the

steps taken to find less restrictive alternatives must include sufficient information

to satisfy the requirements of 20 Pa.C.S. § 5518. 20 Pa.C.S. § 5511 establishes

that the Court may adjudicate an individual incapacitated and appoint a guardian

only upon petition and hearing and upon the presentation of clear and convincing

evidence. If the alleged incapacitated person is in a hospital, nursing home or

other institution, service must be made upon an attorney or authorized personnel

of the institution and notice of the hearing should be given to the director or other

authorized official of such facility. If the alleged incapacitated person is a veteran,

notice of the hearing must be given to the Veterans’ Administration. A shorter

time period for service may be permitted in connection with petitions for the

appointment of an emergency guardian.

14.6 A. Determination of Incapacity and Selection of Guardian. Hearing Date.

(1) Proof of Service. On the date of the hearing for determination of incapacity,

the following shall be submitted:

(a) an affidavit of service of the petition and citation on the alleged

incapacitated person, attached to or endorsed upon the original citation,

reciting that the petition and citation were explained to the maximum extent

possible in language likely to be understood by the alleged incapacitated

person and that a copy of each was left with him or her; and

(b) an affidavit reciting the manner of giving notice of the hearing and

identifying those persons to whom such notice was given as required in Pa.

O.C. Rule 14.2(f)(2).

(2) Attendance at Hearing. The petitioner and the alleged incapacitated person

shall be present at the hearing unless the Court is satisfied, upon the

deposition or notarized expert report or testimony of or sworn statement by a

physician or licensed psychologist, that the physical or mental condition of the

alleged incapacitated person would be harmed by his or her presence.

(3) Independent Evaluation: If, pursuant to 20 Pa.C.S. § 5511(d), the Hearing

Judge deems it necessary upon his or her own motion or on petition by the

alleged incapacitated person for cause shown, he or she shall order an

independent evaluation to meet the requirements of 20 Pa.C.S. §5518, and

determine the appropriate charges and the persons responsible for payment.

(4) Testamentary Writings. A copy of all testamentary writings of the

incapacitated person found by the guardian, or in the possession of any other

person, certified to be true and correct, shall be submitted by the guardian or

such other person to the Hearing Judge for inspection within thirty (30) days

of such guardian’s appointment, or within thirty (30) days when such

testamentary writing(s) is subsequently discovered.