Guardianship
Bench Book

P

E N N S Y L V A N I A

The Advisory Council on
Elder Justice in the Courts
and
The Administrative Office
of Pennsylvania Courts

2020

NOTES ON STYLE CHOICES: Some authors have used “they” and “their” rather than “he or she” and “his or 
her” as a grammatically acceptable alternative pronoun that is inclusive of people who may not identify as he 
or she. 

Throughout the editors will use the abbreviation AIP for alleged incapacitated person, which refers to 
a person with respect to whom a petition has been brought but no court has adjudged him or her to be 
incapacitated and will use the abbreviation IP for a person who has been adjudged to be incapacitated.

Generally, the editors will use the term incapacitated, as used in the Pennsylvania Guardianship Act. Certain 
other statutes may use the term “incompetent.” Some authorities, including some medical providers, consider 
the term “incompetent” to refer to a determination that a person lacks the capacity to make a particular 
decision. 

Note that this Bench Book concerns guardianships of adults (over age 18) determined or alleged to be 

incapacitated and does not address guardianships of minor children.

DISCLAIMER: This publication is intended to provide useful information regarding the subjects covered, but 
may not contain all relevant information or recent changes to statutes, case law, regulations, or the Rules of 
Court. The opinions, findings and conclusions expressed are those of the author(s) and do not represent any 
official position or policy of the Pennsylvania Judiciary or the Administrative Office of Pennsylvania Courts. 
The information contained is not intended to provide legal advice, and should not be considered a substitute 
for legal counsel, nor should it be relied on as a source of substantive law, procedural law, or any other legal 
authority. 

i

Foreword by Madame Justice Debra Todd
Supreme Court of pennSylvania

On behalf of myself and my fellow Justices of the Supreme Court of Pennsylvania, I commend the members 

of the Advisory Council on Elder Justice in the Courts, as well as the editors and contributors, for their 
ambitious undertaking of publishing this First Edition of the Judicial Bench Book on Guardianships. This 
essential guide comes on the heels of the Advisory Council’s recent publication of the Pennsylvania Elder 
Abuse Bench Book, and, not surprisingly, the high quality of both works is exactly what you would expect 
from such an illustrious group of jurists and elder law professionals.

Guardianship is a critical legal tool to assist persons with diminished capacity or persons with a disability 

in managing their affairs. Often, guardianship determinations involve elders who are unable to care for 
their own person or property. It is the courts who are tasked with appointing a legal guardian for those 
individuals in need; however, guardianship decisions are some of the most difficult in the law. While it might 
be desirable, and even necessary, to safeguard an individual by assuring the provision of care and asset 
protection through the granting of a guardianship, such establishment necessarily curtails the freedom and 
autonomy of an individual, as it allows the guardian to make important financial and non-financial decisions 
for the incapacitated person. Determinations of whether a guardianship is appropriate, or how to arrive at the 
least restrictive form of guardianship, involves the striking of a balance between protection and autonomy, 
and has always been a challenging inquiry. Related thereto, answering the question of who should serve 
as a guardian, once such a relationship is determined to be necessary, is a significant responsibility. Such 
a vital determination is made only after substantial investigation and solemn consideration of what is 
uniquely appropriate for the individual who is incapacitated. Yet, until now, there was no easily accessible, 
single-volume publication to offer the judiciary a practical means of navigating the various aspects of the 
guardianship process.

The Judicial Bench Book on Guardianships fills this void and is a welcome resource for judges to best make 

these critical guardianship decisions. The result of the editors’ and contributors’ tireless efforts is a detailed 
description of all legal facets of the guardianship process, as well as practical questions, and best practices 
and tips for judges. The Bench Book covers a wide spectrum of topics, including alternatives to guardianship, 
petitions for guardianship, jurisdictional and transfer questions, due process concerns, the appointment of 
counsel, the identification and appointment of qualified guardians, emergency guardianships, hearing and 
post-hearing procedures, as well as the supervision and monitoring of guardians. Not only does the Bench 
Book address virtually every aspect of the guardianship process, it is especially valuable due to its clear, 
informative, and pragmatic approach.

The Pennsylvania Supreme Court, through the creation of the Elder Law Task Force, and the subsequent 
establishment of the Advisory Council on Elder Justice in the Courts and Office of Elder Justice in the Courts, 
continues to demonstrate its ongoing dedication to Pennsylvania’s elders. The Supreme Court is deeply 
appreciative of the Advisory Council, its Chair, the Honorable Paula Francisco Ott and Vice-Chair, Zygmont 
A. Pines, Esquire. Special thanks to Editor-in-Chief, the Honorable Lois E. Murphy, the other editors and 
contributors who are listed in the Acknowledgements section, as well as the staff of the Administrative Office 
of Pennsylvania Courts and the many individuals who contributed in numerous ways to the creation of this 
Bench Book. Through these individuals’ efforts, the Judicial Bench Book on Guardianships stands as yet 
another crucial milestone in the evolution of the field of elder law.

 

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iii

The Advisory Council on Elder Justice in the Courts is grateful to the authors and contributors of this Bench 

The Honorable Lois E. Murphy, Editor in Chief

The Honorable Paula Francisco Ott, Chair, Advisory Council on Elder Justice in the Courts

Acknowledgements

Book. They include:

Contributors

The Honorable Cheryl L. Austin

The Honorable Matthew D. Carrafiello

The Honorable Emil A. Giordano 

The Honorable Richard Hughes

The Honorable Shawn Meyers

The Honorable Katherine Platt

The Honorable Edward Reibman

Linda Hee, Esquire

Michele Mathes, Esquire

Gloriana Noreika, Esquire

Pamela Walz, Esquire

Editors

Keelin Barry, Esquire

Lisa Grayson, Esquire

Diane Menio

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v

Table of  Contents

INTRODuCTION  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Purpose of the Statute   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Burden of Proof  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Types of Guardianship  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Alternatives to Guardianship and Limited Guardianship  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Right to Appeal and Review Hearings  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Conclusion  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

CHAPTER ONE ALTERNATIVES TO GuARDIANSHIP AND LIMITED GuARDIANSHIP  . . . . . . . . . . . . . . . . . 5

Less Restrictive Alternatives to Guardianship of the Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Less Restrictive Alternatives to Guardianship of the Estate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Supported Decision-Making . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Mediation  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Restoration of Rights/Termination of Guardianship/Review Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Limited Guardianship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CHAPTER TWO PETITION FOR ADJuDICATION OF INCAPACITY AND APPOINTMENT OF GuARDIANS . . 11

Jurisdiction and Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Interstate Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Who May be the Petitioner? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

What Must be Included in the Petition? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Nature of the Proposed Guardianship  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Emergency Petition for Protective Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Checklist for Guardianship Proceedings  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Checklist of Required Averments for Petition for Adjudication of Incapacity  . . . . . . . . . . . . . . . . . . . . . 17

Checklist of Required Exhibits to Petition for Adjudication of Incapacity  
and Appointment of Guardians  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CHAPTER THREE INTERSTATE ISSuES: JuRISDICTION AND TRANSFER OF GuARDIANSHIP  . . . . . . . 21

Jurisdiction and Transfer of Guardianship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Jurisdiction: Does the Pennsylvania Court have Jurisdiction?  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CHAPTER FOuR PRE-HEARING ISSuES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

General Access to the Courts and Language Access  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Access to the Courts  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

vi

Appointment of Counsel  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28

Service of the Petition on the AIP  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29

Notice to Other Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

7-Day Notice to Court of No Counsel for AIP  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

Testimony of Physicians or Health Care Providers  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

Affidavit or Testimony Excusing AIP from Attending Court Hearing  . . . . . . . . . . . . . . . . . . . . . . . . . . . .31

Appointing an Expert to Conduct an Independent Evaluation   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31

Pre-Trial Conferences   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31

Conclusion  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32

CHAPTER FIVE COuNSEL FOR THE ALLEGED INCAPACITATED PERSON   . . . . . . . . . . . . . . . . . . . . . . .33

How is Counsel Selected? Court-Appointed Counsel or Private Counsel Selected by AIP?  . . . . . . . . .33

Questions to Pose to Counsel Claiming to Represent the AIP  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33

Role of Counsel for the AIP/IP  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33

Responsibilities of Counsel for the AIP  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35

Engagement Letter of Private Counsel  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35

Court Order Appointing Counsel  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

Duration of Representation  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

Court Approval of Counsel Fees  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

CHAPTER SIX COuNSEL FOR OTHER PARTIES: PETITIONER, GuARDIAN, AGENT uNDER POWER  
OF ATTORNEY, AND PARTIES IN INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37

Counsel for Petitioner  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37

Counsel for an Agent under a Power of Attorney  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37

Counsel for the Guardian   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38

Attorney Serving as Guardian  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38

unrepresented Parties and Counsel for Parties in Interest  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38

Court Consideration of Fee Petitions by Counsel for Various Parties  . . . . . . . . . . . . . . . . . . . . . . . . . . .39

CHAPTER SEVEN IDENTIFYING AND APPOINTING QuALIFIED GuARDIANS  . . . . . . . . . . . . . . . . . . . . .41

Important Qualifications of a Guardian of the Person  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41

Important Qualifications of a Guardian of the Estate   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41

Court Colloquy of Proposed Guardian   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42

Who Should be Appointed as Guardian?  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42

Resolving Disputes About Who Should be Appointed as Guardian, and Identifying Conflicts of Interest . .44

Requiring Additional Information from Prospective Guardians  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45

vii

Recognizing Signs of Elder Abuse, Neglect and Financial Exploitation . . . . . . . . . . . . . . . . . . . . . . . 46

Sample Colloquy for Proposed Guardian of Person and Estate  . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

CHAPTER EIGHT PRESIDING OVER AN EMERGENCY HEARING TO APPOINT EMERGENCY  
GuARDIANS OF THE PERSON AND/OR ESTATE  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

20 Pa.C.S. § 5513  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 

How an Emergency Guardianship Matter May Arrive Before the Court  . . . . . . . . . . . . . . . . . . . . . . 51

Options for Hearing When there is an Emergency Petition Filed   . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Burden of Proof  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Determining Less Restrictive Alternatives to Guardianship   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Scope and Time Periods for an Emergency Decree  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Requirements of Due Process for Emergency Hearing  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Who May be Appointed as an Emergency Guardian of the Person or Estate?   . . . . . . . . . . . . . . . . 54

Who May Not be Appointed as an Emergency Guardian?  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

CHAPTER NINE PRESIDING OVER A § 5511 PLENARY HEARING TO ADJuDICATE INCAPACITY  
AND TO APPOINT GuARDIANS OF THE PERSON AND/OR ESTATE   . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Commencing the Hearing  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Petitioner, Counsel, Interested Parties, et al.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Service of Process  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Checklist: Commencing the Hearing  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Step One: Capacity Evaluation  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Step Two: Considering Less Restrictive Alternatives to Appointment of Guardian   . . . . . . . . . . . . . 57

Findings of Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Step Three: Determining Whether to Appoint a Limited or Plenary Guardian  . . . . . . . . . . . . . . . . . . 57

Step Four: Determining Whom to Appoint as a Guardian  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Step Five: Determining if a Bond is Required  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Checklist: Conducting a Hearing on a Petition for Adjudication of Incapacity  
and Appointment of a Guardian   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

CHAPTER TEN DETERMINING CAPACITY   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Required Findings of Fact  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Evidence of Incapacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Burden of Proof: “Clear and Convincing” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Possible Court Rulings/Outcomes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Expert Report or Expert Testimony  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

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Medical Evidence: Assessing Functional Abilities  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 

Concepts, Tests and Instruments used by Medical and Psychological Professionals  
to Assess Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Capacity to Make and Communicate Decisions  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Checklist: Finding Incapacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Sample Questions: Presiding Over a Guardianship Hearing  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

CHAPTER ELEVEN POST-HEARING PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Review Hearing  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Role of Court-Appointed Counsel after Adjudication  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Petition for Approval of Expenditure of Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Petition for Approval of Sale of Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Removal of Guardian  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Appointment of Successor Guardian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

Guardian’s Power to Engage in Estate Planning, Gifts  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

Guardian’s Power to Make Health Care Decisions  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

CHAPTER TWELVE ETHICAL ISSuES IN GuARDIANSHIP MATTERS  . . . . . . . . . . . . . . . . . . . . . . . . . 77

Is the Petitioner Interested in the Welfare of the AIP?  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Ensuring the AIP’s Participation in and Presence at the Hearing  . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Appointing Counsel for the AIP  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Role of Counsel for the AIP  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

Ex Parte Communications  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

Confidentiality and Privacy Considerations  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

Capacity Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Independent Judgment  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

End of Life Decisions  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Conclusion  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

CHAPTER THIRTEEN COuRT SuPERVISION AND MONITORING OF GuARDIANS   . . . . . . . . . . . . . 81

Inventory (Form G-05)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

Annual Reports: Report of Guardian of the Estate (Form G-02) and Report of Guardian  
of the Person (Form G-03) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

Firearms  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

Notification of Mental Health Commitment  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

Notice of Filing (Form G-07)   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

Failure to File Reports  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

ix

Final Report of the Guardian (Forms G-02 and G-03)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

CHAPTER FOuRTEEN GuARDIAN’S FIDuCIARY DuTIES   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Guardian of the Estate - Management of Finances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Duty: Benefit of the IP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  85

Duty: Inquiry, Discovery, and Safeguarding of Assets  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Duty: Management of Assets  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

Duty: Payment of Debts and Actions on Claims  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

Guardian of the Person - Management of Personal, Residential and Medical Decisions  . . . . . . . . . . . . 87

Plan of Supportive Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Encouragement of IP to Participate in Decisions   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

General Care, Maintenance and Custody of the IP  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Place for IP to Live  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Visiting the IP  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Responsibility for Training, Education, Medical and Psychological Services of IP  . . . . . . . . . . . . . . 88

Consents/Approvals for IP  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

End of Life Decisions  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Annual Report   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

Final Report  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

CHAPTER FIFTEEN ELDER JuSTICE IN THE PENNSYLVANIA COuRTS   . . . . . . . . . . . . . . . . . . . . . . . . . 91

The Office of Elder Justice in the Courts  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

Advisory Council on Elder Justice in the Courts  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

Elder Law Task Force   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

x

Appendices and Additional Resources

APPENDIX:

I.  Required Guardianship Forms and other Sample Guardianship Forms  . . . . . . . . . . . . 93

G-01 – Important Notice Citation with Notice  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

G-02 — Report of Guardian of the Estate  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

G-03 — Report of Guardian of the Person  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

G-05 — Guardian’s Inventory for an Incapacitated Person   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

G-06 – Expert Report   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

G-07 — Notice of Filing  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

OC-03 — Petition for Adjudication/Statement of Proposed Distribution Pursuant  
to Pa. O.C. Rule 2.4  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

Sample Final Decree Appointing Plenary Guardians  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

Sample Final Decree Appointing Limited Guardians  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

Sample Petition for a Review Hearing Pursuant to 20 Pa.C.S. § 5512.2   . . . . . . . . . . . . . . . . . . . . 147

Sample Petition for Approval of Expenditure from the Estate of an Incapacitated Person . . . . . . .  149

Sample Order Appointing Counsel for AIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

Sample Consent to Serve as Guardian  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

Notification of Mental Health Commitment Form  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

Notice of Right to Appeal   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

Petition for Adjudication of Incapacity and Appointment of Emergency and Plenary  
Guardians of the Person and Estate  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

Petition for Adjudication of Incapacity and Appointment of Plenary Guardians 
of the Person and Estate  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

Petition for Adjudication of Incapacity and Appointment of Limited Guardians of  
the Person and Estate  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

Petition to Appoint Successor Guardians  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

Petition for Transfer of Guardianship to Another State  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

Sample Petition to Waive Filing Fees Pursuant to 20 Pa.C.S. § 5511   . . . . . . . . . . . . . . . . . . . . . . 177

Sample Order Waiving Filing Fees  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178

II.  Checklists/Sample Colloquies   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179

Checklist for Guardianship Proceedings  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

Checklist of Required Averments for Petition for Adjudication of Incapacity  . . . . . . . . . . . . . . . . . 183

xi

Checklist of Required Exhibits to Petition for Adjudication of Incapacity and Appointment  
of Guardian   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

Sample Colloquy for Proposed Guardian of Person and Estate  . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

Checklist: Conducting a Hearing on a Petition for Adjudication of Incapacity and Appointment  
of Guardians   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189

Finding Incapacity Checklist  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191

Presiding Over a Guardianship Hearing: Sample Questions  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

III.  Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

Bill of Rights of An Alleged Incapacitated Person  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

Bill of Rights of An Incapacitated Person  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199

ADDITIONAL RESOuRCES: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

I. 

Links to Statutes and Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

Incapacitated Person Act, 20 Pa.C.S. § 5501 et seq. (Chapter 55)  . . . . . . . . . . . . . . . . . . . . . . 203

uniform Adult Guardianship and Protective Proceedings Jurisdiction Act,  
20 Pa.C.S. § 5901, et seq. (Chapter 59)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

Health Care Act, 20 Pa.C.S. § 5421, et seq. (Chapter 54)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

Mental Health Care Act, 20 Pa.C.S. § 5801, et seq. (Chapter 58)  . . . . . . . . . . . . . . . . . . . . . . . 203

The Pennsylvania Older Adults Protective Services Act, 35 P.S. § 10225.101, et seq.   . . . . . . . . 203

Pennsylvania Supreme Court Orphans’ Court Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

II.  Links to Additional Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

American Bar Association Commission on Law and Aging . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

American Psychological Association’s Medical Conditions Affecting Capacity . . . . . . . . . . . . . . 203

National Probate Court Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

III.  Links to Key Statutes (for further reference):   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

20 Pa.C.S. § 5511(d). Petition and Hearing; independent evaluation  . . . . . . . . . . . . . . . . . . . . . 203

42 Pa.C.S. § 4412. Appointment of Interpreter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

42 Pa.C.S § 4432. Appointment of Interpreter for the Hearing Impaired . . . . . . . . . . . . . . . . . . . 203

Pa. Const. Art. 1, § 26. Right of access to individuals to enjoyment of civil rights and participation  
in court proceedings  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

Title II ADA (42 u.S.C. § 126). Obligation of courts to accommodate those with disabilities  
(Applies to courthouses and court hearing access) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

IV.  Links to Judicial Canons (for further reference):  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204

Judicial Canon 1: A Judge shall uphold and promote the independence, integrity, and impartiality  
of the judiciary, and shall avoid impropriety and the appearance of impropriety.   . . . . . . . . . . . . 204

xii

Judicial Canon Rule 1.1: Compliance with the Law  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204

Judicial Canon Rule 1.2: Promoting Confidence in the Judiciary . . . . . . . . . . . . . . . . . . . . . . . . 204

Judicial Canon 2: A Judge shall perform the duties of judicial office impartially, competently,  
and diligently.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204

Judicial Canon Rule 2.2: Impartiality and Fairness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204

Judicial Canon Rule 2.3: Bias, Prejudice, and Harassment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204

Judicial Canon Rule 2.4: External Influences on Judicial Conduct . . . . . . . . . . . . . . . . . . . . . . . 204

Judicial Canon Rule 2.6: Ensuring the Right to Be Heard  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204

Judicial Canon Rule 2.9: Ex Parte Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204

Judicial Canon Rule 2.11 Disqualification  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204

xiii

Introduction

The determination that a person is incapacitated 
and the appointment of a guardian are among the 
most significant deprivations of personal liberty 
and autonomy that a court can impose. Such a 
deprivation requires that the due process rights of 
the alleged incapacitated person (AIP) be given the 
highest level of protection, as required by the united 
States Constitution for any deprivation of liberty. A 
person for whom a guardian is appointed faces losing 
the basic right to make their own decisions, enjoyed 
by all adults, and will no longer have control of their 
life, liberty, or property. 

Although the effects of a guardianship order may 

be severe, in many cases a guardianship order is 
necessary to protect the person from harm or to 
effectuate decisions and take practical actions that 
the person is unable to make and to take without 
assistance. Because guardianship has draconian 
consequences, courts must strive to give every 
petition for guardianship careful consideration in 
order to reach an appropriate balance between 
protection and preservation of autonomy. Indeed, due 
process under the united States Constitution requires 
significant procedural protections before a person 
can be adjudicated as incapacitated and a guardian 
appointed.

This Judicial Bench Book is intended to give 
Pennsylvania courts a road map for reviewing 
petitions, appointing counsel, conducting pre-trial 
proceedings, conducting the trial on the Petition 
for Adjudication of Incapacity and Appointment of 
Guardians, conducting post-trial proceedings, and 
monitoring court-appointed guardians. Throughout 
this book we strive to provide helpful tips and best 
practices, based upon experience, to enable courts 
to protect the fundamental constitutional rights of 
individuals who are alleged to be incapacitated, while 
promoting efficient and effective practices. Reference 
is made to statutes, Orphans’ Court Rules, and case 
law to provide further guidance. 

Pennsylvania courts are also required by 

statute to prefer limited guardianship over plenary 
guardianship, where possible, and to consider 
in every case whether guardianship is the least 
restrictive alternative. It is important to remember 
that even when a person has a significant cognitive 
impairment, a guardianship is not needed and may 
not be granted where a less restrictive alternative 
is available. Granting authority to family members, 
rather than to strangers, is encouraged in appropriate 

cases to maximize the autonomy and dignity of the IP 
and ensure that his or her preferences and wishes are 
respected to the maximum extent possible.

Mental capacity is evaluated on a spectrum, not 
as an “all or nothing” concept. The determination of 
whether or not a person has capacity may change 
according to the circumstances of the individual 
and may vary with respect to the specific decision 
or decisions to be made. There may be no bright 
line dividing a person who has capacity to make a 
certain decision from a person who does not. An AIP 
may have the ability to make some decisions but not 
others. Capacity may vary depending on the nature 
or complexity of the decision; the decision-making 
strengths of the person, which may fluctuate during a 
day; the amount of support or opposition expressed 
by family members or loved ones for the person’s 
decision; surrounding events; and the person’s ability 
to communicate regarding the decision.

This variable nature of capacity makes clear that a 

person may be able to handle small sums for daily 
purchases but may be unable to make decisions 
regarding investments or large expenditures. A 
person who is capable of working and handling 
routine household expenses but has become 
susceptible to scammers may be a candidate for a 
limited guardianship: limited to those specific areas 
in which it is demonstrated by clear and convincing 
evidence that the person lacks capacity.

This variable nature of capacity also increases 
the need for courts to be aware of and sensitive to 
alternatives to guardianship and opportunities to craft 
a limited guardianship order where appropriate and 
necessary.

Purpose of  the Statute

Chapter 55 of the Fiduciary Code, most commonly 

referred to as the “Incapacitated Persons Act” or 
the “Guardianship Act,” empowers the court “upon 
petition and hearing and upon the presentation of 
clear and convincing evidence, may find a person 
domiciled in the Commonwealth to be incapacitated 
and appoint a guardian or guardians of his person or 
estate.”1 

Pennsylvania’s Guardianship Act sets forth the 

purpose of the law as follows: 

1  20 Pa.C.S. § 5511(a).

1

Recognizing that every individual has unique 
needs and differing abilities, it is the purpose 
of this chapter to promote the general welfare 
of all citizens by establishing a system 
which permits [IPs] to participate as fully as 
possible in all decisions which affect them, 
which assists these persons in meeting the 
essential requirements for their physical health 
and safety, protecting their rights, managing 
their financial resources and developing 
or regaining their abilities to the maximum 
extent possible and which accomplishes 
these objectives through the use of the 
least restrictive alternative; and recognizing 
further that when guardianship services are 
necessary, it is important to facilitate the 
finding of suitable individuals or entities willing 
to serve as guardians.2

Burden of  Proof  

The burden of proof of incapacity is a heavy one: 

clear and convincing evidence. This has been 
called the second highest burden of proof, next 
only to the standard of proof required in criminal 
proceedings, “beyond a reasonable doubt.” The 
petitioner must prove by clear and convincing 
evidence both that the person suffers from an 
incapacity and that a guardianship is needed, 
including proving that there is no available, adequate 
less restrictive alternative. In essence the court must 
determine that there is clear and convincing evidence 
of the following:

Standard of  Proof  for  

Determination of  Incapacity:  

Clear and Convincing Evidence.

1.  Incapacity: That the incapacitated person (IP) 

suffers from a cognitive incapacity, with specific 
findings as to the nature of the incapacity; and 
that the incapacity has impaired the individual’s 
ability to understand information, to make 
reasoned decisions, and to effectively manage 
their financial resources or assure their own 
physical well-being; and 

2  20 Pa.C.S. § 5502.

2

2.  Guardianship: That there is a need for 

guardianship services and that there is no 
less restrictive alternative to guardianship 
appropriate for the circumstances. The court 
must also determine whether the guardianship 
could be limited or must be plenary.

If the court determines both that a person is 

incapacitated and that a guardian must be appointed, 
then the court must next consider whom to appoint 
as guardian of the person and/or as guardian of the 
estate.

Types of  Guardianship

A petitioner may seek appointment of the following 

types of guardians:

•	 Guardian of the Person, to make personal, 
residential, and medical decisions for an AIP; 
or 

•	 Guardian of the Estate, to make and 

implement financial decisions and manage 
income and property (many other states 
use the term “conservator” for a guardian 
appointed only for financial matters); or

•	 BOTH, Guardian of the Person and 

Guardian of the Estate; or

•	 Plenary Guardianship (full) or Limited 
Guardianship. In the case of limited 
guardianships, the court must specify the 
areas over which the guardian has authority 
and the areas over which the IP retains 
authority; or

•	 Emergency Guardianships of the Person 

or Estate may also be sought on a temporary 
basis, as discussed more fully in CHAPTER 
EIGHT.

Alternatives to Guardianship and 
Limited Guardianship

Because a guardianship deprives an individual of 
his or her legal rights and restricts the IP’s rights to 
autonomy and self-determination, a guardianship 
order should be considered a last resort. A court 
must determine that there is no suitable less 
restrictive alternative before adjudicating a person 
incapacitated and appointing a guardian of the 
person or estate. Alternatives to guardianship are 

discussed in greater detail in CHAPTER ONE.

Generally, guardianships should be as limited 
as reasonably possible to address the needs of 
the IP. The court should allow the person to retain 
decision-making responsibility in areas where they 
are able to make and communicate decisions. Of 
course, it may become necessary to remove all of 
an individual’s rights and grant total responsibility 
to a guardian. A petitioner and court should explore 
and exhaust possible alternatives to guardianship 
before committing to the drastic act of depriving an 
individual of all rights.

Right to Appeal and Review Hearings

LESS RESTRICTIVE 

ALTERNATIVES: A court must 

seriously consider any less restrictive 

alternative to guardianship before 

determining to appoint a guardian. 

alleged that the IP has regained capacity, no longer 
needs a guardian, or that the guardian is not acting 
appropriately or in the IP’s best interests.

Conclusion

This Bench Book is organized around the various 

phases of and considerations in guardianship 
proceedings. It is intended to provide judges with 
a comprehensive and functional resource to help 
assure that the court affords due process to the 
citizens who appear before the court. Throughout 
this Bench Book you will find highlighted “Best 
Practices,” which are based upon decades of 
experience of our many contributors to this volume. 
Our goal is to provide guidance that will help you 
balance the rights of the individual who is the subject 
of these hearings with the rights of other parties and 
the need for judicial efficiency. We hope this book 
will provoke consideration and further discussion of 
our roles in guardianship cases and assist us as we 
commit ourselves to providing the highest quality of 
justice.

«««

Naturally, following the conclusion of a hearing 

and the entry of a final decree finding a person 
to be incapacitated and appointing a guardian or 
guardians, the IP has a right to receive a copy of the 
final decree and has a right to appeal to the Superior 
Court within 30 days. The final decree is required, by 
Pa. O.C. Rule 14.7, to specifically include a notice 
of right to appeal within 30 days, a right to request 
reconsideration, and a right at any time to request a 
review hearing. Counsel for the IP should consider 
whether an appeal is appropriate and necessary to 
protect the legal rights and interests of their client. 
Counsel should also consider whether they have 
an obligation to request a review hearing at any 
time following the determination of incapacity. A 
review hearing may be requested at any time if it is 

 LIMITED GUARDIANSHIP: 

Pennsylvania law requires that “the court 

shall prefer limited guardianship”.

3

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4

CHAPTe R one

Alternatives to Guardianship and Limited Guardianship

In balancing an AIP’s need for protection with 
respect for their autonomy, judges are required 
by the united States Constitution’s guarantee of 
Due Process to protect the rights of the AIP to the 
greatest extent possible. Appointment of a guardian, 
with the resulting loss of rights for the AIP, may not 
be necessary in situations where other resources 
are available to assist the AIP.3 Even where the 
evidence clearly demonstrates an incapacity, judges 
are required to consider whether there is a less 
restrictive alternative to guardianship that can meet 
the person’s needs. Judges are required under 
Pennsylvania law to favor limited guardianships 
over plenary guardianships in appropriate cases.4 
Where possible, limited guardianship orders should 
be framed to address the specific areas in which 
the court determines, based on the testimony and 
evidence, that an individual lacks the capacity to 
meet the essential requirements for their well-being 
and is in need of guardianship services. 

Judges must consider, and should expect counsel 

to present evidence regarding, alternatives to 
guardianship that may provide adequate protection 
for an IP.5 Pennsylvania law expressly requires 
that the court consider whether there is a need 
for guardianship “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 trusts.”6 In other 
words, it is critically important that evidence of all 
possible alternatives to guardianship be explored to 
determine whether the needs of the IP can be met 
without guardianship. 

The regulations pursuant to the Older Adult 
Protective Services Act also include a definition 
of less restrictive alternatives, which is helpful to 
consider and defines least restrictive alternative 
as: “[t]he appropriate course of action on behalf 
of the older adult which least intrudes upon the 
personal autonomy, rights and liberties of the older 

3  In re: Peery, 727 A.2d. 539 (Pa. 1999).
4  20 Pa.C.S. § 5512.1(a)(6); see also PA Joint State 
Government Commission, “Guardianship in Pennsylvania: 
Report of the Working Group on Guardianships,” May 
2007.
5  20 Pa.C.S. § 5512.1(a). 
6  20 Pa.C.S. § 5512.1(a)(3).

adult in circumstances when an older adult lacks 
the capacity to decide on matters and take actions 
essential to maintaining physical and mental health.”7

LESS RESTRICTIVE 

ALTERNATIVES: A judge must 

consider the availability of  family, 

friends and other supports that  

can assist the individual without  

the need for guardianship.

Certain alternatives may function as a wholly 

adequate substitute for guardianship. For example, 
a power of attorney or a trust may serve to appoint 
an appropriate person who is willing and able to 
manage the funds of the IP. Other forms of support 
may provide a less restrictive option for many 
decisions even where a limited guardianship may be 
needed for major decisions. Alternatives discussed 
below, with which courts should be familiar, include 
supported decision-making, mediation, powers of 
attorney and health care powers of attorney. Bear 
in mind that a person who may lack the capacity 
to handle financial affairs, may have the capacity 
to select an agent under a power of attorney and 
understand the delegation of authority to that agent.

A person with an intellectual disability or incapacity 

whose needs can be met by an agent under a 
power of attorney, or by a supportive family, may 
not require appointment of a guardian at all. Many 
such cases are never brought to court. When they 
are, the IP and their family or other advocates may 
present evidence of an adequate less restrictive 
alternative that meets the person’s needs. Where a 
less restrictive alternative is demonstrated, the court 
is obliged under the statute to dismiss the petition 
for appointment of a guardian, even if the court has 

7  6 Pa. Code § 15.2.

5

determined that the person has an incapacity.8 A 
court may also terminate a guardianship previously 
granted if a less restrictive alternative can later 
be identified to meet the person’s needs. Judges 
must be familiar with the kinds of less restrictive 
alternatives that may be available to support a 
person with disabilities and incapacities, in order 
to avoid unnecessarily depriving individuals of their 
rights and autonomy by appointing a guardian. 

One of the best ways to assure that less restrictive 

alternatives are considered and attempted is to 
appoint counsel to represent the AIP before the 
initial hearing on the petition. Legal counsel may not 
only represent the AIP at the hearing, but ideally will 
also play a role in identifying and implementing less 
restrictive alternatives such as powers of attorney, 
where appropriate. Courts should expect legal 
counsel for the AIP to be zealous advocates, and 
to address specifically the steps taken to explore 
whether less restrictive alternatives are available and 
adequate. See a further discussion of counsel for the 
AIP in CHAPTER FIVE.

Less Restrictive Alternatives to 
Guardianship of  the Person

•	 Health Care Agent: appointed under a 

written health care power of attorney signed 
by the person, who, at the time the document 
is signed, has adequate understanding to 
sign and to select a responsible agent to 
make medical decisions.

•	 Health Care Advance Directive: also called 

a Living Will, a written document in which a 
person with adequate understanding at the 
time of the writing, sets forth wishes and 
preferences regarding health care, especially 
(but not only) end-of-life care.

•	 Health Care Representative: pursuant to 

20 Pa.C.S. § 5461, family members (listed in 

8  While some authorities discuss less restrictive 
alternatives and family and community supports as if they 
remove the legal incapacity, it may be helpful to courts 
making decisions in such cases to distinguish between 
(1) the determination whether the evidence demonstrates 
clearly that the person suffers from a cognitive impairment 
that causes incapacity; and (2) the determination 
regarding whether the needs of a person, even a person 
for whom clear evidence of incapacity has been provided, 
can be met adequately by family and community supports 
without the need for a court-appointed guardian.

6

priority order) are authorized to make medical 
decisions for a person who lacks capacity to 
make decisions. 

•	 Family and Community Support; 

Supported Decision-making: Often 
the needs of a person who suffers from 
developmental disability or cognitive 
impairment can be met by family members 
or members of their community who assist 
with meeting daily needs such as shopping, 
meal preparation, and assistance getting to 
doctor’s appointments. Increasingly courts 
recognize that such supportive networks may 
be adequate to meet all of the needs of an IP 
or partially incapacitated person.

•	 Case Management Services: Another 
resource for community support, often 
provided to persons with certain mental 
health issues or intellectual disabilities.

Less Restrictive Alternatives to 
Guardianship of  the estate

•	 Power of Attorney: also called a Durable 
Power of Attorney, where an agent is 
appointed to handle financial affairs by a 
person who, at the time the power of attorney 
is signed, has adequate understanding to 
sign and to select an agent to make financial 
decisions, and selects individuals who are 
responsible and trustworthy.

•	 Trust: where a trustee appointed to handle 
certain assets of a person who, at the 
time the trust is signed, has adequate 
understanding to sign and to select a 
trustee to make financial decisions, and 
selects individuals who are responsible and 
trustworthy.

•	 Representative Payee: a person appointed 
to receive and manage monthly Social 
Security benefits or other federal benefits.

•	 Supported Decision-Making and Family 

Supports: Often family and friends can assist 
with shopping, paying bills and rent, and 
other tasks without a formal appointment as 
a guardian.

Supported Decision-Making

Supported decision-making is rapidly gaining 
support as an alternative paradigm for providing 
assistance to individuals suffering from cognitive 
disability. In August of 2017, the ABA adopted 
a Resolution in support of supported decision-
making as an alternative to guardianship.9 The 
goal of supported decision-making is to empower 
individuals with cognitive challenges to make 
decisions for themselves with support from one or 
more others, giving the person the assistance they 
need to make decisions for themselves. Supported 
decision-making incorporates a range of models, all 
of which allow the individual with cognitive disability 
to retain the final say in their life decisions. These 
models include formal, written agreements as well as 
“circles of support,” that can create or re-invigorate 
a support network for the IP. The circle of support 
most often consists of a group of family members 
and/or friends, who meet regularly with the IP to help 
them make decisions. Although Pennsylvania does 
not currently have a statute specifically recognizing 
the enforceability of a written supported decision-
making agreement, Pennsylvania’s guardianship 
statute recognizes that a person may not need 
a guardian where family or community supports 
are available and adequate to assist the person in 
making his or her own decisions. Courts are required 
by statute to give serious consideration to whether 
the family and community supports can meet the 
needs of an incapacitated or partially incapacitated 
person without the need for a guardianship.

Mediation

Often a guardianship petition is filed with the 
court as a response to family conflict regarding 
care for an incapacitated relative or distrust among 
family members regarding the use and disposition 
of the AIP’s assets. The introduction of a neutral 
third party with conflict resolution skills may make 
it possible for the parties to engage in a guided 
discussion and reach a decision regarding the needs 
of an incapacitated adult without the appointment 
of a guardian. An important consideration in adult 
guardianship mediation is the ability of the AIP to 
participate in the mediation process. However, 
mediation may also be appropriate among family 
members even where the AIP is not able to 

9  https://www.americanbar.org/content/dam/aba/
administrative/law_aging/2017_SDM_%20Resolution_
Final.pdf.

participate. Even in cases in which mediation does 
not eliminate the need for appointment of a guardian, 
mediation services can assist both the court and 
the parties by reducing the areas of conflict and 
identifying available supportive resources.

Restoration of  Rights/Termination of  
Guardianship/Review Hearings

Judicial orders appointing a guardian for an 

incapacitated adult rarely have a termination date. In 
cases in which the IP’s condition does not improve, 
a guardianship generally continues until the death 
of the IP. However, the conditions giving rise to the 
need for a guardian may change over time. A person 
who has been adjudicated to be incapacitated 
may regain capacity for a variety of reasons. The 
condition that interfered with capacity may have 
been temporary or reversible, the person may have 
successfully responded to a treatment plan, or 
new evidence may demonstrate that a supportive 
environment exists so that guardianship is no longer 
necessary. Examples of conditions that may be 
treatable and from which a person may recover 
capacity, totally or partially, include stroke, traumatic 
brain injury, major depression, and bi-polar disorder. 

RESTORATION OF RIGHTS: When 

a person’s condition improves the 

court should conduct a review hearing 

to consider a request to terminate or 

modify a guardianship decree. 

When the need for protection that provided the 
basis for appointment of a guardian has diminished, 
a guardian may no longer be needed. In some cases, 
a change in the scope of the guardianship from a 
plenary to a limited guardianship is appropriate. 
When these circumstances arise, the court should 
convene a review hearing so that, to the fullest 
extent possible, the rights of the person adjudicated 
incapacitated may be restored.10 

Where a person is declared incapacitated as a 
result of a condition from which the person may 

10  20 Pa.C.S. §§ 5517, 5512.2.

7

recover or see improvement, the court must be open 
to scheduling a review hearing to consider vacating 
or modifying the guardianship. While we do not 
have current statistics on how often termination of 
guardianship occurs because the person regained 
capacity, we expect to review this question as data 
becomes available from the new Pennsylvania 
Guardianship Tracking System (“GTS”). In the 
majority of guardianship cases, the person who 
has been adjudicated incapacitated suffers from 
a progressive disease (such as dementia) or a life-
long disability (such as autism spectrum disorder 
or intellectual disability) that is unlikely to improve 
significantly. However, in a significant minority of 
cases a person has been adjudicated incapacitated 
due to severe but treatable mental illness, stroke, 
traumatic brain injury, or other conditions that may 
improve. In such cases courts have readily vacated a 
guardianship decree upon request. 

One significant challenge to be addressed is 

removing obstacles to making the request to 
terminate or modify a guardianship. Courts should 
make readily available a form petition to request a 
review hearing and may also consider conducting 
review hearings on a regular basis. Many courts 
will consider any written request that essentially 
seeks a review, including a letter from the IP or a 
family member notifying the court of a change in 
circumstances, to be a request to schedule a review 
hearing. In these ways, courts can assist in removing 
obstacles to scheduling a review hearing and 
reconsidering the need for guardianship.

Judges should also convene review hearings when 

there is cause to believe that the interests of the 
IP are not being properly protected and served by 
the guardian or the guardian is acting improperly.11 
Review hearings are discussed more fully in 
CHAPTER ELEVEN.

Limited Guardianship 

Pennsylvania law favors limited guardianship 

rather than plenary guardianship. The statute 
provides quite clearly “[t]he court shall prefer limited 
guardianship.”12 In practice, however, Pennsylvania 
courts and practitioners have found it difficult to 
educate banks, financial institutions, and medical 
institutions to accept instructions from limited 
guardians on areas within their authority. Often 
the language stating that a decree appointing a 
guardian is limited is seen as a red flag, causing 

11  20 Pa.C.S. § 5512.2.
12  20 Pa.C.S. § 5512.1(a)(6).

8

BEST PRACTICE: The Court 

should consider whether a limited 

guardianship may be appropriate, 

and may require counsel to 

explore the potential for a limited 

guardianship. For example, the Court 

may determine that a person can 

retain the right to vote, the right to 

handle a limited amount of  money 

weekly, or the right to make certain 

personal decisions with support.

hospitals and financial institutions to question the 
guardian’s authority. It is a priority for the Advisory 
Council on Elder Justice in the Courts’ Committee 
on Guardianship to promote education about, and 
greater use of, limited guardianships by the courts, 
assuring that a partially incapacitated person retains 
the greatest possible autonomy. 

Consider as an example a developmentally 

disabled young adult who still attends school and 
is working toward mastering certain life skills. This 
individual may have the ability to handle up to $100 
of spending money on a limited debit card but may 
not have the ability to make major life decisions 
and make major purchases unaided. A limited 
guardianship decree could reserve to the individual 
the right to transact business with a debit card, 

LIMITED GUARDIANSHIP: 

Pennsylvania law requires that 

“the court shall prefer limited 

guardianship.” Courts should strive 

to reserve rights to a partially IP, such 

as the right to vote or to manage a 

small bank account.

limited to transactions of up to $100. Such a person 
may also have the ability to exercise a right to vote. 
These are just a few examples of the types of rights 
that may be expressly reserved to an individual in a 
decree to protect their autonomy and dignity to the 
maximum extent possible.

Courts are encouraged to work with petitioners, 
counsel, and families to craft a decree appointing a 
limited guardian that specifically itemizes the duties 
delegated to the limited guardian, while specifically 
reserving certain rights and abilities to the IP or 
partially incapacitated person. Limited guardianships 
must be crafted on a case-by-case basis, to address 
the specific needs, abilities, and disabilities, of the IP 
or partially incapacitated person. 

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10

CHAPTeR TWo

Petition for Adjudication of  Incapacity and Appointment  
of  Guardians

A complete petition for adjudication of incapacity 

and appointment of guardians ensures that the 
court has the essential information to hear the case 
promptly and effectively, and that the appropriate 
parties are identified, receive appropriate notice, 
and have a meaningful opportunity to participate 
in the hearing. Before scheduling the hearing, the 
court staff or the judge should review the petition to 
determine whether it is adequate and complete. The 
petition should identify the nature of the incapacity, 
the reasons for the request to appoint a guardian, 
the type of guardian or guardians sought, and must 
include essential exhibits. The petitioner should also 
explain whether less restrictive alternatives have 
been considered.

A court may dismiss a petition “where it 

determines that the proceeding has not been 
instituted to aid or benefit the AIP, or that the 
petition is incomplete or that it fails to provide 
sufficient facts to proceed.”13 Prompt review of 
the petition may benefit all parties by requiring the 
petitioner to meet the requisite standards before the 
hearing is scheduled.

Jurisdiction and Venue

The petition should identify the basis of the court’s 
jurisdiction over the AIP. The first and most obvious 
question is, where does the AIP reside? 

A court has the authority to appoint a guardian 
of the person or a guardian of the estate for an AIP 
who:

1.  Is domiciled in the county;

2.  Resides in the county; or

3.  Is a resident of a long-term care facility in the 

county.14

Notably, a resident of another county who is 

present in a hospital, is not a resident of the county 
in which the hospital is located; similarly, a person 
temporarily visiting a family member but not residing 
there, is not a resident of the county where the family 
member lives. 

13  20 Pa.C.S. § 5511(a) (emphasis added).
14  20 Pa.C.S. § 5512(a).

In addition, the court may have jurisdiction to 
appoint a guardian of the estate only (and not a 
guardian of the person) for an AIP who is not a 
domiciliary or resident of Pennsylvania, but who 
owns real property in the county, or who is a 
beneficiary of property under an estate or trust 
administered in the county.15 

Jurisdiction over a person and their guardian must 

be exclusive in only one court. The petition must 
also advise that no guardian has been appointed by 
any other court within the Commonwealth or by any 
court in the united States, for the same person.

Interstate Issues

Pennsylvania has adopted the uniform Adult 

Guardianship and Protective Proceedings 
Jurisdiction Act.16 This act provides rules for 
determining which state has jurisdiction over an AIP, 
when it is alleged that the person has been moved 
from one state to another or there is a dispute about 
the person’s domicile. See CHAPTER THREE for a 
fuller description of the uniform Adult Guardianship 
and Protective Proceedings Jurisdiction Act, 
including how to determine jurisdiction and how 
to transfer or accept a transfer of jurisdiction in a 
guardianship matter.

Who May be the Petitioner?

