§ 5512.1. Determination of incapacity and appointment of guardian.
(a) Determination of incapacity.--In all cases, 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 less restrictive alternatives. The court
shall make specific findings of fact based on the evidentiary record of the absence
of sufficient family, friends or other supports and of the insufficiency of each less
restrictive alternative before ordering guardianship. Less restrictive alternatives
include, but are not limited to:
(i) Advance directives such as durable power of attorney or trusts.
(ii) Living wills.
(iii) Health care powers of attorney.
(iv) Health care representatives.
(v) Financial powers of attorney.
(vi) Trusts, including special needs trusts.
(vii) Representative payees for individuals receiving Social Security benefits.
(viii) Pennsylvania Achieving a Better Life Experience accounts.
(ix) Mental health advance directives.
(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 less restrictive alternatives to guardianship and, if no less
restrictive alternatives are available and sufficient, limited guardianship. The following
apply:
(i) A determination of incapacity is separate from a determination of whether a guardian
should be appointed.
(ii) The court may not use a determination of incapacity alone to justify a guardianship.
(iii) The court may not appoint a guardian if a lesser restrictive alternative exists that
is sufficient to support the needs of an incapacitated person.
(iv) When entering an order denying a petition for guardianship in whole or in part, the
court shall identify the less restrictive alternatives that are available and sufficient
to enable the alleged incapacitated person to manage personal financial resources
or to meet essential requirements of personal physical health and safety. An order
may assist the respondent and any supportive and substitute decision makers involved
to effectuate the respondent's decisions with third parties.
(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 incapacitated person.
(2) Designating the place for the incapacitated person to live.
(3) Assuring that the incapacitated person receives such training, education, medical
and psychological services and social and vocational opportunities, as appropriate,
as well as assisting the incapacitated person in the development of maximum self-reliance
and independence.
(4) Providing required consents or approvals on behalf of the incapacitated person.
(c) Plenary guardian of the person.--The court may appoint a plenary guardian of the person only upon a finding that the
person is totally incapacitated and in need of plenary guardianship services.
(d) Limited guardian of the estate.--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 estate
with powers consistent with the court's finding of limitations, which shall specify
the portion of assets or income over which the guardian of the estate is assigned
powers and duties.
(e) Plenary guardian of the estate.--A court may appoint a plenary guardian of the estate only upon a finding that the
person is totally incapacitated and in need of plenary guardianship services.
(f) No presumption.--No presumption of incapacity shall be raised from the alleged incapacitated person's
institutionalization.
(g) Legal rights retained.--Except in those areas designated by court order as areas over which the limited guardian
has power, a partially incapacitated person shall retain all legal rights.
(h) Information as to rights.--At the conclusion of a proceeding in which the person has been adjudicated incapacitated,
the court shall assure that the person is informed of his right to appeal and to petition
to modify or terminate the guardianship.
(Apr. 16, 1992, P.L.108, No.24, eff. 60 days; Dec. 14, 2023, P.L.446, No.61, eff.
180 days)
2023 Amendment. Act 61 amended subsec. (a).
1992 Amendment. Act 24 added section 5512.1. See section 21 of Act 24 in the appendix to this title
for special provisions relating to applicability.
Cross References. Section 5512.1 is referred to in section 5512.2 of this title.
Notes of Decisions
Cited in
36
cases (
15 in the last 5 years), 1999–2026 · leading case:
In Re Peery, 727 A.2d 539 (Pa. 1999).
In Re Peery, 727 A.2d 539 (Pa. 1999).
· cites it 6× “20 Pa.C.S. § 5512.1 states, in pertinent part: (a) Determination of incapacity.”
Hilkmann v. Hilkmann, 858 A.2d 58 (Pa. 2004).
· cites it 2× “2d 283, 285 (1964) (recognizing that failure to observe the required process deprives the court of jurisdiction); 3) the court made no determination of Daniel's capacity or incapacity as required by statute, 20 Pa.C.S. § 5512.1; and 4) the common pleas court appointed Mrs.”
In Re Est. of Vanoni, 798 A.2d 203 (Pa. Super. Ct. 2002).
· cites it 2× “Wood, after a hearing, enters an order which (1) finds, pursuant to 20 Pa.C.S. § 5512.1 (“Determination of incapacity and appointment of guardian”), that decedent’s capacity to make and communicate decisions is impaired due to “senility & dementia, resulting in obvious…”
Church of God Home, Inc. v. Dep't of Pub. Welfare, 977 A.2d 591 (Pa. Commw. Ct. 2009).
“1(a)(3) and 5502 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. §§ 5512.1(a)(3) and 5502, requiring, respectively, a court's finding that guardianship is necessary given the existence of a durable power of attorney and providing that guardianship is appropriate when it…”
In Re: Est. of: Benner, S. (Pa. Super. Ct. 2018).
