§ 5536. Distributions of income and principal during incapacity.
(a) In general.--All income received by a guardian of the estate of an incapacitated person, including
(subject to the requirements of Federal law relating thereto) all funds received from
the Veterans' Administration, Social Security Administration and other periodic retirement
or disability payments under private or governmental plans, in the exercise of a reasonable
discretion, may be expended in the care and maintenance of the incapacitated person,
without the necessity of court approval. The court, for cause shown and with only
such notice as it considers appropriate in the circumstances, may authorize or direct
the payment or application of any or all of the income or principal of the estate
of an incapacitated person for the care, maintenance or education of the incapacitated
person, his spouse, children or those for whom he was making such provision before
his incapacity, or for the reasonable funeral expenses of the incapacitated person's
spouse, child or indigent parent. In proper cases, the court may order payment of
amounts directly to the incapacitated person for his maintenance or for incidental
expenses and may ratify payments made for these purposes. For purposes of this subsection,
the term "income" means income as determined in accordance with the rules set forth
in Chapter 81 (relating to principal and income), other than the power to adjust and
the power to convert to a unitrust.
(b) Estate plan.--The court, upon petition and with notice to all parties in interest and for good cause
shown, shall have the power to substitute its judgment for that of the incapacitated
person with respect to the estate and affairs of the incapacitated person for the
benefit of the incapacitated person, his family, members of his household, his friends
and charities in which he was interested. This power shall include, but is not limited
to, the power to:
(1) Make gifts, outright or in trust.
(2) Convey, release or disclaim his contingent and expectant interests in property, including
marital property rights and any right of survivorship incident to joint tenancy or
tenancy by the entirety.
(3) Release or disclaim his powers as trustee, personal representative, custodian for
minors, or guardian.
(4) Exercise, release or disclaim his powers as donee of a power of appointment.
(5) Enter into contracts.
(6) Create for the benefit of the incapacitated person or others, revocable or irrevocable
trusts of his property which may extend beyond his disability or life.
(7) Exercise options of the incapacitated person to purchase or exchange securities or
other property.
(8) Exercise all rights and privileges under life insurance policies, annuity contracts
or other plans or contractual arrangements providing for payments to the incapacitated
person or to others after his death.
(9) Exercise his right to claim or disclaim an elective share in the estate of his deceased
spouse and renounce any interest by testate or intestate succession or by inter vivos
transfer.
(10) Change the incapacitated person's residence or domicile.
(11) Modify by means of codicil or trust amendment, as the case may be, the terms of the
incapacitated person's will or of any revocable trust created by the incapacitated
person, as the court may deem advisable in light of changes in applicable tax laws.
In the exercise of its judgment for that of the incapacitated person, the court, first
being satisfied that assets exist which are not required for the maintenance, support
and well-being of the incapacitated person, may adopt a plan of gifts which results
in minimizing current or prospective taxes, or which carries out a lifetime giving
pattern. The court in exercising its judgment shall consider the testamentary and
inter vivos intentions of the incapacitated person insofar as they can be ascertained.
(July 9, 1976, P.L.836, No.144, eff. imd.; Feb. 18, 1982, P.L.45, No.26, eff. imd.;
Apr. 16, 1992, P.L.108, No.24, eff. 60 days; Dec. 16, 1992, P.L.1163, No.152, eff.
imd.; May 16, 2002, P.L.330, No.50, eff. 60 days)
2002 Amendment. Act 50 amended subsec. (a). See section 14(a) of Act 50 in the appendix to this title
for special provisions relating to applicability.
1992 Amendments. Act 24 amended the entire section and Act 152 amended subsec. (b).
Notes of Decisions
In Re:Petition of Navarra, S. Appeal of:Navarra,C, 185 A.3d 342 (Pa. Super. Ct. 2018).
· cites it 2× “The issue of whether the orphans' court has the authority to substitute its judgment for that of that of Wife in order to disinherit Husband's legatees is governed by 20 Pa.C.S. § 5536(b). Although the statute has some broad language, the only section concerning the modification…”
In re Est. of Schram, 696 A.2d 1206 (Pa. Commw. Ct. 1997).
· cites it 2× “The department contends that the trial court erred in confirming the accounts as GSAC’s own witness testified that the principal of the wards’ estates was invaded for their maintenance without prior court approval, in violation of the foregoing provisions.”
Pomroy v. Dep't of Pub. Welfare, 750 A.2d 395 (Pa. Commw. Ct. 2000).
· cites it 2× “The order further directed that the guardians of petitioner’s estate could not expend the principal of her estate without permission of the court in accordance with 20 Pa.C.S. § 5536. 3 A hearing followed petitioner’s appeal from the CAO’s denial notice.”
Snizaski v. Pub. Sch. Employees' Ret. Bd., 69 A.3d 170 (Pa. 2013).
“The administrative proceedings were stayed pending resolution of the matter in the common pleas court, which ultimately agreed with Appellant that Spivak lacked authority to change beneficiaries under Section 5536(b) of the Probate, Estates, and Fiduciaries Code, 20 Pa.C.S. §…”
Allstate Life Ins. Co. v. Mckean (W.D. Pa. 2023).