Section 5511(a) provides “[t]he petitioner 
may be any person interested in the alleged 
incapacitated person’s welfare. The court may 
dismiss a proceeding where it determines that the 
proceeding has not been instituted to aid or benefit 
the [AIP] or that the petition is incomplete or fails to 
provide sufficient facts to proceed.” 17

This gives broad discretion for the court to 

entertain a petition filed by any person interested 
in the welfare of the AIP. This may include family, 
friends, neighbors, an attorney, or other professional 
with a relationship with the AIP. Petitions are also 

15  20 Pa.C.S. § 5512(b).
16  20 Pa.C.S. § 5901, et seq. 
17  20 Pa.C.S. § 5511(a) (emphasis added). 

11

often filed by the area agency on aging, or by 
hospital, nursing home, or other health care provider. 
Courts must be mindful that in certain cases a 
petition may be filed by someone who is not acting 
in the best interests of the AIP. Consider carefully 
whether a creditor, a nursing home, or certain family 
members (including a spouse contemplating a 
divorce) may file a petition for an improper purpose, 
such as to deprive the person of rights.

What Must Be Included in the Petition?

1.  Personal Data: The thoroughly completed 
petition must contain the name, age, and 
address of the AIP, as well as names, 
addresses, and relationship to AIP of all 
interested parties. 

2.  Factual Background: includes valid reasons 
for seeking guardianship, specifically noting 
the physical and mental condition of the AIP, 
along with any limitations.

3.  Existence of Documents: such as Powers of 
Attorney, Health Care Powers of Attorney or 
Advance Directives for Health Care.

4.  Efforts to Implement Least Restrictive 

Alternatives.

See the Checklist of Required Averments for 
Petition for Adjudication of Incapacity at the end 
of this chapter, as well as a Checklist of Required 
Exhibits to the Petition.

nature of  the Proposed Guardianship 

1.  Type of Guardianship Sought: Emergency or 
Permanent; Limited or Plenary; Guardian of 
the Person or Estate, or both.

2.  Proposed Guardian: qualifications, no 

adverse interests to AIP, criminal background 
check (Pa. O.C. Rule 14.2).

The properly filed and completed petition for 
adjudication of incapacity and appointment of a 
guardian ensures that the case will be heard in a 
timely manner and the parties will be prepared to 
present appropriate evidence. Strategically, the 
petition outlines the purpose for the request and is 
supplemented with vital documents to support the 
request.

emergency basis must also contain averments that 
make clear the imminent harm that forms the basis 
for the need for an emergency hearing. Hearings 
for the appointment of an emergency guardian are 
discussed more fully in CHAPTER EIGHT.

emergency Petition for Protective 
Services

under the Older Adult Protective Services Act, the 

local Area Agency on Aging may bring a different 
type of petition, not governed by the Guardianship 
Act, seeking access to the home or records of an 
older adult, or access to the person of the older 
adult, in order to provide protective services. 
This relief may be granted only when the court is 
presented with clear and convincing evidence that 
the person is at imminent risk of death or serious 
physical harm. In some cases involving older adults 
who are resisting assistance and even refuse to allow 
the agency to see them or enter their home, this may 
be a less restrictive first step for the agency to take, 
to gain access to the person, determine whether 
they require any health care or assistance, and to 
examine bank records for any evidence of fraud 
or financial exploitation. Courts should be familiar 
with these petitions and must consider them on an 
expedited basis. These petitions may sometimes 
lead to a subsequent guardianship petition, but 
in other cases may permit the agency to provide 
urgently needed services while avoiding the need for 
a guardianship proceeding. 

Pennsylvania law contains the following provisions 

regarding an emergency petition for involuntary 
intervention by the area agency on aging to protect 
an older adult:18

(a)  Emergency petition.—Where there was clear 
and convincing evidence that if protective 
services are not provided, the person to 
be protected is at imminent risk of death 
or serious physical harm, the agency may 
petition the court for an emergency order to 
provide the necessary services. The courts 
of common pleas of each judicial district 
shall ensure that a judge or district judge is 
available on a 24-hour-a-day, 365-day-a-year 
basis to accept and decide on petitions for 
an emergency court order under this section 
whenever the agency determines that a delay 
until normal court hours would significantly 
increase the danger the older adult faces.

A petition for adjudication of incapacity and for 
appointment of guardian requesting a hearing on an 

18  35 P.S. § 10225.307.

12

(b)  Limited order.—The court, after finding clear 
and convincing evidence of the need for 
an emergency order, shall order only such 
services as are necessary to remove the 
conditions creating the established need.

(c)  Right to counsel.—In order to protect the 
rights of an older adult for whom protective 
services are being ordered, an emergency 
court order under this section shall provide 
that the older adult has the right to legal 
counsel. If the older adult is unable to provide 
for counsel, such counsel shall be appointed 
by the court.

(d)  Forcible entry.—Where it is necessary 

to forcibly enter premises after obtaining 
a court order, a peace officer may do so, 
accompanied by a representative of the 
agency.

(e)  Health and safety requirements.—The 

agency shall take reasonable steps to assure 
that while the person is receiving services 
under an emergency court order, the health 
and safety needs of any of the person’s 
dependents are met and that personal 
property and the dwelling the person 
occupies are secure.

(f)  Exclusion of remedy.—Nothing in this 
chapter shall be interpreted to deny any 
older adult access to the emergency medical 
services or police protection that would be 
provided to anyone, regardless of age, in 
similar circumstances.

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14

MONTGOMERY COUNTY COURT OF COMMON PLEAS 
ORPHANS’ COURT DIVISION

CHECKLIST FOR GUARDIANSHIP PROCEEDINGS 

Alleged Incapacitated Person’s (AIP’s) Name: 

Petitioner’s Name: 

Attorney: 

Case # 20 

-X 

Attorney/Pet. Phone Number:  

Attorney's/Petitioner's Email: 

1. Petition for Adjudication of Incapacity must contain:

a.  All of the following are required per 20 PA C.S.A. 5511(e) & PA O.C. Rule 14.2:

 Name, age, residence and mailing address of AIP 

Name and address of spouse, parents and adult heirs of AIP 

Name and address of residential facility 

Name and address of Proposed Guardian(s) 

Statement that Proposed Guardian(s) has/have no interest adverse to AIP 

Name and address of any individual appointed under a Power of Attorney or Health Care Power of 

Attorney 

Description of functional limitations and physical and mental condition of AIP 

Steps taken to consider less restrictive alternatives to guardianship 

Specific areas of incapacity for which Guardian is to be assigned powers 

Any areas of capacity for which AIP should retain authority 

Qualifications of Proposed Guardian 

Gross Value of Estate (assets) of AIP and monthly income of AIP 

Information about whether a pre-paid Burial Account exists 

Statement that no other Guardian has been appointed and no other Court has assumed 

e.  Out-of-state criminal record check if guardian has lived outside of Pennsylvania in last 5 years

f.  Guardianship Certification (required for professional guardians only)

jurisdiction over this AIP 

b.  Verification signed by Petitioner

c.  Consent signed by Proposed Guardian(s)

d.  Pennsylvania State Police criminal record check

g.  Attorney entry of appearance if applicable

h.  Forms:

Completed Expert Report 

Doctor’s Affidavit if AIP cannot attend hearing 

Form SP-4-131 (Notice of no firearms) 

Proposed Orders 

2.

Venue (20 PA C.S.A. §5512):

AIP is domiciled in or resides in Montgomery County or resides in a long-term care facility within 
Montgomery County. 

AIP is not a resident of Montgomery County, but is a beneficiary of an Estate or Trust in 
Montgomery County or has Real Property in Montgomery County. 

MONTGOMERY COUNTY ORPHANS’ COURT DIVISION; CHECKLIST FOR GUARDIANSHIP PROCEEDINGS, REVISED 9/2019; WITH SUPPORT FROM A GRANT FROM THE STATE JUSTICE INSTITUTE. 

1

15

3. Other items due at least 7 days before scheduled Plenary Hearing:

Forms: 

Affidavit of Service upon Alleged Incapacitated Person 
Service of the Petition, Citation and Notice must be made by Personal Service upon the Alleged 
Incapacitated Person, at least 20 days before the scheduled hearing, and the contents of the Petition 
must be explained to the maximum extent possible in terms the person is most likely to understand. 

Affidavit of Service upon adult heirs, care providers and agents under any Power of Attorney (as 
the Court may direct, generally by first class mail at least 20 days before hearing) 

Notice of Retention/Non-Retention of Counsel for AIP

MONTGOMERY COUNTY ORPHANS’ COURT DIVISION; CHECKLIST FOR GUARDIANSHIP PROCEEDINGS, REVISED 9/2019; WITH SUPPORT FROM A GRANT FROM THE STATE JUSTICE INSTITUTE. 

2

16

CHeCKLIST oF ReQUIReD AVeRMenTS FoR PeTITIon FoR 
ADJUDICATIon oF InCAPACITY
Pa. o.C. Rules 14.2(a) and (b)

1.  The name, age, address (and if different, mailing address), and relationship to the AIP of the petitioner.

2.  The name, age, and address (and if different, mailing address), of the AIP.

3.  The names, addresses, and relationship to the AIP of all interested parties including: 

a)  All presumptive heirs (close relatives including the spouse, children, parents, and other close 

relations such as siblings) of the AIP (it should be stated whether these individuals are sui juris or 
non sui juris).

b)  Any person or institution providing residential services to the AIP.

c)  Any other service provider. (It should also be listed what the nature of the service provided is.)

d)  Any person designated to act as agent of the AIP, in writing, under either an executed healthcare 

power of attorney, a power of attorney, or any other writing giving such authorization.

e)  Any person the petitioner proposes should receive notice of the filing of guardianship reports.

f)  The person or entity the petitioner seeks to nominate as guardian. The proposed guardian’s 

qualifications and relationship to the AIP should be listed as well. If the guardian is an entity, the 
name of the person who will have direct responsibility over the AIP, as well as the name of the 
organization, should be given.

4.  The reason the guardianship is sought. A description of functional limitations, as well as the physical 

and mental state of the AIP should be included.

5.  Whether the petitioner requests the appointment of:

a)  A limited or plenary guardian of the estate;

b)  A limited or plenary guardian of the person; or

c)  Co-guardianship in any capacity.

6.  If the guardianship being sought is limited or not plenary in nature, the areas of incapacity over which 

a guardian should be given authority need to be specified. 

7.  If a guardianship of the estate is sought (whether limited or plenary), the petition should include:

a)  The gross value of the assets of the AIP to the extent known by the petitioner;

b)  The net income of the AIP to the extent known to the petitioner; and

c)  Whether there exists a prepaid burial account to the extent known to the petitioner. 

8.  If a prior incapacity hearing concerning the AIP has occurred. If so the name of the court, date of 

the hearing, and that court’s findings (and whether or not the court’s ruling is still in effect) should be 
listed. 

9.  An explanation of the efforts made to employ a less restrictive alternative rather than seeking 

appointment of a guardian and why these alternatives will not or did not work. 

10. The likelihood of improvement with regard to the mental and physical condition of the AIP.

17

11. The veteran status of the AIP and whether the AIP is receiving benefits from the uSVA on behalf of 

themselves or through a spouse. 

12.  A representation that each proposed guardian has no adverse relationship to the AIP. 

13. The availability and ability of the proposed guardian to visit or confer with the AIP. 

14. If the proposed guardian has completed any guardianship training the following information should be 

included:

a)  Name of the program;

b)  Length of the program; and 

c)  The date of completion. 

15. Whether the proposed guardian is a certified guardian and the current status of any certification and or 

any disciplinary action against the guardian.

16. If the guardian is or was in any other guardianships. If so, the number of the active guardianships they 

are involved in should be listed.

17. Whether petitioner seeks to nominate different guardians for the person and the estate.

18

CHeCKLIST oF ReQUIReD eXHIBITS To PeTITIon FoR ADJUDICATIon  
oF InCAPACITY AnD APPoInTMenT oF GUARDIAnS
Pa. o.C. Rule 14.2(c)

1.  A verification by the petitioner, as with any petition.

2.  A consent to serve signed by each proposed guardian. 

3.  A proposed Preliminary Decree with Citation. 

4.  A proposed Final Decree.

5.  All durable powers of attorney and health care powers of attorney, if available to the petitioner. 

6.  The certified response to Pennsylvania State Police criminal record check for each proposed guardian.

7.  If the guardian has resided outside of Pennsylvania within the five years before the petition was filed, 
and was over the age of 18 at such time, a certified criminal record check from the state or states 
where the guardian resided.

8.  A consent to serve as guardian signed by any proposed guardian or guardians.

Additional documents may be filed with the petition, or presented to the court before or at the hearing: 

1.  Expert report signed by a health care provider attesting to the provider’s opinion regarding the 

capacity and functional limitations of the AIP. (See expert report form G-6 in Appendix). 

2.  If the AIP is not expected to attend the hearing, the court should receive an affidavit of a physician or 

psychologist stating that attendance at the hearing by the AIP may be harmful to his or her physical or 
mental condition.

3.  A proposed Form SP-4-131 Firearms Notice is required to be filed with the Clerk of the Orphans’ Court 

so that the Clerk may file it with the State Police following any order determining incapacity.

4.  Affidavits of Service of the required notices (discussed in CHAPTER FOuR). 

19

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20

CHAPTeR THRee

Interstate Issues: Jurisdiction and Transfer of  Guardianship

Jurisdiction and Transfer of  
Guardianship

Pennsylvania has enacted the uniform Adult 

Guardianship and Protective Proceedings 
Jurisdiction Act (uAGPPJA) 19 to address 
jurisdictional issues and transfer of guardianship 
matters. Because in our society people move to 
different states at different stages of their lives, to be 
near relatives or for retirement, jurisdictional issues 
may arise in determining where a guardianship 
hearing should occur and where an IP should live 
and be cared for. Disputes may arise among family 
members about which state is the appropriate 
jurisdiction for any guardianship proceedings.

If it is alleged in the petition that the person 

resides in another state, or that the person 
resides in Pennsylvania but has resided here for 
less than six months, consider carefully whether 
or not Pennsylvania is the “home state” or is a 
“significant connection state” for the AIP under this 
statute. If Pennsylvania is not the home state or a 
significant connection state, it may be appropriate 
to dismiss the petition for lack of jurisdiction. 
Before dismissing the petition, consider carefully 
whether an emergency exists which will likely result 
in substantial harm to the AIP’s health, safety, or 
welfare, which may provide jurisdiction for the limited 
purpose of entering an emergency order.

Jurisdiction: Does the Pennsylvania 
Court Have Jurisdiction?

Where a party has moved or has been moved from 
one state to another, how do you determine whether 
your court has jurisdiction to consider a petition 
to adjudicate incapacity? How might this question 
arise? For example:

•	 A mother, who suffers from dementia, who 
has lived in Pennsylvania her whole life, is 
taken to Florida by son without the consent 
of other children. Son has also transferred 
all of mother’s funds to a new joint account. 
Which is the home state?

•	 A father who has spent winters in Florida and 

summers in New Jersey for over a decade 
(not necessarily spending six consecutive 
months in either place, often visiting children 
or other relatives), is moved into daughter’s 
Pennsylvania home by daughter, without 
agreement of all parties as to whether this is 
best for him. 

•	 A developmentally disabled child whose 
parents are divorced is moved from 
Pennsylvania, where he has lived most of 
his life with mother, to father’s home in Ohio. 
Father becomes Representative Payee in 
Ohio for son’s Supplemental Social Security 
Income.

Just as in child custody matters, interstate 
guardianship questions and disputes may be 
expected to increase in frequency as family 
members’ residences have become more dispersed 
across the united State and around the world.

1.  Home State: First, determine whether 

Pennsylvania is the person’s “home state” as 
defined by the uAGPPJA.20 Generally, jurisdiction 
is appropriate in the “home state” in which the 
person has been living for at least six months 
consecutively prior to the filing of the petition. 
under the statute, the “home state” is defined as:

a)  The state in which the AIP was physically 

present for at least six consecutive months 
(including any period of temporary absence) 
immediately before the filing of the petition; 
or

b)  If there is no state in which the person was 
physically present for the preceding six 
consecutive months, the state in which 
the person was present for at least six 
consecutive months ending within the six-
month period preceding the filing of the 
petition.

2.  If not “Home State,” Jurisdiction 

Determination:

a)  First, determine whether there is a “home 

state” other than Pennsylvania and consider 
contacting the appropriate court in that state.

19  20 Pa.C.S. §§ 5901, et seq.

20  20 Pa.C.S. § 5911(a).

21

b)  Review pleadings carefully to determine 

whether the parties have pleaded sufficient 
facts from which to determine what state 
is the “home state,” whether proceedings 
have been commenced in any other state, 
and whether Pennsylvania is a “significant 
connection state.”

c)  Next, determine whether Pennsylvania is a 
“significant connection state”21 as defined 
by statute: A significant connection state is a 
“state, other than the home state, with which 
a respondent has a significant connection 
other than mere physical presence and in 
which substantial evidence concerning the 
respondent is available.” In determining 
whether Pennsylvania is a “significant 
connection state” the court shall consider the 
following factors:

i)  The location of the person’s family and 
other persons required to be notified of 
guardianship proceedings.

ii)   The length of time the person was 

physically present in the state, and the 
duration of any absence.

iii)  The location of the person’s real and 

personal property.

iv)  The extent to which the person has ties 
to the state, including voter registration, 
state and local tax return filing, driver’s 
license, vehicle registration, social 
relationships, and receipt of services.

d)  If Pennsylvania is a “significant connection 
state” then the Pennsylvania court may 
exercise jurisdiction if one of the following 
clauses also applies:

i)  The person has no home state (e.g., has 
moved frequently among more than one 
state in the year preceding the filing of the 
petition); or where the home state court 
has declined to exercise jurisdiction;

ii)  The person has a home state, but all of 
the following circumstances apply: 

(1)  no petition for adjudication of 

incapacity is pending in that state 
court nor in any other “significant 
connection state;” 

(2)  no petition for adjudication of 

incapacity is filed in the “home state” 

prior to the Pennsylvania court issuing 
its final decree; 

(3)  no objection to jurisdiction in 

Pennsylvania is filed by a person 
entitled to notice; and 

(4)  the Pennsylvania court concludes that 

it is an appropriate forum.

BEST PRACTICE: Where Pennsylvania 

is not the “home state” be aware that 

notice of  any guardianship petition must 

be provided to all parties who would be 

entitled to notice in the home state.

Where a person may have a residence 

or family in another country, a foreign 

nation may be treated similarly to 

another state by a Pennsylvania court 

analyzing the most appropriate forum  

for guardianship proceedings.

3)  Emergency Order: Even where the Pennsylvania 

court does not have jurisdiction under the 
provisions described above, where either the 
person or his or her property is present in 
Pennsylvania, a Pennsylvania court may issue an 
order, effective for up to 90 days, to address 
the following issues on a temporary basis:22 

a)  Appointing a guardian in an emergency for a 

term not exceeding 90 days for a person who 
is physically present in Pennsylvania; or

b)  Protecting real or personal property located 

in Pennsylvania; or 

c)  Appointing a guardian for a person for 

whom a provisional order transferring the 
proceeding from another state has been 
issued.

21  Id.

22  20 Pa.C.S. § 5914.

22

4)  Declining Jurisdiction; Dismissing the 
Petition; Continuing Jurisdiction:

a)  A court may decline to exercise its 

jurisdiction (even where found to have 
jurisdiction under the statute) at any time 
when the court concludes that a court of 
another state is more appropriate.23

b)  Where the court determines that it has 
acquired jurisdiction as a result of the 
“unjustifiable conduct” of a party, the 
court may:

i)   decline to exercise jurisdiction;

ii)   exercise jurisdiction for the limited 

purpose of fashioning an appropriate 
order to ensure the health or safety 
of the person or to prevent the 
unjustifiable conduct; or 

iii)   continue to exercise jurisdiction as 

appropriate.24

c)  Where Pennsylvania is not the “home 
state,” upon the request of a court of 
the “home state,” a Pennsylvania court 
shall dismiss any petition seeking an 
emergency guardianship or protective 
order.

d)  A court that has determined that it has 

jurisdiction and issues an order shall have 
exclusive and continuing jurisdiction over 
the proceedings until such time as such 
order expires by its own terms or the 
court terminates the proceedings. 

Where a party, through “unjustifiable 

conduct” has attempted to invoke the 

court’s jurisdiction in a guardianship 

proceeding, the court may assess 

reasonable fees and costs, including 

attorneys’ fees, witness expenses and 

travel expenses, against that party. 

5)  Transfer of guardianship – procedure for 

transfer to another state: Typically transfers 
of guardianship are uncontested matters 
that arise due to a change of circumstances 
or a change in primary caregiver. However, 
be alert to notice requirements to assure 
that any party who might object has an 
opportunity to be heard.

a)  A court-appointed guardian may petition 
to transfer the guardianship matter to 
another state, in a case in which the IP 
has been or will be moved to another 
state.25

b)  Notice must be given to all persons 

entitled to notice of the guardianship 
petition.

c)  A court shall hold a hearing on the 
petition to transfer guardianship to 
another state, either on its own motion 
or upon the request of the guardian, the 
IP or another person required to be given 
notice.

d)  When to grant a request to transfer 

guardianship to another state? When the 
IP is in the other state or will be moved to 
the other state; when plans for the care 
of the IP in the other state are reasonable 
and sufficient; and where there is no 
objection to the transfer, or an objector 
has not established that the transfer is 
contrary to the IP’s best interests.

e)  The court shall issue a provisional 

order, granting the request to transfer 
guardianship of the person and/or 
guardianship of the estate of an IP to 
another state.

f)  The court shall issue a final decree, 
transferring the guardianship of the 
person and/or guardianship of the 
estate to another state upon receipt of a 
provisional order issued by a court in the 
other state, accepting the guardianship(s); 
and any final report required to be filed to 
close the guardianship in this state.

6)  Acceptance of jurisdiction over a 
guardianship from another state:26

a)  A petition to confirm transfer of 

23  20 Pa.C.S. § 5916.
24  20 Pa.C.S. § 5917.

25  20 Pa.C.S. § 5921.
26  20 Pa.C.S. § 5922.

23

guardianship of the estate and or person 
of an IP who has moved to Pennsylvania 
must include a certified copy of the 
provisional order from the other state 
approving the transfer of guardianship to 
Pennsylvania.

b)  Notice of a petition to transfer 

guardianship must be provided to 
all persons entitled to notice of a 
guardianship petition. 

c)  The court shall hold a hearing on the 
petition to transfer guardianship to 
another state, either on its own motion 
or upon the request of the guardian, the 
IP or another person required to be given 
notice.

d)  The court shall issue a provisional order 

accepting guardianship of the person and 
or estate unless: 

i)  An objection is made and the objector 

establishes that transfer of the 
proceedings would be contrary to the 
best interests of the IP; or 

ii)  A guardian is ineligible for 

appointment in Pennsylvania.

e)  The court shall issue a final decree 

accepting the transfer of guardianship 
upon receipt from the original state court 
of a final order approving the transfer to 
Pennsylvania.

f)  Within 90 days after issuing a final decree 
accepting the guardianship, the court 
shall determine whether the guardianship 
requires modification to comply with the 
laws of Pennsylvania.

7)  Cooperation between courts

a)  Phone calls and communications 

between courts: A judge or court staff 
in Pennsylvania may contact a court of 
another state to discuss jurisdictional 
issues and to coordinate proceedings 
related to guardianship. Contact may be 
as simple as a phone call between judges 
or court staff to discuss scheduling, 
jurisdictional questions, or procedures, or 
may be a discussion that is transcribed 
and made part of the record. Where the 
communication between courts involves 
matters other than scheduling, calendars, 

and other administrative matters, the 
statute requires that the court shall 
make a record of the communication, 
which may be limited to the fact that the 
communication occurred.27

b)  Interstate cooperation regarding 
testimony, evidence and court 
proceedings: For instance, if the AIP has 
a domicile in Pennsylvania but has been 
moved by one of the children to another 
state, and the parties dispute jurisdiction 
and whether a guardianship is needed, 
the Pennsylvania court may ask the court 
in another state to assist in evaluating 
the AIP or in arranging for testimony by 
individuals located in that state.28 The 
following are examples of requests that 
a judge or court staff from Pennsylvania 
may request of the appropriate court in 
another state:

BEST PRACTICE: Where there is a 

dispute about jurisdiction, consider 

making a phone call or sending a 

letter to the judge in another state 

to coordinate proceedings and avoid 

inconsistent rulings. Make a record of  

this communication.

i)  Hold an evidentiary hearing.

ii)  Order a person in that state to provide 

evidence or testify.

iii)  Order an evaluation of the AIP.

iv)  Order an investigation.

v)  Forward to the court in Pennsylvania a 
certified copy of the transcript of any 
proceedings.

vi)  Issue an order to assure the presence 

of any person necessary for the 
proceeding.

27  20 Pa.C.S. § 5904.
28  20 Pa.C.S. § 5905.

24

vii)  Issue an order authorizing the release 
of medical, financial, criminal or other 
relevant information in that state.

viii) “Take or refrain from taking any other 
action to facilitate the prompt and fair 
resolution of matters subject to this 
chapter.”29

29  20 Pa.C.S. § 5905(a)(8).

25

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26

CHAPTeR FoUR

Pre-Hearing Issues

Because a petition to appoint a guardian 

requests a deprivation of an individual’s rights, due 
process requirements apply to every aspect of the 
proceedings, as protection of individual rights and 
liberties are at the very core of the united States 
Constitution and our system of justice. 

The purpose of this chapter is to address matters 

that the court may consider before the hearing, 
to afford the AIP due process, to accommodate 
witnesses, and to comply with requirements for 
access to justice. Pre-hearing decisions of the trial 
court or actions of the parties may significantly affect 
the ability of the court to hear and decide the matter 
at the time scheduled for hearing. It is important that 
the court carefully review the initial petition and any 
answer filed in response, as well as any competing 
petitions, or motions to strike a petition filed before 
the hearing. 

By reviewing the petition or any subsequent 
pleadings, the court may be able to immediately 
identify issues that must be addressed prior to the 
hearing. Sometimes the issues aren’t easily identified 
and may take additional inquiry of the court or the 
court’s staff to get the information necessary to be 
able to proceed with the actual hearing. Of course, 
the court’s inquiries and actions must comply with 
the law and the Code of Judicial Conduct and the 
court must avoid ex parte communications.

General Access to the Courts and 
Language Access 

Recommended checklist for court staff to confirm 

prior to hearing:

•	 Language access? Need for an interpreter?

•	 Hearing or sight issues (need for assisted 

listening devices or CART real time display of 
transcript, so that AIP may follow along with 
testimony)?

•	 Overstimulation issues (for instance where 
the AIP may suffer from autism or other 
developmental disability)?

•	 Need for access for a person in a wheelchair, 

with a walker or other assistance?

•	 Need for an aide or supportive person to be 

27

permitted to accompany the AIP?

•	 Adequate (ideally private) waiting room?

•	 Need for Sheriff? (Consider whether case 
involves history of family disharmony or 
domestic violence.)

Special consideration should be given to the 
location and scheduling of hearings, for example:

•	 Time of day?

•	 Other hearings listed at the same time?

•	 Privacy considerations?

•	 Ease of access to the courtroom? Ramps?

BEST PRACTICE: Judges are 

encouraged to carefully review 

the petition and if  necessary, have 

their staff  or court administration 

confirm with counsel or the self-

represented parties whether or not 

any of  the petitioners, witnesses, or 

the AIP may need an interpreter or 

listening devices.

Article 1, § 26 of the Pennsylvania Constitution 

and 42 u.S.C. § 126 of the American with Disabilities 
Act assure that litigants and parties to an action 
shall have access to the courts which shall 
include interpreter services when necessary. More 
specifically, 42 Pa. C.S §§ 4412 and 4432 assure 
that interpreters are provided for those with language 
needs or for the hearing impaired.

Access to the Courts 

It is not uncommon in guardianship proceedings 

to have to accommodate the special needs of 
the AIP. Some individuals may require substantial 
medical assistance and the use of various devices 
such as motorized wheelchairs, assisted listening 
devices, or other apparatus to be able to appear 
at the hearing and meaningfully participate in the 
hearing. Depending on the style, design, and age 
of your courthouse, there may be a need to ensure 
that individuals have access to ramps, elevators, and 
courtrooms that can accommodate these devices. 
Some individuals may have certain disabilities 
that cause them to have anxiety or other adverse 
reactions to the stimulation of the proceedings and 
the strange environment of the courtroom. The 
hearing may prompt reactions that may be disruptive 
during the course of the proceedings or may be 
harmful to the individual. In those instances, it is not 
uncommon for the family or facility to have aides 
who can assist with the care of the individual. This 
does not necessarily mean that the party should not 
be present and observed by the court. ultimately this 
decision rests with the judge, to balance whether 
it is important for the AIP to be present, if able, to 
participate, with whether participation may provoke 
anxiety, stress, and fear, and may indeed cause harm 
to the individual. 

Sensitivity should be given to the challenges of 
attending a hearing for the AIP and for the family 
members or facility staff in attendance at the hearing. 
Care should be taken to minimize stimulation 
by careful coordination with those most familiar 
with the AIP. Careful pleading by counsel for the 
petitioners will afford you some of this information. 

BEST PRACTICE: Accommodations 

should be made by the court to 

facilitate the AIP’s attendance. 

Consider accommodating the AIP 

with hearing aids or amplification in 

the courtroom, permitting the AIP 

to participate by video, or holding 

the hearing at the AIP’s facility or 

residence where appropriate.

However, court staff could reach out to the attorneys 
to see if there are any special needs of the AIP or 
accommodations that may be required given the 
particular alleged physical or mental disabilities. 

An AIP may request that the hearing be closed 

and conducted in private in the courtroom. The 
statute permits the hearing to be closed to the public 
to protect the privacy and confidential personal 
information of the AIP. Be prepared for these 
requests. Because significant confidential personal 
information, financial information, and health 
information must be shared in an incapacity hearing, 
consider scheduling incapacity hearings individually, 
so that the public and other parties and families are 
not present in the courtroom during testimony. Be 
aware that the AIP may request that the hearing be 
closed to the public.30

Appointment of  Counsel 

20 Pa.C.S. § 5511(a) requires that the petitioner 
who is seeking to proceed with a hearing and have 
a guardian appointed for the AIP notify the court 
at least seven days before the hearing if counsel 
has not been retained by or on behalf of the AIP. 
The statute provides no guidance as to what 
information must be supplied in the notification to 
the court. If the court is advised that the AIP does 
not already have their own counsel, the court should 
carefully review the petition filed and, based on the 
allegations, determine whether or not an attorney 
should be appointed for the AIP. 

Orphans’ Court judges across the Commonwealth 

have different approaches on when and how 
frequently to appoint counsel, and whether to wait 
to see if the AIP requests counsel. Many courts 
appoint an attorney in all cases alleging incapacity. 
Others decide whether or not the appointment of 
counsel is necessary on a case-by-case basis. 
Other considerations, such as whether any parties 
in interest oppose guardianship, or whether there 
are allegations of misfeasance or malfeasance or 
abuse and neglect should also be considered in this 
analysis. The statute provides that the AIP has a right 
to request that the court appoint counsel. Although 
not all AIPs will exercise this right, some judges feel 
it is prudent to protect the fundamental constitutional 
rights of all AIPs by appointing counsel in all cases.

upon receipt of a seven-day notice to the court 
that counsel has not been retained for the AIP, the 

30  20 Pa.C.S. § 5511(a).

28

court may decide to appoint independent counsel to 
represent the AIP. The court may also defer making 
that decision to the time of the hearing. The court 
may wish to observe the person during the course of 
the proceedings, and if there is evidence presented 
that the person’s interests would be served by the 
appointment of counsel, the court may continue the 
proceedings and appoint counsel to the AIP.

large type and in simple language. See Required 
Form of Notice to AIP in Appendix. The person 
serving the notice, citation, and petition on the AIP is 
required to explain, “to the maximum extent possible 
in language and terms the individual is most likely 
to understand,” the purpose and seriousness of the 
petition.31 

BEST PRACTICE: Counsel for 

the petitioner should be expected 

to advise the court whether the AIP 

has counsel, whether the AIP has 

requested counsel, or whether the 

case is expected to be contested, at 

the earliest possible date. The court 

may wish to appoint counsel early to 

minimize the need for continuances. 

If counsel is appointed within seven days prior to 
the hearing, the attorney may request a continuance 
to prepare for the hearing and to provide adequate 
representation at the hearing. Some courts may 
choose to appoint counsel in all cases following 
initial review of the petition, in order to avoid 
requests for continuances in these circumstances. 
Practitioners should be encouraged to request 
counsel immediately, together with the filing of the 
petition, particularly if it is known that the case will 
be contested or if the AIP has indicated an intent to 
make a request for counsel.

The role of counsel for an AIP is discussed more 

fully in CHAPTER FIVE of this Bench Book.

Service of  the Petition on the AIP

Section 5511(a) requires that the petition must be 
served upon the AIP at least 20 days in advance of 
the hearing. The service must be in person, and the 
contents of the petition must be read or explained 
to the AIP in language and terms that they are likely 
to understand, including the right to counsel. The 
notice to the AIP is required to include a notice in 

BEST PRACTICE: The Court may 

require that the Petitioner provide 

a copy of  the Bill of  Rights of  an 

Alleged Incapacitated Person (copy in 

Appendix) to the AIP at or near the 

time they are served with the Petition. 

The person serving the petition on the AIP must 
look for indications as to whether the AIP will contest 
the question of incapacity and whether they want to 
be represented by counsel. This information should 
be contained in the letter or notice to the court 
describing whether counsel should be appointed. 

The court may wish to have staff carefully check 
the docket pre-hearing to determine if an affidavit 
or certificate of service has been filed. If an affidavit 
of service has not been filed before the hearing, the 
court may wish to have court staff request that proof 
of service be filed prior to the hearing. If the court 
allows, some attorneys bring the proof of service to 
the hearing. If proof of service hasn’t been confirmed 
prior to the hearing, or there is inadequate proof that 
personal service on the AIP actually occurred, the 

BEST PRACTICE: Check the docket 

to determine if  the appropriate 

affidavits of  service have been filed. If  

not, query petitioner to ensure service 

is made prior to the hearing date.

31  20 Pa.C.S. § 5511(a).

29

hearing may have to be delayed or rescheduled. 

An Affidavit of Personal Service on the AIP, as 
well as Affidavits of Service on family members and 
interested parties (including Agents under a Power 
of Attorney), are required to certify that all involved 
have received advance notice of the hearing, and 
that the AIP specifically had the petition personally 
served and the notice read. 

The AIP must receive written and oral notice at 

least 20 days before the hearing of:32

•	 Right to counsel including right to request 
that counsel be appointed, and to have 
counsel paid for if it cannot be afforded; 

•	 Hearing date, time and location;

BEST PRACTICE: When considering 

crafting a limited guardianship, 

the Court may need additional 

information not included in the Expert 

Report, and may require testimony 

by the expert in person, by video, by 

telephone or by deposition.

•	 Legal purpose and seriousness of the 

hearing, including possible loss of rights; and

Testimony of  Physicians or Health 
Care Providers

•	 A copy of the petition.

Evidence regarding the nature of a person’s 
alleged incapacity may be presented in person 
or by deposition, pursuant to 20 Pa.C.S. § 5518. 
Testimony concerning incapacity is subject to cross-
examination. 20 Pa.C.S. § 5518.1. The testimony to 
support a determination of incapacity must be from 
a professional who has the requisite training and 
experience to express an opinion about the specific 
condition that causes the alleged incapacity of the 
person who is the subject. Professionals who may 
testify may include medical doctors, psychiatrists, 
psychologists, nurse practitioners, social workers, 
and other professionals, provided that their training 
has qualified them to evaluate the type of condition 
that is affecting the AIP. Pennsylvania’s Supreme 
Court Orphans’ Court Rules Committee has 
adopted a form, Orphans’ Court form G-6, for an 
Expert Report, which may be used in lieu of live 
expert testimony when the question of incapacity 
is uncontested. A copy of the Expert Report form, 
Orphans’ Court Form G-6, appears in the Appendix.

BEST PRACTICE: Where the issue 

of  incapacity is not contested by any 

party, the right to cross-examine the 

expert may be waived and the court 

may accept a written expert report.

notice to other Parties

The petitioner must provide written notice of the 
petition and the date and time of the hearing to all 
persons who would be intestate heirs of the AIP, 
to any agent under a power of attorney, to any 
institution providing residential care services to the 
AIP, and to all other persons as directed by the court. 

BEST PRACTICE: Upon receipt of  

the 7-day notice indicating that the 

AIP is not represented by his or her 

own counsel, or upon first review 

of  the petition, consider whether to 

appoint counsel to represent the AIP. 

7-Day notice to Court of  no Counsel 
for AIP

The petitioner must notify the court at least seven 
days before the hearing if to the best of petitioner’s 
knowledge counsel has not been retained by the AIP.

32  Id.

30

Affidavit or Testimony excusing AIP 
from Attending Court Hearing

The AIP is expected to attend the hearing and 

participate unless their attendance would be harmful 
to them. The court may excuse attendance by the 
AIP where the court is satisfied, based upon a sworn 
statement or testimony of a physician or licensed 
psychologist, that the AIP’s physical or mental health 
would be harmed by attending. 20 Pa.C.S. § 5511(a)
(1). Care should be taken to assure that the petitioner 
and physicians or other experts are not merely 
excusing the AIP because it would be inconvenient 
for them to attend or if they wouldn’t understand 
the proceeding. However, where a person may 
suffer significant anxiety, agitation or discomfort 
by attending, the court should be sensitive to the 
possibility that a court appearance may impose an 
intolerable amount of stress on the AIP.

BEST PRACTICE: When the AIP 

is not present in the courtroom, the 

court should inquire at the outset and 

a sworn statement or deposition of  

the physician/psychologist explaining 

the reason that the AIP is not present 

must be made part of  the record, 

or ideally filed before the hearing. 

Physicians and petitioners should be 

reminded that inconvenience is not a 

reason for the AIP not to be present, 

and the presence of  the AIP will be 

excused only if  presence in court will 

likely HARM the AIP.

Appointing an expert to Conduct an 
Independent evaluation

The court may appoint an expert to conduct an 
independent evaluation of the AIP, either on its own 
motion or at the request of the AIP or counsel for 
the AIP. The court is required to consider appointing 

an evaluator nominated by the AIP.33 The court may 
appoint its own expert when there is any doubt as to 
whether the petitioner’s expert has conducted a fair 
and independent evaluation, or where the petitioner’s 
expert may not have the appropriate training best 
suited to the nature of the condition from which the 
AIP suffers, or where the AIP requests a second 
and independent evaluation. The request for an 
independent evaluation may not be made by 
another interested party, but only by the AIP or their 
counsel, or on the court’s own motion. The court 
may order the costs of the independent evaluation 
to be paid by the county, to be reimbursed by the 
Commonwealth.34

BEST PRACTICE: If  the AIP would 

be harmed by being required to come 

to the courtroom, but can participate, 

the court should consider permitting 

the AIP to participate in the hearing 

by video.

Pre-Trial Conferences

Although there is no statutory provision for a pre-
trial conference under the Incapacitated Person Act, 
the court always has the discretion to schedule a 
pre-hearing conference. The scheduling and conduct 
of a pre-hearing conference can become more 
complicated or difficult depending on whether or not 
all of the parties are represented by counsel. 

A common scenario encountered by the court is 

one where a county area agency for the aging is 
the petitioner seeking the appointment of either a 
guardian of the person or the estate. The proposed 
guardian isn’t the agency. While the area agency on 
aging, as petitioner, will have counsel, the proposed 
guardian may not have counsel. 

Depending upon the court’s earlier decision 
whether or not to appoint counsel, the AIP may 
or may not have counsel. The person may not 
have hired counsel. It is possible that there may 

33  20 Pa.C.S. § 5511(d). 
34  Id.

31

Conclusion 

The court has the ability with sufficient pre-
hearing planning to address many issues that if 
overlooked may thwart the successful completion of 
an incapacity hearing, which may have substantial 
consequences to the person’s physical well-being, 
health care, and estate management. The court’s 
careful prehearing planning will frequently be 
appreciated by the parties, counsel, and witnesses.

be challenges to the petition by family members 
or associates of the AIP, or by a person who had 
been granted power of attorney by the AIP. These 
individuals also may be participants in the hearing 
who are unrepresented. It is essential that the court 
clarify which parties have representation before 
convening a pre-hearing conference. This may affect 
whether or not the court can hold the conference in 
chambers, via telephone, or in a hearing/courtroom. 
It also may affect whether the court wishes to 
conduct the pre-hearing conference on the record 
or not. If all parties have counsel, the pre-hearing 
conference can be conducted more easily than if 
there are unrepresented parties. 

The lack of counsel should not discourage the 

court from holding a prehearing conference to 
address outstanding issues that, if resolved, will 
assure that a more orderly hearing will be held. 
Matters to discuss and consider may be whether 
or not physicians will be testifying in person, via 
telephone, via video, or if a deposition has been 
scheduled prior to the hearing and whether an expert 
report will be accepted in lieu of testimony. 

The court may have to confirm in advance of the 
hearing whether or not the AIP is to be present at 
the hearing. At the pre-hearing conference the court 
can make clear to the parties that in the event the 
AIP is not present at the hearing, the court must 
be satisfied by the testimony, deposition, or expert 
report of a physician, psychologist, or other health 
care provider, that the AIP’s physical or mental 
condition would be harmed by their presence, or 
it is impossible for the AIP to be present. A record 
can be made establishing the basis for the person’s 
absence. The reasons given for the absence should 
not be generalized statements that the person 
would be harmed, or that it would be inconvenient, 
but rather should provide detail about how that 
person’s specific conditions would be harmed by 
being present in court. Where frequent petitions 
for adjudication of incapacity and appointment of 
guardians are filed by a particular petitioner, such 
as a nursing home or health care provider, and 
that petitioner employs an expert who routinely 
asserts that the AIP is unable to attend, the court 
may want to make an inquiry to assure that the 
rights of the AIP to attend are not being abridged. 
If the court concludes the evidence is insufficient 
to establish that it would be harmful for the AIP to 
attend the hearing, the hearing can be continued and 
resumed once the court can guarantee the person’s 
attendance or permit the parties time to gain 
adequate evidence to justify the person’s absence 
from the hearing. 

32

CHAPTeR FIVe

Counsel for the Alleged Incapacitated Person

under the Pennsylvania Guardianship Act, the 
AIP has a right to have counsel represent them 
at the hearing on the petition for adjudication of 
incapacity and appointment of guardians. The AIP 
has “the right to request appointment of counsel 
and to have counsel appointed if the court deems 
it appropriate and the right to have such counsel 
paid for if it cannot be afforded.”35 The court shall 
appoint counsel to represent the AIP “in appropriate 
cases.” Counsel for the AIP may be paid by the 
Commonwealth “if it cannot be afforded” by the AIP. 
The petitioner must provide notice to the court as 
to whether the AIP is or is not represented at least 7 
days prior to the hearing.

Legal Requirement: Pennsylvania 

law recognizes a right to request 

the AIP?

counsel, and requires that counsel 

for the AIP shall be appointed “in 

appropriate cases.” 

The statutory right of the AIP is to have legal 
counsel appointed to represent them and is not 
satisfied by the appointment of a guardian ad litem.

How is Counsel Selected? Court-
Appointed Counsel or Private Counsel 
Selected by AIP?

An AIP may have sufficient capacity (even if 

ultimately it is established that they are impaired or 
incapacitated in many respects) to select their own 
counsel and they are not limited to court-selected 
counsel. An AIP or an IP has a right to “counsel of 
[his or] her own choice.” Although the court may 
have entered an order appointing counsel, where an 
AIP or IP with some ability has selected their own 
counsel, the court should allow the AIP’s selected 
counsel to appear for that person and vacate any 

35  20 Pa.C.S. § 5511(a). 

33

order appointing another attorney as counsel.36 
However, the court may find it necessary to inquire 
into, and may require a brief hearing to determine 
from facts placed on the record, whether the AIP 
or another person actually engaged the attorney. 
The following list of questions may help a court to 
determine whether the AIP has genuinely engaged 
their own counsel. 

Questions to Pose to Counsel Claiming 
to Represent the AIP

•	 Who contacted and retained counsel? Did a 
relative or agent actually hire counsel for the 
AIP? If so, does that person have a potential 
conflict of interest?

•	 How long counsel has known or represented 

•	 Does the AIP have knowledge of and ability 
to engage or select counsel? Does the AIP 
remember specifically engaging this person 
as counsel?

•	 Does counsel entering appearance for the 
AIP have any conflict? For instance, does 
the same attorney also purport to represent 
an agent acting under a power of attorney 
or another family member or interested 
party? Such proposed dual representation 
may pose a conflict of interest and justify 
court appointment of independent counsel 
for the AIP. In some cases, it may become 
evident that the counsel seeking to enter 
an appearance to represent the AIP was in 
fact engaged by a person with a possible 
adverse interest to the AIP. In such cases, the 
court would be wise to appoint independent 
counsel to represent the AIP. 