· cites it 7× “Did the Orphans’ Court err by failing to make specific findings of fact as required by 20 Pa.C.S. § 5512.1(a)? 3. Did the Orphans’ Court err by failing to provide a meaningful hearing on the issue of whether Ms.”
In re Bear, 44 Pa. D. & C.4th 225 (1999).
“See 20 Pa.C.S. §5512.1. They note the same day section 5521(f) was adopted, a provision was also included in the MH/MR Act limiting the power of the *239 guardian to provide substitute consent for placement at state institutions only of their minor-wards.”
In Re: Kline, C., an Incapacitated Person (Pa. Super. Ct. 2016).
· cites it 2× “20 Pa.C.S. § 5512.1(c). A court may appoint a plenary guardian of the estate only upon a finding that the person is totally incapacitated and in need of guardian services.”
In Re: Sabatino, M. (Pa. Super. Ct. 2016).
· cites it 2× “20 Pa.C.S. § 5512.1(a). - 31 - J-A19017-16 I will highlight several of the pertinent findings in that report, which is not to be to the exclusion of others, but I think the ones that matter the most for this analysis are as follows: From page 2: “In addition to autism, Michael…”
Est. of Phillips, R., an Alleged Incapacitated (Pa. Super. Ct. 2018).
· cites it 2× “The statute governing determinations of incapacity is found at 20 Pa.C.S. § 5512.1, and provides in pertinent part: (a) Determination of incapacity – In all cases, the court shall consider and make specific findings of fact concerning: -5- J-A12013-18 (1) The nature of any…”
— 20 Pa. Cons. Stat. § 5512.1(a) — 11 cases
In Re Peery, 727 A.2d 539 (Pa. 1999).
“20 Pa.C.S. § 5512.1 states, in pertinent part: (a) Determination of incapacity.”
In Re: Est. of: Benner, S. (Pa. Super. Ct. 2018).
“Did the Orphans’ Court err by failing to make specific findings of fact as required by 20 Pa.C.S. § 5512.1(a)? 3. Did the Orphans’ Court err by failing to provide a meaningful hearing on the issue of whether Ms.”
In Re: Sabatino, M. (Pa. Super. Ct. 2016).
“20 Pa.C.S. § 5512.1(a). - 31 - J-A19017-16 I will highlight several of the pertinent findings in that report, which is not to be to the exclusion of others, but I think the ones that matter the most for this analysis are as follows: From page 2: “In addition to autism, Michael…”
— 20 Pa. Cons. Stat. § 5512.1(a)(1) — 4 cases
In Re: Est. of: Benner, S. (Pa. Super. Ct. 2018).
“Did the Orphans’ Court err by failing to make specific findings of fact as required by 20 Pa.C.S. § 5512.1(a)? 3. Did the Orphans’ Court err by failing to provide a meaningful hearing on the issue of whether Ms.”
— 20 Pa. Cons. Stat. § 5512.1(a)(3) — 4 cases
Church of God Home, Inc. v. Dep't of Pub. Welfare, 977 A.2d 591 (Pa. Commw. Ct. 2009).
“1(a)(3) and 5502 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. §§ 5512.1(a)(3) and 5502, requiring, respectively, a court's finding that guardianship is necessary given the existence of a durable power of attorney and providing that guardianship is appropriate when it…”
In Re: Est. of: Benner, S. (Pa. Super. Ct. 2018).
“Did the Orphans’ Court err by failing to make specific findings of fact as required by 20 Pa.C.S. § 5512.1(a)? 3. Did the Orphans’ Court err by failing to provide a meaningful hearing on the issue of whether Ms.”
— 20 Pa. Cons. Stat. § 5512.1(a)(5) — 2 cases
— 20 Pa. Cons. Stat. § 5512.1(b) — 5 cases
In Re Peery, 727 A.2d 539 (Pa. 1999).
“20 Pa.C.S. § 5512.1 states, in pertinent part: (a) Determination of incapacity.”
— 20 Pa. Cons. Stat. § 5512.1(c) — 3 cases
In Re Peery, 727 A.2d 539 (Pa. 1999).
“20 Pa.C.S. § 5512.1 states, in pertinent part: (a) Determination of incapacity.”
In Re: Kline, C., an Incapacitated Person (Pa. Super. Ct. 2016).
“20 Pa.C.S. § 5512.1(c). A court may appoint a plenary guardian of the estate only upon a finding that the person is totally incapacitated and in need of guardian services.”
— 20 Pa. Cons. Stat. § 5512.1(e) — 2 cases
In Re: Kline, C., an Incapacitated Person (Pa. Super. Ct. 2016).
“20 Pa.C.S. § 5512.1(c). A court may appoint a plenary guardian of the estate only upon a finding that the person is totally incapacitated and in need of guardian services.”
— 20 Pa. Cons. Stat. § 5512.1(h) — 3 cases
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