Title 255—LOCAL COURT RULES
Local Orphans' Court Rules Nos. 14.2—14.13; Guardianships; Orphans' Court No. 497-19; Judicial Support Civil No. 17-5120
[49 Pa.B. 4107]
[Saturday, August 10, 2019]
And Now, this 21st day of June, 2019, it is hereby Ordered and Decreed that Delaware County Local Orphans' Court Rules Nos. 14.2 through and including 14.13 (related to guardianships) having been reviewed and allowed by the Supreme Court of Pennsylvania's Orphans' Court Procedural Rules Committee are Adopted.
These local Orphans' Court Rules (Nos. 14.2—14.13 related to guardianships) Shall be effective thirty (30) days subsequent to publication in the Pennsylvania Bulletin.
By the Court
KEVIN F. KELLY,
In an effort to assist in the timely and efficient adjudication of matters before the Orphans' Court of Delaware County, suggested forms including but not limited to sample decrees and sample petitions are available on the Delaware County Orphans' Court website by clicking the link for suggested forms. Please note that these forms are not mandatory but simply contain language that is consistent with the law outlined in these rules and are meant to assist those pursuing a matter before the Orphans' Court of Delaware County. It is also important to remember to regularly visit the Delaware County Orphans' Court website and review the forms as they are subject to change.
Del.Co.O.C. Rule 14.2A. Prior Incapacity Hearings.
If the petition for adjudication of incapacity and appointment of a guardian includes an averment that there was a prior incapacity hearing concerning the alleged incapacitated person pursuant to Pa.O.C. Rule 14.2(a)(12), the petitioner shall include a copy of the decree and/or order that was entered as a result of the prior hearing.
Del.Co.O.C. Rule 14.2B. Veteran Benefits.
In addition to the requirements of Pa.O.C. Rule 14.2(a)(15) and, pursuant to 20 Pa.C.S. § 8411, the petition shall state whether the alleged incapacitated person is receiving benefits from the Department of Veterans Affairs, or its successor, due to his or her status as an incapacitated adult dependent of a veteran.
Del.Co.O.C. Rule 14.3A. Use of Expert Report.
1. When the issue of capacity is known to be contested, testimony in person or by deposition is required. An expert report for the determination of capacity in lieu of testimony, in person or by deposition, as described in Pa.O.C. Rule 14.3, may not be used in this situation.
2. In an emergency guardianship proceeding, when the petitioner does not know whether the issue of capacity is contested, permission to use an expert report as described in Pa.O.C. Rule 14.3, may be requested in the petition for emergency guardianship.
Committee Note: The term ''deposition'' as used in Del.Co.O.C. Rule 14.3A is the taking of sworn, out-of-court oral testimony of a witness that may be reduced to a written transcript for later use in court, made upon notice to the adverse party for the purpose of enabling the adverse party to attend and cross-examine.
Del.Co.O.C. Rule 14.3B. Certificate of Service.
Petitioner shall file the certificate of service required by Pa.O.C. Rule 14.3(b)(3) no later than five (5) days prior to the hearing on the petition for adjudication of incapacity and appointment of guardian. This may be incorporated into the Certification provided to the court no later than seven (7) days prior to the hearing, as described in Del.Co.O.C. Rule 14.4A.
Del.Co.O.C. Rule 14.4A. Certification.
Counsel for petitioner shall file with the Clerk of the Orphans' Court at least seven (7) days prior to the hearing a Certification that provides the following information to the best of counsel's knowledge, information and belief:
1. Whether counsel has or has not been retained by or on behalf of the alleged incapacitated person;
2. Whether the alleged incapacitated person has requested counsel;
3. Whether a guardian ad litem, attorney ad litem, or additional evaluation has been requested;
4. Whether the incapacity of the alleged incapacitated person is or is not contested;
5. Whether petitioner intends to establish incapacity by way of:
a. Expert Report,
b. Deposition, and/or
c. Live testimony in court;
6. Whether the choice of guardian as proposed by the petitioner is contested; and
7. Whether the alleged incapacitated person will or will not be present at the hearing pursuant to 20 Pa.C.S. § 5511(a)1 and 2.
Del.Co.O.C. Rule 14.4B. Guardian Ad Litem.
The petitioner or any interested party entitled to notice of the petition for adjudication of incapacity and appointment of a guardian may notify the Court in writing at any time prior to the hearing, or on the record at the hearing on said petition, of their belief that a guardian ad litem is necessary to adequately represent the alleged incapacitated person's interest.
Del.Co.O.C. Rule 14.7A. Proof of Service.
The order adjudicating incapacity shall be served, including reading and explaining the contents, upon the incapacitated person, with proof of service filed with the court within ten (10) days after the hearing in the matter.
Del.Co.O.C. Rule 14.8A. Testamentary Writings.
All testamentary writings of the incapacitated person located by the guardian shall, at the time of the filing of the Inventory or within 10 days of locating the testamentary writings, whichever is later, be submitted by the guardian to the court for its inspection.
Del.Co.O.C. Rule 14.8B. Allowances from an Incapacitated Person's Estate.
1. Petition. A petition for allowance from an incapacitated person's estate shall set forth:
i. The name of the guardian and the date of the guardian's appointment; if the petitioner is not the guardian, the petitioner's relationship to the incapacitated person and, if not related, the nature of the petitioner's interest;
ii. A summary of the assets comprising the estate of the incapacitated person;
iii. The income of the incapacitated person;
iv. The address and facility, if any, of the incapacitated person;
v. The names and addresses of the incapacitated person's dependents, if any, and all other interested parties;
vi. A statement of all the claims of the incapacitated person's creditors known to petitioner; and
vii. A statement of the requested distribution, the reasons therefor, a statement of all previous distributions allowed by the court and an explanation of the reasonableness of the amount of the current distribution in relation to the present value of the estate, the income of the incapacitated person, and the incapacitated person's future needs, taking into account age, health and any other relevant factors.
2. Notice to Veterans Affairs. If any portion of the incapacitated person's estate is received from the United States Department of Veterans Affairs or its successor, notice of the request for allowance shall be given to this agency, in accordance with 20 Pa.C.S. § 8411.
Del.Co.O.C. Rule 14.8C. Notification of Mental Health Commitment Form.
Within seven (7) days of adjudication of incapacity, petitioner or counsel therefor shall submit to the Orphans' Court the completed mandatory state form required to be filed under the Pennsylvania Uniform Firearms Act (18 Pa.C.S. § 6105(c)(4)) and the Pennsylvania Mental Health Procedures Act (50 P.S. § 7109(d)).
Committee Note: See Del.Co.O.C. Rules 5.10A, 5.10B, 5.10C, 5.10D, 5.11A, 5.11B, 5.11C, and 5.12A.
Del.Co.O.C. Rule 14.13A. Proposed Decree.
If the petitioner requesting acceptance of a guardianship from another state reasonably believes that the order entered in the transferring state does not conform to Pennsylvania law, the petitioner may submit a Proposed Decree modifying the transferring state's guardianship order so that it conforms with Pennsylvania law.
Del.Co.O.C. Rule 14.13B. Denial of Transfer.
If a petition to transfer a guardianship from another state is denied, a petitioner may still seek appointment as guardian under the general provisions of 20 Pa.C.S. § 5501, et seq.
[Pa.B. Doc. No. 19-1204. Filed for public inspection August 9, 2019, 9:00 a.m.]
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