Role of  Counsel for the AIP/IP

Counsel for the AIP, whether court-appointed or 

privately engaged, should be expected to:

36  In re: Estate of Rosengarten, 871 A.2d 1249 (Pa Super. 
2016).

•	 Determine the AIP’s goals and wishes with 
regard to the guardianship proceeding, if 
the AIP is able to express them; act as a 
zealous advocate for the AIP’s expressed 
positions, as required by Pa.R.P.C. 1.2, 
which provides that a lawyer shall abide by a 
client’s decisions concerning the objectives 
of representation; 

lawyer shall abide by a client’s decisions concerning 
the objectives of representation. In this regard, 
the role of counsel for the AIP is the same as that 
of an attorney representing any other client, with 
the attorney playing the traditional role of zealous 
advocate for the client’s position. This obligation 
applies even if the attorney believes that the client is 
partially or totally incapacitated.

•	 Advocate for the AIP’s expressed positions, 

There may be circumstances in which an attorney 

goals, and wishes, to the extent possible; and

•	 Where appropriate, inform the court of the 

AIP’s expressed positions, goals and wishes.

for the AIP may request intervention or take other 
action to protect a client’s interests, even over the 
client’s opposition. For example, if the attorney 
reasonably believes that an AIP is being financially 
exploited or seriously abused or neglected by a 
third party but as a result of their incapacity cannot 
or will not act to protect their own interests, their 
attorney may take actions needed to protect the 
client’s interests, under Pa.R.P.C. 1.14(b). Generally, 
however, where the AIP objects to a finding of 
incapacity or appointment of a guardian, the attorney 
for the AIP should oppose the determination of 
incapacity and the appointment of a guardian. 
The role of counsel for the AIP is not to assist the 
petitioner in having a guardian appointed over the 
AIP’s objection, although there may be cases where 
there is no other outcome that would adequately 
protect the AIP’s interests. In such cases, counsel 
may also consider requesting that if a guardian is 
appointed to address an urgent concern, the court 
should consider scheduling a review hearing to 
review whether a guardian continues to be necessary 
and appropriate.

Pa.R.P.C. 1.14(c) provides that information relating 
to representation of a client with diminished capacity 
is protected by Pa.R.P.C. 1.6, which in turn states 
that “[a] lawyer shall not reveal information relating 
the representation of a client unless the client 
gives informed consent, except for disclosures that 
are impliedly authorized in order to carry out the 
representation…”. There are several exceptions 
to this requirement, including a provision that an 
attorney may reveal such information to the extent 
that the lawyer reasonably believes necessary “to 
prevent reasonably certain death or substantial 
bodily harm”. Pa.R.P.C. 1.14(c) further directs that 
when an attorney takes protective action pursuant to 
Pa.R.P.C. 1.14(b), “the lawyer is impliedly authorized 
under Rule 1.6(a) to reveal information about the 
client, but only to the extent reasonably necessary 
to protect the client’s interests.” An attorney’s belief 
that the client is incapacitated is not sufficient, by 
itself, to meet this standard.

The comments to Pa.R.P.C. 1.14 also note that 

BEST PRACTICE: Be aware 

that counsel for the AIP must, to 

the extent reasonably possible, 

maintain a normal attorney-client 

relationship with the AIP, even a 

person with diminished capacity. 

Counsel must zealously advocate 

for the AIP’s legal interests, which 

in many cases will mean opposing 

the petition for adjudication of  

incapacity and for appointment 

of  guardians. Counsel should 

also consider advocating for a 

less restrictive alternative than 

guardianship. 

In the representation of the AIP in an incapacity 
proceeding, the Pennsylvania Rules of Professional 
Conduct should be carefully considered. Particularly 
relevant is Pa.R.P.C. 1.14 (Client with Diminished 
Capacity), which requires counsel for the AIP to 
maintain, as much as reasonably possible, a normal 
attorney-client relationship with the AIP. This means 
that the attorney should, to the extent possible, 
determine the AIP’s goals and wishes with regard to 
the guardianship proceeding and act as an advocate 
for the AIP’s positions. Pa.R.P.C. 1.2 provides that a 

34

“[t]he fact that a client suffers from a diminished 
capacity does not diminish the lawyer’s obligation to 
treat the client with attention and respect.”

It is important to note the distinction between the 
role of counsel for the AIP and that of a guardian ad 
litem, whose role is to investigate the facts of the 
case impartially, make an independent assessment 
of the need for a guardian, and make a report to 
the court. A guardian ad litem’s role may involve 
disclosing the AIP’s confidences and making 
recommendations which conflict with the wishes of 
the AIP, actions which could conflict with the ethical 
obligations of counsel for the AIP, including both 
Pa.R.P.C. 1.2, discussed supra, and Pa.R.P.C. 1.6 
(Confidentiality of Information), discussed below. As 
such, counsel should not attempt to assume both 
of these roles simultaneously. However, counsel for 
an AIP may request the appointment of a separate 
guardian ad litem, if that step would be helpful in 
protecting the interests of the AIP.37

Responsibilities of  Counsel for the AIP

Counsel for the AIP should be expected to:

•	 Meet with their client to determine whether 
client can form and express an opinion 
concerning their goals for the representation. 
If the client is unable to do so (for example, 
if the client is comatose or unable to 
communicate in any way), the attorney will 
argue for the course of action that is in the 
client’s best interests;

•	

Interview family members, caregivers, 
medical or social services providers and 
others with knowledge of the AIP’s medical 
condition(s), decision-making ability, wishes 
and circumstances;

•	 Explain to the AIP their rights and the nature 

of the court proceedings;

•	 Review expert reports and depositions, 

and seek an independent evaluation where 
appropriate;

•	 Explore whether less restrictive alternatives 

to guardianship would alleviate the need for a 
guardianship;

37 Note that while the court may order the county to pay 
the costs of court-appointed counsel for the AIP, there is 
no provision for the court to order payment of the costs of 
a guardian ad litem for the AIP.

•	 File responsive pleadings and motions as 

appropriate;

•	 Advocate for the AIP’s wishes to the court;

•	 Request appointment of a guardian ad litem, 
if necessary, in cases in which the AIP’s 
expressed legal interests appear to be in 
conflict with their best interests; 

•	 Ensure that the petitioner meets the burden 
of proof by clear and convincing evidence 
and that court procedures are followed;

•	 Present evidence and cross-examine 

witnesses in contested cases;

•	 Advocate for less restrictive alternatives or for 

limited guardianship, wherever possible;

•	 Assure that the IP, if determined to be 

incapacitated by the court, is notified of rights 
to appeal and to seek a review hearing; and

•	 File appeals where appropriate.

engagement Letter of  Private Counsel 

Counsel, of course, must comply with all of the 
Rules of Professional Conduct. In addition, private 
counsel engaged by an AIP is required to prepare a 
“comprehensive engagement letter . . . setting forth 
the scope of counsel’s services . . . how counsel will 
bill for legal services and costs and the hourly rate, 
. . .who will be the party considered responsible for 
payment, [and] whether any retainer is required.”38 
Counsel shall provide a copy of the signed 
engagement letter to the court upon request.

BEST PRACTICE: The role of  

counsel and scope of  representation 

should be clearly defined in an 

engagement agreement prepared by 

private counsel and in a court order 

appointing counsel.

38  Pa. O.C. Rule 14.4(b). 

35

Court order Appointing Counsel

A court order appointing counsel for an AIP 
shall delineate the scope of counsel’s services 
and whether those services include pursuing 
any appeal.39 It is wise to prepare counsel for the 
possibility that they may be expected to file a 
notice of appeal for a client, and that they may not 
abandon a client or miss deadlines that could affect 
the client’s rights. However, if counsel lacks the time 
or resources to take an appeal, the court should 
consider appointing new counsel, upon the filing of a 
petition for leave to withdraw by appointed counsel. 

Duration of  Representation

LEGAL REqUIREMENT:  

An IP may be entitled to appointment 

of  counsel for matters that arise 

after the Final Decree adjudicating 

incapacity. 

•	 Request a review hearing if the guardian is 
not properly managing funds or assets or is 
not meeting the needs of the IP.

•	 Represent IP with regard to any end-of-life 

decision-making and advise court of client’s 
instructions and interests, if any.

Court Approval of  Counsel Fees

Counsel fees are paid from the estate of the IP 

where funds are available and are to be based 
upon hours worked and reasonable hourly rate for 
legal services. The fees are reviewed in proportion 
to assets available to sustain the IP and fees 
approved from the estate of an IP must be on the 
“most modest scale.”40 If the IP is unable to pay, 
the fees will be paid by county, and reimbursed 
by Commonwealth, for those persons unable to 
pay. Different courts have different views on the 
reasonableness of hourly rates and amounts of 
attorneys’ fees. However, bear in mind that the 
assets of the IP’s estate are a limited fund to support 
that person, typically for the rest of their life, and 
professional fees must be balanced in proportion to 
the living expenses and needs of the IP.

An appointment or engagement of counsel 

frequently continues after appointment of guardian. 
Following the appointment of a guardian of the 
estate, the guardian is the legal representative of 
the IP with the authority to sue and be sued, and 
to collect assets. However, issues that may arise 
following appointment of guardian where an attorney 
for IP may have a role include:

•	 Filing a notice of appeal on behalf of client, 

and pursuing an appeal.

•	 Review of proposed expenditures by 

guardian.

•	 Review of a proposal to sell home by 

guardian and advise court of any opposition 
by the IP. 

•	 Request a review hearing if IP’s capacity 

improves.

39  Pa. O.C. Rule 14.4(c).

40  Williams Estate, 9 Fiduc. Rep. 681 (O.C. Allegheny, 
1959); Lewis Estate, 18 Fiduc. Rep. 2d 211 (O.C. 
Montgomery, 1998).

36

CHAPTeR SIX

Counsel for Other Parties: Petitioner, Guardian,  
Agent Under Power of  Attorney, and Parties in Interest

In addition to counsel representing the AIP, 

attorneys may participate in guardianship 
proceedings to represent several other parties. In 
most cases, an attorney is likely to represent the 
petitioner seeking an adjudication of incapacity. 
However, family members sometimes file a petition 
without an attorney, seeking appointment of a 
guardian, particularly where funds are scarce. 
Attorneys may also enter an appearance to represent 
the guardian, to represent a person who has been 
named as an agent under power of attorney by an 
AIP, and to represent relatives and other interested 
parties.

Counsel for Petitioner

Petitioner’s counsel has obligations to assure that 
the petition complies with the rules and incorporates 
all of the required averments and attachments, to 
ensure notice of the proceedings to all interested 
parties, and to arrange for personal service of the 
citation about the AIP, with the notice to be read and 
explained to the AIP in terms the person is most 
likely to understand. Petitioner’s counsel also must 
notify the court if the AIP is represented by counsel, 
so that the court may timely consider whether 
appointment of counsel to represent the AIP is 
appropriate.

Petitioner’s counsel may be expected to nominate 

a qualified proposed guardian and obtain the 
consent of the proposed guardian. Petitioner’s 
counsel may also be expected to advise the court 
if the petition is likely to be contested and if the 
hearing is likely to be lengthy, which may require the 
court to reschedule the hearing date. Petitioner’s 
counsel should be familiar with the Supreme Court 
Orphans’ Court Rules and any local Orphans’ Court 
Rules regarding guardianship matters. Petitioner’s 
counsel also has the responsibility to offer evidence, 
either through an expert report or through expert 
testimony presented in person or by deposition, 
to establish by clear and convincing evidence that 
the AIP is incapacitated and in need of a guardian. 
Petitioners’ counsel must also present evidence 
concerning whether less restrictive alternatives are 
feasible and whether they have been attempted, and 
whether guardianship could be limited or must be 
plenary.

Where counsel is representing a petitioner which 
is a nursing facility with a claim for payment from the 
assets of the AIP, it is important to bear in mind that 
this type of petitioner has an interest in the outcome 
and may also be engaged in civil litigation to collect 
its fees. This makes it all the more important for 
the court to ensure that the AIP’s rights are fully 
protected; appointment of counsel for the AIP may 
be particularly appropriate in this situation. It is 
also important for the court to carefully consider 
the choice of guardian in this situation. Because 
the nursing facility as petitioner has nominated the 
guardian, and may frequently nominate that guardian 
to serve for its residents, it is important to assure 
that any guardian who is appointed does not see 
their obligation mainly as ensuring that the nursing 
facility gets paid, but rather will be fully attentive to 
their ongoing duties to ensure that the IP receives 
quality care and services.

Counsel for an Agent Under a Power  
of  Attorney

In cases in which the AIP has signed a power of 

attorney, the person named as an agent under a 
power of attorney is entitled to notice of the hearing 
and may wish to participate in the guardianship 
proceedings. An agent under a power of attorney 
may assert that a guardianship of the estate or 
person is not needed as the power of attorney is an 
adequate less restrictive alternative that is effective 
for the needs of the AIP. An agent named under a 
power of attorney may also have been nominated 
by the AIP in the power of attorney to serve as a 
guardian should a guardian be necessary. In some 
cases, an agent under a power of attorney may 
engage counsel to be paid from the funds of the AIP 
pursuant to the power of attorney. Such counsel 
may or may not explicitly seek to have the court 
recognize him or her as representing the interests 
of the AIP. Exercise caution in these cases, as the 
distinct interests of the AIP may differ from the 
interests of the agent under the power of attorney. 
In most cases, to avoid a conflict of interest, the 
court will determine that appointment of independent 
counsel to represent the interests of the AIP is 
necessary. Counsel for the agent may represent 
the interests of the agent in the proceedings, which 

37

may include opposing the need for a guardian, if the 
agent is able to meet the needs of the AIP.

Attorney Serving as Guardian

Counsel for the Guardian

A guardian may require counsel to represent 
the guardian in connection with performing their 
duties in subsequent proceedings. Counsel should 
not be necessary to handle routine guardianship 
responsibilities, such as paying bills and filing annual 
reports. Typically, the fees approved for these routine 
functions are at a lower hourly rate than the fees of 
counsel. Counsel for a guardian may be needed in 
connection with many things that may arise in the 
course of a guardianship, including but not limited 
to: defending or pursuing litigation and claims on 
behalf of the estate, settling claims and seeking 
court approval for any such settlement, seeking 
return of assets from another party, seeking to sell 
the home or other real property of the IP, or preparing 
and filing a formal fiduciary account of transactions 
for court approval. Note that where a guardian seeks 
a court order authorizing the guardian to consent 
to a specific act or omission, if the guardian has 
knowledge of the opposition of the IP, whether 
expressed before or after the appointment of the 
guardian, the guardian must notify the court of this 
opposition. For example, where a guardian seeks 
court approval to sell a home, if the guardian knows 
that the IP opposes selling the home, the guardian 
or his or her counsel must notify the court of this 
opposition.

Guardians may also on occasion need counsel 
to represent them personally where allegations of 
negligence or misuse of funds arise. In such cases, 
there may be a conflict between the interests of 
the guardian and those of the IP’s estate. Counsel 
representing guardians in such cases must 
determine and communicate clearly to both their 
client (including in their retainer agreement) and the 
court whether they are representing the guardian 
in their capacity as guardian of the estate or the 
guardian’s personal interests. Where a conflict 
arises, the court should consider appointing 
separate counsel for the IP. The court should also 
consider whether it is proper for the guardian to be 
reimbursed for attorneys’ fees from the IP’s estate to 
defend the guardian as a fiduciary, in cases in which 
malfeasance by the guardian is alleged. Generally 
the court will have to decide the question of 
whether there was a breach of fiduciary duty, before 
determining whether attorneys’ fees may properly be 
paid from the IP’s estate.

38

In some cases, an attorney will serve as a guardian 

of the person or as a guardian of the estate, either 
on an emergency basis or longer term. Often an 
attorney serving as a guardian may have significant 
knowledge, experience, and appreciation of the 
fiduciary responsibilities involved in a guardianship. 
However, an attorney should be cautioned that he 
or she should not expect to be paid at the same 
hourly rate for performing routine guardianship 
services as for performing more sophisticated legal 
services, and an attorney should be careful to keep 
detailed time records permitting the court and other 
parties to assess what services have been provided 
in the capacity as counsel, and what services have 
been provided as guardian. In addition, although an 
attorney may have professional liability insurance, 
the court should bear in mind that such insurance 
typically does not provide coverage for intentional 
acts. Therefore, in cases in which there are 
substantial assets over $100,000, it may be wise to 
require a bond to adequately protect the assets of 
the AIP.

Unrepresented Parties and Counsel for 
Parties in Interest

Family members and other parties interested in the 

well-being of the AIP may appear in court without 
counsel to represent them. The court should be 
sensitive to assuring that family members receive 
notice of the proceedings and an opportunity to be 
heard, even though they may be unrepresented. 
Family members may wish to advocate for the 
maximum independence of the AIP, may be able to 
propose less restrictive alternatives to guardianship, 
and may be able to provide important history 
and factual context for the court to consider in 
determining whether a guardian is needed and if 
so, whom to appoint as a guardian of the person or 
estate. In some cases family members are aware 
of a history of exploitation or abuse by a party 
that might otherwise be concealed from the court. 
Courts should strive to assure that guardianship 
proceedings, even where closed to the public, are 
open to and include family members who wish to 
participate.

In some cases a family member may retain counsel 

to represent them with respect to a guardianship 
matter. This is certainly permissable, but typically 
such counsel must be paid by the interested party 
from their own funds, unless the party can establish 

that their participation in the proceedings was 
directly beneficial to the IP or that they recovered 
assets for the IP.

Court Consideration of  Fee Petitions 
by Counsel for Various Parties

In some cases, counsel for other parties may 
file a petition for fees to be paid from the estate 
of an IP. Fees for counsel for another party should 
be authorized from the IP’s estate only where the 
counsel provided services that were of benefit to 
the IP. For example, filing the initial petition may be 
considered to be for the benefit of the IP. Reasonable 
and necessary fees for the counsel to the guardian, 
in connection with the guardian performing his or 
her duties, may be paid from the IP’s estate to the 
extent that there are sufficient assets in the estate. 
Fee petitions should be scrutinized to assure that 
the fees proposed to be charged are for reasonable 
amounts of time, at reasonable hourly rates, and 
are reasonable relative to the total amount of assets 
available to support the IP.

BEST PRACTICE: Courts must 

scrutinize fee petitions to assure 

that the proposed fees are at 

reasonable rates, for reasonable 

amounts of  time for the services 

provided, are reasonable relative to 

the total amount of  assets of  the IP, 

and that the fees were incurred for 

the benefit of  the IP.

39

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40

CHAPTeR SeVen

Identifying and Appointing qualified Guardians

When a court has determined that a person is 
incapacitated and that there is no less restrictive 
alternative to the appointment of a guardian of the 
person and/or a guardian of the estate, the court 
must next select a guardian or guardians who 
are qualified and will best meet the needs of the 
appointment.

The selection of a guardian for an IP is a decision 

that will have a significant impact on the person’s 
life and well-being. The guardian of the person will 
determine where the IP lives and make medical 
decisions on behalf of the IP. The guardian of the 
estate will manage and spend funds for the benefit of 
the IP. Selecting a responsible and capable guardian 
can be a challenging task, particularly where there 
is conflict among family members or other care 
providers. Qualities needed by a guardian of the 
estate may differ from those needed by a guardian of 
the person.

BEST PRACTICE: The court 

should appoint a guardian suitable, 

possible, the court should appoint 

as a guardian a person requested by, 

related to, or known to the IP. 

The selection of a guardian reflects on the court 
– leaving a positive impression where the guardian 
appointed is responsible, responsive, and capable 
– but leaving a negative view of the justice system 
where the guardian appointed lacks integrity, violates 
his or her fiduciary duties, or neglects or is not 
capable of meeting the needs of the IP.

The considerations most salient may differ across 

cases – depending, for example, upon whether 
appointing a guardian of the person, a guardian 
of the estate or both; whether the IP lives in the 
community or in a nursing facility; whether there 
is family harmony or family conflict; and whether 
the guardian will be managing significant valuable 

41

assets. Because these considerations vary, it may 
be advisable to appoint one person as guardian of 
the person and a different person as guardian of the 
estate.

Important Qualifications of  a 
Guardian of  the Person

•	 Responsibility and trustworthiness;

•	 Familiarity with health care decision making;

•	 Ability to identify and access medical 
services, social services, educational 
services, residential options, and recreational 
opportunities;

•	 Availability to respond in a timely manner 

and in emergencies; ability to visit regularly; 
geographical proximity may be an important 
consideration;

•	 Ability and willingness to encourage 

socialization with all other family members 
and friends; absence of hostility to other 
family members and friends;

responsibilities;

•	 No conflict of interest. 

Important Qualifications of  a 
Guardian of  the estate

•	 Responsibility and trustworthiness; 

•	 understanding of obligation to manage funds 

as a fiduciary on behalf of another;

•	 Ability to manage, invest, and expend funds 
appropriately, considering the size of the 
estate and the nature of expected expenses;

•	 Ability to engage appropriate tax, accounting, 

investment, and financial planning 
professionals, as needed;

•	 Ability to create a plan for the short- and 

long-term needs of the IP;

•	 understanding of the obligation to keep 

capable, and willing to serve. Where 

•	 Ability to handle possible additional future 

the IP’s funds separate and to account for 
the IP’s funds, on an annual report and, if 
required, in an account to the court;

•	 Ability to manage real estate and pay 

appropriate expenses;

•	 Ability to apply for and obtain state and 

federal benefits including medical assistance;

•	 Ability to handle possible additional future 

responsibilities;

•	 No conflict of interest;

•	 Ability to communicate with an IP and their 
family who are limited English proficient 
or to provide interpretation and translation 
services. 

Court Colloquy of  Proposed Guardian

In order to determine whom to appoint as 

guardian of the person or estate of an IP, the court 
should require the proposed guardian to testify 
and answer questions so that the court can be 
assured that the person has the qualifications and 
experience to perform the duties of a guardian, and 
has no conflict of interest or other impediment to 
serving. Professional guardians are equally required 
to demonstrate their fitness to serve and their 
availability to meet the needs of an IP and should be 
asked specifically about the size of their caseload 
of IPs to assure that they are reasonably available 
to meet the needs of the individual and to fulfill 
their responsibilities. See the Sample Colloquy for 
Prospective Guardians at the end of this chapter. 

Who Should be Appointed as 
Guardian?

A.  Person nominated by IP:

In appointing a guardian of the person or a 

guardian of the estate, the court shall give preference 
to appointing a person who has been nominated by 
the IP before his or her incapacity, “if appropriate.” 
A person may have nominated someone to serve 
as a guardian, should a guardian be needed, in a 
signed power of attorney. Although Pennsylvania’s 
statute directs that the court shall give preference 
to a person nominated by the IP, the court has 
discretion not to appoint a person who has been 
nominated by the IP where the court finds that such 
an appointment would not be appropriate under the 

BEST PRACTICE: Appointment of  a 

family member to serve as a guardian 

of  the person and/or as a guardian 

of  the estate is preferred wherever 

possible. The term “family member” 

should not be limited to immediate 

family, but courts are encouraged to 

consider other relatives and friends 

of  the IP who have the abilities and 

knowledge to serve as guardian of  the 

person or guardian of  the estate. 

circumstances.41

B.  Family members:

Advantages of appointing a family member:

•	 A family member will know and have a 

relationship with the IP;

•	 A family member may already be a key 

caregiver to the IP;

•	 A family member’s help and guidance are 

likely to be accepted by the IP; and

•	 A family member may have the trust, 
confidence, and cooperation of the IP.

Where there is no person expressly nominated 
by the AIP, priority for appointment of a guardian 
of the person or estate is established under a new 
Orphans’ Court Rule, (Pa. O.C. Rule 14.6(b)(1)). 

When considering whom to appoint as a guardian 
of the person, the Rule requires the court to consider 
individuals in the following order of priority, provided 
any such individuals are available and suitable and 
have no conflict of interest: 

1.  The guardian of the estate (if already 

appointed);

2.  The spouse, unless estranged or an action for 

divorce is pending;

41  20 Pa.C.S. § 5511(f).

42

5.  The nominee of a deceased or living parent of 

3.  An adult child;

4.  A parent;

an unmarried AIP;

6.  An adult sibling;

7.  An adult grandchild;

8.  Other adult family member;

9.  An adult who has knowledge of the AIP’s 
preferences and values, including, but not 
limited to religious and moral beliefs, and 
would be able to assess how the AIP would 
make decisions; or

10. Other qualified proposed guardian, including 

a professional guardian.

BEST PRACTICE: When considering 

appointing a person known to the IP, a 

judge should inquire about the length, 

depth and nature of  the relationship, 

in order to guard against empowering 

individuals who may be seeking to take 

advantage of  the IP. 

Similarly, when considering whom to appoint as 

a guardian of the estate, the court is required to 
consider a person nominated by the IP, and if there 
is no such nominee, the court is required by Pa. O.C. 
Rule 14.6(b)(2) to consider the following individuals in 
the following order of priority, again assuming that an 
individual is available, suitable, and has no conflict 
of interest, and excluding those cases in which the 
estate consists of substantial assets that may require 
a person with adequate training and experience to 
manage the assets: 

1.  The guardian of the person;

2.  The spouse, unless estranged or an action for 

divorce is pending;

3.  An adult child;

4.  A parent;

5.  The nominee of a deceased or living parent of 

an unmarried AIP;

6.  An adult sibling;

7.  An adult grandchild;

8.  Other adult family member; or

9.  An adult who has knowledge of the AIP’s 
preferences and values, including, but not 
limited to religious and moral beliefs, and 
would be able to assess how the AIP would 
make decisions.

LEGAL REqUIREMENT: A court 

should not appoint as a guardian 

any agency or person who benefits 

financially from providing housing, 

medical or social services to the IP. 

Where no individual listed in subparagraphs (1) 
to (9), above, possesses the skills and experience 
necessary to manage the finances of the estate, 
the guardian of the estate may be any qualified 
proposed guardian, including a professional guardian 
or corporate fiduciary.

Although the court must be mindful of these 

priority lists, the court retains discretion to determine 
whether any family member or friend would be 
appropriate and best suited to serve as a guardian 
under the particular circumstances.

C. Professional Guardians:

In some cases, it may be appropriate to consider 

appointing a neutral person as a guardian of the 
estate or as guardian of the person. Parties may 
suggest to the court, or the court may be familiar 
with, professional guardianship firms or a person 
or corporation having necessary qualifications, 
certification, experience, or expertise that will be 
helpful to the IP.

A court may not appoint as a guardian a person 
or entity who receives fees for providing residential 
services to the IP or any other person or entity with a 
conflict of interest with the IP.42 The statute provides 
that a family relationship shall not by itself constitute 

42  20 Pa.C.S. § 5511(f).

43

•	 When family members have exploited, abused, 

inquire whether any proposed guardian 

a conflict of interest. However, the statute provides 
that the court shall not appoint a guardian who has a 
conflict of interest unless it is “clearly demonstrated 
that no guardianship support agency or other 
alternative exists.”43 A court should seek a guardian 
of the person or estate who has the least potential 
for a conflict of interest with the IP.

When should the court consider appointment of a 

professional or neutral guardian?

•	 When there are no family members or agents or 
nominees identified by the IP able and willing 
to serve;

•	 When there is significant family discord, and it 
would not be in the best interests of the IP to 
appoint one person to the exclusion of another;

•	 When family members have a financial or other 

conflict of interest with the IP;

or neglected the IP; or

•	 When family members are determined by the 

court not to be trustworthy or not to be capable 
of managing the funds in question responsibly 
(with respect to a guardianship of the estate).

It may be difficult for some courts to identify 
qualified people and agencies willing to accept 
appointment as a neutral guardian for a person 
in need of the services of a guardian, particularly 
for those individuals who lack funds from which a 
guardian may be paid. 

Resolving Disputes About Who Should 
Be Appointed as Guardian, and 
Identifying Conflicts of  Interest

One of the most hotly contested issues in many 
guardianship matters is the question of who should 
be appointed as a guardian. Frequently this arises 
as a dispute among children of an older adult who 
have differing views on where and how a parent 
should be cared for and how a parent’s money 
should be spent. It is critical for the court to be 
alert to allegations of financial exploitation or other 
allegations that one party has benefitted from gifts or 
other transfers of assets, to the detriment of the AIP. 
It is also important when there is family disharmony, 
not to give total control to one side of the family 
where they may exclude others from visiting or 
participating in the AIPs life.

43  Id. 

BEST PRACTICE: The Court should 

inquire about a guardian’s training 

and experience making financial 

decisions and health care decisions, 

and may require professional guardians 

to present evidence of  training or 

certification.

BEST PRACTICE: The Court should 

has acted in a fiduciary capacity (as an 

agent under a power of  attorney or as a 

representative payee), and whether they 

have any conflict of  interest with the 

AIP. Although family relationship alone 

is not a conflict, a family member may 

have a conflict of  interest if  they are 

dependent upon the AIP’s income.

Tough questions should be posed to all parties 
seeking to be appointed as guardians, including 
relatives, about their finances and creditworthiness 
and any history of criminal charges. Relatives 
should be asked if they are depending upon the 
AIP for housing or financial support, and whether 
this expectation is reasonable given the financial 
needs of the AIP. Courts must consider whether 
a proposed guardian has acted properly in any 
fiduciary roles, such as acting as an agent under a 
power of attorney, a representative payee for social 
security benefits, or a fiduciary for veteran’s benefits. 
In some cases, a court may conclude that a relative 
who would not be suitable to be appointed guardian 
of the estate, may nevertheless be the best person 
to serve as a guardian of the person. However, an 
inquiry into the person’s understanding of fiduciary 
responsibility and acting in the best interests of the 

44

AIP will be critical to the court’s determination of 
whether that person can be trusted to be appointed 
as a guardian.

Requiring Additional Information from 
Prospective Guardians

A. Criminal background checks: 

The Pennsylvania Orphans’ Court Rules require a 
criminal background check for all guardians—family 
members as well as professionals. The National 
Probate Court Standards recommends that courts 
request a national criminal background check on all 
prospective guardians (other than banks, financial 
institutions, and other entities that have been subject 
to criminal background checks to obtain a license or 
certification).44 Local courts may adopt additional 
requirements. A judge should inquire whether a 
proposed guardian has been convicted of a crime, 
or has been found to have committed abuse, 
neglect or financial exploitation of a child, spouse, or 
another adult. A judge should also inquire whether 
a proposed guardian has ever been suspended or 
disbarred from the practice of law, accounting, or 
other professional license, or misconduct involving 
financial affairs or fiduciary matters.

B. Credit-worthiness: 

A credit check or testimony about financial stability 

and credit history of a proposed guardian may be 
required to establish suitability to be appointed as a 
guardian of the estate and may also be considered 
by the court in determining whether, under the 
circumstances, a guardian shall be required to post 
bond, or whether bond shall be waived. See Pa. O.C. 
Rule 14.

C. Certification: 

A judge should inquire whether a guardian is 

certified by the Center for Guardianship Certification 
or other entity. A judge should also inquire whether 
a proposed guardian has received any training or 
education to prepare them to serve as a guardian, to 
handle the finances of another person, to understand 
fiduciary responsibilities or to make health care 
decisions for another person. Some judicial districts 
in Pennsylvania now require professional guardians 
(non-family members) to be certified guardians.

44  See link to National Probate Court Standards in 
Appendix.

45

BEST PRACTICE: A court should 

take care to ask sufficient questions to 

determine whether a proposed guardian 

has a conflict of  interest, will not act 

in the best interests of  the IP, or lacks 

sufficient qualifications and experience 

to handle the affairs of  the IP. 

BEST PRACTICE: Courts should 

ask a prospective guardian questions 

about any personal bankruptcies, and 

may require a current credit report, 

especially where the court is considering 

waiving the requirement of  a bond.

D. History of being removed as a guardian or as a 
fiduciary: 

A judge should inquire whether a proposed 

guardian has ever been removed as a guardian or 
removed as a fiduciary for any reason, and inquire 
about the circumstances. A judge may inquire of 
the proposed guardian, and may also consult other 
courts and the Pennsylvania Guardianship Tracking 
System.

E. Requirement that a guardian of the estate post 
bond: 

The judge has discretion whether to require a bond 

and in what amount. In those cases where the IP 
has little or no assets, no bond need be required. 
However, where a guardian of the estate will be 
managing substantial assets for the benefit of the 
IP, a bond should be required to protect the assets 
of the IP. Note that professional liability insurance in 
many cases exclude coverage for intentional acts 

and therefore will not protect the IP in a case of theft 
or exploitation.

Recognizing Signs of  elder Abuse, 
neglect, and Financial exploitation

Judges and judicial staff who interact with families 

and parties interested in a guardianship petition 
must be alert to signs of elder abuse, neglect, 
and financial exploitation. Physical abuse may be 
visible when the older adult is present, in the form 
of bruises, cuts and other injuries. However it is 
important to be alert to signs of psychological abuse, 
such as depression, withdrawal and isolation, and 
also to signs of financial exploitation and abuse, 
such as unpaid bills, termination of utilities, checks 
written to cash, and excessive transfers to family 
members, caregivers, romantic partners and friends.

Following this chapter you will find an insert listing 
signs of Physical Abuse, Psychological Abuse, and 
Financial Exploitation. 

46

ReCoGnIzInG SIGnS oF eLDeR ABUSe AnD neGLeCT

Recognizing the signs of elder abuse is the critical first step in stopping the abuse. In this section, some 

common signs of abuse, including physical abuse, psychological abuse, financial abuse (or exploitation), 
financial coercion, and scams are discussed. Also included is a warning about the dangers of delaying 
proceedings, and some of the non-traditional costs of financial exploitation.

A. Signs of  Physical Abuse

neglect: 1

well-being;

The National Adult Protective Services Association identifies the following signs of elder abuse and 

1.  sudden inability to meet essential physical, psychological, or social needs threatening health, safety, or 

2.  disappearing from contact with neighbors, friends, or family;

3.  bruising or welts on the skin, especially those appearing on the face or lateral and anterior region 

of the arms (physically abused elders are much more likely to display bruises than elders injured by 
accident);

4.  fingerprints or handprints visible on the face, neck, arms, or wrists;

5.  burns from scalding, cigarettes, or in shapes of objects such as an iron;

6.  cuts, lacerations, or puncture wounds;

7.  sprains, fractures, or dislocations;

8.  internal injuries or vomiting;

9.  appearing with torn, stained, or bloody clothing;

10. appearing disheveled, in soiled clothing, or inappropriately attired for climate.

B. Signs of  Psychological Abuse

In her 2008 publication Devious Damage: Elder Psychological Abuse 2, Bloomsburg university Professor 

Margie Eckroth-Bucher, PhD, identifies the following signs of elder psychological abuse:

1.  passivity, withdrawal, or increasing depression;

2.  evasiveness or reluctance to talk openly;

3.  avoidance of eye contact or verbal contact with a caregiver;

4.  cowering in the presence of the abuser;

5.  hopelessness, helplessness, anxiety, or feelings of powerlessness;

6.  confusion that is unrelated to any medical condition;

1  Available at, http://www.napsa-now.org/get-informed/what-is-neglect/

2  Available at, http://www.todaysgeriatricmedicine.com/archive/101308p24.shtml

47

7.  change in sleeping or eating habits;

8.  missing appointments;

9.  social isolation from friends or other family.

C. Signs of  Financial exploitation

The National Adult Protective Services Association identifies the following signs of elder financial abuse: 3

1.  termination of vital utilities such as telephone, water, electricity/gas, or garbage;

2.  unpaid bills and liabilities despite adequate income;

3.  oversight of finances surrendered to others without explanation or consent;

4.  transferring assets to new “friends” assisting with finances;

5.  checks written to “Cash;”

6.  does not understand his/her current finances; offers improbable explanations;

7.  unexplained disappearance of cash, valuable objects, financial statements;

8.  unexplained or unauthorized changes to wills or other estate documents;

9.  giving-away money or spending promiscuously;

10. appearance of property liens or foreclosure notices.

D. Signs of  Financial Coercion

According to the Nursing Home Abuse Center, the following indicators suggest elder financial coercion: 4

1.  forging the elderly person’s signature on checks or other documents;

2.  forcing the elderly person to sign a will, deed, or power of attorney listing the perpetrator as the one 

who is responsible for the elderly person or who will gain when the individual dies;

3.  stealing property or money from the elderly person;

4.  promising to give the elderly person lifelong care only if they give them money or their property;

5.  using the possessions or property of the elderly person without their permission;

6.  perpetrating fraud, which is the use of trickery, false pretenses, deception, or other dishonest acts in 

order to gain the person’s finances;

7.  perpetrating cons or other confidence games in order to gain the trust of the elderly person;

8.  perpetrating telemarketing scams in which the elderly person is called and deception, exaggerated 

claims or scare tactics are used to get the elderly person to send them money;

9.  making charges against the elderly person’s credit cards without the authorization of the cardholder.

3  Available at, http://www.napsa-now.org/get-informed/what-is-financial-exploitation/

4  Available at, https://www.nursinghomeabusecenter.com/elder-abuse/types/financial-abuse/

48

SAMPLe CoLLoQUY FoR PRoPoSeD GUARDIAn oF PeRSon AnD eSTATe

1)  What is your educational background?

2)  What is your mailing address? Email address? Daytime telephone number?

3)  How are you employed?

4)  How long have you known the IP and how well?

5)  Have you ever discussed with the IP his or her wishes regarding end of life care? Do you have 

knowledge of what he or she would want with respect to medical care?

6)  Do you have a criminal record? What were the charges and when? (Provide copy of state and FBI 

criminal background checks).

7)  Have you ever filed for personal bankruptcy? When and where?

8)  Do you have any business or financial relationship with the IP? What is the nature of it?

9)  Do you depend upon the IP’s income to pay household expenses? 

10)  Do you own property jointly with the IP, or do you live in property owned by the IP?

11)  Do you have any conflict of interest with the IP? 

12)  What education, training, or experience do you have, if any, related to caring for an incapacitated adult?

13)  What education, training, or experience do you have, if any, related to making medical decisions?

14)  What education, training, or experience do you have, if any, related to applying for medical assistance 

benefits, veterans benefits, and other financial benefits?

15)  What education, training, or experience do you have, if any, in managing another person’s funds in a 

16)  Do you understand that you must keep accurate financial records and keep the IP’s assets separate 

17)  Do you understand that you may use the IP’s assets only for his or her benefit, and that you may expend 

18)  Do you understand that you may not use the IP’s assets for any other person’s benefit without court 

19)   Do you understand the difference between principal and income? Family member guardians probably 

will need to have this explained to them.

20)  Do you understand that you many only spend income, but that before you spend any principal or pay 

any attorneys or professional fees or guardian’s commissions you must seek court approval?

21)  Are you aware that you must file an inventory of the IP’s property within three months and an annual 

report each year?

of your certificate.

22)  Are you a National Certified Guardian from the Center for Guardian Certification? Please provide a copy 

23)  For how many incapacitated individuals are you currently appointed as guardian? How do you manage 

your caseload so that you are able to meet the needs of each individual?

fiduciary capacity?

from your own?

income for his or her care?

approval?

49

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50

CHAPTeR eIGHT

Presiding Over an Emergency Hearing to Appoint Emergency 
Guardians of  the Person and/or Estate

20 Pa. C.S. § 5513

In some cases, urgent circumstances require that 
the court entertain a request to adjudicate incapacity 
and appoint guardians without waiting for the 20-
day notice period required under the statute for a 
full hearing. Where irreparable harm to the AIP is 
alleged to be imminent, the statute provides for an 
emergency petition to adjudicate incapacity and 
appoint an emergency guardian of the person and 
or an emergency guardian of the estate. 20 Pa.C.S. 
§ 5513. 

The urgent circumstances that may require a 

hearing on an emergency basis include:

•	 an imminent need to make medical decisions; 

•	 a lack of housing or imminent need for 

someone capable to provide consent to 
admission to a hospital, nursing home, or 
other residential facility; or 

•	

imminent risk to the assets of the AIP from 
scammers or financial exploitation. 

Where there is a genuine and imminent risk 
of substantial financial loss to the AIP, under 
circumstances where it is unlikely that the AIP will 
ever be able to recover such funds, and where 
the loss of such funds may profoundly affect their 
well-being, a hearing on an emergency basis and 
appointment of an emergency guardian of the estate 
to stop the financial “bleeding” may be appropriate. 

BEST PRACTICE: A court should 

schedule a hearing on an emergency 

basis whenever it appears that the 

AIP is at imminent risk of  irreparable 

harm, including severe financial 

exploitation, as well as medical risk or 

risk of  homelessness. 

In some cases, the children or caregivers of an AIP 
may have an urgent need to access bank account(s) 
of the AIP to pay medical bills, mortgage payments, 
and other bills, and may have no power of attorney 
or other way to secure and access the AIP’s assets. 

Similarly, although an AIP may be generally safe in 

a hospital setting, when they are no longer in need 
of acute care, continued hospitalization may be 
exceedingly expensive, or not covered by insurance, 
and continued hospitalization imposes risks of 
infection and other health risks, that suggest an 
emergency hearing to determine who may make 
decisions about a safe and appropriate discharge of 
the AIP may be necessary.

How an emergency Guardianship 
Matter May Arrive Before the Court 

1.  An emergency petition is filed with the Clerk 
of the Orphans’ Court and it is brought 
to chambers/courtroom for review and 
scheduling. (Frequently, but not always, the 
same petition that initiates the emergency 
guardianship also requests that a plenary 
guardianship be scheduled to follow the 
emergency guardianship hearing.)

2.  A telephone call may come into the clerk’s 
office or chambers alerting the court staff 
to an upcoming emergency petition filing 
(anywhere from a few moments to a few days 
hence!). Such calls are sometimes made by 
hospitals or the area agency on aging.

options for Hearing When There is an 
emergency Petition Filed

1.  Judge may review the petition and determine 
that an emergency hearing is not needed 
and schedule the matter for a hearing on the 
request for a plenary guardianship.

2.  Judge may direct the scheduling of a hearing 
after notice is given to AIP and presumptive 
heirs.

3.  Judge may limit notice period to 24 hours (or 

51

BEST PRACTICE: An emergency 

hearing should be scheduled as 

promptly as possible to permit the 

entry of  an order to prevent the 

alleged irreparable harm; frequently 

courts schedule emergency hearings 

within 48 or 72 hours. 

other length of time in Judge’s discretion) to 
permit hearing to proceed on an emergency 
basis. 

4.  Judge may appoint counsel for the AIP and 
hold a hearing after counsel has met with 
AIP; provided that Judge shall consider 
whether delay is appropriate and feasible, 
given the imminent harm alleged.

LEGAL REqUIREMENT: An 

emergency hearing to appoint a 

guardian is subject to all of  the same 

provisions that govern a plenary 

hearing, including the right of  the IP 

court finds that a requirement is not 

feasible in the circumstances. 

Burden of  Proof

In an Emergency guardianship hearing, there must 

be clear and convincing evidence that the AIP: 

1.  Lacks capacity (“incapacitated”), meaning an 
adult whose ability to receive and evaluate 
information effectively and communicate 
decisions in any way is impaired to such 
a significant extent that they are partially 
or totally unable to manage their financial 

resources or to meet essential requirements 
for their own physical health and safety.45

2.  Needs an appointment of guardian of 

their person and/or financial estate, on an 
emergency basis and cannot wait for 20 
days’ notice; and 

3.  Failure to make an appointment will result in 
irreparable harm to the person or the estate.

Determining Less Restrictive 
Alternatives to Guardianship

1.  Even when considering an appointment of an 
emergency guardian, the court must consider 
whether the AIP has signed a valid power 
of attorney and/or healthcare directive. This 
determination may be intertwined with the 
court’s decision about whether the person 
lacks capacity, and whether there is any 
evidence that the condition that causes 
the lack of capacity already resulted in 
impairment at the time a document was 
signed. Even where there is a power of 
attorney that appears to be valid, there may 
be questions raised as to whether the named 
agent is acting in the person’s best interest, 
or whether the power of attorney is adequate 
to meet the needs of the AIP. For example, 
if the AIP attempts to revoke the power of 
attorney or overrule the actions of the agent, 
and that AIP’s decisions are not rational and 
reasoned, even a valid power of attorney may 
not be adequate to meet the needs of the AIP.

restrictive alternatives to guardianship, 
including but not limited to any powers of 
attorney. The Guardianship Act requires that 
the court consider whether there is a need for 
guardianship, “in light of . . . 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 trusts.”46 The Protective Services Act 
also includes a definition of less restrictive 
alternatives, which is helpful to consider and 
defines least restrictive alternative as: “[t]
he appropriate course of action on behalf of 
the older adult which least intrudes upon the 

45  20 Pa.C.S. § 5501.
46  20 Pa.C.S. § 5512.1(a)(3).

