Subchapter B. ALLEGED INCOMPETENT SPECIAL MASTERS


Sec.


29.41.    Appointment of Special Masters.
29.42.    Procedures for Appointment of Guardians.
29.43.    Fee Schedule for Special Masters and Appointed Counsel.

§ 29.41. Appointment of Special Masters.

 Whenever a petition for the appointment of a guardian of an alleged incompetent residing in a state mental hospital or state center for the mentally retarded is filed in the Court of Common Pleas wherein the alleged incompetent is domiciled, pursuant to Section 5511 of the Act of June 30, 1972, P. L. 508, as amended by the Act of December 10, 1974, P. L. 867, known as the ‘‘Decedents, Estates and Fiduciaries Act,’’ 20 Pa.C.S. §  5511, it is hereby ordered that each judge of the Court of Common Pleas, when hearing such a petition, shall adopt the procedures and requirements for the provision of counsel to the alleged incompetent and his guardian set forth at Section 3 of the Order of July 7, 1978, No. 1 Alleged Incompetents Special Masters Docket, authorizing the appointment of Special Masters to hear said petitions.

 1. The Special Master shall conduct such hearing at the state institution wherein the alleged incompetent resides, whether or not the institution is in the county of domicile. The Special Master shall have such powers as are conferred upon the court by 20 Pa.C.S. §  5501 to schedule hearings at the convenience of the parties, provide notice of hearing, require the presence of all necessary parties by the issuance of subpoenas, administer oaths to parties and to witnesses, and conduct the hearing.

 2. The Court Administrator may promulgate regulations and standard petition forms to insure uniform hearing procedures on a statewide basis.

 3. The alleged incompetent and his guardian shall be represented by counsel and, unless private estate counsel exists or is appointed by the Court of Common Pleas, the Court Administrator shall take necessary steps to insure that such counsel is provided.

 4. Unless a court-appointed guardian exists prior to the filing of this petition, the Institutional Guardian of the facility in which the alleged incompetent resides shall be appointed.

 5. At the conclusion of the hearing, the Special Master shall submit his findings and recommendations to the appropriate judge of the Court of Common Pleas in the county where the petition was filed in the form of a Proposed Order for action by the court.

 6. The Special Master and appointed counsel, if any, shall receive such reasonable expenses and fees as are approved by the Court Administrator.

   Official Note

   By Order dated July 7, 1978, No. 1 Alleged Incompetents Special Masters Docket (8 Pa. B. 2098), this Court established a procedure for the appointment of a guardian for alleged incompetents residing in state mental hospitals or state centers for the mentally retarded, which are filed in the Court of Common Pleas wherein the alleged incompetent is domiciled, pursuant to Section 5511, supra. Said Order contemplated the appointment of Special Masters in those Judicial Districts where existing judicial manpower is insufficient to handle the expected volume of such petitions, necessitated by Vecchione v. Wohlgemuth, et al., No. 73-162 (U.S.D.C.-E. Pa.). This Order clarifies the intention of that Order that the alleged incompetent and his guardian be represented by counsel at all petition hearings, regardless of who conducts said hearing.

Source

   The provisions of this §  29.41 adopted July 28, 1978, 8 Pa.B. 2098, amended May 18, 1979, effective May 19, 1979, 9 Pa.B. 1607.

§ 29.42. Procedures for Appointment of Guardians.

 The subject order of the Supreme Court of Pennsylvania provides a procedure for the appointment of Special Masters to conduct hearings on petitions for appointment of guardians of an alleged incompetent residing in a state mental hospital or state center for the mentally retarded, pursuant to §  5511 of the act of June 30, 1972 (P. L. 508) (20 Pa.C.S. §  5511) as amended by the act of December 10, 1974 (P. L. 867, No. 293) known as the ‘‘Decedents, Estates and Fiduciaries Act.’’ This order attempts to relieve the substantial hearing burden imposed on the state judiciary by the decision in Vecchione v. Wohlgemuth, et al., No. 73-162 (U.S.D.C.E. Pa.). To this end, the appointment of Special Masters is authorized.

