5511 - Petition and hearing; independent evaluation.

                               SUBCHAPTER C                 APPOINTMENT OF GUARDIAN; BONDS; REMOVAL                              AND DISCHARGE     Sec.     5511.  Petition and hearing; independent evaluation.     5512.  County of appointment; qualifications.     5512.1. Determination of incapacity and appointment of            guardian.     5512.2. Review hearing.     5512.3. Annual report.     5513.  Emergency guardian.     5514.  To fill vacancy; co-guardian.     5515.  Provisions similar to other estates.     5516.  Fiduciary estate.     5517.  Adjudication of capacity and modification of existing            orders.     5518.  Evidence of incapacity.     5518.1. Cross-examination of witnesses.        Cross References.  Subchapter C is referred to in section     5833 of this title.     § 5511.  Petition and hearing; independent evaluation.        (a)  Resident.--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. The     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 alleged incapacitated person or     that the petition is incomplete or fails to provide sufficient     facts to proceed. Written notice of the petition and hearing     shall be given in large type and in simple language to the     alleged incapacitated person. 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. The Supreme Court shall establish a uniform     citation for this purpose. A copy of the petition shall be     attached. Personal service shall be made on the alleged     incapacitated person, 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. Service     shall be no less than 20 days in advance of the hearing. In     addition, notice of the petition and hearing shall be given in     such manner as the court shall direct to all persons residing     within the Commonwealth who are sui juris and would be entitled     to share in the estate of the alleged incapacitated person if he     died intestate at that time, to the person or institution     providing residential services to the alleged incapacitated     person and to such other parties as the court may direct,     including other service providers. The hearing may be closed to     the public and without a jury unless the alleged incapacitated     person or his counsel objects. The hearing shall be closed and     with or without a jury if the person alleged to be incapacitated     or his counsel so requests. The hearing may be held at the     residence of the alleged incapacitated person. The alleged     incapacitated person shall be present at the hearing unless:            (1)  the court is satisfied, upon the deposition or        testimony of or sworn statement by a physician or licensed        psychologist, that his physical or mental condition would be        harmed by his presence; or            (2)  it is impossible for him to be present because of        his absence from the Commonwealth. It shall not be necessary        for the alleged incapacitated person to be represented by a        guardian ad litem in the proceeding.     Petitioner shall be required to notify the court at least seven     days prior to the hearing if counsel has not been retained by or     on behalf of the alleged incapacitated person. In appropriate     cases, counsel shall be appointed to represent the alleged     incapacitated person in any matter for which counsel has not     been retained by or on behalf of that individual.        (b)  Nonresident.--The court may find a person not domiciled     in the Commonwealth, having property in the Commonwealth, to be     incapacitated and may appoint a guardian of his estate. The     appointment may be made after petition, hearing and notice, as     in the case of a person domiciled in the Commonwealth, or upon     the submission of an exemplified copy of a decree establishing     his incapacity in another jurisdiction. The court shall give     preference in its appointment to the foreign guardian of the     nonresident incapacitated person, unless it finds that such     appointment will not be for the best interests of the     incapacitated person.        (c)  Payment of certain costs.--If the alleged incapacitated     person is unable to pay for counsel or for the evaluation, the     court shall order the county to pay these costs. These costs     shall be reimbursed by the Commonwealth in the following fiscal     year.        (d)  Independent evaluation.--The court, upon its own motion     or upon petition by the alleged incapacitated person for cause     shown, shall order an independent evaluation which shall meet     the requirements of section 5518 (relating to evidence of     incapacity). The court shall give due consideration to the     appointment of an evaluator nominated by the alleged     incapacitated person.        (e)  Petition contents.--The petition, which shall be in     plain language, shall include the name, age, residence and post     office address of the alleged incapacitated person, the names     and addresses of the spouse, parents and presumptive adult heirs     of the alleged incapacitated person, the name and address of the     person or institution providing residential services to the     alleged incapacitated person, the names and addresses of other     service providers, the name and address of the person or entity     whom petitioner asks to be appointed guardian, an averment that     the proposed guardian has no interest adverse to the alleged     incapacitated person, the reasons why guardianship is sought, a     description of the functional limitations and physical and     mental condition of the alleged incapacitated person, the steps     taken to find less restrictive alternatives, the specific areas     of incapacity over which it is requested that the guardian be     assigned powers and the qualifications of the proposed guardian.     If a limited or plenary guardian of the estate is sought, the     petition shall also include the gross value of the estate and     net income from all sources to the extent known.        (f)  Who may be appointed guardian.--The court may appoint as     guardian any qualified individual, a corporate fiduciary, a     nonprofit corporation, a guardianship support agency under     Subchapter F (relating to guardianship support) or a county     agency. In the case of residents of State facilities, the court     may also appoint, only as guardian of the estate, the guardian     office at the appropriate State facility. The court shall not     appoint a person or entity providing residential services for a     fee to the incapacitated person or any other person whose     interests conflict with those of the incapacitated person except     where it is clearly demonstrated that no guardianship support     agency or other alternative exists. Any family relationship to     such individual shall not, by itself, be considered as an     interest adverse to the alleged incapacitated person. If     appropriate, the court shall give preference to a nominee of the     incapacitated person.     (Dec. 10, 1974, P.L.867, No.293, eff. imd.; Apr. 16, 1992,     P.L.108, No.24, eff. 60 days)        1992 Amendment.  See section 21 of Act 24 in the appendix to     this title for special provisions relating to applicability.        Cross References.  Section 5511 is referred to in sections     5513, 5808, 5822, 5823, 5832, 5833, 7764 of this this title;     section 3206 of Title 18 (Crimes and Offenses); section 8123 of     Title 35 (Health and Safety).