52

to request counsel, except when the 

2.  The court is required to consider less 

personal autonomy, rights and liberties of the 
older adult in circumstances when an older 
adult lacks the capacity to decide on matters 
and take actions essential to maintaining 
physical and mental health.”47

Scope and Time Periods for an 
emergency Decree

1)  The appointment of an emergency guardian 

of the person or estate is limited by statute in 
both scope and time.48

a)  The emergency guardian shall only have 

and be subject to such powers and duties 
as the court shall direct in the emergency 
decree. 

b)  If an emergency guardian of the person 
is appointed, the appointment shall be in 
effect for no more than 72-hours. If the 
emergency continues beyond the 72-hour 
period, the appointment may be extended 
for no more than 20 days from the date 
of the expiration of the original emergency 
decree. Consider whether a hearing with 
notice to the AIP (or counsel and any/all 
presumptive heirs) should be conducted 
prior to the grant of an extension or 
whether a stipulation or agreement 
between petitioner and counsel for AIP 
may be reached, particularly where the 
court’s schedule or counsel’s schedule 
requires that a plenary hearing cannot 
be scheduled within 23 days of the 
emergency decree.

c) 

If an emergency guardian of the estate 
is appointed, the appointment shall be 
in effect for no more than 30 days. 
There is no provision for an extension in 
the statute; an extension of the order if 
necessary to accommodate the court’s 
schedule or counsel’s schedule before a 
hearing, should be granted only on the 
basis of a stipulation or agreement of the 
parties.

2)  After the expiration of the initial or extended 
emergency decree a full (non-emergency) 
guardianship proceeding filed pursuant to 
20 Pa.C.S. § 5511 must be initiated. (As 
noted above, some petitioners will include 

47		6	Pa.Code	§	15.2	(Definition).
48  20 Pa.C.S. § 5513.

53

the request to schedule a plenary hearing 
together with the original emergency petition.)

Requirements of  Due Process for 
emergency Hearing 

The rights of the AIP with respect to an emergency 

hearing to adjudicate incapacity and appoint 
guardians are the same as those for a plenary 
hearing, as required under 20 Pa.C.S. § 5511. 
However, the court may make specific findings 
that any of these due process requirements are 
not feasible in the emergency circumstances. For 
example, it is typical that 20 days’ notice is not 
feasible in the circumstances where a need for 
emergency appointment of a guardian is alleged, 
and the court will waive the requirement of 20 days’ 
notice to the AIP and other parties. 

1)  An emergency petition for adjudication of 
incapacity and appointment of guardians 
may be brought with respect to an AIP 
who is a resident of the Commonwealth of 
Pennsylvania or a non-resident residing in a 
residential facility within the Commonwealth. 
In addition, a guardianship of the estate may 
be sought for a non-resident of Pennsylvania 
with property in Pennsylvania, but it is rare 
that in such circumstances an emergency 
appointment would be needed.

2)  Just as in a plenary hearing, the AIP has a 
right to counsel, and if they cannot afford 
counsel, one should be appointed by the 
court. However, the court may find that 
appointment of counsel is not feasible under 
the emergency circumstances and may 
appoint counsel before the plenary hearing 
but not before the emergency hearing.

3)  The court may order an independent 

evaluation sua sponte or if the AIP requests. 
The court should give due consideration 
to the evaluator requested by the AIP. This 
is also something that may or may not be 
feasible before the emergency hearing, 
depending upon the nature of the imminent 
and irreparable harm alleged.

4)  The petition for an emergency decree 

adjudicating incapacity shall include the 
following information: 

a)  Name, age, residence, postal address of 

AIP.

b)  Names, addresses (if living), and 

legal status (living, dead, separated/
divorced) of the spouse, parents, and all 
presumptive heirs.

c)  Name of the person/institution providing 

residential services.

d)  Name and address of all other service 

providers.

e)  Name and address of person/entity 
proposed to be appointed guardian.

2.  When appointing an emergency guardian 
of the person, consider the currently 
serving guardian of the estate, if any. When 
appointing an emergency guardian of 
the estate, consider the currently serving 
guardian of the person, if any;

3.  The spouse, unless estranged or an action for 

divorce is pending;

4.  An adult child;

5.  A parent;

f)  Averment guardian has no interest 

6.  The nominee of a deceased or living parent of 

adverse to the AIP.

an unmarried AIP;

g)  Reasons why emergency guardianship is 

7.  An adult sibling;

sought.

k)  The nature of the imminent and 

a professional guardian.

h)  Description of the functional limitations, 

including the physical and mental 
conditions of the AIP.

i)  Steps taken to find the less restrictive 

alternative to guardianship.

j)  Whether seeking emergency guardianship 

of person and/or estate.

irreparable harm that may occur if 
the hearing is not scheduled on an 
emergency basis.

l)  Gross value of the estate to extent 

known. (Required for guardianship of the 
estate only.)

m)  Net income from all sources to extent 

known. (Required for guardianship of the 
estate only.)

n)  The explanation, if any, for why any of the 
above information cannot be ascertained 
on the short notice needed to request and 
conduct an emergency hearing.

8.  An adult grandchild;

9.  Other adult family member;

10. An adult who has knowledge of the AIP’s 
preferences and values, including, but not 
limited to religious and moral beliefs, and 
would be able to assess how the AIP would 
make decisions; or

11. Other qualified proposed guardian, including 

Who May not be Appointed as an 
emergency Guardian?

1.  Any person or entity providing residential 

services to the AIP for a fee.

2.  Any person with a conflict in interest with 

the AIP unless there is a clear demonstration 
no alternative exists. Note that a family 
relationship between the proposed 
emergency guardian and the AIP shall not, by 
itself, be considered an adverse interest.

Who May be Appointed as an 
emergency Guardian of  the Person or 
estate?

1.  A person nominated by the AIP in a power of 

attorney or health care power of attorney to 
serve as guardian if needed;

54

CHAPTeR nIne

Presiding Over a §5511 Plenary Hearing to Adjudicate Incapacity 
and to Appoint Guardians of  the Person and/or Estate

The subject of this Chapter is the plenary 

hearing under 20 Pa.C.S. § 5511. Procedurally and 
jurisdictionally, the full § 5511 hearing comes before 
a Court of Common Pleas in one of two ways. 

A full hearing under § 5511 can result following 

consideration of a petition for emergency 
guardianship, the procedure for which is dealt 
with in Chapter EIGHT of this Bench Book. under 
the emergency guardian provisions of § 5513, an 
emergency guardian of the person may be in effect 
for up to 72 hours. Thereafter, there must be a 
hearing to determine if the Emergency continues. 
If the emergency continues, the emergency order 
may be extended for no more than 20 days from 
the expiration of the initial emergency order. At the 
expiration of the extension, if any, a full guardianship 
proceeding must be initiated pursuant to § 5511 
and a full hearing on the question of incapacity 
and the appointment of guardians must be held. 
In some cases, the petitioner filing a petition for 
an emergency hearing will request that a plenary 
hearing, with the requisite 20-days’ notice to the AIP, 
be scheduled at the same time as the emergency 
hearing is scheduled.

In a non-emergency situation, a plenary hearing 
will be scheduled upon the filing of a guardianship 
petition pursuant to § 5511. CHAPTER TWO of this 
Bench Book deals with notice, citation and petition 
practice required to schedule a § 5511 hearing.

hearing on a guardianship petition as expeditiously 
as reasonably possible, allowing for notice of the 
hearing to be served on the AIP and other interested 
parties at least 20 days before the scheduled hearing 
date. Because guardianship hearings often involve 
vulnerable adults, and frequently people who are ill 
or require special care, and because the petitioner 
seeking guardianship often has a need to make 
decisions relatively promptly, courts should strive to 
schedule hearings within 25-45 days following the 
filing of a petition. 

A plenary hearing to adjudicate incapacity and to 
appoint guardians of the person and/or estate is a 
four-step process. 

1.  Step one of the hearing is focused on the 
expert’s opinion as to whether the AIP has 
a condition that causes an incapacity and 
whether the AIP is therefore unable to make 
and communicate decisions, and the nature 
and extent of any such incapacity. 

2.  Step two concerns the determination of 
whether there is a need for a guardian or 
guardians. In step two it is critically important 
to consider whether there is any less 
restrictive alternative to guardianship that 
could meet the needs of the AIP. 

BEST PRACTICE: Guardianship 

hearings should be scheduled as 

expeditiously as reasonably possible, 

allowing for 20 days’ notice of  the 

citation; preferably within 45 days of  

the filing of  the petition. 

Commencing the Hearing

Even when a hearing is not commenced on an 

emergency basis, courts ideally will schedule a 

55

BEST PRACTICE: A hearing on a 

petition for adjudication of  incapacity 

includes four steps: (1) determination 

of  capacity; (2) determination of  need 

for guardianship and consideration 

of  less restrictive alternatives; (3) 

consideration of  whether to appoint 

a plenary guardian or a limited 

guardian; and (4) selection of  the 

guardian or guardians. 

3.  Only if the AIP is adjudged by clear and 

convincing evidence to be partially or totally 
incapacitated, and it is established by clear 
and convincing evidence that there is no 
adequate less restrictive alternative and 
therefore a guardian is needed, does the 
court proceed to step three, which is the 
determination of whether a guardian to be 
appointed must be a plenary guardian or may 
be a limited guardian. 

4.  Finally, the court moves on to step four, 
the identification and appointment of an 
appropriate guardian or guardians to oversee 
the IP’s person and/or estate. 

Petitioner, Counsel, Interested  
Parties, et al.

The § 5511 hearing may be closed to the public 
at the discretion of the presiding judge and shall be 
closed to the public if the AIP or his or her counsel 
requests. Due to the private and personal nature of 
guardianship proceedings, a judge should consider 
whether it may be best practice to exclude by default 
the general public. 

The court should initially identify who is present for 

the hearing. The parties present at the hearing will 
include:

Petitioner, Counsel for Petitioner: under § 5511, 

the petitioner may be any person interested in the 
AIP’s welfare.

The AIP, Counsel for AIP: under § 5511, the AIP 
shall be present at the hearing, unless excused. The 
absence of the AIP shall be excused only if: 

(1) the court is satisfied, upon the deposition or 
testimony of or sworn statement by a physician 
or licensed psychologist, that their physical 
or mental condition would be harmed by their 
presence; or 

(2) it is impossible for them to be present 
because of their absence from the 
Commonwealth. 

Interested Parties: Any adult who is an intestate 

heir of the AIP; and any persons or institutions 
providing residential services (nursing home, group 
home) or other services to the AIP. These parties 
must receive notice of the hearing and may appear 
and participate.

Proposed Guardian: In some cases a professional 
guardian whose qualifications are known to the court 
may not need to attend the hearing, but where the 
proposed guardian is not known to the court, he or 
she must be present. 

Service of  Process

The foundation of the § 5511 hearing is service of 

process. At the hearing, petitioner must establish 
that process has been properly served. under  
§ 5511, personal service of the petition shall be 
made upon the AIP no less than twenty days prior 
to the hearing. Service of the petition in guardianship 
practice is not simply the delivery of the petition by 
a process server. To effectuate service, the petition 
and citation must not only be physically given to 
the AIP, but the contents and terms of the petition 
shall be explained to the maximum extent possible 
in language and terms the individual is most likely 
to understand. Counsel may need to be reminded 
by the court that having a process server simply 
deliver the petition, without reading the required 
notice and explaining its import, is not sufficient. If 
the AIP is present, the court should briefly colloquy 
that individual concerning their understanding of the 
petition and the proceedings. 

The content of the service to be perfected on the 
AIP is spelled out in detail in § 5511(a): 

Notice: Written notice of the petition and 
hearing shall be given in large type and in simple 
language to the AIP. The notice shall indicate 
the purpose and seriousness of the proceeding 
and the rights that can be lost as a result of 
the proceeding. It shall include the date, time, 
and place of the hearing and an explanation 
of all rights, including the right to request the 
appointment of counsel and to have counsel 
appointed if the court deems it appropriate 
and the right to have such counsel paid for if it 
cannot be afforded. A copy of the petition shall 
be attached. 

Service: Personal service shall be made on the 
AIP, and the contents and terms of the petition 
shall be explained to the maximum extent 
possible in language and terms the individual is 
most likely to understand.

In addition, notice must be given to all persons 
having an enumerated interest: first, any adult who 
would stand to take a portion of the intestate estate 

56

of the AIP; second, persons or institutions providing 
residential services (nursing home, group home) or 
other services to the AIP. 

An affidavit of service should be filed before the 
hearing or presented as an exhibit at the beginning 
of the hearing. 

Checklist: Commencing the Hearing

1.  Confirm jurisdiction.

2.  Confirm who is present at the hearing.

3.  Confirm service of process.

Step one: Capacity evaluation 

The court must first determine whether the 
AIP is a person whose ability to receive and 
evaluate information effectively and to make and 
communicate decisions is impaired to such a 
significant extent that they are partially or totally 
unable to manage their financial resources or to 
meet essential requirements for their own physical 
health and safety. 

For a thorough discussion of the evaluation of 
capacity, incapacity of an AIP, combining the legal 
standards and a discussion of relevant medical 
concepts, please see CHAPTER TEN.

Bear in mind that while an AIP is generally 

expected to be present at the hearing, and has a 
right to be represented by counsel and a right to be 
heard if they wish to be heard, they also have a right 
to decline to testify in a proceeding for adjudication 
of incapacity.

Step Two: Considering Less Restrictive 
Alternatives to Appointment of  
Guardian

Having found by clear and convincing evidence 
that the AIP has a condition that causes either partial 
or total incapacity, the court must now turn to step 
two of the hearing: determining whether the needs of 
the IP can be met by a less restrictive alternative.

In accordance with the general prescription in  
§ 5502, the court is directed to tailor guardianship 
appointments “to the maximum extent possible and 
[to] accomplish[] these objectives through the use 
of the least restrictive alternative.” Least restrictive 

alternatives are more fully discussed in CHAPTER 
ONE.

Findings of  Fact

Sections 5512.1(a)(3)-(6) mandate that the court 
make specific findings of fact with respect to the 
appointment of a guardian:

3.  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 trusts.

4.  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.

5.  The duration of the guardianship.

6.  The court shall prefer limited guardianship.

Step Three: Determining Whether to 
Appoint a Limited or Plenary Guardian

Pennsylvania statutes and public policy clearly 
favor limited guardianship. under § 5512.1(a)(6), 
«the court shall prefer limited guardianship.» In order 
to appoint a plenary guardian, the court must find 
total incapacity by clear and convincing evidence. 
A finding of partial incapacity, where there is no 
less restrictive alternative, will support only the 
appointment of a limited guardian. 

§ 5512.1(b) 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:

1.  General care, maintenance and custody of 

the IP.

2.  Designating the place for the IP to live.

3.  Assuring that the IP receives such training, 
education, medical and psychological 
services and social and vocational 
opportunities, as appropriate, as well as 
assisting the IP in the development of 
maximum self-reliance and independence.

57

4.  Providing required consents or approvals on 

behalf of the IP.

The criteria to consider in selecting a guardian of 
the person or estate for appointing are reviewed in 
CHAPTER SEVEN.

Step Four: Determining Whom to 
Appoint as a Guardian

Assuming that the court concludes after step 
one that the AIP suffers from an incapacity (total or 
partial) and after step two that a guardian is required 
and there is no adequate less restrictive alternative, 
and that the court has determined whether to 
appoint a plenary guardian or a limited guardian, the 
court must then decide whom to appoint in each 
capacity. Remember that different family members 
of proposed guardians may be better suited, based 
upon their skills and their rapport with the AIP, to 
serve as guardian of the person or as guardian of 
the estate. The court may appoint one person as 
guardian of the person and a different person as 
guardian of the estate. The court may also determine 
that co-guardians of the person or estate will better 
meet the needs of the AIP than only one guardian.

BEST PRACTICE: The Bill of  

Rights of  an Incapacitated Person 

(copy in Appendix) should be 

provided to the IP at the conclusion 

of  the hearing determining the 

person to be incapacitated.

BEST PRACTICE: The Judge or 

court staff  should routinely provide 

the newly appointed Guardian(s), 

particularly lay people appointed as 

guardians, with oral instructions or 

written instructions on their duties at 

the end of  the hearing.

Step Five: Determining if  a Bond is 
Required 

At the hearing, the judge must decide whether or 

not the proposed guardian is trustworthy enough 
not to require that a bond be posted.49 The court 
in its sole discretion may require that the proposed 
guardian purchase a surety bond of an appropriate 
size guaranteeing the guardian’s faithful discharge of 
its duties. If the guardian misappropriates property 
of the IP’s estate and is unable to repay, the bonding 
company will pay the value of the property to the 
IP’s estate. The bonding company would then have 
a legal claim against the guardian for the value of the 
misappropriated property. The bond premium may 
be paid out of the assets of the IP. 

Sample Direction if Bond is required: The guardian 

of the estate is hereby directed to post a bond in 
the following amount $_______. The bond may be 
purchased from any approved corporate surety and 
must be filed with the Clerk of the Orphans’ Court 
before the Clerk will issue a Guardian’s Certificate, 
which is needed for the guardian of the estate to 
exercise duties. The cost of the bond may be paid 
from the assets of the estate of the IP.

49  20 Pa.C.S. § 5515 directs that for bond surety for 
guardians of incapacitated persons, the applicable law is 
the same as that for bonding a personal representative or 
guardian of a minor: 

§ 3182 (relating to grounds for removal),

§ 3183 (relating to procedure for and effect of removal), 

§ 3184 (relating to discharge of personal representative 
and surety), 

§ 5115 (relating to appointment of guardian in 
conveyance), 

§ 5121 (relating to necessity, form and amount), 

§ 5122 (relating to when bond not required), 

§ 5123 (relating to requiring or changing amount of 
bond).
Of particular relevance is § 5122(d), “(d) Other cases. 
—In all other cases, the court may dispense with the 
requirement	of	a	bond	when,	for	cause	shown,	it	finds	
that no bond is necessary.”).

58

CHeCKLIST: ConDUCTInG A HeARInG on A PeTITIon FoR 
ADJUDICATIon oF InCAPACITY AnD APPoInTMenT oF GUARDIAn 

1.  Does the evidence demonstrate, by clear and convincing evidence, partial or total incapacity? 

2.  Has the petitioner demonstrated by clear and convincing evidence that there is no adequate restrictive 
alternative to the appointment of a guardian? If the petitioner or counsel for the AIP fails to address 
this subject, the court should inquire of them.

3.  Is a Limited or Plenary Guardian required?

4.  Who should be appointed as Guardian of the Person or Guardian of the Estate?

5.  Should a bond be required or waived?

evidentiary Questions

To reiterate, Section 5512.1(a) requires the court to examine the evidence and make specific findings of fact, 
considered above. To assist the court in formulating these findings of fact and conclusions of law, the petition 
must state “a description of the functional limitations and physical and mental condition of the AIP; the steps 
taken to find less restrictive alternatives; [and] the specific areas of incapacity over which it is requested that 
the guardian be assigned powers...”50 In addition, clear and convincing evidence of all averments contained 
in the petition must be established at the evidentiary hearing. Accordingly, counsel- or the court if necessary- 
must ask questions related to the following:

1.  What functional limitations does the AIP have?

2.  What physical limitations does the AIP have?

3.  What mental limitations does the AIP have?

4.  What steps have been taken and what steps are being proposed so as to impose the least restrictive 

alternatives or limitations upon the AIP?

5.  If a limited guardian is requested, over what specific areas of incapacity should the guardian of the 

person have authority? 

estate have authority?

6.  If a limited guardian is requested, over what specific areas of incapacity should the guardian of the 

7.  What conditions or disabilities does the AIP have which impairs their ability to make decisions? 

(Mental problems/impairments) 

8.  What conditions or disabilities does this AIP have which impairs their ability to communicate 

decisions? (Physical problems/impairments)

9.  Is the AIP oriented as to time or place?

10. Does the AIP recognize their family and other persons the AIP should recognize?

11. Are the AIP’s discussions understandable and related to the matter being discussed?

12. Could the AIP satisfactorily conclude the purchase of an item in a retail store? 

50  20 Pa.C.S. § 5511(e).

59

13. Could the AIP satisfactorily pay bills using a checking account and keep accurate records?

14. What family members, friends or other supports have assisted the AIP in making decisions or 

performing any functions or responsibilities?

15. Are there any family members or friends presently capable and willing to assist the AIP to perform any 

functions or responsibilities?

16. Can the AIP be maintained in their own home? If no, state why not, i.e., is it the finances and/or the 

physical or mental limitations which make this a practical impossibility?

17. What type of care does the AIP require?

18. Where is the AIP currently living? If in a care facility, what type of care facility is it? 

60

Having established jurisdiction, proper service 

condition, adaptive behavior and social skills.”

CHAPTeR Ten

Determining Capacity

of process and notice upon the AIP and other 
interested parties, the court may now turn to the 
first step in any guardianship proceeding: the 
determination of capacity. Sections 5512.1 and 5518 
govern the court’s inquiry into the capacity of the 
AIP. Bear in mind that all adults are presumed to 
have legal capacity to make and effectuate their own 
decisions, unless a lack of capacity is demonstrated 
by clear and convincing evidence.

Required Findings of  Fact

To reach a determination of incapacity the court 

shall consider and make specific findings of fact 
concerning:

1.  The nature of any condition or disability 

which impairs the individual’s capacity to 
make and communicate decisions.

2.  The extent of the individual’s capacity to 

make and communicate decisions.

3.  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 trusts.

4.  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.

5.  The duration of the guardianship.

6.  The court shall prefer limited guardianship.

In other words, the petitioner must present 
expert testimony from an expert familiar with the 
type of incapacity at issue. The expert need not 
be a medical doctor, but may be a medical doctor, 
psychiatrist, psychologist, nurse practitioner, 
or licensed clinical social worker, provided that 
the expert has specific expertise relevant to the 
determination of the capacity in light of the medical 
issues and causes of the alleged incapacity. In 
addition, the petitioner must also present evidence 
regarding:

“the services being utilized to meet essential 
requirements for the AIP’s physical health 
and safety, to manage the person’s financial 
resources or to develop or regain the person’s 
abilities; evidence regarding the types of 
assistance required by the person and as 
to why no less restrictive alternatives would 
be appropriate; and evidence regarding the 
probability that the extent of the person’s 
incapacities may significantly lessen or 
change.”51

Section 5512.1(a) mandates that the court make 

specific findings of fact with respect to capacity:

1.  The nature of any condition or disability 

which impairs the individual’s capacity to 
make and communicate decisions.

2.  The extent of the individual’s capacity to 

make and communicate decisions.

evidence of  Incapacity

In support of the court’s findings under § 5512.1(a)
(1)-(2), § 5518 delineates the nature of the evidence 
that must be presented in the petition and adduced 
at the hearing. 

To establish incapacity, the petitioner must 
present testimony, in person or by deposition 
from individuals qualified by training and 
experience in evaluating individuals with 
incapacities of the type alleged by the petitioner, 

20 Pa.C.S. § 5512.1(a). 

Evidence of incapacity is governed by 20 Pa.C.S. § 

5518 which provides that the petitioner must: 

§ 5518. Evidence of incapacity.

“present testimony, in person or by deposition 
from individuals qualified by training and 
experience in evaluating individuals with 
incapacities of the type alleged by the petitioner, 
which establishes the nature and extent of 
the alleged incapacities and disabilities and 
the person’s mental, emotional and physical 

51  20 Pa.C.S. § 5518.

61

which establishes the nature and extent of 
the alleged incapacities and disabilities and 
the person’s mental, emotional and physical 
condition, adaptive behavior and social skills. 

The petition must also present evidence 
regarding the services being utilized to 
meet essential requirements for the alleged 
incapacitated person’s physical health and 
safety, to manage the person’s financial 
resources or to develop or regain the person’s 
abilities; evidence regarding the types of 
assistance required by the person and as 
to why no less restrictive alternatives would 
be appropriate; and evidence regarding the 
probability that the extent of the person’s 
incapacities may significantly lessen or change.

Burden of  Proof: “Clear and 
Convincing” 

[A]ppellate courts have cautioned that a 
guardianship statute is “a dangerous statute 
easily capable of abuse...”, and have required 
that the petitioner bear the burden of proving 
incompetency [now referred to as incapacity] by 
clear and convincing evidence...52

When presenting evidence, § 5511(a) requires 
“clear and convincing evidence.” The evidence 
presented must cause the judge to have a firm 
belief or conviction that the alleged incapacitated 
individual is incapacitated. The testimony of the 
witnesses must be positive and unambiguous and 
cannot be conjecture or speculation, although it is 
not necessary that the evidence be undisputed. 

Expert testimony or a thorough expert report is 
of great significance as it assists the trial court in 
determining the nature, severity and consequences 
of an alleged incompetent’s disability. The 
Pennsylvania Supreme Court had stated in dicta 
that “expert testimony is needed when transactions 
fall within the penumbra between competence and 
incompetence, when the light of reason may come 
and go unbidden.”53 However the court may also 
consider the evidence of lay witnesses. under the 
prior statute, the Pennsylvania Supreme Court held 
that “[t]he testimony of lay witnesses who have 
observed the alleged incompetent is admissible and 
highly probative.” 54

52  In re: Estate of Wood, 533 A.2d 772, 775 (Pa. Super. 
1987) (citations omitted).
53  Hagopian v. Eskandarian, 153 A.2d 897, 899 (Pa. 1959).
54  Urquhart Estate, 245 A.2d 141, 146 (Pa. 1968).

Although the testimony of lay witnesses may also 
be relevant, expert testimony or, upon stipulation, an 
expert report, is required by the statute. The findings 
and conclusions of the medical expert testimony 
must be rendered with a reasonable degree of 
medical or psychological certainty. 

Possible Court Rulings/outcomes:

1.  The court may determine that the proceeding 

has not been instituted to aid or benefit 
the AIP or that it does not have jurisdiction 
over the petition in question. under these 
circumstances, the petition should be 
dismissed. 

2.  The court may determine that the AIP is 

able to make and communicate decisions 
and to receive and evaluate information 
effectively and therefore that the person 
is not incapacitated and a guardian is not 
necessary. 

3.  The court may determine that a guardian 
is unnecessary because the person, even 
if suffering from a cognitive incapacity, 
has adequate assistance from family and 
community support, or has appointed a 
capable agent under a power of attorney, 
or other supports, and therefore does not 
require a guardian. Where a guardian is not 
needed, the court is not required to make a 
determination of capacity. See In re Peery, 
727 A.2d 539, 541 (Pa. 1999), holding “[t]
he critical fact is whether or not the AIP 
needs a guardian. If the court finds that a 
person does not need a guardian, it does 
not matter whether he is incapacitated—the 
court cannot proceed to the appointment of a 
guardian.” 

4.  The court may be persuaded by clear and 

convincing evidence, that the person is totally 
or partially incapacitated, and in need of a 
plenary or limited guardian or guardians.

expert Report or expert Testimony

Although many courts once required that an expert 

testify in person or by deposition, an expert report 
may be offered by petitioner in writing pursuant to 
Pa. O.C. Rule 14.3. The petitioner must serve a copy 
of the proposed expert report on counsel for the 
AIP and all other counsel of record at least ten days 

62

prior to the hearing. The AIP or their counsel may 
demand the testimony of the expert and the right to 
cross-examine the expert. However, where there is 
a stipulation to the expert report, it is not necessary 
for the expert to appear in court or for the parties to 
conduct a formal transcribed deposition prior to the 
hearing. Pa. O.C. Rule 14.3(a), (b), and (c).

However, expert testimony and cross-examination 
may be required where there is a dispute about the 
AIP’s capacity, or where the court wishes to consider 
a limited guardianship and requires expert assistance 
to determine the limits of the AIP’s capacity.

BEST PRACTICE: Where there 

is no dispute about the expert 

evidence, a written expert report 

may be admitted in evidence 

without the expert attending to 

testify. Consider whether telephone 

or video testimony of  an expert may 

be adequate in some cases and avoid 

the need for a continuance. 

Medical evidence: Assessing 
Functional Abilities

General principles: 

Normal functional abilities—effective adaptations 

to the demands of living independently—are 
dependent on normal brain function and are 
expressed through the voice and the neuro-
musculoskeletal systems. Therefore, impairments 
of brain function (i.e. that result from a form of 
dementia, a stroke, or other condition) will usually 
result in abnormal functional abilities and may result 
in loss of independence. 

Evaluations:

Section 5518 permits the court, in lieu of live 

testimony, to receive evidence of evaluations in the 
form of a written expert report. The Pennsylvania 
Supreme Court Orphan’s Court Rules Committee 
has adopted Form G-6 which may be used as an 

expert report in matters in which the question of 
incapacity is uncontested.

Capacity evaluation workflow:

An optimal medical capacity evaluation typically 

includes the following steps by the evaluator:

•	 Review medical records with attention to 
historical trends, medications, medical 
problems, mental health problems, drug and 
alcohol use, social support.

•	 Obtain history from the AIP and/or the AIP’s 

representative.

•	 Assess Activities of Daily Living (ADLs) and 

Instrumental Activities of Daily Living (iADLs).

•	 As needed administer questionnaires—

MoCA, IQcode, PHQ-9 (explained below).

•	 Complete physical exam including attention 
to special senses, mobility, nutrition, hygiene.

•	 Order tests/studies to better understand 

stability of current state. 

•	

If indicated, consult PT, OT, 
neuropsychologist, geriatric psychiatrist.

•	 Ascertain values and preferences of the AIP.

•	 Be prepared to render an opinion on safety 
needs, risks of harm, need for supervision/
support, reversibility of conditions, and 
prognosis.

Concepts, Tests and Instruments 
Used by Medical and Psychological 
Professionals to Assess Capacity

Activities of Daily Living (ADLs) are basic life 
skills that are necessary for self-care and safety in 
the home. As ADLs decline, personal care needs 
increase and one’s life becomes more restrictive. 
ADL skills include:

1.  Ability to transfer within the home.

2.  Ability to use of the toilet.

3.  Ability to groom self.

4.  Ability to bathe self.

5.  Ability to dress self.

6.  Ability to feed self.

63

ADLs can be assessed as: performs independently, 

5.  Much worse.

needs some help, or totally dependent on others.

As ADLs are lost, personal care needs increase, as 

do safety concerns when an AIP is left unattended. 
In cases that are not clear-cut or when interview 
information is deemed suspect, a physical therapist 
and occupational therapist can be consulted to 
observe and evaluate the actual ADL skills.

Instrumental Activities of Daily Living (iADLs) 
are more complex behaviors that require executive 
functioning—the ability to plan, initiate, and complete 
a task or skill. Normal iADLs allow a person to 
function independently in a community. iADL skills 
include: 

1.  Ability to manage medications.

2.  Ability to prepare food.

3.  Ability to use the telephone.

4.  Ability to perform basic housekeeping tasks.

5.  Ability to manage finances.

6.  Ability to travel outside the home.

7.  Ability to shop.

A simplified rating of iADL skills is: performs 

independently, needs some help, or is totally 
dependent on others. 

iADLs require more advanced executive functioning 

abilities. As iADLs are lost, one requires help from 
others in order to remain in the community. In cases 
that are not clear-cut or when interview information 
is deemed suspect, an occupational therapist can be 
consulted to observe and evaluate the actual iADL 
skills. 

The Informant Questionnaire on Cognitive 

Decline in the Elderly (short IQcode by A. F. Jorm) 
is a questionnaire designed to be answered by a 
person familiar with the AIP, such as a family member 
or caregiver, to understand how an AIP’s memory, 
ability to know/learn, and executive functioning has 
changed. It requires a reliable observer who knows 
the AIP well. The Rating scale, relative to a ten year 
period is: 

The Montreal Cognitive Assessment (MoCA) 
is one of several tools used to evaluate cognitive 
function. It is administered to an AIP in an office 
setting and covers the following mental processes:

1.  Visual-spatial perception/executive function  

5 points

3 points

6 points

3 points

2 points

5 points

2.  Naming (animal figures) 

3.  Attention (immediate)  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4.  Language (fluency and word recall)   

5.  Abstraction (similarities) 

6.  Delayed recall (within minutes) 

7.  Orientation 
6 points

 

 

The maximum score is 30 points and a score 

suggestive of cognitive impairment is 26 and under. 
This test can be affected by sub optimally treated 
medical and mental health conditions.

The Mini Mental Status Exam (MMSE) is a rough 

screening test used by many medical facilities 
that offers a quick assessment of cognitive status 
that involves a series of questions and tasks, and 
results in a maximum score of 30. It includes test of 
orientation, memory, language, and visual-spatial 
skills. For a person with a high school education, a 
score of 25 or below is indicative of some cognitive 
impairment. For a person with some college 
education, a score of 26 or below indicates some 
cognitive impairment. Courts should be familiar with 
this test, as it is often referred to in testimony, but 
should be aware that it is only a rough screening test 
and not a thorough assessment.

The PHQ-9 is a questionnaire tool to help establish 
a diagnosis of major depression. It is administered in 
the office and can be used to quantify the behavioral 
markers of depression and to document progress 
with treatment.

1.  Much improved.

2.  A bit improved.

3.  Not much change.

4.  A bit worse.

Capacity to Make and Communicate 
Decisions

An AIP’s decision-making capacity should be 

64

interpreted in the context of the AIPs historical 
values and beliefs (for example, a Jehovah’s 
Witness may make a choice to refuse life-saving 
blood transfusions, while others may consider that 
choice irrational). An examination to determine 
decision-making capacity typically involves a face-
to-face interview, utilizes open ended questions, 
and addresses the specific choice the AIP needs to 
make. Choices associated with high risk of adverse 
outcomes require a higher standard of decision-
making capacity than low-risk decisions. The 
evaluator must be trained and familiar with the type 
of incapacity that the AIP is alleged to suffer, and 
should be able to render an opinion regarding:

1.  The AIP’s ability to receive information and 

communicate internal thoughts.

2.  The AIP’s capacity to make a choice.

3.  The AIP’s ability to explain the reason for the 

choice.

4.  The AIP’s ability to appreciate the 
consequences of that choice.

BEST PRACTICE: To determine 

whether an individual is or is not 

incapacitated, rely upon an expert 

who evaluates functional behavior. 

Focus on the individual’s ability to 

meet his/her basic needs. 

This examination can be performed by a variety 

of professionals (doctors, nurse practitioners, 
psychiatrists, psychologists, social workers, etc.), as 
the interview skills are not specific to any particular 
specialty. Validated tools to help the interviewer 
frame the questions include the Assessment of 
Capacity for Everyday Decision making (ACED) or 
the MacArthur Competency Assessment Tool for 
Treatment (MacCAT-T). For difficult cases, a neuro-
psychologist or geriatric psychiatrist might be 
consulted. 

Independent Evaluations

under § 5511(d), in aid of the court’s determination 

65

of incapacity, the court may on its own motion or 
on petition by the AIP for cause shown, order an 
independent evaluation. 

Section 5511(d) Independent evaluation. The court, 

upon its own motion or upon petition by the AIP for 
cause shown, shall order an independent evaluation 
which shall meet the requirements of § 5518 (relating 
to evidence of incapacity). The court shall give due 
consideration to the appointment of an evaluator 
nominated by the AIP.

Qualified Evaluators of Capacity 

Primary Care Physicians: Professionals who 
provide comprehensive, first-contact care. These 
professionals, through repeated contact over time, 
have an opportunity to observe trends in a patient’s 
health and functional potential and can integrate 
social, psychological, and spiritual factors with 
medical conditions. 

Family physicians are medical doctors who care 
for families and people of all ages, certified through 
the American Board of Family Medicine. 

General internists are medical doctors who care 
for adults, certified through the American Board of 
Internal Medicine. 

Geriatricians are medical doctors who limit their 
practice to the elderly (people over 65) and have 
subspecialty certification through the above-cited 
boards. 

Specialty or Secondary Care Physicians: 

Professionals with specialized knowledge and skills 
in diseases of particular organ systems. Typically, 
these professionals serve consultative roles in the 
care of patients. 

Psychiatrist: Certification through the American 
Board of Psychiatry. Expertise in the diagnosis and 
treatment of mental health syndromes.

Geriatric Psychiatrist: Certification through 
the American Board of Psychiatry. Expertise in 
the diagnosis and treatment of mental health 
syndromes common to people over 65. 

Neurologist: Certification through the American 
Board of Neurology. Expertise in the diagnosis and 
treatment of diseases of the brain and the nervous 
system. 

Palliative Care Specialist: Sub-specialty 
certification through the American Board of 
Internal Medicine or the American Board of 
Family Medicine. Expertise in end-of-life planning 

and care, complex symptom management, 
improving quality of life, and in family/caregiver 
communication. 

Non-physician professionals: Professionals 
who provide crucial services to the patient and 
healthcare team:

Psychologist: Licensed professional with masters 
or doctorate degree. Trained in the diagnosis and 
non-pharmacologic treatment of behavioral health 
disorders. 

Neuropsychologist: Psychologist with advanced 
training in cognitive testing. Cognitive testing can 
help discern the relationship between a person’s 
neurologic (brain) disease and functional and 
behavioral imitations. 

See Sample Expert Report, Orphans’ Court Form 
G-06 in Appendix. 

66

CHeCKLIST: FInDInG InCAPACITY

1.  Expert Evaluator 

a.  Qualifications of evaluator.

b.  Nature of evaluation.

2.   Findings of Fact

decisions.

3.   Conclusions of Law

c.   Testimony or Expert Report (contested hearing or stipulation to report).

a.  The nature of any condition or disability which impairs the AIP’s capacity to make and communicate 

b.  The extent of the AIP’s capacity to make and communicate decisions.

c.   Specific areas or functions over which the AIP has capacity to make own decisions.

a.   If petitioner fails to meet their burden of proof, the petition is dismissed.

b.   If the burden of proof is met and total or partial incapacity is established, then the court next turns to 

the questions of whether there is an adequate less restrictive alternative to guardianship.

c.   If there is no less restrictive alternative, the court determines, based upon the nature and extent of the 

incapacity proved, whether to appoint a plenary or limited guardian

d.   Next the court considers the selection of an appropriate guardian[s].

67

SAMPLe QUeSTIonS:  
PReSIDInG oVeR A GUARDIAnSHIP HeARInG

8.  Have you given notice to the people who would 
be intestate heirs of the AIP? Have you heard 
in response to this notice from any such person 
who wishes to participate in this hearing?

9.  Is the AIP present at this hearing? If not, what 

evidence will be presented to establish that the 
presence of the AIP would be harmful or that 
they are out of the Commonwealth?

10. What witnesses will be presented to establish 

that the AIP is an incapacitated person?

11. What is the gross value of the estate?

12. What is the net income from all sources?

13. Has the AIP signed a durable power-of-attorney? 
Who is appointed as agent under the durable 
power of attorney?

14. Has the AIP signed a health care power of 

attorney or health care directive?

At the commencement of the evidentiary 

hearing, counsel should be prepared to respond 
to the following questions posed by the court. The 
attorney’s responses to the below questions, as well 
as any introductory remarks made by the attorneys, 
will not be regarded as evidence, but will be utilized 
only to assist the court in gaining an understanding 
of the evidence that will be presented. 

1.  Will the attorney(s) place their names on the 

record and also indicate on the record whom you 
represent?

2.  Is anyone contesting that the AIP has a 

condition that causes an incapacity to make and 
communicate decisions and effectuate those 
decisions?

3.   Do the parties stipulate to the expert report? 
Does any party wish to examine the expert? 
Does the AIP wish to request an independent 
evaluation?

4.  Is anyone suggesting there is a less restrictive 

alternative or contesting the need for a guardian?

5.   Is the petitioner requesting a plenary or limited 

guardian of the PERSON?

(a)  Who is the petitioner proposing to serve as 
(plenary/limited) guardian of the PERSON?

(b)  Is anyone contesting this proposal?

(c)  What are this person’s qualifications to be 

such a guardian of the PERSON?

6.  Is the petitioner requesting a plenary or limited 

guardian of the ESTATE?

(a)  Who is the petitioner proposing to serve as 
(plenary/limited) guardian of the ESTATE?

(b)  Is anyone contesting this proposal?

(c)  What are this person’s qualifications to be 

such a guardian of the ESTATE?

7.  Has the AIP been personally served with petition, 
notice and citation and has the notice been read 
to them? Has an affidavit of service been filed?

68

CHAPTeR eLeVen

Post-Hearing Proceedings

Review Hearing

During the course of a guardianship, many events 
may require the court to hold hearings subsequent 
to its finding on capacity. While it is a joyous 
moment when the court finds an IP has regained 
capacity, or is no longer in need of a guardian, 
many guardianships continue for years and require 
subsequent court proceedings. Below are the more 
typical occurrences which bring those previously 
adjudicated matters before the court for a review 
hearing:

1) Change in capacity

It is not an unusual occurrence for the court to 
revisit the issue of capacity, either upon petition of 
an interested party, or sua sponte. Section 5512.2(a) 
of the PEF Code (Title 20, Pa. C.S.) titled “Review 
Hearings,” provides that: 

The court shall conduct a review hearing 
promptly if the incapacitated person, guardian 
or any interested party petitions the court for 
a hearing for reason of a significant change in 
the person’s capacity, a change in the need for 
guardianship services or the guardian’s failure 
to perform his duties in accordance with the law 
or to act in the best interest of the incapacitated 
person.

At a hearing concerning change of capacity, “the 
burden of proof, by clear and convincing evidence, 
shall be on the party advocating continuation of 
guardianship or expansion of areas of incapacity.” 55 
The court may dismiss a petition for a review hearing 
that is deemed to be frivolous.

2) Change in need for a guardian

The need for a guardian may be eliminated either 
because the IP has recovered capacity, or because 
a less restrictive alternative to guardianship has 
become available and practical. Thus, the need 
for guardian services may the subject of a review 
hearing pursuant to the mandate to seek the least 
restrictive alternative under 20 Pa.C.S. § 5512.1(a). 
In a review hearing the burden falls upon the 
party seeking to maintain (or increase) the level of 
guardianship supervision, pursuant to § 5512.2(b).

3) Questions concerning conduct (or alleged 
misconduct) of the appointed guardian

A review hearing is the appropriate forum to 

address concerns of a “guardian’s failure to perform 
his duties in accordance with the law or act in the 
best interest of the incapacitated person.” 56 A review 
hearing may also be necessary when a guardian has 
failed to file required annual reports with the court, 
and if a guardian persists in failing to file reports, 
consideration should be given to removing and 
replacing the guardian.

BEST PRACTICE: Courts may 

schedule periodic review hearings to 

confirm that there continues to be a 

need for a guardian and to confirm 

that the guardian is meeting the needs 

of  the IP. A review hearing may also 

be necessary when a guardian fails to 

file required annual reports.

4) Periodic review hearings

In some cases it may be useful to have periodic 
review hearings or to schedule review hearings on an 
as needed basis, to determine whether the guardian 
is still needed, whether the capacity of the IP has 
improved, or whether the issues that initially required 
the appointment of a guardian (such as a need to 
apply for medical benefits) have been resolved. 
Courts may want to consider periodic review 
hearings to check in with guardians and confirm that 
the needs of the IP are being met and that there is 
no need for a change to the final decree appointing 
guardians.

55  20 Pa.C.S. § 5512.2(b).

56  20 Pa.C.S. § 5512.2(a).

69

Role of  Court-Appointed Counsel  
After Adjudication

Section 5511 of the PEF code provides in part,  
“[i]n appropriate cases, counsel shall be appointed 
to represent the AIP in any matter for which counsel 
has not been retained by or on behalf of that 
individual.”57 Determining whether the IP needs his 
or her own counsel after adjudication of incapacity 
is a decision left to the trial judge. Such a decision 
would be affected by the nature of the subsequent 
proceedings, the nature of further loss of rights 
which may be suffered, request from the guardian or 
other parties in interest, as well as the IP’s wishes. 
The decision is one which the court must make after 
assessing needs of the IP, especially where there is 
divergence between that person’s desires and those 
of his or her guardian.

Related is the issue of whether the appearance 

of counsel appointed prior to the adjudication 
of incapacity is still effective and ongoing in 
subsequent proceedings. While the statute is silent, 
Pa. O.C. Rule 1.7(b) provides that an attorney’s 
appearance cannot be withdrawn without obtaining 
the court’s leave or the simultaneous entry of new 
counsel. Whether a post-adjudication petition should 
be considered a new matter or a continuation of 
the original, is a decision in which the court should 
use its sound discretion and consider the length 
of time between the prior services and the present 
matter. The availability of previously appointed 
counsel to continue with the present matter and any 
impediments to continued representation should 
also be considered.58 If pre-adjudication counsel 
is to assume representation, it would appear the 
better course for the court to issue another decree of 
appointment.