 Section 2 of the order authorizes the Court Administrator to promulgate a standard petition form and other necessary regulations to insure uniform, simple hearing procedures throughout the state. Section 3 provides for designations of counsel by the Court Administrator where private counsel is unavailable to the alleged incompetent because of indigency or the lack of adequate local counsel. Section 6 provides for the establishment of fees and reasonable expenses by the Court Administrator for the Special Master and designated counsel for the alleged incompetent, if any. Regulations implementing these three sections follows:

 1. Each petition for appointment of a guardian shall be substantially in the form set forth at Appendix A. Said Petition shall have attached to it a proposed Report and Recommendations of the Special Master, and Order, Citation, Preliminary Order of Court, a Consent of the Proposed Guardian and appropriate affidavits and competency reports. Hearings shall, whenever possible, be scheduled consecutively at each institution to maximize the resources of the Special Master and others involved in the hearing process.

 2. When private counsel is not available to the alleged incompetent and an application is made in writing to the President Judge of the court wherein the petition is filed by either the petitioner, the alleged incompetent or the guardian ad litem for the alleged incompetent, the President Judge shall designate and appoint such counsel as are in public service, to serve without compensation; failing in which, however, the Court Administrator shall designate appointed counsel, upon the recommendation and finding of the President Judge that such appointment is appropriate and necessary. The Court Administrator may designate one or more counsel to represent all unrepresented alleged incompetents at each institution or center where such hearings are held. The application for appointment of counsel shall be substantially in the form set forth at Appendix B.

 3. The Special Master and appointed counsel shall receive such reasonable compensation and actual expenses as may be fixed by the Court Administrator on recommendation of the President Judge. Scheduling of hearings should be made so as to minimize travel costs. Such expenses shall be submitted to the Court for approval at the time the Report and Recommendation of the Special Master is submitted to the Court and shall be paid from the estate, unless funds are insufficient or legally unavailable for such purposes. If funds are not available, such compensation and expense charges shall be assessed for payment by the County.

 4. The Special Master shall receive such reasonable per diem compensation or salary as is agreed upon in advance of hearings by the Court Administrator and the President Judge. Special Masters shall be appointed so as to minimize overall costs and to reduce the amount which may be assessed against individual estates to cover such compensation. Where funds in individual estates are insufficient or are otherwise legally unavailable, the compensation of the Special Master shall be assessed for payment by the County. The Court Administrator may authorize representation of alleged incompetents pursuant to Section 3 and Regulation 2 to be paid reasonable compensation as determined in advance of such representation, either on a per case basis, if such counsel is designated for individual cases, or on a salary basis, if such counsel is designated as a general representative for all unrepresented alleged incompetents at a specific institution or center.

Source

   The provisions of this §  29.42 adopted September 1, 1978, 8 Pa. B. 2424.

APPENDIX A

IN THE MATTER OF: IN THE COURT OF COMMON PLEAS OF

:   COUNTY, PENNSYLVANIA
(name)

   ORPHANS’ COURT DIVISION

An Alleged Incompetent: No.      19


 PETITION FOR APPOINTMENT OF GUARDIAN

 The petition of


Superintendent of
, respectfully represents:

 1. Your Petitioner has custody of the alleged incompetent at


.

 2. The alleged incompetent was admitted to the aforesaid institution on


.

 3. The alleged incompetent is domiciled at



.

 4. The alleged incompetent is


years of age, having been born on
.

 5. The alleged incompetent’s military status is: 




.

 6. The alleged incompetent’s marital status is




.

 7. Those persons, if any, who are the alleged incompetent’s next of kin and their relationship to same, of whom your Petitioner has knowledge are as follows:






.

 8. No other Court within this Commonwealth of which Petitioner has knowledge has appointed a guardian for the alleged incompetent.

 9. The alleged incompetent has income consisting of:

   (a)  Money due from

   


in the amount of $
per
.

   (b)  Money due from


 


in the amount of $
per
.


APPENDIX A (Continued)


 10. The alleged incompetent has assets, real and personal, of which the Petitioner is aware, in the amount of $


consisting of:

   (a)  


held by the Guardian Officer of
in the amount of $
as of
.

   (b)  ‘‘Vecchione Refund’’ monies in the amount of $


, title to which is in dispute.

   (c)  



.

 11. The alleged incompetent has debts outstanding in the amount of $


, as of
, consisting of:

   (a)  $


owing to the Commonwealth of Pennsylvania as payment for care and maintenance received from the period
19
to
,
, in accordance with 50 P. S. § §  4501 and 4504 and regulations promulgated thereunder.