Petition for Approval of  expenditure  
of  Principal

The court may allow the expenditure of principal 
from the IP’s estate for cause shown upon petition 
and with appropriate notice.59 The court may require 
that a petition for approval of expenditure will not be 

57  20 Pa.C.S. § 5511(a).
58  For example, several Orphans’ Court Divisions, 
including Philadelphia and Montgomery County, have a 
usual practice of inquiring about the availability of counsel 
to	continue	to	serve	when	first	appointed,	or	specifying	in	
an appointment order that counsel shall continue to serve 
until granted leave of court to withdraw.
59  20 Pa.C.S. § 5536.

considered, except in unusual circumstances, where 
the inventory has not yet been filed or where the 
annual report is overdue.60 Though not specifically 
required by statute, it is a best practice to require 
notice under Pa. O.C. Rule 3.5(b) on all interested 
parties, which would include the guardian, the 
residential care provider (if any), and the intestate 
heirs of the IP. When a guardian expends principal 
without prior court approval, the court may entertain 
requests to approve such expenditures on a nunc 
pro tunc basis. 61 The court may also consider a 
proposed budget that contemplates expenditures of 
principal up to a capped amount in each year.

1)  The following are considerations in evaluating 

requests for expenditure of principal:

a)  Evaluating benefit of expenditure to IP’s 

welfare

Principal may be applied for the IP’s care, 
maintenance, or education.62 The guardian may 
also expend principal to create an irrevocable burial 
reserve for the IP.63

Principal may also be applied to care, 

maintenance, or education of the IP’s spouse or 
children, or for those whom the IP made such 
provision before being declared incapacitated, or 
“for the reasonable funeral expenses of the IP’s 
spouse, child or indigent parent.”64

b)  Evaluating proportionality of expenditure to 

IP’s needs and resources

Any otherwise allowable expenditure of principal 
for the benefit of an IP must be reasonable in light 
of the person’s circumstances. The most important 
consideration is the conservation of the IP’s principal 
so that sufficient funds will be available to meet 
the IP’s needs for as long as possible. Where the 
IP is terminally ill or of extremely advanced age, 
and assets are more than adequate, the need to 
conserve principal for future use may weigh less 

60  For example, Philadelphia has adopted a local rule 
that provides: “Except in cases of extreme emergency, 
requests for allowances will not be approved prior to the 
filing	of	the	inventory	or	the	last	required	annual	report,	
as the case may be.” Phila. O.C. Rule 14.2D(1)(d)(i). 
See generally Phila. O.C. Rule 14.2D(1) for the required 
contents of a petition for allowance in Philadelphia.
61  See, e.g., O’Reilly Estate, 18 Fiduc. Rep. 204 (O.C. 
Mont. Co. 1968).
62  20 Pa.C.S. § 5536.
63  20 Pa.C.S. § 5537.
64  20 Pa.C.S. § 5536.

70

heavily. Similarly, where the IP has very significant 
assets that are extremely unlikely to be exhausted 
during the IP’s lifetime, the need to conserve assets 
is of less weight. In cases where the assets of the 
IP’s estate are grossly inadequate compared to the 
need, the guardian may properly seek court approval 
to “spend down” the IP’s assets so as to qualify for 
government benefits.

2)  The following are among the most common 
reasons for petitioning for allowance from 
principal:

a) Guardian’s fees

The same rules apply to guardian’s fees as to other 

expenditures, in that court approval is required if 
they are to be paid from principal. For IPs living in 
nursing homes, guardian’s fees are deductible for 
Medical Assistance eligibility purposes, but only up 
to $100 per month.65 Serial petitions may be avoided 
by the pre-approval by decree of budgets.

b) Attorneys’ fees

The court may award attorneys’ fees from the 
principal of an IP’s estate either upon a petition 
for allowance or in the adjudication of the 
guardianship account, but the fees are subject to a 
reasonableness analysis, and may be adjusted to 
a reasonable amount on objection or by the court 
sua sponte. The Pennsylvania Supreme Court has 
provided the following factors by which to judge the 
reasonableness of attorney’s fees:

[1] the amount of work performed; [2] the 
character of the services rendered; [3] the 
difficulty of the problems involved; [4] the 
importance of the litigation; [5] the amount of 
money or value of the property in question; [6] 
the degree of responsibility incurred; [7] whether 
the fund involved was ‘created’ by the attorney; 
[8] the professional skill and standing of the 
attorney in his profession; [9] the results he was 
able to obtain; [10] the ability of the client to pay 
a reasonable fee for the services rendered; and, 
very importantly, [11] the amount of money or the 
value of the property in question.66

While LaRocca concerned attorney’s fees in a trust 

matter, courts have applied the LaRocca factors to 

65  55 Pa. Code §181.134; Pennsylvania Department 
of Public Welfare, Long Term Care Handbook: Forms, 
Operations	Memoranda,	and	Policy	Clarifications,	§	
468.31.
66  In re LaRocca’s Trust Estate, 246 A.2d 337, 339 (Pa. 
1968). 

71

other fiduciary matters, including the representation 
of IPs.67

Attorneys’ fee requests will be encountered from 

the following:

i)  Court-appointed counsel

Fees for counsel may be allowed from the assets 

of the estate where the estate is substantial. In 
some cases, court-appointed counsel may accept 
appointment on a pro bono or partially pro bono 
basis especially where the IP is indigent.68 When 
the IP is indigent and cannot afford the cost of 
counsel, as shown either through testimony or 
by the duly filed guardian’s inventory, the cost of 
court-appointed counsel may be paid by the county 
treasurer and reimbursed by the Commonwealth 
under Act 24 of 1992, codified at 20 Pa. C.S. § 
5511(c). 

ii)  Counsel for petitioner seeking adjudication of 

incapacity

When the work of petitioner’s counsel inures to the 
benefit of the IP, even when that work is done before 
the person is adjudged incapacitated, petitioner’s 
counsel may seek compensation from the IP’s 
estate.69

iii)  IP’s prior counsel

Counsel for the IP who provided legal services 

prior to the determination of capacity may be entitled 
to compensation from the IP’s estate, even after 
they are discharged or replaced. As long as the work 
inures to the sole benefit of the IP, and the amount 
requested is reasonable under the circumstances, 
prior counsel is entitled to compensation for 
reasonable work done on the IP’s behalf on a 

67  See, e.g., In re: Estate of Kornberg, an Incapacitated 
Person, 25 Fiduc.Rep.2d. 203, 205 (O.C. Phila 2005); In 
re: Estate of Gregory, an Incapacitated Person, 27 Fiduc.
Rep.2d. 273, 284-85 (O.C. Phila 2006); LaPaglia Estate, 7 
Fiduc.Rep.2d. 47, 49 (O.C. Allegheny 1986).
68  Some courts impose limits on counsel fees for court-
appointed counsel. For example, Philadelphia’s Orphans’ 
Court Division has a local practice of limiting fees 
approved for court-appointed counsel to $2,500, except 
where exceptional circumstances can be demonstrated.
69  In re Mallalieu, Incompetent (1), 9 Fiduc.Rep.2d. 235 
(O.C. Ches. Co. 1989) (indicating the rationale for allowing 
compensation to petitioner’s counsel is to encourage 
others	to	act	for	the	benefit	of	the	incapacitated	person	
without	bearing	the	financial	burden).

quantum meruit basis.70

iv)  Counsel for an agent under a power of 

attorney

A person who was named as an agent under a 
power of attorney retain counsel in that capacity 
and may be entitled to have their counsel fees paid 
from the estate, where they were acting properly in 
their role as a fiduciary. However, care should be 
exercised in determining whether counsel actually 
provided services to a fiduciary acting in the interests 
of the IP or AIP, or whether the person claiming to 
act under a power of attorney was actually acting in 
their own individual interest and represented in their 
individual interest.

v)  Counsel representing a party in interest

An attorney representing an interested party to an 

incapacity proceeding, such as a child or intestate 
heir of the AIP who seeks unsuccessfully to be 
appointed guardian, may not usually be paid from 
the IP’s estate after the adjudication of capacity. The 
exception to this rule is if, while representing the 
third party’s interest, some of counsel’s actions inure 
to the benefit of the IP.71 In such a case, counsel is 
entitled to reasonable compensation from the IP’s 
estate, but only for the work actually done for the 
benefit of the IP or their estate. 72

Petition for Approval of  Sale of  Real 
estate

A guardian may, whenever the court finds it to be 
for the best interests of the IP, upon petition, enter 
a decree for the sale at public or private sale, upon 
entry of appropriate security, any real property of the 
IP.73 The following Orphans’ Court Rules govern the 
particulars of these petitions:

Pa. O.C. Rule 14.10(a) provides that petitions for 
the public or private sale of real estate of an IP shall 
conform as far as practicable to the requirements of 
the rules for personal representatives, trustees, and 
guardians of minors in transactions of similar type. 

Pa. O.C. Rule 5.10 prescribes the requirements 
for petitions for the public sale of real property. In 
addition to general requirements for all petitions 

70  In re: Weightman’s Estate, 190 A. 552 (Pa. Super. 1937) 
(finding	legal	representation	of	incapacitated	person	to	be	
“necessaries” which may be paid for out of the estate).
71  LaPaglia Estate, supra.
72  Id. (Citing LaRocca, supra).
73  20 Pa.C.S. § 5521(b) (incorporating § 5155).

provided in Chapter III of the rules, petition for the 
public sale of real property must: (1) set forth the 
reason for filing the petition; (2) a description, stating 
the size and location of property to be sold; and 
(3) the liens and charges to which it is subject. Pa. 
O.C. Rule 5.10(a). Public notice of the sale must also 
be given as provided by law and as may be further 
required by local rule or as the court may order in a 
particular matter.74

Pa. O.C. Rule 5.11 prescribes the requirements 
for petitions for the private sale of real property. In 
addition to general requirements for all petitions 
provided in Chapter III of the Rules, a petition for 
the private sale of real property must: (1) provide all 
information required in a petition for the public sale 
of real property under Pa. O.C. Rule 5.10(a); and 
(2) provide the name and address of the proposed 
purchaser and the terms of the proposed sale, and 
state that the consideration to be received is more 
than can be obtained at public sale.75 Additionally, 
the petition must be supported by the affidavits 
of two competent persons setting forth that they 
have inspected the real property to be sold, that 
they are not personally interested in the proposed 
sale, that they are acquainted with the value of real 
estate in the area, that in their opinion the proposed 
consideration is more than can be obtained at public 
sale.76

Finally, where the IP opposes the sale of real 

estate, the guardian must make the court aware of 
this opposition, and it is advisable for the court to 
appoint separate counsel for the IP to scrutinize the 
petition from the point of view of the IP.

Removal of  Guardian

1)  Grounds for removal

In light of the IP’s vulnerability, intervention by 
the court may be necessary when confronted with 
a guardian whose conduct is improper, and “[t]he 
power of the orphans’ court to remove a guardian is 
an inherent right, which will not be disturbed unless 
there is a gross abuse of discretion.”77 However, 
the removal of a fiduciary is a drastic action which 
should only be taken when the estate or welfare of 
the IP is endangered and intervention is necessary to 

74  Pa. O.C. Rule 5.10(b).
75  Pa. O.C. Rule 5.11(a).
76  Pa. O.C. Rule 5.11(b).
77  In re Estate of Border, 68 A.3d 946, 959 (Pa. Super. 
2013).

72

protect the IP’s welfare or estate.78

Section 5515 of the PEF Code, which addresses 
court removal of a guardian, incorporates Section 
3182 (regarding grounds for removal of a personal 
representative). Section 3182 sets forth the grounds 
for removal, stating: 

The court shall have the exclusive power to 
remove a [guardian] when [the guardian]:

(1) 

is wasting or mismanaging the estate, is or 
is likely to become insolvent, or has failed 
to perform any duty imposed by law; or 

. . . .

(3)  has become incapacitated to discharge 
duties of his office because of sickness 
or physical or mental incapacity and his 
incapacity is likely to continue to the injury 
of the estate; or 

(4)  has removed from the Commonwealth 

or has ceased to have a known place of 
residence therein, without furnishing such 
security or additional security as the court 
shall direct; or 

(4.1)  has been charged with voluntary 

manslaughter or homicide, except homicide 
by vehicle, as set forth in Sections 3155 
… and 3156 …, provided that the removal 
shall not occur on theses grounds if the 
charge has been dismissed, withdrawn or 
terminated by a verdict of not guilty, or 

(5)  when, for any other reason, the interests of 
the estate are likely to be jeopardized by his 
continuance in office. 

A guardian’s failure to perform such duties in 

accordance with the law or to act in the best interest 
of the IP also constitutes grounds for removal.79

2)  Procedure for removal

Section 5515 of the PEF Code, by incorporation of 
Section 3183 (regarding the procedure for and effect 

78  See generally In re Fraiman’s Estate, 184 A.2d 494, 497 
(Pa. 1962).
79  See, e.g., 20 Pa.C.S. §§ 5142 (regarding guardian’s 
duty	to	file	the	inventory),	5521(a)	(regarding	the	duties	of	
the guardian of the person), 5521(b) (regarding the duties 
of the guardian of the estate), and 5521(c) (regarding 
guardian’s	duty	to	file	Annual	Reports),	5521(d)	(regarding	
actions which cannot be taken by guardian without court 
approval).

of removal of a personal representative) governs the 
procedure for removal of a guardian. It provides that 
“the court on its own motion may, and on the petition 
of any party in interest alleging adequate grounds 
for removal shall, order the [guardian] to appear and 
show cause why he should not be removed.” The 
statute mandates that upon the petition or motion 
of an interested party alleging adequate grounds for 
removal, the trial court shall conduct a hearing to 
determine whether the guardian should or should 
not be removed from his position.80 Failure to hold a 
hearing upon receipt of a petition alleging adequate 
grounds for removal may constitute reversible 
error.81 However, where necessary to protect the 
interests of the parties, including the IP, the court 
may summarily remove a guardian. The court is 
permitted to summarily remove a guardian only when 
such removal is necessary to protect the rights of 
creditors and parties in interest, including the IP.82

Pursuant to Section 5512.2, the court is also 

required to promptly conduct a review hearing upon 
petition of the IP, guardian or any interested party 
alleging the guardian has failed to perform his duties 
in accordance with the law or to act in the best 
interest of the IP.

Appointment of  Successor Guardian

upon the removal or resignation of a guardian, 
provided there have been no significant changes 
in the person’s capacity or need for guardianship 
services, the court, after such notice to parties in 
interest as it shall direct, may without a hearing 
appoint a succeeding guardian to fill a vacancy in 
the office of guardian. 83 The court may schedule 
a hearing if it is necessary to assure that the 
guardian is a suitable individual and prepared to act 
in the best interests of the IP. This may also be a 
reasonable juncture to conduct a review hearing to 
determine that the guardian continues to be needed. 
However if the court is satisfied with the information 
provided, a successor guardian may be appointed 
without a hearing.

The selection and appointment of a successor 
guardian lies within the discretion of the court.84 
However, it is common practice for a party 
petitioning for the removal of a guardian to provide 

80  Estate of Velott, 529 A.2d 525, 527 (Pa. Super. 1987).
81  Id. at 528.
82  20 Pa.C.S. § 3183.
83  20 Pa.C.S. § 5514.
84  See 20 Pa.C.S. §§ 5511(f), 5512.1.

73

a nominee for successor guardian in the petition for 
removal. Where the vacating guardian was a parent 
who is now deceased, any testamentary nominee of 
the parent shall be given preference by the court.85

Guardian’s Power to engage in estate 
Planning, Gifts

A guardian of the estate may petition the court for 

approval to make gifts to family members or enter 
into contracts or to make changes to the estate plan 
of an IP where necessary to modify documents in 
light of changes to the tax laws.86 The court may 
approve gifts or other transfers only when satisfied 
that “assets exist which are not required for the 
maintenance, support and well-being” of IP.87 Gifts 
may be approved if they minimize taxes or carry out 
a lifetime giving pattern.

Guardian’s Power to Make Health  
Care Decisions

A guardian of the person has the duty to assert 
the rights and best interests of the IP and to respect 
the express wishes and preferences of the IP to 
the greatest extent possible.88 In addition to being 
responsible for the IP’s care and custody, the 
guardian of the person is also responsible for making 
health care decisions on behalf of the IP.

1)  Guardian’s power when no advance 

healthcare directive exists

Section 5521 makes no effort to affirmatively 
prescribe those health care decisions a guardian 
is empowered to make. Rather, § 5521 defines the 
scope of a guardian’s power to make health care 
decisions by listing certain actions that cannot be 
authorized by a guardian without specific court 
approval.

Pursuant to Section 5521(d), unless specifically 

included in the guardianship order after specific 
findings of fact or otherwise ordered after a 
subsequent hearing with specific findings of fact, 
a guardian does not have the power to (1) consent 
on behalf of the IP to an abortion, sterilization, 
psychosurgery, electroconvulsive therapy or 
removal of a healthy body organ, or (2) consent 

85  20 Pa.C.S. § 5514.
86  20 Pa.C.S. § 5536.
87  Id.
88  20 Pa.C.S. § 5521(a).

on behalf of the IP to the performance of any 
experimental biomedical or behavioral medical 
procedure or participation in any biomedical or 
behavioral experiment.89 Where these issues were 
not addressed in the original final decree appointing 
a guardian, requests for any of these procedures 
should be presented to the court in the form of 
a specific petition requesting permission for the 
guardian to consent to the specific procedure on 
behalf of the IP. upon receipt of such a petition, 
the court should schedule a hearing and consider 
whether counsel should be appointed for the IP. 
Expert medical evidence on the risks and benefits 
of any proposed procedure must be presented 
and considered, although where any emergency 
exists the court should consider permitting expert 
testimony by telephone or video. 

The most common medical procedure on this 

list that may result in a hearing is a request for 
the guardian to consent to electro-convulsive 
therapy, frequently for a person incapacitated 
and at imminent risk of death due to untreatable 
depression.

Additionally, § 5521(f) provides that a guardian 
does not have the power—nor can the court grant 
the guardian the power—to admit the IP to an 
inpatient psychiatric facility or State center for 
the mentally retarded, or take any action that is 
forbidden under other statutes.90 

A guardian is prohibited from refusing life-

preserving medical treatment when an IP is suffering 
from a treatable condition but is not in an end-stage 
medical condition or permanently unconscious.91 
In such a situation, life-preserving treatment may 
only be refused by a health care agent appointed in 
writing by the principal, if authorized to do so by the 
advanced health care directive or by the principal 
should he or she regain capacity.92 

A guardian who seeks to decline life-sustaining 
medical treatment on behalf of a patient who is not 
terminally ill must petition the court for authority 
to decline the treatment on behalf of the patient. A 
guardian may also petition the court for authority to 
decline life-sustaining treatment, to elect hospice 
services, and to make a finding that the IP is in an 
end-stage medical condition. Some courts require 
that the guardian seek approval to elect hospice 
services and to decline life-sustaining treatment 

89  20 Pa.C.S. § 5521(d).
90  See also, In re D.L.H., 2 A.3d 505 (Pa. 2010).
91  Id. at 514.
92  Id.; 20 Pa.C.S. § 5462(c). 

74

to create this record. The guardian seeking such 
an order must prove to the court by clear and 
convincing evidence that declining the treatment 
would be in the patient’s best interest.93 In order to 
establish that death is in an incapacitated patient’s 
best interest, a guardian must, at a minimum, provide 
reliable medical expert testimony documenting 
the patient’s severe, permanent medical condition 
and current state of physical or psychological 
deterioration and pain.94 Because many of these 
hearings occur on an emergency basis, the court 
may schedule a hearing on the request to decline life 
sustaining treatment by telephone, on short notice, 
and may permit a physician or other health care 
provider to testify by telephone. Ideally the court will 
appoint counsel to continue to represent the IP’s 
individual interests prior to any hearing to consider 
end-of-life decisions.

End of life issues can be particularly sensitive and 

difficult. Judges may have their own strongly held 
beliefs as to end of life decisions based upon their 
own religious, philosophical or ethical beliefs or life 
experiences. Judges must be particularly sensitive 
in this area to take care that their personal beliefs do 
not result in an appearance of bias. See extended 
discussion of this issues in CHAPTER TWELVE.

Rule 1.2 of the Code of Judicial Conduct requires 

that a judge “act at all times in a manner that 
promotes public confidence in the independence, 
integrity, and impartiality of the judiciary, and 
shall avoid impropriety and the appearance of 
impropriety.” Rule 2.3(A) of the Code requires a 
judge “perform the duties of judicial office … without 
bias or prejudice.” Comment [1] to Rule 2.3 states 
“[a] judge who manifests bias or prejudice in a 
proceeding impairs the fairness of the proceeding 
and brings the judiciary into disrepute.” And, Rule 
2.11(A) of the Code requires a judge “disqualify 
himself or herself in any proceeding in which the 
judge’s impartiality might reasonably be questioned”. 

A judge should consider whether his or her beliefs 

or involvement in extrajudicial activities would 
reasonably question the judge’s impartiality in 
presiding over a matter involving an end of life issue. 
Comment [5] to Rule 2.11 requires a judge “disclose 
on the record information that the judge believes the 
parties or their lawyers might reasonably consider 
relevant to a possible motion for disqualification, 
even if the judge believes there is no basis for 
disqualification.” 

93  In re D.L.H., supra.
94  Id.

ultimately, the persons interested in the case 
must have confidence that the judge will be fair 
and impartial, and that the judge’s decision will be 
based upon the religious, philosophical or ethical 
orientation or life experiences of the IP, if known, 
and not of the judge. If those factors are not known, 
then the decision must be based upon an objective 
determination of the best interests of the IP.

2)  Guardian’s power when effective advance 

healthcare directive exists

Section 5460 addresses the relation of a health 

care agent to a court-appointed guardian in 
those situations when a principal, prior to being 
adjudicated incapacitated and having a guardian of 
the person appointed, has executed a health care 
power of attorney. In such scenarios, the health care 
agent is accountable to the guardian as well as to 
the principal.95 The statute further provides that the 
guardian has the same power to revoke or amend 
the appointment of a health care agent that the 
principal would have had if not incapacitated, but 
that the guardian may not revoke or amend other 
instructions in the advance health directive absent 
judicial authorization.96

The statute permits a guardian to revoke the 
appointment of a health care agent but does not 
confer the power to appoint such an agent in the 
first instance. The power to revoke the appointment 
of a health care agent provides an additional layer 
of protection to IPs, as a health care agent may be 
deprived of the power to make life-ending decisions 
by a guardian.97

When the person named as health care agent is 
not appointed as the guardian (for example, where 
the court has determined that such person is not 
suitable to act as guardian because of acts against 
the interest of the IP), the IP may have provided in 
a heath care directive important directives for their 
health care and end-of-life care. The expressed 
wishes of the IP, documented in writing at a time 
when the IP had capacity, should be honored by the 
court, the guardian and the doctors to the maximum 
extent possible, unless there is a dispute that makes 
it impossible to understand the IP’s expressed 
wishes. Guardians of the person should become 
familiar with any written health care directive of the 
IP and should seek to follow the provisions of such 
directive. The guardian of the person has a duty to 
the IP to allow the IP to participate to the maximum 

95  20 Pa.C.S. § 5460.
96  Id.
97  In re D.L.H., supra.

75

extent possible in all decisions, and where the IP has 
clearly expressed their wishes in writing about their 
health care, at a time when they had capacity to do 
so, those wishes should be respected.98

98  20 Pa.C.S. § 5521(a).

76

CHAPTeR TWeLVe

Ethical Issues in Guardianship Matters

Every citizen has a fundamental right, protected 
under the united States Constitution, to live their 
life with autonomy and dignity, and to make his or 
her own decisions. Guardianship is frequently a 
means to protect our most vulnerable citizens. This 
chapter addresses the ethical issues that judges 
may encounter in seeking to reconcile these two 
frequently competing interests: protection of the 
vulnerable and respect for self-determination. 

This chapter draws upon ethical guidance 
in Pennsylvania’s Code of Judicial Conduct 
(hereinafter the “Code”) and references guidance in 
Pennsylvania’s guardianship statute. It is axiomatic, 
as expressed in the Code that “[a] judge shall uphold 
and apply the law.”99 

Is the Petitioner Interested in the 
Welfare of  the AIP?

The guardianship statute permits a petition for 
appointment of a guardian to be brought by any 
person who is “interested in the welfare” of the 
AIP. Petitioners and those seeking appointment as 
guardians will typically allege that they are acting 
in the interests of the AIP. Because a focus of the 
court in guardianship proceedings is protection of 
the AIP, courts may perceive the interests of the 
AIP to be aligned with those of the petitioner or 
with an individual seeking appointment as the AIP’s 
guardian. 

However, courts must be mindful that the 
motives of those who seek appointment of a 
guardian for a family member or other adult are 
not always, or solely, the best interests of the 
AIP. Even when motives for filing a petition for 
guardianship are benevolent, they may not reflect 
the AIP’s own understanding of what is in his or 
her interest. Judges should ensure that the AIP has 
an opportunity to present his or her own personal 
choices and concerns to the court.

ensuring the AIP’s Participation in and 
Presence at the Hearing

Rule 2.6(A) of the Code provides that “[a] judge 
shall accord to every person or entity who has a 

legal interest in a proceeding, or that person or 
entity’s lawyer, the right to be heard according 
to law.” Comment [1] to Rule 2.6 of the Code 
emphasizes that “[t]he right to be heard is an 
essential component of a fair and impartial system 
of justice. Substantive rights of litigants can be 
protected only if procedures protecting the right 
to be heard are observed.” In balancing its dual 
responsibilities to respect the self-determination of 
the AIP and to protect an AIP who lacks the capacity 
to make decisions and manage his or her own 
affairs, courts should ensure that the interests of the 
AIP are effectively presented at the guardianship 
hearing. This not only meets the ethical responsibility 
of judges set out in the Code but also effectuates 
the purpose of Pennsylvania’s guardianship law 
which includes “permit[ting] incapacitated persons to 
participate as fully as possible in all decisions which 
affect them.”100

The most effective way for the AIP to participate 

in the hearing is for the AIP to be present in the 
courtroom. This is in keeping with Pennsylvania’s 
guardianship statute which provides that the AIP is 
to be present at the hearing except under specified 
circumstances (i.e., their physical or mental condition 
would be harmed by their presence at the hearing, 
or their absence from the Commonwealth). Reasons 
for proceeding without the AIP being present should 
be sufficiently weighty to overcome the ethical 
and legal support for the person’s presence and 
should be based on the best interests of the AIP. 
Additionally, courts must make reasonable efforts 
to accommodate AIPs so that they may attend 
the hearing and participate, such as by providing 
hearing amplification. Video conferencing with a 
nursing home, prison or private locations should 
be considered where an AIP is physically unable to 
travel but would be able to participate by video.

Appointing Counsel for the AIP

Appointing counsel to represent the AIP is another 

means of ensuring that the interests of the AIP are 
heard by the court. Pennsylvania’s guardianship law 
provides that that an AIP has “the right to request 
the appointment of counsel and to have counsel 
appointed if the court deems it appropriate and 
the right to have such counsel paid for if it cannot 

99  Code of Judicial Conduct, Canon 2, Rule 2.2.

100  20 Pa.C.S. § 5502.

77

be afforded.” 20 Pa. C.S. § 5511(a). Although legal 
representation might ensure that the interests of 
the AIP are effectively presented to the court, there 
are a number of reasons why counsel may not be 
requested by the AIP. For example, explanations of 
the nature and purpose of the guardianship process 
given to the AIP by the petitioner may not have 
adequately made clear to the AIP the nature and 
purpose of the court proceeding and how his or her 
rights may be affected by guardianship. The AIP may 
be intimidated by the court and court proceedings 
and unable to assert himself or herself sufficiently to 
ask for counsel. The AIP may refrain from requesting 
to be represented by counsel out of concern that 
doing so will impair family relationships or out 
of a history of reliance on the judgment of family 
members. The AIP may not know how to go about 
engaging counsel or may be concerned about the 
cost of doing so. The AIP may be afraid to prolong 
the hearing by requesting counsel and enduring a 
delay.

While the AIP has the right to engage and 
be represented by his or her own attorney, the 
appropriateness of appointing counsel for an AIP 
is within the discretion of the court. In light of the 
vulnerability of an AIP, the court should ensure that 
lack of legal representation reflects an informed 
choice made by the AIP rather than an inability 
to affirmatively engage or request counsel due to 
cognitive, psychological, emotional or other factors. 

Role of  Counsel for the AIP

When the AIP is represented by an attorney, 
the attorney should seek to maintain the normal 
attorney-client relationship to the extent possible. 
The representation should be guided by the client 
and the client’s interests as defined by the client. 
As the Pennsylvania Rules of Professional Conduct, 
Rule 1.14 states, “a client with diminished capacity 
often has the ability to understand, deliberate upon, 
and reach conclusions about matters affecting 
the client’s own well-being.” Where the AIP lacks 
some degree of capacity, there may be a well-
intended tendency for the court-appointed counsel 
for the AIP to seek to determine and advocate for 
the course that appears to be in the best interests 
of the AIP. However, a determination of the AIP’s 
best interests should not supplant the AIP’s right 
to be heard. Except in cases in which the AIP is 
incapable of participating with his or her attorney 
in the representation, the AIP’s attorney should 
advocate for the AIP’s legal interests in light of the 

AIP’s subjective, personal choices, provided the AIP 
is able to articulate personal choices and provide 
instructions to counsel. When counsel concludes 
that there may be a conflict between the subjective 
wishes of the AIP and a more objective sense of 
his or her best interests, and it may be helpful to 
the court to receive an assessment of the AIP’s 
best interests, the judge may consider appointment 
of a guardian ad litem to provide the court with 
evidence of the best interests of the AIP. Consistent 
with Rule of Professional Conduct 1.14(a) counsel 
for the AIP may also request the appointment of 
a separate guardian ad litem, if appropriate. For 
example, if the AIP is at risk of serious financial loss 
or physical harm and does not instruct counsel to 
defend against the source of that risk, this would 
be a circumstance in which it would be appropriate 
for counsel for the AIP to request appointment of a 
guardian ad litem, who would be able to educate the 
court about the best interests of the AIP, and would 
not be constrained by the Code.

Ex Parte Communications

As in any judicial proceeding, judges should avoid 
ex parte communications or other communications 
made outside the presence of the parties to the 
guardianship proceeding or their counsel. The 
Code does make an exception when circumstances 
require ex parte communication for scheduling, 
administrative, or emergency purposes so long 
as the ex parte communication does not address 
substantive matters and no party will gain a 
procedural, substantive, or tactical advantage as a 
result. In the event of such ex parte communications, 
the judge should promptly notify all other parties 
about the substance of the communication and 
provide them with an opportunity to respond. 
Particular care should be taken in guardianship 
matters as there are often unrepresented family 
members or other interested parties who may 
not appreciate the implications of ex parte 
communications.

Confidentiality and Privacy 
Considerations

Because of the sensitive nature of the personal, 

medical and financial information involved in a 
guardianship hearing, the AIP has a strong right to 
confidentiality in the records and proceedings before 
the court. The statute provides that “the hearing 
shall be closed . . . if the person alleged to be 

78

incapacitated or his [or her] counsel so requests.”101 
The court also retains the discretion to close the 
courtroom, provided that the AIP may request that 
the courtroom be open to the public. In light of 
these concerns, case records concerning incapacity 
proceedings are not open for examination by the 
public at a court facility, nor online, although the 
docket of the proceedings and any final decree are 
open to the public. Interested parties, however, may 
receive copies of court filings and orders.102

the witnesses testifying in person, providing written 
testimony and/or offering documentary evidence 
regarding the AIP’s capacity have the credentials and 
expertise to make such an assessment. This accords 
not only with the ethical duties of judges but also 
with the express requirements of the guardianship 
law which requires that incapacity be established by 
individuals qualified by training and experience in 
evaluating individuals with incapacities of the type 
alleged by the petitioner. 

Capacity Assessments

Independent Judgment

Judicial determination of capacity is a crucial 
component of all guardianship proceedings. A 
capacity assessment provides the basis for the 
court’s determination whether the appointment of 
a guardian is warranted and, if so, on the scope 
of the guardianship ordered. Because of the 
potential impact such a decision has on the legal 
rights of the AIP, the court should be confident that 
the expert or lay witness offering testimonial or 
documentary evidence regarding the capacity of 
the AIP has the requisite expertise and experience 
to properly conduct and accurately interpret such 
an assessment. As discussed in CHAPTER TEN, 
the best professional to conduct an assessment 
may vary depending upon the nature of the 
illness, disability or injure that is the cause of the 
incapacity. The capacity assessment should reflect 
the independent judgment of the person or persons 
conducting the assessment. Persons performing 
a capacity assessment should not have, nor be 
perceived to have, an interest in the determination 
of capacity or in the outcome of the proceeding. 
For example, a nursing home administrator who 
works for the facility providing care to an AIP likely 
lacks the professional qualifications necessary to 
make a determination of capacity as an expert and 
may have a conflict of interest in the outcome of the 
proceedings. The anecdotal testimony of parties who 
may have interests of their own in the outcome of 
the hearing should not – or at least should not alone 
- provide the basis for the court’s capacity decision. 
Such witnesses, however, may testify to certain 
relevant facts, provided that a qualified expert 
addresses the question of the AIP’s capacity.

Given the importance to an individual’s right 
of self-determination at stake in a guardianship 
proceeding, the court should have confidence that 

101  20 Pa.C.S. § 5511(a).
102		Case	Records	Public	Access	Policy	of	the	Unified	
Judicial System of Pennsylvania.

Judges should be alert to situations that present 
the potential for parties’ and witnesses’ competing 
interests to affect their independent judgment 
and thereby the court’s determination of matters 
affecting the AIP. For example, an ethical question 
regarding conflict of interest may arise when the 
attorney for the AIP is retained – and is paid – by a 
family member of the AIP. An attorney representing 
the AIP has an obligation of loyalty to the AIP. An 
attorney engaged by a family member or an agent 
under a power of attorney, may have a duty to that 
other person or fiduciary that would prevent the 
attorney from zealously representing the interests 
of the AIP. Even where the interests of the family 
may not be directly adverse to those of the AIP, “a 
conflict of interest exists if there is a significant risk 
that a lawyer’s ability to consider, recommend or 
carry out an appropriate course of action for the 
client will be materially limited as a result of the 
lawyer’s other responsibilities or interests.”103 The 
court should ensure that where counsel for the AIP is 
retained by the family or other party with an interest 
in the outcome of the guardianship proceeding, the 
attorney’s representation of the AIP is not influenced 
by the attorney’s relationship with any other such 
person or entity. 

Another situation that may have an impact on 
the ability of a witness or other participant in the 
guardianship process to exercise independent 
judgment is the existence of an ongoing relationship 
with the court. Attorneys, capacity experts, and 
others who regularly rely upon court appointment 
in guardianship cases may have divided loyalties 
and conflicting interests that may influence their 
judgement and decisions. Judges should be alert 
to the potential for conflict of interest in these 
situations.

103  Pa.R.P.C. 1.7 Comment [8]. 

79

end of  Life Decisions

When a guardianship continues in place through 
the end of the incapacitated adult’s life, situations 
may arise in which decisions regarding the 
continuation, withdrawal, or withholding of life-
sustaining treatment for the IP need to be made. 
Fewer than 30% of older adults have an advance 
directive stating their own choices for treatment 
at the end of life or naming the person whom they 
would want to make such decisions on their behalf if 
they are unable to do so. Subject to the terms of the 
guardianship order, the guardian may be called on to 
make decisions regarding the provision, withholding 
or withdrawal of life-sustaining treatment for the 
IP. When health care providers, family members or 
others disagree with and choose to challenge the 
guardian’s decision, the issue may come before the 
court.

The three standards for surrogate decision-making 

at end of life that now have general acceptance 
in both law and medical ethics are the clear and 
convincing evidence standard, the substituted 
judgment standard, and the best interests standard. 
The intent of these ethical standards is to carry 
forward, to the degree possible, the autonomous 
choices regarding treatment at the end of life of the 
now-incapacitated individual.

The highest standard, clear and convincing 

evidence, provides the basis for end-of-life 
decisions when there are available explicit oral 
statements made by, or written statements (e.g., 
advance directive) executed by, the incapacitated 
individual when they were competent. As defined by 
Pennsylvania’s advance directives for healthcare law, 
an individual is competent to complete an advance 
directive if, when presented with appropriate medical 
information, communication supports and technical 
assistance, they are able to understand the benefits, 
risks and alternatives involved in health care 
decisions, make a decision, and communicate that 
decision to another person. A guardian’s decisions 
should be consistent with clear and convincing 
evidence of the IP’s choices. 

When clear and convincing evidence of an IP’s 
previously expressed choices for treatment is not 
available, the substituted judgment standard is 
generally regarded as the next best way to carry 
the IP’s autonomy forward. The central idea of 
substituted judgment is to determine the decision 
regarding treatment that the IP would make if they 
were competent to do so. In exercising substituted 
judgment, a guardian should consider the IP’S 

previously expressed general preferences regarding 
treatment and the outcomes of treatment in the 
context of the IP’s life story and current illness. 

In cases where the appointed guardian did not 
know the IP prior to their incapacity (e.g., cases in 
which no family or friend of the AIP was available, 
willing or appropriate to act as guardian and the 
individual appointed to act as guardian is a stranger 
to the IP, end of life decisions should be made in 
accordance with the best interests standard. The 
best interests standard is objective; that is, instead 
of seeking to make a decision regarding end of life 
treatment from the perspective of the terminally ill IP, 
the decision regarding the provision, withholding or 
withdrawal of treatment is based on an assessment 
of what a reasonable person would choose under 
the circumstances. 

Conclusion

Guardianship places two important ethical values 

in tension: a society’s responsibility to protect its 
members who are not able to care for themselves 
and respect for each individual’s right to decide for 
themselves how they will live. In determining whether 
a guardian should be appointed and the scope of the 
guardianship that should be ordered, if any, courts 
are called upon to strike a balance between these 
values. While perfect balance may not be achievable, 
being alert to the ethical issues implicated in 
adjudication of guardianship cases will help ensure 
that the guardianship process meets the needs of 
cognitively incapacitated adults while preserving 
their rights to the greatest extent possible. 

References:

Cassidy J. 2015. Restoration of rights in the 
termination of adult guardianship. Accessed at http://
publish.illinois.edu/elderlawjournal/files/2015/08/
Cassidy.pdf 29 January 2017.

Kohn NA, Blumenthal JA, Campbell AT. 2013. 
Supported Decision-Making: A Viable Alternative to 
Guardianship?. 117 Penn State Law Review, No. 4. 
Accessed at https://papers.ssrn.com/sol3/papers2.
cfm?abstract_id=2161115 29 January 2017.

Teaster PB, Wood EF, Lawrence SA, Schmidt 
WC. 2007. Wards of the State: A National Study 
of Public Guardianship. Accessed at http://
supporteddecisionmaking.com/sites/default/files/
wards_of_the_state.pdf. 29 January 2017.

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CHAPTeR THIRTeen

Court Supervision and Monitoring of  Guardians

Courts have a responsibility to monitor, supervise 

and when necessary remove court-appointed 
guardians. Because a plenary guardian of the 
person or estate has such broad powers to affect 
the life, well-being and finances of the IP under their 
care, courts must take extreme care to review and 
monitor the activities of guardians to assure that they 
continue to act in the best interests of the IP.

The primary mechanism for monitoring guardians 
is the requirement that every guardian of the person 
or estate file an annual report each year. Guardians 
of the estate are also required to file an inventory 
within 90 days of appointment as guardian, to 
provide a financial baseline to which annual reports 
are compared.

The court that appointed a guardian has a 

responsibility to review annual reports and 
inventories, to assure that they are filed timely, and 
to assure that the funds of the IP are not being 
mismanaged or spent improperly, and that the 
guardian is looking after the well-being of the IP. 
Annual reports are and must be reviewed promptly, 
and certain issues may raise concerns that should 
be addressed by correspondence with the guardian, 
or by scheduling a review hearing.

The Administrative Office of Pennsylvania Courts 

developed a new Pennsylvania Guardianship 
Tracking System (GTS), which has been operating 
throughout Pennsylvania since December of 
2018. This is a web-based application that allows 
guardians of adult-incapacitated persons to submit 

Court Volunteer Monitoring 

Program: Consider implementing a 

court volunteer monitoring program, 

recruiting and training volunteers 

to visit IPs and assist the court in 

assuring that their needs are being 

met and the appointed Guardians are 

acting in their best interests.

inventories and annual reports through an online 
portal. upon the completion of a filing, it will be 
transmitted to the applicable court for review and 
entry on the docket.

Each guardian must create a secure account 
to use the GTS to file reports. The GTS system is 
designed for tracking and submitting guardianship-
related reports online. It will provide the court system 
with improved data about the nature and number 
of guardianships, and about the areas in which the 
court system can continue to improve its supervision 
and monitoring of guardians.

 BEST PRACTICE: In order to 

encourage timely filing of  Inventories 

and Annual Reports, and recognizing 

that many IPs have limited assets, 

Courts are encouraged to be liberal 

in waiving filing fees for reports, 

inventories and other petitions upon 

request. See sample Petition to Waive 

Filing Fees and Sample Order to 

Waive Filing Fees in Appendix.

Inventory (Form G-05)

Within ninety (90) days of the date of appointment, 

the guardian of the estate must file an Inventory 
with the court itemizing the financial assets of the IP. 
The Inventory should contain a list of all real estate, 
personal property, bank accounts, securities, and 
any and all other valuable assets belonging to the 
IP with values stated as of the date of appointment. 
This document should include a statement of 
any real or personal assets which the guardian 
reasonably expects to acquire on behalf of the IP 
after the date of filing of this Inventory. 

If the guardian fails to file an Inventory within three 

months of the date of appointment, the Clerk of 

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the Orphans’ Court sends a notice to the guardian, 
allowing thirty (30) days to file the Inventory before 
the entry of an Order to show cause why the 
guardian should not appear and be removed as 
guardian and/or suffer sanctions imposed by the 
court.104

Annual Reports: Report of  Guardian  
of  the estate (form g-02) and Report  
of  Guardian of  the Person (form G-03) 

In addition to the Inventory, the Guardian of the 

Person and Guardian of the Estate are required 
to file an Annual Report on or before the first 12 
month anniversary of appointment describing in 
detail the current principal of the Estate and how 
it is invested, the current income of the Estate, the 
expenditures of principal and/or income since the 
date of appointment, and the needs of the IP for 
which the guardian has provided financially since the 
date of appointment. Annual reports must be filed on 
the twelve (12) month anniversary of appointment for 
each year thereafter of guardianship. 

20 Pa.C.S. §5521(c)(1) provides that each guardian 

of an IP shall file with the court appointing him/her 
a report, at least once within the first 12 months of 
his/her appointment and at least annually thereafter, 
attesting to the following:

(i)  Guardian of the estate: 

(B)  current income;

(C)  expenditures of principal and income 

since the last report; and

(D)  needs of the IP for which the guardian 
has provided since the last report.

(ii)  Guardian of the person: 

104  It is recommended best practice for counties to adopt 
a volunteer monitoring program for guardians. Once 
a guardian has been appointed, a volunteer monitor 
will assign a volunteer to make an in person visit to the 
guardian. In the Orphans’ Court Guardianship Program in 
Chester County, the volunteer submits a report of the visit 
to the Orphans’ Court volunteer monitor. The visits occur 
once a year unless there is concern that the guardian is 
overwhelmed by duties and requires more frequent visits 
from the volunteer. 

LEGAL REqUIREMENT:  

A Guardian of  the Estate is required 

to file an Inventory (Form G-05) 

within 90 days following appointment, 

and is required to file a Report (Form 

G-02) annually on or before the 

anniversary of  the final decree. A 

Guardian of  the Person is required to 

file a Report (Form G-03) annually on 

or before the anniversary of  the Final 

Decree. A Guardian in either capacity 

must also provide Notice to all persons 

entitled to notice, whenever these 

reports or inventory have been filed. 

(Form G-07).

(A)  current address and type of placement of 

the incapacitated person;

(B)  major medical or mental problems of the 

(C)  a brief description of the IP’s living 

arrangements and the social, medical, 
psychological and other support services 
he is receiving;

(D)  the opinion of the guardian as to whether 
the guardianship should continue or be 
terminated or modified and the reasons 
therefor; and

(E)  number and length of times 

the guardian visited the IP in the past 
year.

Firearms

18 Pa. C.S. §6105(a) and (c)(4), the federal statute 

known as the uniform Firearms Act, prohibits 
a person who has been adjudicated an IP from 
possessing, using, controlling, selling, transferring 
or manufacturing, or obtaining a license to possess, 

82

(A)  current principal and how it is invested;

IP;

Failure to File Reports

If the guardian fails to file an annual report, the 
Clerk of the Orphans’ Court sends a notice to the 
guardian, allowing thirty (30) days to file the report 
before the entry of an order to show cause why the 
guardian should not appear and be removed as 
guardian and/or suffer sanctions imposed by the 
court. 

Final Report of  the Guardian  
(Forms G-02 and G-03)

Within sixty (60) days of the death of the IP or an 
adjudication of capacity and modification of existing 
orders, or removal or resignation of the guardian, the 
guardian shall file a final report with the court.

Forms

Pursuant to Pennsylvania Orphans’ Court Rule 
14.14, the following forms shall be used exclusively 
and cannot be replaced or supplanted by a local 
form.

1.  Important Notice—Citation with Notice (Form 

G-01);

G-03); 

2.  Report of Guardian of the Estate (Form G-02);

3.  Report of Guardian of the Person (Form 

4.  Guardian’s Inventory for an Incapacitated 

Person (Form G-05);

5.  Expert Report (Form G-06);

6.  Notice of Filing (Form G-07); and

7.  Petition for Adjudication/Statement of 

Proposed Distribution Pursuant to Pa. O.C. 
Rule 2.4 (Form OC-03).

 BEST PRACTICE: The Court 

should advise guardians of  the estate 

to inquire about any firearms owned 

by the IP, and to secure, transfer or 

sell any firearms. The Court must 

file a Notification of  Mental Health 

Commitment with the State Police 

within 7 days after any decree of  

adjudication of  incapacity.

use, control, sell, transfer or manufacture a firearm 
in the Commonwealth of Pennsylvania. The 
guardian should inquire about the ownership and/or 
possession of any firearms by the IP and, within sixty 
(60) days of the adjudication, should arrange for the 
sale or transfer of the IP’s firearms to another eligible 
person who is not a member of the prohibited 
person’s household. As well, an IP is not permitted 
to obtain a license to carry a firearm. Any existing 
license issued to the IP should be returned to the 
issuing authority. 

notification of  Mental Health 
Commitment

Within seven (7) days of the adjudication of 

incapacity, the court shall notify the Pennsylvania 
State Police of the adjudication. A completed Form 
SP4-131 must be prepared and filed with the court 
together with the petition for adjudication, so that 
the court may notify the State Police as required 
following adjudication of incapacity.

notice of  Filing (Form G-07)

The guardian is required to file a Notice of Filing 
with respect to each annual report, and to provide 
notice to those parties entitled to notice of the 
annual report, pursuant to the court’s direction. See 
Form G-07, Notice of Filing.

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84

CHAPTeR FoURTeen

Guardian’s Fiduciary Duties

All guardians are placed in a fiduciary relationship 
with the IP they serve.105 All guardians have special 
obligations of trust, loyalty, confidence, and the 
duty to act primarily for the IP’s benefit. Guardians 
are subject to high standards of care in conducting 
their responsibilities, and guardians with a higher 
level of relevant guardianship-care skills are held 
to the use of those skills.106 This chapter will 
discuss the specific duties and responsibilities of a 
guardian of the estate, and the specific duties and 
responsibilities of a guardian of the person.

Guardian of  the estate –  
Management of  Finances

The court may decide to appoint someone to 

handle all the financial affairs of the IP; this person is 
the guardian of the estate.

Duty: Benefit of  the IP

BEST PRACTICE: The Guardian 

should not commingle funds of  the IP 

with their own funds and should not 

establish a joint bank account, unless it 

was in existence prior to appointment 

and disclosed to the Court.

A guardian of the estate has a fiduciary duty not 
to mismanage the IP’s money and assets and to use 
such assets solely for the good of the IP. Basically, 
the guardian of the estate is merely acting on behalf 
of the IP by managing their money and property. 

•	 The guardian of the estate is authorized to 
spend income for the benefit of the IP. 

105		‘Guardian.’	Means	a	fiduciary	who	has	the	care	and	
management of the estate or person of a minor or an 
incapacitated person.” 20 Pa.C.S. § 201.
106  See National Guardianship Association of Standards of 
Practice, Standard 1.IV.

85

•	 Any expenditure of principal of the IP (the 

balance of funds or assets of the IP as of the 
date on which the guardian was appointed, or 
that are later acquired, that are not monthly 
income) may be subject to challenge and 
review by the court. 

•	 Most sales of assets, real estate, gifts, or 

transfers, or expenditures of assets, including 
expenditures to pay attorneys or professional 
fees, require advance approval by the court; 

•	 Exception: spending income for the 

routine care and maintenance of the IP.107

The reasonable fees and commissions for expert 
services used to manage the estate (e.g. accountant, 
attorney, etc.) may be charged to the estate of 
the IP if there are adequate assets to pay the 
expenses. For example, if the IP holds substantial 
assets, the guardian may file a petition with the 
court to authorize estate planning on behalf of the 
IP. This might include establishing a trust, making 
gifts, disclaiming interests in property or powers 
of appointment. Expenditures for such financial 
services are subject to court approval including a 
determination whether the professional fees are 
reasonable under the circumstances. Guardians of 
the estate must be prepared to file petitions for court 
approval of such expenditures and to demonstrate 
that they are in the best interests of the IP.

Duty: Inquiry, Discovery, and 
Safeguarding of  Assets

A guardian of the estate must make reasonable 
inquiry to try to discover the existence, location, and 
value of all assets of the IP, including determining 
their fair market value on the date of the guardian’s 
appointment. 

Once the assets have been discovered, 

inventoried, and had their values determined, the 

107  The Pennsylvania guardianship statute details a 
number of matters that may be handled by an appointed 
guardian of the estate, including: insurance, continuation 
of a business, investments, and sale of property. See 
20 Pa.C.S. § 5521(b); see also 20 Pa.C.S. § 5536 
(empowering the court to authorize the expenditure of 
income or principal from the estate).

BEST PRACTICE: The guardian 

should not be designated as the 

beneficiary on any life insurance 

policy, pension, or benefit plan 

belonging to the IP, unless such 

designation was validly made prior to 

the establishment of  the guardianship. 

guardian of the estate is under a duty to safeguard 
and protect them from being dissipated, lost, stolen 
or destroyed. The guardian of the estate should 
take all reasonable measures to keep them safe and 
secure. 

Duty: Management of  Assets

Guardians of the estate must practice the same 
reasonable prudence in managing the assets of the 
estate as they would practice in the care of their own 
estate.108 They must not co-mingle the assets of the 
IP with their own assets. The guardian must also 
manage the assets to attempt to produce income 
or have the assets appreciate in value (or maintain 
value) for the benefit of the IP. Risky investments are 
not permitted.

The assets of the IP must be used exclusively for 
the benefit of the IP. under no circumstances should 
any assets of the IP be given as gift to the guardian 
or the guardian’s family without advance court 
approval.

Duty: Payment of  Debts and Actions  
on Claims

In general, guardians of the estate must pay 
reasonable debts, obligations, and expenses of 
the IP. The guardian should determine whether the 
final decree of the court grants this authority or 
whether the guardian must file a petition seeking 

court approval for these expenditures. This includes 
medical expenses and maintenance (including food 
and residence) of the IP and may include education 
if appropriate. As always, spending principal without 
court approval may subject the guardian to challenge 
and liability; however, the guardian may avoid this by 
petitioning the court to seek approval of necessary 
expenditures from principal. 

If it appears that the income alone will not meet 
the IP’s needs, then the guardian must file a petition 
with the court. The petition should include a budget 
detailing exactly why and how much money is 
needed from principal. 

The court may approve expenditures from the 
principal for a specified period of time, such as one 
or two years, pursuant to the budget. The court may 
schedule a hearing, or, if there are no objections 
to the request and notice has been provided to all 
interested parties, the court may approve the request 
without a hearing.

The guardian of  the estate must:

•  use prudent judgment in the 

management of  the assets and 

income of  the IP for his or her 

benefit only;

•  use reasonable inquiry to discover 

and safeguard assets;

•  pay reasonable debts, obligations, 

and expenses of  the IP;

• 

take reasonable steps on claims the 

IP has against others;

•  handle the IP’s money in an honest 

and unbiased way. 

108  See In re Estate of Rosengarten, 871 A.2d at 1256 (Pa. 
Super. 2016) (indicating that a guardian who charged for 
services that could have been performed by others free of 
charge probably violated her duty).

Additionally, the guardian has a duty to take 
reasonable steps on claims the IP has against 
others, whether they occurred during or prior to 
the establishment of the guardianship. This duty 

86

may include filing claims against former guardians, 
members of the IP’s family, or third parties that have 
caused a loss to the estate. Similarly, the guardian 
should ensure that the IP is receiving all federal and 
state benefits to which he or she is entitled. This 
may include filing for Medicare or Medicaid benefits, 
Social Security benefits, or disability or other 
government benefits and taking all steps necessary 
to ensure that the IP continues to receive these 
benefits.

• 

• 

• 

• 

The guardian of  the estate must not:

•  obtain any undue profit or 

advantage from the position as 
guardian and may not place 
themselves in a position where their 
personal interests are in conflict 
with those of  the IP;

invest the money of  the IP into 
businesses or corporations owned 
or controlled by the guardian;

loan themselves the IP’s money for 
such enterprises;

ignore the assets of  the IP—any 
idle assets should be prudently 
placed into productive form;

sell the IP’s real estate without prior 
authorization from the court;

•  co-mingle assets or engage in risky 
investments with the IP’s money;

•  perform an act that is contrary to 

the duty of  loyalty or any act that is 
beyond the scope of  the authority 
granted by the court.

Guardian of  the Person – Management 
of  Personal, Residential and Medical 
Decisions

The guardian of the person should become familiar 

with the final decree appointing them, which may 
include specific powers, duties and limitations. 
The court’s final decree may specify that the 
guardianship is either “plenary” (full) or “limited.” 
If it is limited, the final decree will identify specific 
limitations. If the guardian’s appointment is subject 
to limitations, the guardian should be careful not to 
exceed them. 

Plan of  Supportive Service

Where appropriate the guardian should assist in 
the development of a plan for supportive services 
for the IP. The plan should explain how the services 
will be obtained. Supportive services could include 
nursing, physical therapy, rehabilitation, education, 
recreation, meal preparation, cleaning, bathing, 
and other daily needs of the IP. If the IP resides in a 
nursing facility, the guardian should participate in all 
care planning conferences and work with the facility 
to ensure that the IP receives all care and services 
necessary to enable them to attain and maintain their 
highest practicable level of functioning.

encouragement of  IP to Participate  
in Decisions

The guardian must encourage the IP to participate 

in making decisions to the maximum extent 
possible, and to make choices and decisions when 
possible. The guardian should also encourage and 
support the IP to develop or regain capacity where 
possible. For instance, a guardian should assist an 
incapacitated victim of stroke or head trauma to 
obtain rehabilitation. 

The guardian must ensure that he or she can 

communicate with the IP and their family where they 
are limited English proficient, including by using an 
interpreter and/or Language Line where needed. 
The guardian should also be responsive to concerns 
voiced by the IP or their family.

General Care, Maintenance and 
Custody of  the IP

A plenary guardian of the person has a general 

87

responsibility for the care, maintenance and custody 
of the IP. The guardian’s primary guiding principles 
should be to work with the IP to achieve his or her 
goals and maximum autonomy where possible. For 
an IP who is totally incapacitated, the guardian of 
the person may have to exercise discretion regarding 
what is in the best interest of the IP. The guardian 
must avoid any conflict of interest, in determining 
and acting in the best interests of the IP. 

specific responsibilities regarding the training, 
education, medical and psychological services 
needed by the IP. The guardian should also consider 
and provide appropriate social and vocational 
opportunities. The guardian should consider the 
expressed wishes of the IP and/or his or her family 
members. The guardian should participate in 
supportive services to the extent that they can.

Place for IP to Live

A plenary guardian of the person can select where 
the IP will live. The guardian should encourage the IP 
to express their preferences and to participate in this 
decision to the maximum extent possible. If the IP 
is unable to participate in making this decision, the 
guardian should make a decision that the guardian 
concludes is in the best interests of the IP. The 
guardian should consider the safety of the IP and the 
ability of friends and family members to visit the IP 
when choosing the place where the IP will live. The 
guardian should select the least restrictive setting 
that is practicable and should seek to transition an 
IP who wishes to do so from a nursing home to the 
community wherever possible. 

Visiting the IP

Although there is no specific legal requirement 
regarding the number or type of visits the guardian 
should make to the IP, it is generally expected that 
the guardian would visit in person no less than 
once every three months, and preferably once each 
month. In addition to periodic visits, the guardian 
may need to visit the IP when medical decisions 
must be made, or to observe any new concerns, 
behaviors or needs. The guardian is expected to 
know the needs of the IP and to have a good idea 
of the IP’s health and emotional status, in order to 
make informed decisions. Therefore, it is important 
that the guardian see the IP frequently enough to feel 
comfortable making those decisions. 

Responsibility for Training,  
education, Medical and Psychological 
Services of  IP

A plenary guardian of the person should assist the 
IP in developing as much self-reliance as is possible. 
The court’s final decree may give the guardian 

Consents/Approvals for IP

The final decree may grant the guardian of the 
person the authority to provide consent or approval 
for various medical, surgical, psychological or other 
treatments for the IP. As always, the guardian should 
try to follow the express wishes of the IP and family 
members to the extent that these do not conflict with 
the best interests of the IP. 

Note that no guardian has the authority to admit 
the IP to an inpatient psychiatric facility or to consent 
to the relinquishment of parental rights of the IP. 

In addition, the guardian may not consent to the 
following procedures or practices for the IP unless 
and until a court approves it:

a)  Consent to abortion, sterilization, 

psychosurgery, electroconvulsive therapy or 
the removal of a healthy body organ of the IP.

b)  Stop a marriage or consent to a divorce of 

the IP.

c)  Consent to the performance of or 

participation in any experimental biomedical 
or behavioral medical procedure by the IP. 

end of  Life Decisions

A guardian of the person is often asked to make 

medical decisions for the IP. In some cases the 
guardian may be confronted with the need to 
make decisions about what kind of care the IP 
should receive at the end of life, including whether 
to withhold or withdraw life sustaining treatment, 
whether to enter a Do Not Resuscitate order on the 
IP’s medical chart, and whether to admit the IP to 
hospice services or request palliative care. If the 
IP has signed an advance directive for health care 
or a living will, the guardian must be guided by the 
principles stated by the IP in this written document. 

If the IP made statements to the guardian 
or to other family members, before becoming 

88

incapacitated, setting forth wishes concerning end 
of life medical care, the guardian must respect those 
wishes. 

As with any medical decision, the guardian 

should consult with the doctors involved in order 
to be informed about the options presented. It is 
frequently difficult to determine whether the IP 
has reached an end-stage medical condition. It is 
also important to inform and involve any available 
family members in any decision about withholding 
or stopping life sustaining treatment. A guardian of 
the person has authority to make decisions about 
end of life medical care, but only when the IP has 
a medical condition that is incurable and likely to 
result in his or her death. In order to determine 
whether this is an appropriate case for end of life 
decisions, a court hearing and court approval may 
be wise, and in some counties may be required. The 
court hearing will assure that decisions are made 
carefully and in appropriate cases, with notice to 
all family members, and with counsel appointed to 
represent the interests of the IP. The guardian may 
request a court hearing to determine whether the IP 
is in an end-stage medical condition, and whether 
the guardian of the person should be granted the 
authority to make decisions concerning withholding 
or withdrawing life sustaining treatment.

Annual Report

Guardians are required to file an Annual Report 

each year, on the date that is the 12-month 
anniversary of the guardian’s appointment as 
guardian of the person, and annually thereafter for as 
long as the guardian remains a guardian. 

Final Report 

Within sixty (60) days of the death of the IP or if the 

guardianship is vacated, the guardian is required to 
file the Final Report. The same form used to file the 
Annual Report is used to file the Final Report. 

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90

elder Law Task Force

In light of the special needs and challenges 
facing elder Pennsylvanians, in April 2013, the 
Supreme Court of Pennsylvania established a multi-
disciplinary Elder Law Task Force to address issues 
involving guardianships, elder abuse, and access to 
justice. The Task Force was chaired by Justice Debra 
Todd, and was comprised of 36 experts in all areas 
of elder law, bringing together the diverse and critical 
perspectives of the myriad stakeholders in the aging 
network. 

In November 2014, the Elder Law Task Force’s 

Report and Recommendations was issued 
containing over 130 recommendations to enhance 
the way Pennsylvania elders interact with the 
Commonwealth’s judiciary. http://media-downloads.
pacourts.us/eltf-report.pdf?cb=1570668569231

CHAPTeR FIFTeen

Elder Justice in the Pennsylvania Courts

The office of  elder Justice  
in the Courts

The Office of Elder Justice in the Courts (OEJC) 
was established by the Supreme Court in 2015 to 
assist the Court in implementing recommendations 
contained in the 2014 Elder Law Task Force’s Report 
and Recommendations. 

The OEJC is committed to protecting 

Pennsylvania’s rapidly growing population of elders 
from all forms of abuse - whether financial, physical, 
psychological, or through neglect. 

The OEJC educates judges, court staff, attorneys, 
guardians, the public, and others about the warning 
signs of elder abuse, and how to respond to 
suspected elder abuse. The OEJC also promotes 
best practices addressing elder abuse and neglect, 
as well as in the area of guardianship and access to 
justice in the Commonwealth’s courts.

In addition to education and best practices, the 

OEJC actively fosters collaboration with other 
elder justice entities and branches of government 
to enhance elder Pennsylvanians’ ability to fully 
participate in legal proceedings.

Advisory Council on elder Justice  
in the Courts

The Advisory Council on Elder Justice in the 

Courts is a multi-disciplinary council with 25 
members appointed by the Supreme Court, 
established in 2015 to advise the OEJC regarding the 
implementation of the Elder Law Task Force’s Report 
and Recommendations regarding best practices, 
judicial rules, and legislation to benefit elder citizens 
of the Commonwealth. 

The mission of the Advisory Council on Elder 

Justice in the Courts is to identify and address elder 
justice issues affecting the Commonwealth’s elders.

The Advisory Council and OEJC exist to identify 
areas of need and challenges faced by elders, and 
to improve the ability of Pennsylvania courts to meet 
those needs. The Advisory Council on Elder Justice 
in the Courts’ Progress Report published in 2019 
details the accomplishments of the Advisory Council 
and OEJC since their creation in 2015.

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92

Required Guardianship Forms and Additional Resources

APPenDIX I:

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94

COURT OF COMMON PLEAS OF 

ORPHANS' COURT DIVISION

To:______________________________________

IMPORTANT NOTICE
CITATION WITH NOTICE

A Petition has been filed with this Court to have you declared an Incapacitated 
Person.  If the Court finds you to be an Incapacitated Person, your rights will be affected, 
including your right to manage money and property and to make decisions.  A copy of 
the Petition which has been filed by ________________________________is attached.

You are hereby ordered to appear at a hearing to be held in Courtroom No. 
_______, ________________________________, Pennsylvania on _____________, 
2_____ at _______________ __.m. to tell the Court why it should not find you to be an 
Incapacitated Person and appoint a Guardian to act on your behalf.

 
To be an Incapacitated Person means that you are not able to receive and 
effectively evaluate information and communicate decisions and that you are unable to 
manage your money and/or other property, or to make necessary decisions about where 
you will live, what medical care you will get, or how your money will be spent. 

At the hearing, you have the right to appear, to be represented by an attorney, 

 
and to request a jury trial.  If you do not have an attorney, you have the right to request 
the Court to appoint an attorney to represent you and to have the attorney’s fees paid 
for you if you cannot afford to pay them yourself.  You also have the right to request 
that the Court order that an independent evaluation be conducted as to your alleged 
incapacity. 

If the Court decides that you are an Incapacitated Person, the Court may 

 
appoint a Guardian for you, based on the nature of any condition or disability and 
your capacity to make and communicate decisions.  The Guardian will be of your 
person and/or your money and other property and will have either limited or full 
powers to act for you.

Form G-01 Effective June 1, 2019

Page 1 of 2

95

To: _____________________________________:

If the Court finds you are totally incapacitated, your legal rights will be
affected and you will not be able to make a contract or gift of your money or 
other property. If the Court finds that you are partially incapacitated, your legal
rights will also be limited as directed by the Court.

If you do not appear at the hearing (either in person or by an attorney 

representing you), the Court will still hold the hearing in your absence and may
appoint the Guardian requested.

By: ______________________

Orphans’ Court Clerk

Form G-01 Effective June 1, 2019

Page 2 of 2

96

COURT OF COMMON PLEAS
_____________ COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION

REPORT OF GUARDIAN OF THE ESTATE

Estate of: _________________________________________________________, an Incapacitated Person

Name of Incapacitated Person

Case File No: _____________________

DATE COURT APPOINTED YOU AS GUARDIAN: ____________________________________________________

PART I. INTRODUCTION

1.

Name(s) of Guardian(s):

2.

Is this a limited Guardianship?
Yes¨
¨ No

3. Report Period

¨

¨

This is the Report for the period from _____________________________ to 
_____________________________ (the "Report Period"); or

This is the Final Report for the period from _____________________________ to 
_____________________________ (the "Report Period") and is filed for the following reason:

¨ The death of the Incapacitated Person.

Date of Death: __________________________________________

Name of Executor/Administrator: ______________________________________________________

¨ The Guardianship was terminated by a court order dated: ___________________________________
¨ Transfer of Guardianship to: _________________________________________________________
Date of court order approving transfer: ________________________________________________

Form G-02 Effective July 1, 2018

p. 1 of 9

97

PART II. INCOME

1.

List all sources of income received during the Report Period:

Did the Incapacitated Person receive any of the following?

Amount During
Report Period

Alimony or Support

Annuity Payments

Dividends

Interest Income

IRA Distributions

¨

Yes

No¨

¨

Yes

No¨

¨

Yes

No¨

¨

Yes

No¨

¨

Yes

No¨

¨

Yes

No¨

¨

Yes

No¨

¨

Yes

No¨

¨

Yes

No¨

¨

Yes

No¨

¨

Yes

No¨

¨

Yes

No¨

¨

Yes

No¨

¨

Yes

No¨

¨

Yes

No¨

TOTAL

$ 0.00

Long Term Care Insurance Benefits

Pension/Retirement Benefits (for example: 401(k), 403(b), etc.)

¨

Yes

No¨

Public Assistance

Rental Property Income

Royalties (including from mineral and land rights)

Social Security Benefits (Retirement, Disability, SSI)

Tax Refund

Trust Income

Wages

Other

Worker's Compensation Benefits

Veterans Benefits (disability/pension/aid and attendance)

¨

Yes

No¨

Form G-02 Effective July 1, 2018

p. 2 of 9

98

PART III. ANNUAL EXPENSES

1. List all payments made for the care and maintenance of the Incapacitated Person during the Report Period.

Expense

To Whom Was It Paid?

Total for
Report Period

Auto Insurance

Cable/Satellite/Internet

Child/Spousal Support/Alimony

Clothing

Condo/Co-op Assessments

Debt (incurred prior to your appointment)

Entertainment

Fees/Costs Paid to Guardian

Food

Gifts - Personal or Charitable

Home Health Care/Personal Aide

Homeowners Insurance

Home/Property Maintenance & Repair

Income Taxes

Life Insurance Premiums

Medical Insurance Premiums

Medical Expenses

Medicine

Mortgage

Nursing Home/Assisted Living/Institutionalized 
Care

Personal Expenses (including allowance)

Phone/Cell Phone

Real Estate Taxes

Rent

Utilities

Other

TOTAL

$ 0.00

Form G-02 Effective July 1, 2018

p. 3 of 9

99

No - Explain why court approval was not obtained:
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________

PART V. ASSETS

1. What was the value of the assets reported on the Inventory?

2. List any additional assets received during the Report Period (for example: gifts, inheritance, burial account,

lawsuit recovery, etc.)

Description/Source

Value at the end of
Report Period

If yes, was a court order obtained?

Yes - Date of Court Order: 

Yes

No

¨¨

¨ ¨

2. Does the Incapacitated Person have a credit card(s)?

If yes, has it been used during this report period?

¨

¨

Yes

Yes

¨

¨

No

No

What is the current balance on the credit card(s)?

PART IV. COMPARING INCOME AND EXPENSES

1. Total Income (Part II, Question 1 TOTAL):

2. Unspent Income from Previous Year (Part IV, Question 5 from Last Year's Report):

3. Add lines 1 and 2 together to calculate this year's TOTAL INCOME:

4. Total Expense (Part III, Question 1 TOTAL):

5.

Subtract line 4 from line 3.
If amount is positive, enter it here to show UNSPENT INCOME, otherwise enter $0:

6. Subtract line 4 from line 3.

If amount is negative, enter it here to show PRINCIPAL SPENT, otherwise enter $0:
Is line 6, PRINCIPAL SPENT, greater than $0?

7.

$ 0.00

$ 0.00

$ 0.00

$ 0.00

$ 0.00

TOTAL

$ 0.00

Form G-02 Effective July 1, 2018

p. 4 of 9

100

3. Where are all  the assets deposited or held at the end of the Report Period?

List of Assets: Type and Location

Co-Owners

Value at the end of
Report Period

TOTAL $ 0.00

Does the Incapacitated Person live in the house/condo/co-op?

¨ Yes  ¨ No

If purchased during the Report Period, what was the purchase price?

If real property was sold during the Report Period, what was the sale price?

Was a court order obtained if property was purchased or sold?

Yes - Date of Court Order: 

 
No - Explain why court approval was not obtained:
 
___________________________________________________________________________ 
___________________________________________________________________________ 
 
___________________________________________________________________________

 

¨ ¨

b. 

c. 

d. 

e.

5. List any assets transferred to a third party such as a spouse or child.

Asset

Transferred To

Relationship
 
to IP

Amount

Order Date or
  Reason Not Approved

4.

Does the incapacitated person own a house/condo/co-op?

¨ Yes - Answer Questions a - e

 

¨ No

a.  Address of property:

Form G-02 Effective July 1, 2018

p. 5 of 9

101

PART VI. GUARDIAN'S COMPENSATION

1. Did the Guardian receive compensation during the Report Period?

¨ Yes - Complete the table below

¨ No - Skip to Question 3

Amount

Guardian Name

Is Amount Based on
Hourly, Monthly or Annual Fee?

2. Was the compensation approved by the court?

Yes - Date of Court Order:

No - Explain why court approval was not obtained:
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________

3. Have you maintained a log of your activities as guardian?

¨ Yes - Attach a copy

¨ No

PART VII. ATTORNEY'S FEES

1.

Were attorney's fees paid during the Report Period?

¨

Yes - Complete the table below

¨

No - Skip to Part VIII

Amount

Name of Counsel

Hourly Rate

# of Hours

Order Date or Reason Not Approved

PART VIII. REPRESENTATIVE PAYEE

1a.

Social Security Administration (SSA) Benefits

The Incapacitated Person does not receive SSA benefits.

The Guardian acts as the representative payee - attach a copy of the report provided to the SSA during  
this Report Period.

The Guardian is not the representative payee for SSA benefits. The payee is______________________.

Form G-02 Effective July 1, 2018

p. 6 of 9

102

¨¨

¨ ¨ ¨

The Guardian acts as the representative payee - attach a copy of the report provided to the VA during

The Guardian is not the representative payee for VA benefits.  The payee is _______________________. 

1b. Veterans Administration (VA) Benefits

The Incapacitated Person does not receive VA benefits.

this Report Period.
 

¨

¨

¨ ¨

PART IX. SURETY INFORMATION

1. Was a surety bond required?

¨ 
¨

Yes - In what amount
No - The court waived a surety bond, skip to Question 2.

            ___________

                        - and then answer Questions a - b.
 

a. Is the surety bond still in effect?

No - Provide an explanation as to why not.

_____________________________________________________________________________
_____________________________________________________________________________ 
_____________________________________________________________________________

b.

Is the value of the estate at the end of the Report Period greater than the amount reported at the end of 
the prior report period?

Yes

¨ ¨

Yes

No

¨¨

If yes, has the amount of the surety bond been increased? 
¨  Yes.  To what amount: 

¨  No

2. If you are a professional guardian, agency or an attorney serving as guardian, do you have

professional/guardian liability insurance that covers theft?
¨ Yes - Answer Question a and b.
¨ No - Skip to Part X.
¨ N/A

a. Are the coverage limits greater than the assets (Part V, Question 3)?

Yes

No

b. Describe the deductible and any exclusions.

__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________

Form G-02 Effective July 1, 2018

p. 7 of 9

103

4. Is there any reason any guardian cannot continue to serve as guardian?

¨

Yes - Please describe

No

Provider

Training Description

PART X. GUARDIAN INFORMATION

1. During this Report Period, did any guardian participate in guardianship training?

If yes, provide the following information:

Guardian Name

Dates of Training

Starting

Ending

Yes
No

¨¨

2.

During this Report Period, have any judgments been filed against any guardian, or has any guardian filed for 
bankruptcy protection?

¨
No
Description
_____________________________________________________________    
_____________________________________________________________

Yes - Please describe

Guardian Name

__________________    
___________________    

¨ _

3. During this Report Period, was any guardian charged with or convicted of a crime?

Yes - Please describe

¨
Guardian Name
_______________________
___________________
____

¨ No
Description
_____________________________________________________________
_____________________________________________________________

4. Is there any reason any guardian cannot continue to serve as guardian?

Yes - Please describe

¨
Guardian Name

¨ No
Description

___________________    ________________________________________________________________
___________________  _______________    _____________________________________________
____
___________________    ________________________________________________________________
___________________  _______________    _____________________________________________
____

PART XI. SUMMARY

1.

If this is the first annual report, state the value of the assets reported on the Inventory.
(Use amount from Part V, Question 1 of this Report.) (principal)

If this is not the first annual report, state the Total Assets (principal) from the prior Report.
(Use TOTAL amount from Part V, Question 3 of prior Report.)

2.

3.

4.

5.

6.

What was the total income received during the Report Period?
(Use the amount from Part IV, Question 3 of this Report.)

What is the total amount of Expenses paid during the Report Period?
(Use the amount from Part III, Question 1 of this Report.)

What are the Total Assets remaining at the end of the Report Period?
(Use the amount from Part V, Question 3 of this Annual Report.)
What is the Unspent Income at the end of the Report Period?
(Use the amount from Part IV, Question 5 of this Report.)

$ 0.00

$ 0.00

$ 0.00

$ 0.00

Form G-02 Effective July 1, 2018

p. 8 of 9

104

I verify that the foregoing information is correct to the best of my knowledge, information and belief; and that this 

verification is subject to the penalties of 18 Pa.C.S. §4904 relative to unsworn falsification to authorities.

Effective June 1, 2019, I further acknowledge the Notice of Filing must be served within 10 days of the filing of 

this report pursuant to Pa. O.C. Rule 14.8(b). 

Date

Signature of Guardian of the Estate

Name of Guardian of the Estate (type or print)

Address

City, State, Zip

Home Phone Number

Office Phone Number

Cell Phone Number

Email

Address

City, State, Zip

Home Phone Number

Office Phone Number

Email

105

Date

Signature of Co-Guardian of the Estate

Name of Co-Guardian of the Estate (type or print)

Form G-02 Effective July 1, 2018

p. 9 of 9

This page has been intentionally left blank.

106

COURT OF COMMON PLEAS
_____________ COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION

REPORT OF GUARDIAN OF THE PERSON

Estate of: _________________________________________________________, an Incapacitated Person

Name of Incapacitated Person

Case File No: _____________________

DATE COURT APPOINTED YOU AS GUARDIAN: ____________________________________________________

PART I. INTRODUCTION

1. Name(s) of Guardian(s):  _______________________________________________________________

2.

Is this a limited Guardianship?                     Yes
 

     No

3. Report Period

This is the Report for the period from  ________________________________       to 
________________________________ (the "Report Period"); or

 This is the Final Report for the period from ________________________________ to  
____________________________  (the "Report Period") and is filed for the following reason:

The death of the Incapacitated Person.
Date of Death: 
Name of Executor/Administrator: __________________________________________________

__________________________________________

¨ The Guardianship was terminated by a court order dated:   ______________________________ 

Transfer of Guardianship to: ______________________________________________________ 
Date of court order approving transfer:   _____________________________________________

IF THIS IS A FINAL REPORT, ONLY COMPLETE PARTS I AND V.

Form G-03 Effective July 1, 2018

p. 1 of 6

107

PART II.  PERSONAL INFORMATION ABOUT THE INCAPACITATED PERSON

1.

Incapacitated Person's date of birth: _____/_____/_____

2.

Incapacitated Person's Current Residence:

____________________________________________________________________________________________________
____________________________________________________________________________________________________
____________________________________________________________________________________________________

3.

Residence of the Incapacitated Person

¨ Incapacitated Person's home  (  ¨ with part-time home health care aide or  ¨   24/7 assistance)

Relative's Name: ________________________________ Relationship: _________________________

¨ Your home

¨ Relative's home

¨ Domiciliary Care

Facility Name: _______________________________________________

Personal Care Boarding Home
Facility Name: _______________________________________________

Is this a Memory Support Facility?

¨ Yes ¨ No

¨ Assisted Living Facility

Facility Name: _______________________________________________

Is this a Memory Support Facility?

¨ Yes ¨ No

¨ Nursing Home Facility

Facility Name: _______________________________________________

Is this a Memory Support Facility?

Yes           No 

Other: ___________________________________________________________

4.

The Incapacitated Person has been in the residence noted in question 3 since: _______________________

5. Has the Incapacitated Person moved during the Report Period?

If yes, date of move: ______________________

If yes, please provide:

Yes

No

¨ ¨

Reason  for  move:  ____________________________________________________________________ 

Previous residence/address:_______________________________________________________________

Form G-03 Effective July 1, 2018

p. 2 of 6

108

3. Describe any social, medical, psychological and support services the Incapacitated Person is receiving:

_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________

4. Has the Incapacitated Person been hospitalized during the Report Period?

No
 If yes, date(s) of hospitalization: _______________________________________
5. Has the Incapacitated Person received a mental health assessment during the Report Period?

Yes

Yes

No

¨ ¨

 If yes, date(s) of evaluation: ___________________________________________ 

Form G-03 Effective July 1, 2018

p. 3 of 6

109

2. The major medical or psychiatric problems of the Incapacitated Person are as follows:

Dentist

Eye Doctor

Ear Doctor

Psychologist or Psychiatrist 

Physical Therapist 

Occupational Therapist 

Social Worker

Geriatric Caseworker 

Other

PART III.  MEDICAL INFORMATION

1. List the medical professionals who have seen the Incapacitated Person during the Report Period:

Name

Medical Doctor

2. Provide the reasons for your opinion. List specific recommended modifications.

_______________________________________________________________________________________
_______________________________________________________________________________________

3. Have you filed a petition for modification or termination?

PART V.  INFORMATION ABOUT THE GUARDIAN

1. On average, how often did you visit the Incapacitated Person during the Report Period?

I live with the Incapacitated Person

Continued with modifications

Continued

Terminated

¨ ¨ ¨

PART IV.  GUARDIAN'S OPINION

1. Should the guardianship be:

3.

ave you maintained a log of your activities as guardian?

2. What is the average length of a visit?

Less than 15 minutes

Between 15 minutes and 1 hour

Between 1 and 2 hours

More than 2 hours

Not applicable

Yes - Attach a copy

No

¨ ¨

None

Quarterly

Monthly

Weekly

Daily

Yes

No

¨ ¨

¨

¨ ¨ ¨ ¨ ¨

¨ ¨ ¨ ¨ ¨ H

Form G-03 Effective July 1, 2018

p. 4 of 6

110

Guardian Name

Dates of Training

Provider

Training Description

Starting

Ending

4. During this Report Period, did any guardian participate in guardianship training?

If yes, provide the following information:

Yes

No

¨ ¨

5.

During this Report Period, was any guardian charged with or convicted of a crime?

¨ Yes - Please describe

¨ No

Guardian Name
___________________    
___________________    

Description

________________________________________________________________

________________________________________________________________

6.

During this Report Period, was a Protection from Abuse Order or Protection from Sexual Violence or 
Intimidation Order entered against any guardian?
___________________    ________________________________________________________________
¨ Yes - Please describe
___________________    ________________________________________________________________

¨ No

Guardian Name

Description

___________________    

________________________________________________________________

___________________    

________________________________________________________________

7. Is there any reason any guardian cannot continue to serve as guardian?

¨ Yes - Please describe

¨ No

Guardian Name

Description

___________________ 

    ________________________________________________________________

___________________

    ________________________________________________________________

Form G-03 Effective July 1, 2018

p. 5 of 6

111

I verify that the foregoing information is correct to the best of my knowledge, information and belief; and that 

this verification is subject to the penalties of 18 Pa.C.S. §4904 relative to unsworn falsification to authorities.

Effective June 1, 2019, I further acknowledge the Notice of Filing must be served within 10 days of the filing of 

this report pursuant to Pa. O.C. Rule 14.8(b). 

Date

Signature of Guardian of the Person

Name of Guardian of the Person (type or print)

Address

City, State, Zip

Home Phone Number

Office Phone Number

Cell Phone Number

Email

Address

City, State, Zip

Home Phone Number

Office Phone Number

Cell Phone Number

Email

112

Date

Signature of Co-Guardian of the Person

Name of Co-Guardian of the Person (type or print)

Form G-03 Effective July 1, 2018

p. 6 of 6

COURT OF COMMON PLEAS
____________________ COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION

GUARDIAN'S INVENTORY FOR AN INCAPACITATED PERSON

Estate of: _________________________________________________________, an Incapacitated Person

Name of Incapacitated Person

Case File No: _____________________

DATE COURT APPOINTED YOU AS GUARDIAN: ____________________________________________________

PART I:  INTRODUCTION

Inventory type:
¨ Initial
¨ Amended

PART II:  ASSETS (PRINCIPAL)

1.

List all bank accounts, real estate, burial accounts, and other personal property below. If the property is owned 
by both the incapacitated person and others, indicate in the last column the name of the co-owner.

Asset

Value

Name of Co-Owner(s)

Form G-05 Effective July 1, 2018

Page 1 of 8

TOTAL

$ 0.00

113

2.

Is any property (specifically bank accounts or real estate) co-owned by the Incapacitated Person and the 
guardian?

On what date was the property acquired?

________________________

On what date was the guardian's name added?

________________________

an individual having access or control over the account

an owner of the account

¨ ¨

The guardian is:

3.

Does the Incapacitated Person have a homeowners insurance policy for real property?
¨   Yes 

(Copy of policy to be provided upon request) 

Carrier:

_______________________________________

Coverage period:

_______________________________________

4.

Does the Incapacitated Person have an automobile insurance policy?
¨   Yes 

(Copy of policy to be provided upon request) 

Carrier:

_______________________________________

Coverage period:

_______________________________________

5.

Does the Incapacitated Person have a safe deposit box?

If yes:
a.

b.

c.

Yes

No

¨ ¨

¨   No

If yes:

¨   No

If yes:

a.

b.

a.

b.

a.

b.

No

Yes, in sole name

¨¨¨

If yes:

Yes, in joint name(s). List the name(s) of joint owner(s): _________________________

Location of safe deposit box:

_______________________________________

Are there plans to inventory the contents?
¨
Yes
No¨

Form G-05 Effective July 1, 2018

Page 2 of 8

114

PART III:  ANNUAL INCOME

1.

List all sources of income for the Incapacitated Person:

Does the Incapacitated Person receive any of the following as income?

Specify Amount

¨

Yes

¨

No

¨

Yes

¨

No

¨

Yes

¨

No

¨

Yes

¨

No

¨

Yes

¨

No

¨

Yes

¨

No

¨

Yes

¨

No

¨

Yes

¨

No

¨

Yes

¨

No

¨

Yes

¨

No

¨

Yes

¨

No

¨

Yes

¨

No

¨

Yes

¨

No

¨

Yes

¨

No

¨

Yes

¨

No

¨

Yes

No

¨ T

OTAL

$ 0.00

Alimony or Support

Annuity Payments

Dividends

Interest Income

IRA Distributions

Public Assistance

Rental Property Income

Royalties (including from mineral and land rights)

Social Security Benefits (Retirement, Disability, SSI)

Veterans Benefits (disability/pension/aid and attendance)

Tax Refund

Trust Income

Wages

Other

Workers' Compensation Benefits

Long Term Care Insurance Benefits

Pension/Retirement Benefits (for example: 401(k), 403(b), etc.)

¨

Yes

¨

No

Form G-05 Effective July 1, 2018

Page 3 of 8

115

PART IV:  LIABILITIES/DEBTS

1.

List all debts the Incapacitated Person owes, including mortgages, loans, credit card debt, etc.

Liabilities/Debts

Lender

Value

TOTAL DEBTS:

$ 0.00

If yes, do you have professional liability coverage?

(Please attach a copy of the insurance policy)

¨ Yes

¨ No

If no, explain: ________________________________________________________

PART V:  GUARDIAN COVERAGE

1. Was a surety bond required by the decree appointing you as guardian?

¨   Yes 

(Please attach a copy of the bond)

2.

Are you a professional guardianship agency or an attorney serving as a guardian?

¨   No

Yes

No

¨¨

Form G-05 Effective July 1, 2018

Page 4 of 8

116

PART VI:  PERSONAL CARE PLAN
1.

Can the Incapacitated Person remain in his or her current residence with assistance, or in the home of a
relative?

¨  Yes
ve
¨  No
¨  N/A - The Incapacitated Person is already in a supervised residential setting.

If yes:
a.

List the name of the responsible family member:
______________________________________________________

b. What services does the Incapacitated Person require?

¨ Services from local Area Agency on Aging

¨ Private Companion/Assistance Service

Number of days per week: __________
Number of hours per week: __________

Assistance from family members

Will compensation be provided?

Yes

No

b.

Describe the steps that are being taken to move the Incapacitated Person into a supervised 
residential setting.

__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________

2. Will the Incapacitated Person be moved into a supervised residential setting?

If yes, indicate compensation amount: _____________________________

¨   Yes

¨   No

If yes:
a.

¨   N/A - The Incapacitated Person is already in a supervised residential setting.

Indicate the type of supervised residential setting:

Boarding Home / Group Home 

Assisted Living Facility
Nursing Home
Other: _______________________________

¨ ¨ ¨ ¨

¨

 Domiciliary Care

Personal Care

Form G-05 Effective July 1, 2018

Page 5 of 8

117

PART VII:  FINANCIAL PLAN

Complete the following table using initial inventory or most recent amended inventory.

d.

Total assets (principal)
(Part II, Question 1)

$ 0.00

1.

a.

b.

c.

2.

Total Annual Income
(Part III, Question 1)

Annual
estimated expenses

Net Income
(a minus b)

$ 0.00

$ 0.00

Is the net income listed above sufficient to care for the needs of the Incapacitated Person?
¨   Yes
¨   No, but assets (principal) are available if a court order approves expenditures
¨   No, and assets (principal) are not available

3.

Indicate any applications for government benefits that have been submitted:

Application Type

Date of Submission

Social Security Disability Insurance (SSDI)

Supplemental Security Income (SSI)

Social Security Retirement Benefits

Veterans Benefits

Medical assistance, long term care

Medical assistance, Home Waiver

Other    (Explain: ___________________________________________)

4.

Describe all real estate included in the estate and how it will be maintained or sold:

_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________

Form G-05 Effective July 1, 2018

Page 6 of 8

118

5.

Prior to the appointment of a guardian, has an agent under a Power of Attorney been serving?

¨   Yes 
¨   No

If yes, has an accounting ever been requested or filed with the Orphans' Court? 
¨  Yes
¨  No

If yes, was the agent the same person as the guardian?
¨  Yes

¨  No

PART VIII:  MEDICAL INFORMATION
1.

Is a "no-code" (Do Not Resuscitate) provision in place for the incapacitated person?
¨   Yes
¨   No

2.

When still capacitated, did the Incapacitated Person execute a durable power of attorney for health care or 
some other health care directive (including, but not limited to, a POLST, a living will, or a mental health care 
power of attorney)?
¨   Yes
¨   No

If yes, identify the authorized agent for making health care decisions:

_____________________________________________________________________________

3.

Are you aware of any will or trust executed by the Incapacitated Person, or any funeral or burial wishes of the
Incapacitated Person?

¨   Yes
¨   No

If yes, please explain:

_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________

Has a burial account been established for the Incapacitated Person?

If yes, what is the value of the burial account?

 Yes

 No

¨ ¨

Form G-05 Effective July 1, 2018

Page 7 of 8

119

I verify that the foregoing information is correct to the best of  my knowledge, information and belief; and that 

this Verification is subject to the penalties of 18 Pa.C.S. §4904 relative to unsworn falsification to authorities.

Effective June 1, 2019, I further acknowledge the Notice of Filing must be served within 10 days of the filing 

of this report pursuant to Pa. O.C. Rule 14.8(b). 

Date

Signature of Guardian of the Estate

Name of  Guardian of the Estate (type or print)

Address

City, State, Zip

Home Phone Number

Office Phone Number

Cell Phone Number

Email

Address

City, State, Zip

Home Phone Number

Office Phone Number

Cell Phone Number

Email

120

Date

Signature of Co-Guardian of the Estate (if applicable)

Name of  Co-Guardian of the Estate (type or print)

Form G-05 Effective July 1, 2018

Page 8 of 8

INSTRUCTIONS FOR SUBMITTING AN EXPERT REPORT 

To establish incapacity, the petitioner must present testimony from an individual          

qualified by training and experience in evaluating persons with incapacities of the type alleged    
by the petitioner.  As an accommodation to such expert witnesses, the court may accept a       
complete and legible expert report in accordance with the attached form in lieu of expert         
testimony, whether in person or by deposition, unless otherwise required by rule or order of court.    