   (b)  $


owing to the Commonwealth of Pennsylvania as payment for care and maintenance rendered between July 11, 1974, and April 4, 1975, which relates to the ‘‘Vecchione Refund,’’ title to which is in dispute.

   (c)  



.

 12. The alleged incompetent is incapable of handling


financial affairs for the reasons set forth in the attached Affidavit and Competency Report, prepared by

, marked as Exhibit A and made a part hereof.

 13. 


, Guardian Officer at the aforesaid institution, and his/her successors in office, having no interest adverse to the alleged incompetent, has agreed to act as Guardian if this Honorable Court shall so appoint. The consent of the proposed Guardian to so act is attached hereto and made a part hereof as Exhibit B.

 14. If appointed as Guardian,


is required to act in compliance with regulations promulgated under Court Order in 5 Pennsylvania Bulletin 931 et seq. (April 19, 1975).

 15. In light of these provisions and in furtherance of Paragraph 7 of the aforesaid regulations, Petitioner requests preference be given to a bank, trust company or other individual willing to accept appointment as Guardian.

 Wherefore, the Petitioner prays that a citation be issued directing


, and those persons, if any, listed in paragraph 7 of this Petition, to show cause, if any there be, why
should not be declared an incompetent and a Guardian of the estate appointed, and why distribution of assets and income as payment of debts listed in paragraph 11 should not be made. Petitioner further prays that a guardian ad litem be appointed to act for the alleged incompetent regarding such hearing.

APPENDIX A (Continued)


     BY:




COMMONWEALTH OF PENNSYLVANIA:
  ss
COUNTY OF:

 


, Petitioner in this matter, being duly sworn according to law, do depose and state that I am
of

and that the facts set forth in the foregoing Petition are true and correct to the best of my knowledge, information and belief.

   


Sworn to and Subscribed Before me this
day of
19



 EXHIBIT ‘‘A’’
COMPETENCY REPORT
AFFIDAVIT


COMMONWEALTH OF PENNSYLVANIA:
  ss
COUNTY OF:

 I,


, being duly sworn according to law, depose and say that I am a

in the Commonwealth of Pennsylvania employed at

, and I have examined the patient,
, an alleged incompetent, with care and diligence and based upon said examination and observations am of the opinion that said patient is incompetent to manage his/her own affairs for the reasons set forth in the attached Competency Report, and that the facts and opinions contained therein are true and correct to the best of my knowledge, information and belief.

   



APPENDIX A (Continued)


   Sworn to and Subscribed Before
me this


day of

, 19
.


 EXHIBIT ‘‘B’’
CONSENT OF PROPOSED GUARDIAN

   I,


,
of
, do hereby certify that I and my successors in office are willing to act as Guardian for the estate of

, an alleged incompetent, if the Court shall so appoint.

 Further, I do hereby certify that I am not a fiduciary of any estate in which the alleged incompetent has an interest, nor have I any interest adverse to the alleged incompetent.

 The facts and opinions contained herein are true and correct to the best of my knowledge, information, and belief.

   




IN THE MATTER OF: IN THE COURT OF COMMON

   PLEAS OF


:   COUNTY, PENNSYLVANIA
(name)

   ORPHANS’ COURT DIVISION

An Alleged Incompetent: No.   19

 PRELIMINARY ORDER OF COURT

 AND NOW, this


day of
 19
, upon consideration of the foregoing Petition, it is Ordered that a citation be issued, directed to
to show cause why
should not be adjudged an incomeptent, and a guardian of
estate appointed; and why distribution of assets and income as payment of debts listed in paragraph
of the within Petition should not be made.

 


is hereby appointed Special Master for the purposes of conducting a hearing on said Petition at the institutuion at which

resides, at a time to be
fixed by said Special Master, and to submit a Report and Recommendation to this Court in a timely fashion.

APPENDIX A (Continued)


   is hereby appointed by the court to act as guardian ad litem for



the alleged incompetent regarding this hearing.

 At least twenty (20) days written notice of the hearing shall be given to


the alleged incompetent, by serving
personally with the citation and a copy of the foregoing Petition; and at least twenty (20) days written notice of the Petition and hearing shall also be given to any next of kin listed in the Petition either personally or by certified mail.
    BY THE COURT:
    
J. 