Form G-06 Effective June 1, 2019

121

COURT OF COMMON PLEAS OF  
________________________ COUNTY PENNSYLVANIA 
ORPHANS’ COURT DIVISION 

EXPERT REPORT 

RE: _______________________________________________________________________           

          An Alleged Incapacitated Person (AIP) 

No. ____________________     

PART I: PROFESSIONAL BACKGROUND (You may attach your  cur r iculum vitae, if it pr ovides an-
swers to Questions 1 through 5.  Please answer those questions not covered by curriculum vitae.)  

1. Name: _______________________________________         Title: _______________________________ 

2. Professional Address: ___________________________________________________________________

3. Complete education information:

Name of Institution 

Type of Degree Received 

Date Completed 

Undergraduate 

Graduate 

Post-Graduate 

4. Do you have any active professional licenses?         Yes         No

If yes, indicate in what state or states you are licensed as well as the date(s) issued.
______________________________________________________________________________________

______________________________________________________________________________________

List any board certifications: ______________________________________________________________

5. An Incapacitated Person is legally defined as: 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/she is
partially or totally unable to manage his/her financial resources or to meet essential requirements for his/
her physical health and safety.

Do you have experience evaluating whether or not an individual is incapacitated?         Yes         No

If yes, indicate the basis of your experience:
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________

Form G-06 Effective June 1, 2019

p. 1 of 5

122

PART II:  ALLEGED INCAPACITATED PERSON (AIP) 

6. a.  Have you treated, assessed, or evaluated the AIP?

 Yes  No

b. Indicate the date(s) and location of any treatment, assessment, or evaluation you have provided or made

over the last two (2) years:
____________________________________________________________________________________

____________________________________________________________________________________

____________________________________________________________________________________

c. If 6a. is yes, what tests have you or others administered, e.g., mini mental status exam (MMSE),

Montreal Cognitive Assessment (MOCA), St. Louis University Mental Status Exam (SLUMS), etc.?
List dates administered and the score.  (Attach test results, not just the score.)
____________________________________________________________________________________

____________________________________________________________________________________

____________________________________________________________________________________

7. What is the present condition of the AIP?  List all known medical and psychiatric diagnoses and current

symptoms. (You may attach a list from your records.)

Diagnosis 

Symptoms/Manifestations 

8. List all known medications, including over-the-counter, that the AIP is taking.  For each known medication,
indicate, if known, the prescribing physician and the diagnosis for which the medication was prescribed or
the reason for taking.  (You may attach a list from your records.)

Medication 

Diagnosis/Reason Taken 

Prescribing Physician 

Form G-06 Effective June 1, 2019

p. 2 of 5

123

9. Indicate the AIP’s ability to perform the following functions:

Unimpaired 

Help               

Needs Some 

(Explain in #10 ) 

Totally           
Impaired 

Not Assessed 
or Not Enough         

Information  

Receiving and evaluating information     
effectively  

Communicating decisions 

Ability to give informed consent 

Short-term memory 

Long-term memory 

Activities of daily living 

Managing finances (including paying bills, 
making deposits, withdrawals and working 
with financial institutions) 

Managing health care (including following 
doctor’s orders and managing/taking     
medications) 

Providing for physical safety 

Responding to emergency situations 

Ability to resist scams 

10. For any response in Question 9 where the AIP “needs some help,” please describe the type and extent of

assistance needed.
______________________________________________________________________________________

______________________________________________________________________________________

______________________________________________________________________________________

11. What recommendations have you made or would you make concerning services necessary to meet the

essential requirements for the AIP’s physical health and safety?
______________________________________________________________________________________

______________________________________________________________________________________

______________________________________________________________________________________

Form G-06 Effective June 1, 2019

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124

12. What recommendations have you made or would you make concerning management of the AIP’s

finances?
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________

13. As indicated in Question 5, an Incapacitated Person is legally defined as: 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/she is partially or totally unable to manage his/her financial resources or to meet
essential requirements for his/her physical health and safety.

In your expert opinion, within a reasonable degree of professional certainty and based on your knowledge,
skills, experience, and education, is the AIP incapacitated?

 Yes, totally impaired

 Yes, partially impaired

 No

14. In your opinion, the most appropriate, least restrictive living situation for the AIP is (check one):

 The AIP can be left alone without supervision
 Home (       with part-time home health aide or

 24/7 assistance) 

 Independent living facility (room and board provided, emergency services readily available)
 Assisted living facility (room and board provided, assistance with some activities of daily

living)

 Secure facility (Alzheimer’s/Mental Health for safety and basic needs)
 Skilled nursing facility

15. If your responses in Question 9 indicated that the AIP is totally impaired or “needs some help”, do you

expect the AIP’s abilities in the next 6 months to (Check best estimate):
 Stay the same   

  Improve 

  Decline

 

Please explain:

______________________________________________________________________________________

______________________________________________________________________________________

______________________________________________________________________________________

PART III: GUARDIANSHIP AND SERVICES 

16. Are you aware of any circumstances, medical or otherwise, that create a need for the appointment of an

emergency guardian for the AIP?

 Yes 
 
If yes, indicate reasons:
______________________________________________________________________________________

  No

      ______________________________________________________________________________________ 

      ______________________________________________________________________________________ 

Form G-06 Effective June 1, 2019

p. 4 of 5

125

17. The AIP is required to be at the hearing, absent circumstances that could cause harm to the AIP.  Putting

aside whether the court proceeding may be moderately upsetting to, confusing to or not understood by the
AIP, do you believe that the AIP’s presence at the hearing would cause harm to the AIP’s physical or
mental condition?

 Yes

 No

Indicate reason for response:  
____________________________________________________________________________________

  _

_____________________________________________________________________________________

_____________________________________________________________________________________

_____________________________________________________________________________________ 

18. Please provide any additional information that could assist the court in determining incapacity.

 

_____________________________________________________________________________________

_____________________________________________________________________________________

_____________________________________________________________________________________

_____________________________________________________________________________________

I verify that the foregoing information is correct to the best of my knowledge, information and belief; and that 
this verification is subject to the penalties of 18 Pa.C.S. § 4904 relative to unsworn falsification to authorities.  

______________________________ 
Date 

__________________________________________________ 
Signature 

__________________________________________________ 
Name (type or print) 

__________________________________________________ 

__________________________________________________ 

__________________________________________________ 

__________________________________________________ 

Address 

City, State, Zip 

Telephone

Email 

126

Form G-06 Effective June 1, 2019

p. 5 of 5

COURT OF COMMON PLEAS OF

COUNTY, PENNSYLVANIA

ORPHANS’ COURT DIVISION

NOTICE OF FILING

ESTATE/GUARDIANSHIP OF ______________________________________________,

AN INCAPACITATED PERSON

__________________________________________, GUARDIAN 

No. ______________

I certify that on _________________________________________ I filed the following documents:

Inventory

Amended Inventory

Annual Report - Guardian of the Person  

Annual Report - Guardian of the Estate

Final Report

following manner: 

A copy of this Notice of Filing is being served on the following person(s) designated by court order and in the

1.____________________________________________________________________________________

By mail 

By fax             By personal delivery           By e-mail if requested

2. ____________________________________________________________________________________

By mail

By fax

By personal delivery

By email if requested

3. ____________________________________________________________________________________

By mail

By fax

By personal delivery

By email if requested

4. ____________________________________________________________________________________

By mail

By fax

By personal delivery

By email if requested

Form G-07 Effective June 1, 2019
 

127

Page 1 of 2 

Submitted by:

___________________________
Date

_____________________________________
Signature

_____________________________________
Name (print or type)

_____________________________________
Address

_____________________________________
City, State, Zip

_____________________________________
Telephone

_____________________________________
Email

Instructions for Document Access

If  you  are one of the individuals noted above to whom this notice of filing was sent, you may access and
view the documents filed by  presenting  this notice of filing along with proper identification to the Clerk
of the Orphans’ Court in the county listed on the previous page.

Form G-07 Effective June 1, 2019
 

128

Page 2 of 2

GUARDIANSHIP OF INCAPACITATED PERSON

COURT OF COMMON PLEAS OF

              

ORPHANS' COURT DIVISION

ESTATE OF 

ACCOUNT OF

, AN INCAPACITATED PERSON , 

GUARDIAN

No.

PETITION FOR ADJUDICATION /
STATEMENT OF PROPOSED DISTRIBUTION 
PURSUANT TO Pa. O.C. Rule 2.4

This form shall be used in all cases involving the Audit or Confirmation of the Account of a 
Guardian of the Estate of an incapacitated person.  If space is insufficient, riders may be 
attached.  Attach the papers required under items 2, 3, and 5, as applicable, and any 
additional decree or instrument pertinent to the adjudication.

INCLUDE ATTACHMENTS AT THE BACK OF THIS FORM.

Name  of  Counsel:  _________________________________________________________________ 

Supreme  Court  I.D.  No.:  ____________________________________________________________ 

Name  of  Law  Firm:  ________________________________________________________________ 

Address: _________________________________________________________________________

_________________________________________________________________________ 

Telephone:  _______________________________________________________________________ 

Fax:  ____________________________________________________________________________ 

Email: __________________________________________________________________________

Form OC-03  rev. 01.01.20

Page 1 of 6

129

Estate of

, An Incapacitated Person

1. Name(s) and address(es) of Petitioner(s):

Petitioner:

 Petitioner:

Name:

Address:

Identify any Guardians of the Estate who have not joined in the Petition for 
Adjudication/Statement of Proposed Distribution and/or the Account and state 
reason:

2.

Judicial District or County issuing Adjudication of Incapacity:

 
 
________________________

Date  of  Adjudication  of  Incapacity: 
Date  of  Appointment  as  Guardian: 
Attach copy of Decree(s).

3. A.  Explain the reason for filing this Account (if incapacitated person has died, state date

of death, name and address of personal representative and of his or her counsel, and     
attach a Short Certificate if available.  If incapacitated person has been adjudged to     
have regained capacity, state date of Decree and attach a copy.  If Account is filed for  
any other reason, state address of incapacitated person):

B .  Is this the first accounting for this estate?  . . . . . . . . . . . . . . . . . 

 Yes     No
If not, identify prior accountings, the accounting periods covered, and the 
dates of adjudication of the prior accountings.

4. A.  Identify each unpaid claim against the incapacitated person or the incapacitated

 person's estate and describe each in detail (if none, so state):

Form OC-03  rev. 01.01.20

Page 2 of 6

130

Estate of

, An Incapacitated Person

B. Describe in detail any questions requiring adjudication and state the position of the

Petitioner(s) as to each question:

C. If guardian or attorney fees are being claimed, state amount and the period covered

for the requested fees:

5.

 Written Notice of the Account's filing as required by Pa. O.C. Rule 2.5 has been 
or will be given to all interested parties listed in item 6 below.  In addition, notice of 
any known unpaid claim not admitted, all questions requiring adjudication and any 
requested fees as discussed in item 4 above has been or will be given to all 
persons affected thereby.

A. If Notice has been given, attach a copy of the Notice as well as a list of the

names and addresses of the parties receiving such Notice.

B.

C.

If Notice is yet to be given, a copy of the Notice as well as a list of the
names and addresses of the parties receiving such Notice shall be
submitted at the Audit or filed before the date of the last day for filing
objections in counties without separate Orphans' Court Divisions together
with a statement executed by a Petitioner or counsel certifying that such
Notice has been given.

If any such interested party is not sui juris (e.g., minors or incapacitated
persons), Notice of the Account's filing has been or will be given to the
appropriate representative on such party’s behalf as required by Pa. O.C.
Rule 4.2.

Form OC-03  rev. 01.01.20

Page 3 of 6

131

Estate of

, An Incapacitated Person

6.

List all parties of whom Petitioner(s) has/have notice or knowledge, having or 
claiming any interest in the estate, including the incapacitated person’s heirs at 
law.  This list shall:

A. State each party’s relationship to the incapacitated person and the nature of each

party's interest(s):

Name and Address of Each Interested Party       Relationship and Comments, if any 

Interest

B. Identify each party who is not sui juris (e.g., minors or incapacitated persons).

For each such party, give date of birth, the name of each Guardian, and
how each Guardian was appointed.  If no Guardian has been appointed,
identify the next of kin of such party, giving the name, address, and
relationship of each.

C. State why a Petition for Guardian/Trustee Ad Litem has or has not been filed

(see Pa. O.C. Rule 5.5).

7.

If prescribed by local rule as permitted by Pa. O.C. Rule 2.9, is the
Court being asked to direct the filing of a Schedule of Distribution?       Yes        No     

Form OC-03  rev. 01.01.20

Page 4 of 6

132

Estate of

, An Incapacitated Person

Wherefore, your Petitioner(s) ask(s) that distribution be awarded to the parties 
entitled and suggest(s) that the distributive shares of income and principal (residuary 
shares being stated in proportions, not amounts) are as follows:

Proposed Distributee(s)

Amount/Proportion

A.

Income:

B. Principal:

Proposed Distributee(s)

Amount/Proportion

Submitted By:   
(All petitioners must sign.  Place 
additional signatures on attachment if 
necessary):

Corporate Fiduciary (if applicable)

__________________________________________ 
Name of Corporate Fiduciary

____________________________________________ 
Name of Petitioner

___________________________________________ 
Name of Representative and Title  

____________________________________________ 
Signature of Petitioner

___________________________________________ 
Signature of Officer/Representative 

____________________________________________
Name of Petitioner

____________________________________________ 
Signature of Petitioner

Form OC-03  rev. 01.01.20

Page 5 of 6

133

Estate of 

, An Incapacitated Person 

(Verification must be by at least one petitioner.) 

Verification for Individual Petitioner 

The undersigned hereby verifies that  the  averment  of  facts set forth  in  the  foregoing 
Petition  for  Adjudication/Statement  of  Proposed  Distribution  which  are  within  the 
personal  knowledge  of  the  Petitioner  are  true,  and  as  to  facts  based  on  the 
information  of  others,  the  Petitioner,  after  diligent  inquiry,  believes  them  to  be 
true;  and  that  any  false  statements  herein  are made  subject  to  the  penalties  of 
18  Pa.C.S.  §  4904  (relating  to  unsworn  falsification  to authorities). 

_______________________________ 
Date

_____________________________________
Signature of Petitioner

Verification for Corporate Petitioner

The undersigned hereby verifies that  he/she _____________________________ is 
title  ____________________________________  of  the  above-named  name  of  corporation 
_________________________________________________ and that the averment of 
facts  set  forth  in  the  foregoing  Petition  for  Adjudication/Statement  of  Proposed 
Distribution  which  are  within  the  personal  knowledge  of  the  Petitioner  are  true,  and 
as  to  facts  based  on  the  information  of  others,  the  Petitioner,  after  diligent  inquiry, 
believes them  to  be  true;  and  that  any  false  statements  herein  are  made  subject  to 
the  penalties  of  18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities). 
______________________________ 
Date

__________________________________________ 
Signature of Representative for 
Corporate Petitioner

Certification of Counsel 
for 
certifies 
The  undersigned 
Adjudication/ Statement  of  Proposed  Distribution  is  a  true  and  accurate  reproduction  of 
the  form  Petition authorized by the Supreme Court, and that no changes to the form have 
been made beyond the responses herein. 

foregoing  Petition 

counsel  hereby 

that 

the 

______________________________ 
Date

______________________________________ 
Signature of Counsel for Petitioner

Form OC-03  rev. 01.01.20 

Page 6 of 6 

134

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA 
ORPHANS’ COURT DIVISION 

   

   

NO. 20___-X_____ 

IN RE: [INCAP NAME], 
AN INCAPACITATED PERSON 

FINAL DECREE APPOINTING PLENARY GUARDIANS 

 

ND NOW, this _____ day of  ______________, 2019, based upon the evidence received 

and the record, following a hearing, this Court finds, by clear and convincing evidence that [Incap 

Name] is adjudged a totally incapacitated person. 

The Court finds that [Incap Name] suffers from [condition(s) rendering incapacity], a 

condition that totally impairs his capacity to receive and evaluate information effectively and to 

make and communicate decisions concerning management of his financial affairs or to meet 

  A

essential requirements for his physical health and safety. 

GUARDIAN OF ESTATE 

[Guardian Name] of [Guardianship Agency Name] is hereby appointed Plenary Permanent 

Guardian of the ESTATE of [Incap Name].  [Bond is waived.] OR [Bond shall be posted in the 

following amount: $______.] – choose one] The Guardian of the ESTATE shall file an inventory 

within three months of the date of this decree of the incapacitated person’s real and personal 

property, pursuant to 20 Pa. C.S.A. § 5521(b).  In addition, the Guardian of the ESTATE shall file a 

report annually on or before the anniversary of the date of this Final Decree, containing the 

information required in 20 Pa. C.S.A. § 5521(c)(1)(i).   

The Guardian of the ESTATE shall have authority and responsibility to manage and use the 

incapacitated person's property for his benefit in accordance with 20 Pa. C.S.A. §5536(a). The 

 

 

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135

Guardian of the ESTATE is permitted to spend INCOME for the incapacitated person without the 

Court’s written approval. [Furthermore, in this matter, the Court determines that INCOME is 

insufficient to meet the continuing costs of care and therefore the Guardian of the ESTATE is 

authorized to expend PRINCIPAL as well for the care, residence and maintenance of [Incap 

Name].] – remove if Judge does not wish to include) The Guardian of the ESTATE shall have the 

authority to expend principal up to $16,000 or the maximum allowable amount to establish an 

appropriate burial reserve or irrevocable burial fund. Any other expenditure of principal not 

authorized in this Final Decree shall require Court approval. 

Financial Institutions 

All financial institutions in possession of assets of [Incap Name] shall provide immediate 

access to the Guardian of the ESTATE of [Incap Name] to all assets owned by [Incap Name] in the 

possession of that institution, and to all financial records.  Failure to provide timely access to those 

accounts, assets, records, and benefits upon proof of the guardian’s appointment and to any benefits 

to which [Incap Name] is entitled may be considered contempt of this Court’s order and may 

subject the financial institution to sanctions upon application to the court and hearing. 

The Guardian of the ESTATE shall have the authority to implement a freeze on any bank 

account, investment account or other form of investment, including any joint account in which 

[Incap Name] has an interest and shall have the authority to freeze access to any joint safe deposit 

box. 

Financial Powers of Attorney 

Because [Guardian Name] has now been appointed Guardian of the ESTATE of [Incap 

Name], this Court hereby exercises the authority granted under 20 Pa. C.S.A. §5604(c)(3)of the PEF 

Code to rescind any and all financial durable powers of attorney heretofore executed by the 

incapacitated person. Therefore, any said power(s) are hereby deemed to be null and void. 

 

- 2 - 

136

GUARDIAN OF PERSON 

 [Guardian Name] of [Guardianship Agency Name] is hereby appointed Plenary Permanent 

Guardian of the PERSON of [Incap Name].  The Guardian of the PERSON shall file a Report on 

the social, medical and other relevant conditions as required by 20 Pa.C.S.A. § 5521(c)(ii) annually 

on or before the anniversary of the date of this Final Decree.     

The Guardian of the PERSON shall have authority and responsibility to decide where [Incap 

Name] shall live and how meals, personal care, transportation and recreation will be provided.   

Health Care Decisions 

The Guardian of the PERSON shall also have the authority to authorize and consent to 

medical treatment and surgical procedures necessary for the well-being of [Incap Name]. For 

purposes of HIPAA, the Guardian of the PERSON shall be considered to be a “personal 

representative” with the authority to review, receive and discuss all protected health information 

related to [Incap Name]. 

[ The incapacitated person has executed a/an [insert name of document: advance directive 

for health care/living will/health care power of attorney] dated [date of document] which expresses 

his wishes and preferences regarding health care and which shall remain valid and shall be honored 

by the Guardian of the PERSON and all health care providers, notwithstanding any other provision 

of this Final Decree. ] – remove if not applicable 

GENERAL GUARDIANSHIP 

Payment to Guardian 

In the event the Guardian applies for Medical Assistance benefits the guardian may be paid a 

$750 fee for application services and thereafter shall be paid a commission of $100 per month from 

income or the highest amount allowed by the Pennsylvania Department of Human Services.  

 

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137

The Guardian may petition the Court for approval of payment of a reasonable guardian’s 

commission from principal of the incapacitated person’s estate, based upon hours worked and 

services provided. 

Budget  

The Guardian of the PERSON and the Guardian of the ESTATE shall cooperate to prepare a 

budget to cover the cost of providing for the health, maintenance and residence of [Incap 

Name]. Neither the Guardian of the PERSON nor the Guardian of the ESTATE shall have authority 

to enter a safe deposit box in the name of [Incap Name] (individually or jointly) without written 

Court authorization. 

Appeal and Review Hearings 

An appeal from this Final Decree may be taken by filing a Notice of Appeal within thirty 

(30) days from the entry of this Final Decree. See Pennsylvania Rules of Appellate Procedure 902 

and 903.  The incapacitated person, or any other interested party, may request a review hearing at 

any time pursuant to 20 Pa. C.S.A. 5512.2, asserting a change in capacity, a change in the need for a 

guardian or a failure of the guardian to perform duties.  The incapacitated person has the right to be 

represented by counsel to file a notice of appeal or to seek a review hearing or to seek modification 

or termination of any guardianship granted.   The rights of the incapacitated person to file an appeal 

and to request a review hearing have been explained to the incapacitated person at the conclusion of 

The aforementioned judicial determinations have taken into consideration the matters 

required by 20 Pa. C.S.A. §5512.1.  The Court's findings of fact and conclusions of law have been 

placed on the record at the evidentiary hearing. 

                                                                                    BY THE COURT: 

the hearing. 

            

   

 

 

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138

                                                                                    ______________________________ 
                                                                                     [JUDGE NAME],     [A.] J. 

opy of above Hand Delivered/E-Filed _______ to: 

 
Judicial Court Clerk 

 

 

 

- 5 - 

139

    C

   

 

This page has been intentionally left blank.

140

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA 
ORPHANS’ COURT DIVISION 

   

   

NO. 20___-X_____ 

IN RE: [INCAP NAME], 
AN INCAPACITATED PERSON 

FINAL DECREE APPOINTING LIMITED GUARDIANS 

 

ND NOW, this _____ day of  ______________, 2019, based upon the evidence received 

and the record, following a hearing, this Court finds, by clear and convincing evidence that [Incap 

Name] is adjudged a totally incapacitated person. 

The Court finds that [Incap Name] suffers from [condition(s) rendering incapacity], a 

condition that totally impairs her capacity to receive and evaluate information effectively and to 

make and communicate decisions concerning management of her financial affairs or to meet 

  A

essential requirements for her physical health and safety. 

LIMITED GUARDIAN OF ESTATE 

[Guardian Name] of [Guardianship Agency Name] is hereby appointed Limited Guardian of 

the ESTATE of [Incap Name].  [Bond is waived.] OR [Bond shall be posted in the following 

amount: $______.] – choose one] The Limited Guardian of the ESTATE shall file an inventory 

within three months of the date of this decree of the incapacitated person’s real and personal 

property, pursuant to 20 Pa. C.S.A. § 5521(b).  In addition, the Limited Guardian of the ESTATE 

shall file a report annually on or before the anniversary of the date of this Final Decree, containing 

the information required in 20 Pa. C.S.A. § 5521(c)(1)(i).   

[ The Limited Guardian of the ESTATE shall have authority and responsibility to obtain 

copies of all financial records of [Incap name] including records of any benefits, Social Security, 

 

 

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141

VA benefits and any pension, and shall have the authority to apply for Medical Assistance,  Long 

Term Care benefits and any benefits to which she may be entitled. ] – EXAMPLE – insert specifics 

of limited guardianship here           

[ The Limited Guardian of the ESTATE shall have authority and responsibility to manage 

and use the incapacitated person's property for her benefit in accordance with 20 Pa. C.S.A. 

§5536(a). The  Limited Guardian of the ESTATE is permitted to spend INCOME for the 

incapacitated person without the Court’s written approval. [Furthermore, in this matter, the Court 

determines that INCOME is insufficient to meet the continuing costs of care and therefore the 

Limited Guardian of the ESTATE is authorized to expend PRINCIPAL as well for the care, 

residence and maintenance of [Incap Name].] – remove if Judge does not wish to include] The 

Limited Guardian of the ESTATE shall have the authority to expend principal up to $16,000 or the 

maximum allowable amount to establish an appropriate burial reserve or irrevocable burial fund. 

Any other expenditure of principal not authorized in this Final Decree shall require Court approval. 

] – Leave this in if limited guardian has authority over accounts 

Financial Institutions 

All financial institutions in possession of assets of [Incap Name] shall provide immediate 

access to the Limited Guardian of the ESTATE of [Incap Name] to all assets owned by [Incap 

Name] in the possession of that institution, and to all financial records.  Failure to provide timely 

access to those accounts, assets, records, and benefits upon proof of the guardian’s appointment and 

to any benefits to which [Incap Name] is entitled may be considered contempt of this Court’s order 

and may subject the financial institution to sanctions upon application to the court and hearing. 

The Limited Guardian of the ESTATE shall have the authority to implement a freeze on any 

bank account, investment account or other form of investment, including any joint account in which 

 

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142

[Incap Name] has an interest and shall have the authority to freeze access to any joint safe deposit 

box. 

Financial Powers of Attorney 

Because [Guardian Name] has now been appointed Limited Guardian of the ESTATE of 

[Incap Name], this Court hereby exercises the authority granted under 20 Pa. C.S.A. §5604(c)(3)of 

the PEF Code to rescind any and all financial durable powers of attorney heretofore executed by the 

incapacitated person. Therefore, any said power(s) are hereby deemed to be null and void. 

GUARDIAN OF PERSON 

 [Guardian Name] of [Guardianship Agency Name] is hereby appointed Plenary Permanent 

Guardian of the PERSON of [Incap Name].  The Guardian of the PERSON shall file a Report on 

the social, medical and other relevant conditions as required by 20 Pa.C.S.A. § 5521(c)(ii) annually 

on or before the anniversary of the date of this Final Decree.     

The Guardian of the PERSON shall have authority and responsibility to decide where [Incap 

Name] shall live and how meals, personal care, transportation and recreation will be provided.   

Health Care Decisions 

The Guardian of the PERSON shall also have the authority to authorize and consent to 

medical treatment and surgical procedures necessary for the well-being of [Incap Name]. For 

purposes of HIPAA, the Guardian of the PERSON shall be considered to be a “personal 

representative” with the authority to review, receive and discuss all protected health information 

related to [Incap Name]. 

[ The incapacitated person has executed a/an [insert name of document: advance directive 

for health care/living will/health care power of attorney] dated [date of document] which expresses 

her wishes and preferences regarding health care and which shall remain valid and shall be honored 

 

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143

by the Guardian of the PERSON and all health care providers, notwithstanding any other provision 

of this Final Decree. ] – remove if not applicable 

GENERAL GUARDIANSHIP 

Payment to Guardian 

In the event the Guardian applies for Medical Assistance benefits the guardian may be paid a 

$750 fee for application services and thereafter shall be paid a commission of $100 per month from 

income or the highest amount allowed by the Pennsylvania Department of Human Services.  

The Guardian may petition the Court for approval of payment of a reasonable guardian’s 

commission from principal of the incapacitated person’s estate, based upon hours worked and 

services provided. 

Budget  

The Guardian of the PERSON and the Limited Guardian of the ESTATE shall cooperate to 

prepare a budget to cover the cost of providing for the health, maintenance and residence of [Incap 

Name]. Neither the Guardian of the PERSON nor the Limited Guardian of the ESTATE shall have 

authority to enter a safe deposit box in the name of [Incap Name] (individually or jointly) without 

written Court authorization. 

Appeal and Review Hearings 

An appeal from this Final Decree may be taken by filing a Notice of Appeal within thirty 

(30) days from the entry of this Final Decree. See Pennsylvania Rules of Appellate Procedure 902 

and 903.  The incapacitated person, or any other interested party, may request a review hearing at 

any time pursuant to 20 Pa. C.S.A. 5512.2, asserting a change in capacity, a change in the need for a 

guardian or a failure of the guardian to perform duties.  The incapacitated person has the right to be 

represented by counsel to file a notice of appeal or to seek a review hearing or to seek modification 

or termination of any guardianship granted.   The rights of the incapacitated person to file an appeal 

 

- 4 - 

144

and to request a review hearing have been explained to the incapacitated person at the conclusion of 

the hearing. 

            

The aforementioned judicial determinations have taken into consideration the matters 

required by 20 Pa. C.S.A. §5512.1.  The Court's findings of fact and conclusions of law have been 

placed on the record at the evidentiary hearing. 

                                                                                    BY THE COURT: 

                                                                                   ______________________________ 
                                                                                     [JUDGE NAME],     [A.] J. 

opy of above Hand Delivered/E-Filed _______ to: 

 
Judicial Court Clerk 

 

 

 

- 5 - 

145

   

   

    C

   

 

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146

In The CourT of Common Pleas monTgomery CounTy, PennsylvanIa 
orPhans’ CourT DIvIsIon
20        -X

ESTATE OF [ 

],

AN ALLEGED INCAPACITATED PERSON

PETITION FOR A REVIEW HEARING
(Pursuant to 20 PA C.S.A. §5512.2)

, (“Petitioner”), hereby request that the Court schedule a review 

   , who was adjudged to be an Incapacitated Person 

.  My relationship to the Incapacitated Person is as follows:

I,
hearing concerning
by Final Decree dated

 Self
 Court-Appointed Guardian
 Relative (state relationship) 
 Other (state relationship) 

I asked for this review hearing because (check all that apply):

 There has been a significant change in the capacity of
Incapacitated Person). The nature of the change is as follows:

(name of 

Guardians of his/her Person and Estate, because:

no longer requires the appointment of Plenary Permanent 

 The Guardian of the Person or Estate appointed by this Court has failed to perform his/her duties or has failed to 
act in the best interests of the Incapacitated Person.  Specifically, the Guardian of the Person or Estate has failed in 
his/her duties by taking or failing to take the following actions:

I am sending a copy of this Petition for a review hearing to the following interested parties, including the Guardian 
of the Person, the Guardian of the Estate:

I make these statements subject to the penalties of 18 PA  C.S.A. §4904 relating to unsworn falsification to 
authorities.

 
______________________________________________
Signature

Name: 

Address: 

Telephone Number: 

Email Address:  

Date:  

147

MontgoMery County orphans’ Court Division, petition for a review hearing, reviseD 12/2015; with support froM a grant froM the state JustiCe institute.

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148

in the Court of CoMMon pleas MontgoMery County, pennsylvania 
orphans’ Court Division
20       -X

ESTATE OF [ 

],

AN ALLEGED INCAPACITATED PERSON

PETITION FOR APPROVAL OF EXPENDITURE 
FROM THE ESTATE OF AN INCAPACITATED PERSON
(Pursuant to Montgomery Orphans’ Court Rule 14.2B)

SECTION A.     General Information

1.

I,
from the Estate of the Incapacitated Person.

2.

If Petitioner is Guardian:

, hereby Petition this Court to approve an expenditure of principal 

a.

I am the

 Limited     

 Plenary Guardian of the     

 Estate and/or 
(Name of Incapacitated Person).

 Person: 

b. On

 Person of

(Date of Appointment), I was appointed Guardian over the     

 Estate and/or     

(Name of Incapacitated Person).

c.

I am

 still  

 no longer serving in this capacity.

3.

If Petitioner is not the Guardian:

a.

b.

I

 am     

 am not related to the Incapacitated Person.

If Petitioner is related—my relationship to the Incapacitated Person is:

(provide a brief description of your relationsihp to the Incapacitated Person).

c.

If Petitioner is not related—the nature of my interest is as follows:

(provide a brief description of why you are filing this Petition).

SECTION B.     Inventory, Assets, Income, and Expense

1. An inventory of the Incapacitated Person’s Estate

 has     

 has not been filed.

2. The initial inventory was filed on

(date), and listed a total Estate value of $

3. The present value of the principal on hand of the Estate is $

4. The monthly expenses of the Incapacitated Person is $

.

.

5. The known monthly expenses of the Incapacitated Person are $

.

MontgoMery County orphans’ Court Division, petition for approval of expenDiture froM the estate of an inCapaCitateD person, reviseD 12/2015; 
with support froM a grant froM the state JustiCe institute.

149

.

1

SECTION C.     Dependents

1. Please provide the names and addresses of any dependents of the Incapacitated Person:

Name of DepeNDeNt

aDDress of DepeNDeNt

SECTION D.     Creditors

1. Please list all known claims of the Incapacitated Person’s Creditors:

1 2 3 4

SECTION E.     Previous Distributions

allowed by the Court:

1. Please list all previous requested distributions (payments) from the principal Estate of the Incapacitated Person

SECTION F.     Amount/Reason for Request

1.

I am requesting approval of an expenditure from the principal of the Estate of the Incapacitated Person in the
amount of $

.

2. Please state the reason(s) for the request and please attach any receipts or bills as exhibits:

Signature of Petitioner or Attorney

Name: 

Address:  

Telephone Number: 

Email Address:  

Date:  

150

MontgoMery County orphans’ Court Division, petition for approval of expenDiture froM the estate of an inCapaCitateD person, reviseD 12/2015; 
with support froM a grant froM the state JustiCe institute.

2

VERIFICATION
(Please choose one paragraph and cross out the other)

I, 
, verify that I am the Petitioner filing this Petition, or an 
authorized representative of the Petioner, familiar with the facts alleged in the Petition, and that the facts alleged 
are true and correct to the best of my knowledge and belief.  I make this statement subject to the penalties of 18 
PA C.S.A. §4904 relating to unsworn falsification to authorities.

I, 
, verify that I am not the Petitioner filing this Petition, 
but that I am familiar with the facts alleged in the Petition, and that the facts alleged are true and correct to the 
best of my knowledge and belief.  The Petitioner is unavailable to sign this Verification because:

.

I make these statements subject to the penalties of 18 PA C.S.A. §4904 relating to unsworn falsification to 
authorities.

 
______________________________________________
Signature of Petitioner or Attorney

Name: 

MontgoMery County orphans’ Court Division, petition for approval of expenDiture froM the estate of an inCapaCitateD person, reviseD 12/2015; 
with support froM a grant froM the state JustiCe institute.

3

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152

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA 
ORPHANS’ COURT DIVISION 
 
NO. 2019-X---- 
 
IN RE:  ESTATE OF ______________, 
 AN ALLEGED INCAPACITATED PERSON 
 
O R D E R APPOINTING COUNSEL FOR ALLEGED INCAPACITATED 
PERSON 
 

AND NOW, this          day of _____________, 201_, the Court hereby appoints 

___________________ as legal counsel to represent the alleged incapacitated person, 

_________________ at a hearing scheduled for ______________________ in Courtroom 

__, One Montgomery Plaza, Norristown, Pennsylvania. 

Counsel shall represent the alleged incapacitated person before and during the 

hearing on the Petition for Adjudication of Incapacity and for Appointment of a Guardian 

or Guardians, and in any subsequent related proceedings, including but not limited to, any 

petition seeking approval of expenditures, the sale of real estate, any review hearing, and in 

any appeal, unless and until counsel petitions the Court and the Court grants leave to 

withdraw as counsel.   

Counsel for the alleged incapacitated person shall file a petition seeking approval of 

attorneys’ fees following the initial hearing, provided that in those cases in which a 

guardian of the estate has been appointed, the petition for approval of attorneys’ fees shall 

be filed after the inventory has been filed.  Subsequent petitions for approval of attorneys’ 

fees may be filed thereafter if additional attorneys’ fees are incurred.   

 

 

 

 

 

 

 

BY THE COURT: 

_________________________________ 
[Name], Judge 

This Order e-filed on ______________ 

_____________________________ 

 

 

 

 

  _

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154

In The CourT of Common Pleas monTgomery CounTy, PennsylvanIa 
orPhans’ CourT DIvIsIon
20         -X

ESTATE OF [ 

],

AN ALLEGED INCAPACITATED PERSON

CONSENT TO SERVE AS GUARDIAN

I,                                                         , agree to serve as Guardian of the Person for                                                       , 

an Incapacitated Person.  I agree to act in the best interests of the Incapacitated Person, to assert his/her rights to the 

best of my ability and to respect his/her wishes to the greatest extent possible.  If appropriate, I will participate in the 

development of a plan of supportive services to meet the Person’s needs.  I will also encourage him/her to 

participate to the maximum extent of his/her abilities in all decisions which affect him/her.

I                                                          , agree to serve as Guardian of the Estate for   

 , 

an Incapacitated Person.  I agree to keep his/her Assets separate from my own, to spend his/her income 

only for his/her benefit, to seek Court approval if required and to handle his/her financial affairs in an 
honest and trustworthy manner.

Respectfully submitted,

 
______________________________________________
Signature

Name: 

Business Name: 

Address:  

Telephone Number: 

Email Address:  

Date:  

MontgoMery County orphans’ Court Division, Consent to serve as guarDian, reviseD 12/2015; with support froM a grant froM the state JustiCe institute. 

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156

Commonwealth of Pennsylvania
NOTIFICATION OF MENTAL HEALTH COMMITMENT

The  Uniform  Firearms Act,  18  PA  C.S.A.  §6105(c)(4)  specifies  that  it  shall  be  unlawful  for  any  person  adjudicated  as  an  incompetent  or  who  has  been  involuntarily 
committed to a mental institution for inpatient care and treatment under Section 302, 303, or 304 of the Mental Health Procedures Act of July 9, 1979 (P.L.817, No. 143) to 
possess, use, manufacture, control, sell or transfer firearms.  This would include adjudication of incapacity pursuant to 20 PA C.S.A. §5501. Pursuant to the Pennsylvania 
Mental Health Procedures Act, Section 109, notification shall be transmitted to the Pennsylvania State Police by the judge, mental health review officer or county mental 
health  and  mental  retardation  administrator  within  SEVEN  days  of  the  adjudication,  commitment  or  treatment  by  first  class  mail  to  the  Pennsylvania  State  Police, 
Attention: PICS Unit, 1800 Elmerton Avenue, Harrisburg, PA 17110.  NOTE: The envelope shall be marked “CONFIDENTIAL.”

Place a check on either Involuntary Commitment and indicate 302, 303, 304, or Adjudication of Incapacity

 Involuntary Commitment     

 302     

 303     

 304 

 Adjudication of Incapacity

Date of Commitment or Date Adjudicated Incapacitated: 

County of Commitment:   Montgomery County

Individual Information - Individual Involuntarily Committed or Adjudicated Incapacitated

First Name: 

Maiden Name: 

Social Security Number: 

Middle Name: 

Alias: 

Sex: Male        Female 

Race: 

Height: 

Weight: 

Hair: 

Eyes:

Last Name: 

     Jr., Etc.: 

Date of Birth: 

Address:

Physicians Certification (302 Commitment Requirement)

Physician Certifying Necessity of Involuntary Commitment: 
(Required in accordance with Section 6105(c)(4) of the Uniform Firearms Act) 

(Print Name) 

(Signature)

Hospital/Facility Providing Treatment:

Address:

Notification By: (Please Print Name, Address, Area Code, and Phone Number of Agency or County Court)

MH/MR Administrator/Review Officer: 

Phone: 

Judge’s Authorization of Commitment, Case Number & Order Date (303 & 304 Requirement)

Judge: 

Case # 20

-X

Date of Court Order: 

Signature of Notifying Official:

Date: 

Notification of Physician’s Determination That No Severe Mental Disability Exists

The physician shall provide signed confirmation of the lack of severe mental disability following the initial examination under Section 302(b) of the Mental Health 
Procedures Act and pursuant to the Uniform Firearms Act, Section 6111.1 (g)(3). Notice shall be transmitted by physician to the Pennsylvania State Police through the 
county mental health and mental retardation administrator or mental health review officer.

Name of Physician (Please Print):

Signature of Physician:

Date: 

MontgoMery County orphans’ Court Division, notifiCation of Mental health CoMMitMent, reviseD 12/2015; with support froM a grant froM the state JustiCe institute.

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158

Case # 20

-X

MontgoMery County orphans’ Court Division, notiCe of right to appeal, reviseD 12/2015; with support froM a grant froM the state JustiCe institute.

159

In The CourT of Common Pleas monTgomery CounTy, PennsylvanIa orPhans’ CourT DIvIsIonNOTICE OF RIGHT TO APPEALPursuant to 20 PA C.S.A. §5512.1(H) In Re: , IncapacitatedTO: , Respondent:1.You have been found to be an Incapacitated Person, and a (Limited) (Plenary) Guardian has been appointed forfor your Estate your (Estate) (Person).  The Guardian is andfor your Person.2.The powers of the Guardian are set forth in the Final Order dated, a copy of which accompanies this notice.3.If you wish to appeal from that Decree, you have thirty (30) days from the date of the Decree to do so.  Ifyou choose to appeal, you must file a Notice of Appeal with the Clerk of the Orphans’ Court, P.O. Box 311,Norristown, PA 19404.  The Appeal will be sent to the Superior Court of Pennsylvania.  You should obtain acopy of the Pennsylvania Rules of Appellate Procedure as a guide.  The Clerk of the Orphans’ Court canprovide your with the address of the Superior Court.4.You may also petition the Court at any time to modify or terminate the Guardianship, on the grounds that yoursituation has changed enough to justify a change in or termination of my Order.5.You have the right to be represented by an Attorney if you file a Post-Trial Petition or an appeal.  If you needthe assistance of counsel and cannot afford an Attorney, please inform the Court and an Attorney will beappointed to represent you free of charge. ______________________________________________JudgeI acknowledge being advised of the above rights. ______________________________________________RespondentORI,, attest that I read this notice in person to (Respondent) on. ______________________________________________SignatureThis form must be filed with the Clerk of the Orphans’ Court within 10 days of the respondent’s receipt of the Final OrderClerk of the Orphans’ Court  •  PO Box 311  •  Norristown, PA 19404-0311This page has been intentionally left blank.

160

in the Court of CoMMon pleas MontgoMery County, 
pennsylvania orphans’ Court Division
-X

20  

ESTATE OF [ 

],

AN ALLEGED INCAPACITATED PERSON

PETITION FOR ADJUDICATION OF INCAPACITY 
AND APPOINTMENT OF EMERGENCY AND PLENARY 
GUARDIANS OF THE PERSON AND ESTATE
(Pursuant to 20 PA  C.S.A. §5511 and  §5513)

I, 
Guardian(s) of the Person and Estate of 

 , (“Petitioner”), petition the Court to appoint Emergency and Plenary Permanent 
 , the “Alleged Incapacitated Person.”

1.

I am a person interested in the welfare of the Alleged Incapacitated Person.

2. The Alleged Incapacitated Person currently resides at
(address) and has a mailing address (if different) of
Because the Alleged Incapacitated Person resides in Montgomery County, Pennsylvania, this Court has
jurisdiction pursuant to 20 PA C.S.A. §5512(a).

3. The birthdate of the Alleged Incapacitated Person is:

4. The Alleged Incapacitated Person has the following spouse, parents, adult children and other adult heirs: (list

name and address of each known heir; write “none” or “unknown” if appropriate)

5. The following residential care facility or other services providers are currently providing services to the Alleged

Incapacitated Person:

6. The Alleged Incapacitated Person’s Income and Assets are as follows:

(list all known property, such as a residence, bank accounts, investment accounts as well as all known income
including Social Security, etc., along with value of each)

7. The Alleged Incapacitated Person’s longtime physician is Dr.

(name, address and phone).

8. CHECK the appropriate paragraphs:

 I am unaware of any Powers of Attorney, Health Care Powers of Attorney or Advance Health Care 
Directives which have been executed by the Alleged Incapacitated Person.

 The Alleged Incapacitated Person signed a Power of Attorney on the filing date 
naming as agent 

.  A copy is attached as Exhibit 

 The Alleged Incapacitated Person signed a Health Care Power of Attorney on 
naming as agent 

.  A copy is attached as Exhibit 

 The Alleged Incapacitated Person signed a Health Care Directive and/or Living Will on 
A copy is attached as Exhibit        . 

.

.

(date) 

(date) 

 (date) 

9. The Alleged Incapacitated Person has been diagnosed with (insert conditions as diagnosed by a physician):

and as a result s/he requires (insert type of care or assistance required or nature of impairment):

MontgoMery County orphans’ Court Division, petition for aDjuDiCation of inCapaCity anD appointMent of eMergenCy anD plenary guarDians of the person anD estate, 
reviseD 12/2015; with support froM a grant froM the state justiCe institute.

1

161

10. As a result of the conditions mentioned in Paragraph 9 above, the Alleged Incapacitated Person is unable to

attend to or participate in the following activities and responsibilities:

11. Because of the conditions mentioned in Paragraph 9 above, the Alleged Incapacitated Person is unable to

manage his/her financial affairs and is unable to make and communicate any decisions relating to those affairs
and appointment of a Plenary Permanent Guardian of the Estate is necessary.

12. Because of the conditions mentioned in Paragraph 9 above, the Alleged Incapacitated Person is unable to make
or communicate decisions concerning his/her person, residence, or medical care and appointment of a Plenary
Permanent Guardian of the Person is necessary.