IN THE MATTER OF: IN THE COURT OF COMMON

   PLEAS OF


:   COUNTY, PENNSYLVANIA
(name)

   ORPHANS’ COURT DIVISION

An Alleged Incompetent: No.   19

 CITATION


TO:


 We command you to appear at a hearing in the Orphans’ Court of


, County, to be held at
on
, 19
, at
.M., to show cause why you should not be adjudged an incompetent, and a guardian appointed for your estate.

 Citation Returnable the


day of
, 19
.
WITNESSETH:

 The Honorable


President Judge of said Court, sitting in the Orphans’ Court this
day of
, 19
.
    
    CLERK OF THE ORPHANS’ COURT DIVISION


IN THE MATTER OF: IN THE COURT OF COMMON

   PLEAS OF


:   COUNTY, PENNSYLVANIA
(name)

   ORPHANS’ COURT DIVISION

An Alleged Incompetent: No.   19

APPENDIX A (Continued)



REPORT AND RECOMMENDATION OF THE
SPECIAL MASTER AND ORDER OF COURT


 Upon hearing of the Petition and Citation for Appointment of a guardian for


, proof of notice of the said hearing to
next of kin having been filed, and
appointed as guardian ad litem,

   the Special Master, appointed by this Honorable Court to hear said Petition, finds that the said


is so mentally infirm that
 is likely to dissipate or lose
estate and become the victim of designing persons; and that the Court further finds that the entire real and personal estate of the said
should be handled by the Guardian designated herein.

 It Is Therefore Recommended that



and his/her successors in office be and are hereby authorized to receive, hold and dispose of the estate of the said
as the duly appointed guardian under Court Decree, and to pay such debts as enumerated in said Petition, such debts having been found to be proper and in accord with law.

 The guardian, within three months after real or personal estate of the incompetent comes into his possession, shall verify by oath and file with the Clerk an inventory and appraisement of such personal estate, a statement of such real estate, and a statement of any real or personal estate which he expects to acquire thereafter.
    


    Special Master
DATE:

 ORDER

 IT IS ORDERED AND DECREED THAT the report and recommendation of the Special Master be approved.

 IT IS FURTHER ORDERED AND DECREED, that the Surety Bond issued by


Bond No.
shall be sufficient as bond.

 All costs and expenses of this hearing to be borne by the Estate of the said


, including a fee of
to be paid the guardian ad litem.
    BY THE COURT
    
J.  DATE:

APPENDIX B


IN THE MATTER OF: IN THE COURT OF COMMON

   PLEAS OF


:   COUNTY, PENNSYLVANIA
(name)

   ORPHANS’ COURT DIVISION

An Alleged Incompetent: No. 19


 APPLICATION FOR APPOINTMENT
OF COUNSEL FOR ALLEGED INCOMPETENT

 


asserts that the named alleged incompetent is without funds to secure private counsel to represent him/her in the above matter, and that alternative counsel provided by a publicly funded community legal services organization, or like agency providing legal representation to indigents, is also unavailable. The attached affidavit accurately sets forth available assets in support of said application.
   

 The Court Administrator is hereby requested to designate appointed counsel for said alleged incompetent upon the Court’s finding of the unavailability of appropriate private counsel as set forth in said application.
   BY THE COURT:
   


DATE:

§ 29.43. Fee Schedule for Special Masters and Appointed Counsel.

 (a)  In accordance with Order entered by this Court on July 7, 1978, at No. 1 Alleged Incompetent Special Masters Docket, Special Masters and counsel appointed for proceedings on petitions for the appointment of guardians of alleged incompetents residing in state mental hospitals or state centers for the mentally retarded pursuant to Section 5511 of the Decedents, Estates and Fiduciaries Act, 20 Pa.C.S. §  5511, are entitled to receive reasonable expenses and fees for services. Fees for such services shall not exceed the following:

 $100.00 One (1) hearing per day

 $200.00 Two (2) hearings per day

 $300.00 Three (3) or more hearings per day.

 (b)  These fees set forth in subsection (a) are premised on the theory that as many hearings as possible will be scheduled per day.

 (c)  Any schedule proposed by a court of common pleas must receive the approval of the Court Administrator of Pennsylvania prior to implementation.

Source

   The provisions of this §  29.43 adopted and effective December 3, 1984, 14 Pa.B. 4593.



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