13. I have taken the following steps to consider alternatives to Guardianship:

However, the condition of the Alleged Incapacitated Person requires Plenary Guardianships for both his/her
Person and Estate and no less restrictive alternative is available or adequate.

14. The severity of his/her condition requires that an Emergency Guardian be appointed to manage the Alleged

Incapacitated Person’s Estate and that an Emergency Guardian of his/her person be appointed to make medical
and residential decisions.

15. An Emergency Guardian should be appointed because if no one is appointed the Alleged Incapacitated Person is
likely to suffer irreparable injury to his/her person and/or his/her property.  The reason an Emergency Guardian
is needed is (fill in reasons emergency action is needed):

16. The Proposed Emergency and Plenary Guardian of the Person is (name and address of guardian):

17. The Proposed Emergency and Plenary Guardian of the Estate is (name and address of guardian):

18. The Proposed Guardian(s) has/have no interests in conflict with the alleged incapacitated and agreed to become

the Guardian if the Court approves.

19. No Court has ever assumed jurisdiction in any proceeding to determine the capacity of the Alleged

Incapacitated Person and no person has previously been appointed Guardian of the Estate or Person of the
Alleged Incapacitated Person.

WHEREFORE, Petitioner respectfully requests this Honorable Court issue a Citation directed to (name), 

       , the Alleged Incapacitated Person, to demonstrate whether 
or not he/she should be adjudged to be a totally Incapacitated Person and have Emergency and Plenary Guardians 
appointed, and whether (name of Proposed Guardian(s)) 
should be appointed Emergency and Plenary Permanent Guardian of his/her Person and Estate.

 
______________________________________________ 
Signature of Petitioner or Attorney

Respectfully submitted,

Name: 

Address: 

Telephone Number: 

Email Address:  

162

MontgoMery County orphans’ Court Division, petition for aDjuDiCation of inCapaCity anD appointMent of eMergenCy anD plenary guarDians of the person anD estate, 
reviseD 12/2015; with support froM a grant froM the state justiCe institute.

2

VERIFICATION
(Please choose one paragraph and cross out the other)

I,  
authorized representative of the Petioner, familiar with the facts alleged in the Petition, and that the facts alleged 
are true and correct to the best of my knowledge and belief.  I make this statement subject to the penalties of 18 
PA C.S.A. §4904 relating to unsworn falsification to authorities.

, verify that I am the Petitioner filing this Petition, or an 

I,  
, verify that I am not the Petitioner filing this Petition, but that I 
am familiar with the facts alleged in the Petition, and that the facts alleged are true and correct to the best of my 
knowledge and belief.  The Petitioner is unavailable to sign this Verification because: 

.

I make these statements subject to the penalties of 18 PA  C.S.A. §4904 relating to unsworn falsification to 
authorities.

 
______________________________________________
Signature of Petitioner or Attorney

Name: 

MontgoMery County orphans’ Court Division, petition for aDjuDiCation of inCapaCity anD appointMent of eMergenCy anD plenary guarDians of the person anD estate, 
reviseD 12/2015; with support froM a grant froM the state justiCe institute.

3

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in the Court of CoMMon pleas MontgoMery County, pennsylvania 
orphans’ Court Division

20  

-X

ESTATE OF [ 

],

AN ALLEGED INCAPACITATED PERSON

PETITION FOR ADJUDICATION OF INCAPACITY 
AND APPOINTMENT OF PLENARY GUARDIANS 
OF THE PERSON AND ESTATE
(Pursuant to 20 PA C.S.A. §5511)

I,
of the Person and Estate of

, (“Petitioner”), petition the Court to appoint Plenary Permanent Guardian(s) 

, the “Alleged Incapacitated Person.”

1.

I am a person interested in the welfare of the Alleged Incapacitated Person.

2. The Alleged Incapacitated Person currently resides at
(address) and has a mailing address (if different) of
Because the Alleged Incapacitated Person resides in Montgomery County, Pennsylvania, this Court has
jurisdiction pursuant to 20 PA C.S.A. §5512(a).

3. The birthdate of the Alleged Incapacitated Person is:

4. The Alleged Incapacitated Person has the following spouse, parents, adult children and other adult
heirs: (list name and address of each known heir; write “none” or “unknown” if appropriate)

5. The following residential care facility or other services providers are currently providing services to the

Alleged Incapacitated Person:

6. The Alleged Incapacitated Person’s Income and Assets are as follows:

(list all known property, such as a residence, bank accounts, investment accounts as well as all known income
including Social Security, etc., along with value of each)

7. The Alleged Incapacitated Person’s longtime physician is Dr.

(name, address and phone).

8. CHECK the appropriate paragraphs:

 I am unaware of any Powers of Attorney, Health Care Powers of Attorney or Advance Health Care 
Directives which have been executed by the Alleged Incapacitated Person.

 The Alleged Incapacitated Person signed a Power of Attorney on the filing date 
naming as agent 

.  A copy is attached as Exhibit 

 The Alleged Incapacitated Person signed a Health Care Power of Attorney on 
naming as agent 

.  A copy is attached as Exhibit 

    .

    .

 The Alleged Incapacitated Person signed a Health Care Directive and/or Living Will on 
A copy is attached as Exhibit         . 

(date) 

(date) 

 (date) 

9. The Alleged Incapacitated Person has been diagnosed with (insert conditions as diagnosed by a physician):

and as a result s/he requires (insert type of care or assistance required or nature of impairment):

MontgoMery County orphans’ Court Division, petition for aDjuDiCation of inCapaCity anD appointMent of plenary guarDians of the person anD estate, reviseD 12/2015; 
with support froM a grant froM the state justiCe institute.

1

165

10. As a result of the conditions mentioned in Paragraph 9 above, the Alleged Incapacitated Person is unable to

attend to or participate in the following activities and responsibilities:

11. Because of the conditions mentioned in Paragraph 9 above, the Alleged Incapacitated Person is unable to manage

his/her financial affairs and is unable to make and communicate any decisions relating to those affairs and
appointment of a Plenary Permanent Guardian of the Estate is necessary.

12. Because of the conditions mentioned in Paragraph 9 above, the Alleged Incapacitated Person is unable to make or
communicate decisions concerning his/her person, residence, or medical care and appointment of a Plenary
Permanent Guardian of the Person is necessary.

13. I have taken the following steps to consider alternatives to Guardianship:

However, the condition of the Alleged Incapacitated Person requires Plenary Guardianships for both his/her
Person and Estate and no less restrictive alternative is available or adequate.

14. The Proposed Plenary Guardian of the Person is (name and address of guardian):

15. The Proposed Plenary Guardian of the Estate is (name and address of guardian):

16. The Proposed Guardian(s) has/have no interests in conflict with the Alleged Incapacitated Person and agreed to

become the Guardian if the Court approves.

17. No Court has ever assumed jurisdiction in any proceeding to determine the capacity of the Alleged

Incapacitated Person and no person has previously been appointed Guardian of the Estate or Person of the
Alleged Incapacitated Person.

WHEREFORE, Petitioner respectfully requests this Honorable Court issue a Citation directed to (name), 

or not he/she should be adjudged to be a totally incapacitated person and have Plenary Guardians appointed, and 
whether (name of Proposed Guardian(s)) 
should be appointed Plenary Permanent Guardian of his/her Person and Estate.

       , the Alleged Incapacitated Person, to demonstrate whether 

Respectfully submitted,

 
______________________________________________
Signature of Petitioner or Attorney

Name: 

Address: 

Telephone Number: 

Email Address:  

MontgoMery County orphans’ Court Division, petition for aDjuDiCation of inCapaCity anD appointMent of plenary guarDians of the person anD estate, reviseD 12/2015; 
with support froM a grant froM the state justiCe institute.

2

166

VERIFICATION
(Please choose one paragraph and cross out the other)

I,  
authorized representative of the Petioner, familiar with the facts alleged in the Petition, and that the facts alleged 
are true and correct to the best of my knowledge and belief.  I make this statement subject to the penalties of 18 
PA C.S.A. §4904 relating to unsworn falsification to authorities.

, verify that I am the Petitioner filing this Petition, or an 

I,  
, verify that I am not the Petitioner filing this Petition, but that I 
am familiar with the facts alleged in the Petition, and that the facts alleged are true and correct to the best of my 
knowledge and belief.  The Petitioner is unavailable to sign this Verification because: 

.

I make these statements subject to the penalties of 18 PA  C.S.A. §4904 relating to unsworn falsification to 
authorities.

 
______________________________________________
Signature of Petitioner or Attorney

Name: 

MontgoMery County orphans’ Court Division, petition for aDjuDiCation of inCapaCity anD appointMent of plenary guarDians of the person anD estate, reviseD 12/2015; 
with support froM a grant froM the state justiCe institute.

3

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in the Court of CoMMon pLeas MontgoMery County, pennsyLvania 
orphans’ Court Division

20      -X        

ESTATE OF [ 

],

AN ALLEGED INCAPACITATED PERSON

PETITION FOR ADJUDICATION OF INCAPACITY 
AND APPOINTMENT OF LIMITED GUARDIANS
OF THE PERSON AND ESTATE
(Pursuant to 20 PA C.S.A. §5511)

I,
of the Person and Estate of

, (“Petitioner”), petition the Court to appoint Limited Permanent Guardian(s) 

, the “Alleged Incapacitated Person.”

1.

I am a person interested in the welfare of the Alleged Incapacitated Person.

2. The Alleged Incapacitated Person currently resides at
(address) and has a mailing address (if different) of
Because the Alleged Incapacitated Person resides in Montgomery County, Pennsylvania, this Court has
jurisdiction pursuant to 20 PA C.S.A. §5512(a).

3. The birthdate of the Alleged Incapacitated Person is:

4. The Alleged Incapacitated Person has the following spouse, parents, adult children and other adult heirs: (list

name and address of each known heir; write “none” or “unknown” if appropriate)

5. The following residential care facility or other services providers are currently providing services to the Alleged

Incapacitated Person:

6. The Alleged Incapacitated Person’s Income and Assets are as follows:

(list all known property, such as a residence, bank accounts, investment accounts as well as all known income
including Social Security, etc., along with value of each)

7. The Alleged Incapacitated Person’s longtime physician is Dr.

(name, address and phone).

8. CHECK the appropriate paragraphs:

 I am unaware of any Powers of Attorney, Health Care Powers of Attorney or Advance Health Care 
Directives which have been executed by the Alleged Incapacitated Person.

 The Alleged Incapacitated Person signed a Power of Attorney on the filing date 
naming as agent 

.  A copy is attached as Exhibit         .

 The Alleged Incapacitated Person signed a Health Care Power of Attorney on 
naming as agent 

.  A copy is attached as Exhibit         .

 The Alleged Incapacitated Person signed a Health Care Directive and/or Living Will on 
A copy is attached as Exhibit        . 

(date) 

(date) 

 (date) 

9. The Alleged Incapacitated Person has been diagnosed with (insert conditions as diagnosed by a physician):

and as a result he/she requires (insert type of care or assistance required or nature of impairment):

MontgoMery County orphans’ Court Division, petition for aDjuDiCation of inCapaCity anD appointMent of LiMiteD guarDians of the person anD estate, reviseD 12/2015; 
with support froM a grant froM the state justiCe institute.

1

169

10. As a result of the conditions mentioned in Paragraph 9 above, the Alleged Incapacitated Person is unable to 

attend to or participate in the following activities and responsibilities:

11. Because of the conditions mentioned in Paragraph 9 above, the Alleged Incapacitated Person is unable to 

manage his/her financial affairs and is unable to make and communicate any decisions relating to those affairs 
and appointment of a Limited Permanent Guardian of the Estate is necessary, provided that the duties and 
responsibilities of the Limited Guardian of the Estate should be as follows:

12. Because of the conditions mentioned in Paragraph 9 above, the Alleged Incapacitated Person is unable to make 
or communicate decisions concerning his/her person, residence, or medical care and appointment of a Limited 
Permanent Guardian of the Person is necessary, provided that the duties and responsibilities of the Limited 
Guardian of the Person should be as follows:

13. I have taken the following steps to consider alternatives to Guardianship:

However, the condition of the Alleged Incapacitated Person requires Limited Guardianships for both his/her 
person and estate and no less restrictive alternative is available or adequate.

14. The proposed Limited Guardian of the Person is (name and address of guardian):

15. The proposed Limited Guardian of the Estate is (name and address of guardian):

16. The Proposed Guardian(s) has/have no interests in conflict with the alleged incapacitated and agreed to become 

Guardian if the Court approves.

17. No Court has ever assumed jurisdiction in any proceeding to determine the capacity of the Alleged 

Incapacitated Person and no person has previously been appointed Guardian of the Estate or Person of the 
Alleged Incapacitated Person. 

WHEREFORE, Petitioner respectfully requests this Honorable Court issue a Citation directed to (name), 

       , the Alleged Incapacitated Person, to demonstrate whether 
or not he/she should be adjudged to be a totally Incapacitated Person and have Limited Guardians appointed, and 
whether (name of Proposed Guardian(s)) 
should be appointed Limited Permanent Guardian of his/her Person and Estate.

 
______________________________________________
Signature of Petitioner or Attorney

Respectfully submitted,

Name: 

Address: 

Telephone Number: 

Email Address:  

MontgoMery County orphans’ Court Division, petition for aDjuDiCation of inCapaCity anD appointMent of LiMiteD guarDians of the person anD estate, reviseD 12/2015; 
with support froM a grant froM the state justiCe institute.

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170

VERIFICATION
(Please choose one paragraph and cross out the other)

I,  
authorized representative of the Petioner, familiar with the facts alleged in the Petition, and that the facts alleged 
are true and correct to the best of my knowledge and belief.  I make this statement subject to the penalties of 18 
PA C.S.A. §4904 relating to unsworn falsification to authorities.

, verify that I am the Petitioner filing this Petition, or an 

I,  
, verify that I am not the Petitioner filing this Petition, but that I 
am familiar with the facts alleged in the Petition, and that the facts alleged are true and correct to the best of my 
knowledge and belief.  The Petitioner is unavailable to sign this Verification because: 

.

I make these statements subject to the penalties of 18 PA  C.S.A. §4904 relating to unsworn falsification to 
authorities.

 
______________________________________________
Signature of Petitioner or Attorney

Name: 

MontgoMery County orphans’ Court Division, petition for aDjuDiCation of inCapaCity anD appointMent of LiMiteD guarDians of the person anD estate, reviseD 12/2015; 
with support froM a grant froM the state justiCe institute.

3

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172

In The CourT of Common Pleas monTgomery CounTy, PennsylvanIa
orPhans’ CourT DIvIsIon
20       -X

ESTATE OF [ 

],

AN ALLEGED INCAPACITATED PERSON

PETITION TO APPOINT SUCCESSOR GUARDIANS

I, 
guardian for
Final Decree dated

, (“Petitioner”), hereby request that the Court appoint a successor 

, who was adjudged to be an Incapacitated Person by 

.  My relationship to the Incapacitated Person is as follows:

 Self
 Court-Appointed Guardian
 Relative (state relationship) 
 Other (state relationship) 

1. The current Court-appointed Guardian of the Person or Guardian of the Estate,

is unable to continue to serve because:

2. The following individual or individuals have qualified to serve and has/have signed a Consent to serve as follows:

 Guardian of the Person 
(Name)
(Address)

(Phone number)
(Email address)

 Guardian of the Estate
(Name) 
(Address) 

 
 

(Phone number) 
(Email address) 

3. On the date indicated below, I am sending a copy of this Petition to appoint a substitute Guardian via first

class mail to the following interested parties, including the current Guardian of the Person and the Guardian of
the Estate and the Proposed Guardian of the Person and Guardian of the Estate, the Incapacitated Person, any
Counsel for the Incapacitated Person, and the other family members and interested parties:

I certify that the above statements are true and correct to the best of my knowledge and are made subject to the 
penalties of 18 PA C.S.A. §4904 relating to unsworn falsification to authorities.

 
______________________________________________
Signature

Telephone Number: 

Email Address:  

Name: 

Address: 

Date:  

173

MontgoMery County orphans’ Court Division, petition to appoint suCCessor guarDians, reviseD 12/2015; with support froM a grant froM the state JustiCe institute.

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174

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA 
ORPHAN’S COURT DIVISION  
 
| 
| 
|  
| 
| 
| 
| 
| 

 
 
 
In the matter of:  
 
 
 
 
 
 
 
 
 
        An Incapacitated Person 
[Respondent] 
 
 
 
 

Uniform Adult Guardianship and  
Protective Proceedings 
Jurisdictional Act 

 
Case No: 

 
 
 
 
  
 
 
 

 
 
 
 
 
 
 
 

 
 
 
 
 

 
 

 

 

 

 

Petition for Transfer of Guardianship to Another State 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 

 
 

 

 

 

 

 

 

 
State,   Zip 

 

 
State,   Zip 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 
Address 

 
City,  

 
 
Address 

 
City,  

 
 

 
 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

 
 

 
 

 

 

 

 

 

175

 

 

  
Montgomery County, Pennsylvania, Orphan’s Court Division to issue an order provisionally 
granting a transfer of this guardianship matter from Montgomery County jurisdiction to: 

, hereby petition the Court of Common Pleas of 

 

 

ocation transferred: 

 
 
County/ Court 

 
State 

he reason for transfer:   

 

 
 
 
Please feel free to attach further documentation  

 

 

 

 
Date 

dditionally, provide the Name(s), Address(es) and proof of Notice for all other parties involved. 
Notice must be given to all persons entitled to notice of a petition for the appointment of a 
guardian. 

Signature 

  A

 
 

 
 

 
 

 

 

 

 

Name of Incapacitated Person 

Date of Birth 

 

 
 
Name of Guardian/ Co-Guardian 

 

 

 
Date(s) of Appointment as Guardian(s)   

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 

 

 

 

 

 
 

 

 
 

 
 

 

 

 

 
 

 
 

 
 

 

 

 

 

 
 

 

     

   

   

   

    I

   

   

   

   

   

 

  L

 

  T

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176

#20 IN THE COURT OF COMMON PLEAS 
MONTGOMERY COUNTY, PENNSYLVANIA 
ORPHANS’ COURT DIVISION 
 
CASE #: 2014- xxxx 
 
ESTATE OF [         NAME                                 ] 
AN ALLEGED INCAPACITATED PERSON 
 
PETITION TO WAIVE FILING FEES 
(Pursuant to 20 PA.C.S.A 5511) 
 

. I am a (check as many as apply): 

_____family member 
______friend 
______neighbor 
______doctor 
______other professional working with Alleged Incapacitated Person 
______other (please specify) ____________________________________________ 

. Availability of assets:  ________________________(name of Alleged Incapacitated Person) 
____has assets 
____does not have assets 
____I do not know if he/she has assets that are available to pay the filing fee. 

. I am requesting a waiver of the fee because (please insert detailed reason): 
______________________________________________________________________________
______________________________________________________________________________ 

 hereby certify under pain of perjury that the statements above are correct to the best of my 
knowledge. 

________________________________ 
 

Signature 

 

 

 

 
 

_______________ 
Date 
 

________________________________ 
Name 

  2

  _

  3

  4

  I

  _

  _

1.I, _______________________(your name) am requesting a waiver of filing fees for the 

Petition for Adjudication of Incapacity and Appointment of Guardian for 

___________________(name of Alleged Incapacitated Person).  

177

IN THE COURT OF COMMON PLEAS 
MONTGOMERY COUNTY, PENNSYLVANIA 
ORPHANS’ COURT DIVISION 
CASE #: 2014- xxxx 
 
ESTATE OF [         NAME                                 ] 
AN ALLEGED INCAPACITATED PERSON 
 

ORDER WAIVING FILING FEES 

 

AND NOW, this ______ day of _____, 201_, it is hereby ORDERED and DECREED 

that the all filing fees due the Clerk of the Orphans’ Court of Montgomery County for the filing 

of all  reports and Petitions of the Guardian of the Estate and Guardian of the Person of 

_________________, an incapacitated person, are hereby WAIVED. 

 

 
 

 

 
 

 

 
 

BY THE COURT: 

 
 
[Name], JUDGE 

 

 

 

 

 

 

 
 

 

 

 
 

 

   

 

 

   

 

   

      C

opy of above mailed           to: 
[                     ] (xxx-xxx-xxxx) 

             Secretary 

___ 

c:\users\gsmith\downloads\22. order waiving filing fees v.2.docx 
 

178

APPenDIX II:

Checklists/Sample Colloquies

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180

MONTGOMERY COUNTY COURT OF COMMON PLEAS 
ORPHANS’ COURT DIVISION

CHECKLIST FOR GUARDIANSHIP PROCEEDINGS 

Alleged Incapacitated Person’s (AIP’s) Name: 

Petitioner’s Name: 

Attorney: 

Case # 20 

-X 

Attorney/Pet. Phone Number:  

Attorney's/Petitioner's Email: 

1. Petition for Adjudication of Incapacity must contain:

a.  All of the following are required per 20 PA C.S.A. 5511(e) & PA O.C. Rule 14.2:

 Name, age, residence and mailing address of AIP 

Name and address of spouse, parents and adult heirs of AIP 

Name and address of residential facility 

Name and address of Proposed Guardian(s) 

Statement that Proposed Guardian(s) has/have no interest adverse to AIP 

Name and address of any individual appointed under a Power of Attorney or Health Care Power of 

Attorney 

Description of functional limitations and physical and mental condition of AIP 

Steps taken to consider less restrictive alternatives to guardianship 

Specific areas of incapacity for which Guardian is to be assigned powers 

Any areas of capacity for which AIP should retain authority 

Qualifications of Proposed Guardian 

Gross Value of Estate (assets) of AIP and monthly income of AIP 

Information about whether a pre-paid Burial Account exists 

Statement that no other Guardian has been appointed and no other Court has assumed 

e.  Out-of-state criminal record check if guardian has lived outside of Pennsylvania in last 5 years

f.  Guardianship Certification (required for professional guardians only)

jurisdiction over this AIP 

b.  Verification signed by Petitioner

c.  Consent signed by Proposed Guardian(s)

d.  Pennsylvania State Police criminal record check

g.  Attorney entry of appearance if applicable

h.  Forms:

Completed Expert Report 

Doctor’s Affidavit if AIP cannot attend hearing 

Form SP-4-131 (Notice of no firearms) 

Proposed Orders 

2.

Venue (20 PA C.S.A. §5512):

AIP is domiciled in or resides in Montgomery County or resides in a long-term care facility within 
Montgomery County. 

AIP is not a resident of Montgomery County, but is a beneficiary of an Estate or Trust in 
Montgomery County or has Real Property in Montgomery County. 

MONTGOMERY COUNTY ORPHANS’ COURT DIVISION; CHECKLIST FOR GUARDIANSHIP PROCEEDINGS, REVISED 9/2019; WITH SUPPORT FROM A GRANT FROM THE STATE JUSTICE INSTITUTE. 

1

181

3. Other items due at least 7 days before scheduled Plenary Hearing:

Forms: 

Affidavit of Service upon Alleged Incapacitated Person 
Service of the Petition, Citation and Notice must be made by Personal Service upon the Alleged 
Incapacitated Person, at least 20 days before the scheduled hearing, and the contents of the Petition 
must be explained to the maximum extent possible in terms the person is most likely to understand. 

Affidavit of Service upon adult heirs, care providers and agents under any Power of Attorney (as 
the Court may direct, generally by first class mail at least 20 days before hearing) 

Notice of Retention/Non-Retention of Counsel for AIP

MONTGOMERY COUNTY ORPHANS’ COURT DIVISION; CHECKLIST FOR GUARDIANSHIP PROCEEDINGS, REVISED 9/2019; WITH SUPPORT FROM A GRANT FROM THE STATE JUSTICE INSTITUTE. 

2

182

CHECKLIST OF REQUIRED AVERMENTS FOR PETITION FOR 
ADJUDICATION OF INCAPACITY 

Pa. O.C. Rules 14.2(a) and (b) 

1)  The name, age, address (and if different, mailing address), and relationship to the AIP of 

the petitioner. 

2)  The name, age, and address (and if different, mailing address), of the AIP. 

3)  The names, addresses, and relationship to the AIP of all interested parties including:   

a)  All presumptive heirs (close relatives including the spouse, children, parents, and other 

close relations such as siblings) of the AIP (it should be stated whether these 
individuals are sui juris or non sui juris). 

b)  Any person or institution providing residential services to the AIP. 

c)  Any other service provider.  (It should also be listed what the nature of the service 

provided is.) 

reports. 

d)  Any person designated to act as agent of the AIP, in writing, under either an executed 
healthcare power of attorney, a power of attorney, or any other writing giving such 
authorization. 

e)  Any person the petitioner proposes should receive notice of the filing of guardianship 

f)  The person or entity the petitioner seeks to nominate as guardian. The proposed 

guardian’s qualifications and relationship to the AIP should be listed as well. If the 
guardian is an entity, the name of the person who will have direct responsibility over 
the AIP, as well as the name of the organization, should be given. 

4)  The reason the guardianship is sought. A description of functional limitations, as well as 

the physical and mental state of the AIP should be included. 

5)  Whether the petitioner requests the appointment of: 

a)  A limited or plenary guardian of the estate; 

b)  A limited or plenary guardian of the person; or 

c)  Co-guardianship in any capacity. 

6) 

7) 

If the guardianship being sought is limited or not plenary in nature, the areas of incapacity 
over which a guardian should be given authority need to be specified.   

If a guardianship of the estate is sought (whether limited or plenary), the petition should 
include: 

a)  The gross value of the assets of the AIP to the extent known by the petitioner; 

183

b)  The net income of the AIP to the extent known to the petitioner; and 

c)  Whether there exists a prepaid burial account to the extent known to the petitioner.   

8) 

If a prior incapacity hearing concerning the AIP has occurred. If so the name of the court, 
date of the hearing, and that court’s findings (and whether or not the court’s ruling is still in 
effect) should be listed.   

9)  An explanation of the efforts made to employ a less restrictive alternative rather than 

seeking appointment of a guardian and why these alternatives will not or did not work.   

10)  The likelihood of improvement with regard to the mental and physical condition of the 

AIP. 

11)  The veteran status of the AIP and whether the AIP is receiving benefits from the USVA on 

behalf of themselves or through a spouse.   

12) 

 A representation that each proposed guardian has no adverse relationship to the AIP.   

13)  The availability and ability of the proposed guardian to visit or confer with the AIP.   

14) 

If the proposed guardian has completed any guardianship training the following 
information should be included: 

a)  Name of the program; 

b)  Length of the program; and  

c)  The date of completion.   

15)  Whether the proposed guardian is a certified guardian and the current status of any 

certification and or any disciplinary action against the guardian. 

16) 

If the guardian is or was in any other guardianships. If so, the number of the active 
guardianships they are involved in should be listed. 

17)  Whether petitioner seeks to nominate different guardians for the person and the estate. 

 

184

CHECKLIST OF REQUIRED EXHIBITS TO PETITION FOR 
ADJUDICATION OF INCAPACITY AND APPOINTMENT OF 
GUARDIANS 

Pa. O.C. Rule 14.2(c) 

1)  A verification by the petitioner, as with any petition. 

2)  A consent to serve signed by each proposed guardian.   

3)  A proposed Preliminary Decree with Citation.  

4)  A proposed Final Decree. 

5)  All durable powers of attorney and health care powers of attorney, if available to the 

6)  The certified response to Pennsylvania State Police criminal record check for each 

petitioner.  

proposed guardian. 

7) 

If the guardian has resided outside of Pennsylvania within the five years before the petition 
was filed, and was over the age of 18 at such time, a certified criminal record check from 
the state or states where the guardian resided. 

8)  A consent to serve as guardian signed by any proposed guardian or guardians. 

 

Additional documents may be filed with the petition, or presented to the court before or at the 
hearing:  

1)  Expert report signed by a health care provider attesting to the provider’s opinion regarding 

the capacity and functional limitations of the AIP. (See expert report form G-6 in 
Appendix).  

2) 

If the AIP is not expected to attend the hearing, the court should receive an affidavit of a 
physician or psychologist stating that attendance at the hearing by the AIP may be harmful 
to his or her physical or mental condition. 

3)  A proposed Form SP-4-131 Firearms Notice is required to be filed with the Clerk of the 

Orphans’ Court so that the Clerk may file it with the State Police following any order 
determining incapacity. 

4)  Affidavits of Service of the required notices (discussed in CHAPTER FOUR).  

 

185

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186

1) 

2) 

3) 

4) 

5) 

6) 

7) 

8) 

9) 

SAMPLE COLLOQUY FOR PROPOSED GUARDIAN OF PERSON AND ESTATE 

What is your educational background? 

What is your mailing address?  Email address? Daytime telephone number? 

How are you employed? 

How long have you known the IP and how well? 

Have you ever discussed with the IP his or her wishes regarding end of life care?  Do you 
have knowledge of what he or she would want with respect to medical care? 

Do you have a criminal record?   What were the charges and when? (Provide copy of 
state and FBI criminal background checks). 

Have you ever filed for personal bankruptcy?  When and where? 

Do you have any business or financial relationship with the IP?  What is the nature of it? 

Do you depend upon the IP’s income to pay household expenses?  

10)  Do you own property jointly with the IP, or do you live in property owned by the IP? 

11)  Do you have any conflict of interest with the IP?  

12)  What education, training, or experience do you have, if any, related to caring for an 

13)  What education, training, or experience do you have, if any, related to making medical 

incapacitated adult? 

decisions? 

14)  What education, training, or experience do you have, if any, related to applying for 
medical assistance benefits, veterans benefits, and other financial benefits? 

15)  What education, training, or experience do you have, if any, in managing another 

person’s funds in a fiduciary capacity? 

16)  Do you understand that you must keep accurate financial records and keep the IP’s assets 

separate from your own? 

17)  Do you understand that you may use the IP’s assets only for his or her benefit, and that 

you may expend income for his or her care? 

18)  Do you understand that you may not use the IP’s assets for any other person’s benefit 

without court approval? 

187

19)   Do you understand the difference between principal and income?  Family member 

guardians probably will need to have this explained to them. 

20)  Do you understand that you many only spend income, but that before you spend any 

principal or pay any attorneys or professional fees or guardian’s commissions you must 
seek court approval? 

21)  Are you aware that you must file an inventory of the IP’s property within three months 

and an annual report each year? 

22)  Are you a National Certified Guardian from the Center for Guardian Certification?  

Please provide a copy of your certificate. 

For how many incapacitated individuals are you currently appointed as guardian?  How 
do you manage your caseload so that you are able to meet the needs of each individual? 

23) 

 

188

CHECKLIST:  CONDUCTING A HEARING ON A PETITION FOR ADJUDICATION 

OF INCAPACITY AND APPOINTMENT OF GUARDIANS  

1)  Does the evidence demonstrate, by clear and convincing evidence, partial or total incapacity?  

2)  Has the petitioner demonstrated by clear and convincing evidence that there is no adequate 
restrictive alternative to the appointment of a guardian?  If the petitioner or counsel for the 
AIP fails to address this subject, the court should inquire of them. 

3)  Is a Limited or Plenary Guardian required? 

4)  Who should be appointed as Guardian of the Person or Guardian of the Estate? 

5)  Should a bond be required or waived? 

EVIDENTIARY QUESTIONS 

To reiterate, Section 5512.1(a) requires the court to examine the evidence and make 

specific findings of fact, considered above. To assist the court in formulating these findings of 

fact and conclusions of law, the petition must state "a description of the functional limitations 

and physical and mental condition of the AIP; the steps taken to find less restrictive alternatives; 

[and] the specific areas of incapacity over which it is requested that the guardian be assigned 
powers..."1 In addition, clear and convincing evidence of all averments contained in the petition 

must be established at the evidentiary hearing. Accordingly, counsel- or the court if necessary- 

must ask questions related to the following: 

1)   What functional limitations does the AIP have? 

2)   What physical limitations does the AIP have? 

3)   What mental limitations does the AIP have? 

4)   What steps have been taken and what steps are being proposed so as to impose the least 

restrictive alternatives or limitations upon the AIP? 

5)  

6)  

If a limited guardian is requested, over what specific areas of incapacity should the 
guardian of the person have authority?  

If a limited guardian is requested, over what specific areas of incapacity should the 
guardian of the estate have authority? 

                                                           
1 20 Pa.C.S. § 5511(e). 

189

7)   What conditions or disabilities does the AIP have which impairs their ability to make 

decisions? (Mental problems/impairments)  

8)   What conditions or disabilities does this AIP have which impairs their ability to 

communicate decisions? (Physical problems/impairments) 

9)  

Is the AIP oriented as to time or place? 

10)   Does the AIP recognize their family and other persons the AIP should recognize? 

11)   Are the AIP's discussions understandable and related to the matter being discussed? 

12)   Could the AIP satisfactorily conclude the purchase of an item in a retail store?  

13)   Could the AIP satisfactorily pay bills using a checking account and keep accurate records? 

14)   What family members, friends or other supports have assisted the AIP in making decisions 

or performing any functions or responsibilities? 

15)   Are there any family members or friends presently capable and willing to assist the AIP to 

perform any functions or responsibilities? 

16)   Can the AIP be maintained in their own home? If no, state why not, i.e., is it the finances 
and/or the physical or mental limitations which make this a practical impossibility? 

17)   What type of care does the AIP require? 

18)   Where is the AIP currently living? If in a care facility, what type of care facility is it?  

 

190

FINDING INCAPACITY CHECKLIST 

1. 

Expert Evaluator  

a.  Qualifications of evaluator. 

b.  Nature of evaluation. 

c.   Testimony or Expert Report (contested hearing or stipulation to report). 

Findings of Fact 

a.  The nature of any condition or disability which impairs the AIP's capacity to make 

and communicate decisions. 

b.  The extent of the AIP's capacity to make and communicate decisions. 

c.   Specific areas or functions over which the AIP has capacity to make own decisions. 

Conclusions of Law 

a.  

If petitioner fails to meet their burden of proof, the petition is dismissed. 

b.   

If the burden of proof is met and total or partial incapacity is established, then the 

court next turns to the questions of whether there is an adequate less restrictive alternative to 
guardianship. 

c.  

If there is no less restrictive alternative, the court determines, based upon the 
nature and extent of the incapacity proved, whether to appoint a plenary or limited guardian 

d.  

Next the court considers the selection of an appropriate guardian[s]. 

.  

  2

.  

  3

   

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192

PRESIDING OVER A GUARDIANSHIP HEARING: 
SAMPLE QUESTIONS 

 

At the commencement of the evidentiary hearing, counsel should be prepared to respond 
to the following questions posed by the court. The attorney's responses to the below questions, as 
well as any introductory remarks made by the attorneys, will not be regarded as evidence, but 
will be utilized only to assist the court in gaining an understanding of the evidence that will be 
presented.  

1.  Will the attorney(s) place their names on the record and also indicate on the record 

whom you represent? 

2. 

Is anyone contesting that the AIP has a condition that causes an incapacity to make 
and communicate decisions and effectuate those decisions? 

3.   Do the parties stipulate to the expert report? Does any party wish to examine the 

expert?  Does the AIP wish to request an independent evaluation? 

4. 

Is anyone suggesting there is a less restrictive alternative or contesting the need for 
a guardian? 

5.  

Is the petitioner requesting a plenary or limited guardian of the PERSON? 

(a)  Who is the petitioner proposing to serve as (plenary/limited) guardian of the 

PERSON? 

(b) 

Is anyone contesting this proposal? 

(c)   What are this person's qualifications to be such a guardian of the PERSON? 

6. 

Is the petitioner requesting a plenary or limited guardian of the ESTATE? 

(a)   Who is the petitioner proposing to serve as (plenary/limited) guardian of the 

ESTATE? 

(b)   Is anyone contesting this proposal? 

(c)   What are this person's qualifications to be such a guardian of the ESTATE? 

7.  Has the AIP been personally served with petition, notice and citation and has the 

notice been read to them? Has an affidavit of service been filed? 

8.  Have you given notice to the people who would be intestate heirs of the AIP?  Have 
you heard in response to this notice from any such person who wishes to participate 
in this hearing? 

193

9. 

Is the AIP present at this hearing? If not, what evidence will be presented to 
establish that the presence of the AIP would be harmful or that they are out of the 
Commonwealth? 

10.  What witnesses will be presented to establish that the AIP is an incapacitated 

person? 

11.  What is the gross value of the estate? 

12.  What is the net income from all sources? 

13.  Has the AIP signed a durable power-of-attorney? Who is appointed as agent under 

the durable power of attorney? 

14.   Has the AIP signed a health care power of attorney or health care directive? 

 

194

APPenDIX III:

Bill of  Rights

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196

The following information should be provided to the Alleged Incapacitated Person,  
as well as any family members or concerned parties, at the time the petition is served.

Bill of Rights
of An Alleged Incapacitated Person

A.  Before a Guardianship Hearing occurs, YOU HAVE THE RIGHT TO:

1.  Nominate in writing the person or persons you would like to serve as your guardian.1   
2.  Employ less restrictive alternatives to guardianship, where appropriate, including:2 

a.  Creating a Power of Attorney;
b.  Executing a Living Will;
c.	 Designating	a	representative	payee	to	manage	your	benefits	(e.g.,	Social	Security);	and	
d.  Requesting services through Area Agencies on Aging. 

3.  Receive Notice:3 

a.	 You	must	be	notified	that	a	guardianship	petition	has	been	filed	at	least	20	days	prior	to	the	hearing;
b.	 You	must	be	provided	with	the	hearing	date;		
c.  The petition must be given to you and explained to you in person; and
d.	 You	should	be	notified	of	your	rights	that	can	be	lost	if	a	guardian	is	appointed	for	you.

B.  YOU HAVE THE RIGHT TO challenge the appointment of a guardian, and:

If you do not have or cannot afford an attorney, you may request that the court appoint an attorney for you;3
1. 
2.	 You	have	a	right	to	be	present	at	all	hearings,	unless	a	physician	or	licensed	psychologist	states	that	such	

attendance would be harmful to you;4 
If you wish to attend the hearing but are not able to attend, you may request a hearing at your residence;3

3. 
4.	 You	may	ask	to	have	an	independent	evaluation	of	your	alleged	incapacities;5   
5.	 You	and/or	your	attorney	may	cross-examine	witnesses;6 
6.	 You	may	request	that	the	hearing	be	closed	to	the	public	and	kept	private;3
7.	 You	may	request	a	trial	by	jury;3 and
8.	 You	may	appeal	the	rulings	of	the	court.7 

C.  If a guardian is appointed, YOU HAVE THE RIGHT TO:

1.	 Receive	prudent	financial	management	of	your	property	to	the	extent	possible;
2.  Have access to training, education, medical, psychiatric, and social services;
3.  Have access to the courts;
4.  Receive visitors and communicate with others;
5.  Receive notice of all proceedings related to determination of capacity and guardianship; and
YOU ARE ENTITLED TO: 
All of the rights granted by law as a resident in a setting such as a nursing home, personal care home, assisted 
living residence, or hospital.

D.  Unless the appointment is for a “Limited Guardian,” THE FOLLOWING RIGHTS WILL BE RESTRICTED 

BY THE COURT:8 
1.  To enter into a contract;
2.  To sue and defend lawsuits;
3.	 To	apply	for	government	benefits;
4.  To manage property or to make any gift or disposition of property;
5.  To determine your residence;
6.  To consent to medical treatment; and 
7.  To make decisions about your social environment or other social aspects of life.

1. 
2. 
3. 

  20 Pa.C.S. § 5604(c)(2), 5511(f).
  20 Pa.C.S. § 5502, 5511(e), 5518.
  20 Pa.C.S. § 5511(a).

4. 
5. 
6. 

  20 Pa.C.S. § 5511(a)(1)-(2).
  20 Pa.C.S. § 5511(d).
  20 Pa.C.S. § 5518.1.
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7. 
8. 

  20 Pa.C.S. § 5512.1(h).
  20 Pa.C.S. § 5512.1(g).

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The following information should be provided to the Guardian of the Incapacitated Person at the time of the 
appointment AND to the Incapacitated Person, as well as any family members or concerned parties.

Bill of Rights
of An Incapacitated Person

An Incapacitated Person under Guardianship HAS THE RIGHT TO:1 

1.   Have his or her expressed wishes and preferences respected to the greatest possible extent;2 

2.   Develop or regain, to the maximum extent possible, the capacity to manage his or her personal 

affairs by petitioning the court for a review hearing;3 

3.  Have an annual review of the guardianship by the court via the required annual guardianship report 

filed	by	the	guardian;4 

4.   Appeal the court’s determination of incapacity;5 

5.  Petition the court to modify or terminate the guardianship;5

6.    Have his or her intentions, whether testamentary (relating to a will) or inter vivos (relating to a gift) 

regarding his or her estate planning considered by the court;6  

In Limited Guardianship Matters, A Partially Incapacitated Person Shall:  

1.  Retain all legal rights except those designated to the guardian by court order;7 

2.   Be assured that training, education, medical and psychological services, and social and vocational 

opportunities will be available, as appropriate, to develop or enhance maximum self-reliance and 
independence.8 

1. 
  For purposes of this Report, the 
duties and responsibilities of the court 
and of the appointed guardian which are 
set forth in Pennsylvania statutes are 
construed by the Pennsylvania Elder 
Law Task Force to codify the rights of the 

incapacitated person under guardianship.  
Additional rights may be provided, in 
addition to those listed herein.  
  20 Pa.C.S. § 5511(a).
2. 
  20 Pa.C.S. § 5512.2.
3. 
  20 Pa.C.S. § 5521(c).
4. 

5. 
6. 
7. 
8. 

  20 Pa.C.S. § 5512.1(h).
  20 Pa.C.S. § 5536 (b).
  20 Pa.C.S. § 5512.1(g).
  20 Pa.C.S. § 5512.1(b)(3).

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ADDITIonAL ReSoURCeS

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I. Links to Statutes and Rules

Incapacitated Person Act, 20 Pa.C.S.A. § 5501 et seq. (Chapter 55):  
https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=20&div=0&chpt=55.

uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, 20 Pa.C.S.A. § 5901, et seq. 
(Chapter 59):
https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=20&div=0&chpt=59.

Health Care Act, 20 Pa.C.S.A. § 5421, et seq. (Chapter 54):
https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=20&div=0&chpt=54.

Mental Health Care Act, 20 Pa.C.S.A. § 5801, et seq. (Chapter 58):
https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=20&div=0&chpt=58.

The Pennsylvania Older Adults Protective Services Act, 35 P.S. § 10225.101, et seq.:  
https://www.legis.state.pa.us/cfdocs/legis/CH/PuBLIC/ucons_pivot_pge.cfm?session=1987&session_
ind=0&act_nbr=0079.&pl_nbr=0381

Pennsylvania Supreme Court Orphans’ Court Rules (under Pennsylvania Code Title 231, Part II):  
www.pacodeandbulletin.gov

II. Links to Additional Resources

American Bar Association Commission on Law and Aging  
https://www.americanbar.org/groups/law_aging/

American Psychological Association’s Medical Conditions Affecting Capacity  
https://www.apa.org/pi/aging/programs/assessment/capacity-psychologist-handbook.pdf

National Probate Court Standards  
https://ncsc.contentdm.oclc.org/digital/collection/spcts/id/240/

III. Links to Key Statutes (for further reference):

20 Pa.C.S.A. § 5511(d). Petition and Hearing; independent evaluation  
https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?%20txtType=HTM&ttl=20&div=0&chpt=55&sctn
=11&subsctn=0

42 Pa.C.S. § 4412. Appointment of Interpreter  
https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?%20txtType=HTM&ttl=42&div=0&chpt=44

42 Pa.C.S § 4432. Appointment of Interpreter for the Hearing Impaired  
https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?%20txtType=HTM&ttl=42&div=0&chpt=44

Pa. Const. Art. 1, § 26. Right of access to individuals to enjoyment of civil rights and participation in court 
proceedings 
https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?%20txtType=HTM&ttl=00&div=0&chpt=1&sctn
=26&subsctn=0

Title II ADA (42 u.S.C. § 126). Obligation of courts to accommodate those with disabilities (Applies to 
courthouses and court hearing access) 
https://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter126&edition=prelim

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IV. Links to Judicial Canons (for further reference):

https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/207/chapter33/subchapAtoc.
html&d=reduce

Judicial Canon 1: A Judge shall uphold and promote the independence, integrity, and impartiality of the 
judiciary, and shall avoid impropriety and the appearance of impropriety.

Judicial Canon 2: A Judge shall perform the duties of judicial office impartially, competently, and diligently.

Judicial Canon Rule 1.1: Compliance with the Law

Judicial Canon Rule 1.2: Promoting Confidence in the Judiciary

Judicial Canon Rule 2.2: Impartiality and Fairness

Judicial Canon Rule 2.3: Bias, Prejudice, and Harassment

Judicial Canon Rule 2.4: External Influences on Judicial Conduct

Judicial Canon Rule 2.6: Ensuring the Right to Be Heard

Judicial Canon Rule 2.9: Ex Parte Communications

Judicial Canon Rule 2.11 Disqualification 

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