· cites it 4× “On December 29, 2020, Allstate preliminarily denied the termination/surrender request and stated that it could not complete said request unless Kirke McKean provided a court order, pursuant to 20 Pa.C.S. § 5536(b)(8). Id. at ¶ 8. On December 30, 2020, Allstate also advised that…”
Griffith v. Commonwealth, 399 A.2d 1191 (Pa. Commw. Ct. 1979).
“Bonaccorso seems not to have made any application for the use of principal of her mother’s estate for the maintenance of her and her husband, as is required by Section 5536 of the Probate, Estates and Fiduciaries Code, 20 Pa. C.S. §5536. Nor is there anything in the record…”
In re Est. of Collins, 3 Pa. D. & C.5th 34 (2008).
· cites it 4× “1997) (citing section 20 Pa.C.S. §5536). In this case, we have insisted on this limitation by requiring that a budget be submitted to this court for approval before the guardian spends the principal of Mrs.”
In Re: Kline, C., an Incapacitated Person (Pa. Super. Ct. 2016).
· cites it 2× “20 Pa.C.S. § 5536(a). ____________________________________________ 9 The following checks payable to Biros were identified at the hearing as being written after September 27, 2013: Check #25[sic] — $1,000.”
Est. & Trust of Edward E. Clawson (Pa. Super. Ct. 2020).
· cites it 2× “The guardian petitioned the orphans’ court to substitute its judgment for the wife’s, who suffered from dementia, pursuant to 20 Pa.C.S. § 5536(b),9 and disinherit the husband’s children.”
In Re:Petition of Navarra, S. Appeal of:Navarra,C (Pa. Super. Ct. 2018).
“The issue of whether the orphans’ court has the authority to substitute its judgment for that of that of Wife in order to disinherit Husband’s legatees is governed by 20 Pa.C.S. § 5536(b). Although the statute has some broad language, the only section concerning the modification…”
In Re: A.S.M., Incapacitated Person (Pa. Super. Ct. 2019).
“We take the following pertinent facts and procedural background from our independent review of the certified record and the December 31, 2018 1 Section 5536 (b) of the PEF Code, 20 Pa.C.S. § 5536 (b), provides, in relevant part, that "[t]he court, upon petition and with notice…”
Marks Est., 4 Pa. D. & C.4th 597 (1989).
· cites it 2× “Thereafter, the co-guardians filed a petition asking the court to “substitute its judgment” for that of *598 the incompetent, as provided in section 5536(b) of the Probate, Estates, and Fiduciary Code (PEF), 20 Pa.C.S. § 5536(b), and to direct that David’s estate be conveyed to…”
— 20 Pa. Cons. Stat. § 5536(a) — 4 cases
In re Est. of Schram, 696 A.2d 1206 (Pa. Commw. Ct. 1997).
“The department contends that the trial court erred in confirming the accounts as GSAC’s own witness testified that the principal of the wards’ estates was invaded for their maintenance without prior court approval, in violation of the foregoing provisions.”
Pomroy v. Dep't of Pub. Welfare, 750 A.2d 395 (Pa. Commw. Ct. 2000).
“The order further directed that the guardians of petitioner’s estate could not expend the principal of her estate without permission of the court in accordance with 20 Pa.C.S. § 5536. 3 A hearing followed petitioner’s appeal from the CAO’s denial notice.”
In re Est. of Collins, 3 Pa. D. & C.5th 34 (2008).
“1997) (citing section 20 Pa.C.S. §5536). In this case, we have insisted on this limitation by requiring that a budget be submitted to this court for approval before the guardian spends the principal of Mrs.”
In Re: Kline, C., an Incapacitated Person (Pa. Super. Ct. 2016).
“20 Pa.C.S. § 5536(a). ____________________________________________ 9 The following checks payable to Biros were identified at the hearing as being written after September 27, 2013: Check #25[sic] — $1,000.”
— 20 Pa. Cons. Stat. § 5536(b) — 6 cases
In Re:Petition of Navarra, S. Appeal of:Navarra,C, 185 A.3d 342 (Pa. Super. Ct. 2018).
“The issue of whether the orphans' court has the authority to substitute its judgment for that of that of Wife in order to disinherit Husband's legatees is governed by 20 Pa.C.S. § 5536(b). Although the statute has some broad language, the only section concerning the modification…”
Snizaski v. Pub. Sch. Employees' Ret. Bd., 69 A.3d 170 (Pa. 2013).
“The administrative proceedings were stayed pending resolution of the matter in the common pleas court, which ultimately agreed with Appellant that Spivak lacked authority to change beneficiaries under Section 5536(b) of the Probate, Estates, and Fiduciaries Code, 20 Pa.C.S. §…”
Est. & Trust of Edward E. Clawson (Pa. Super. Ct. 2020).
“The guardian petitioned the orphans’ court to substitute its judgment for the wife’s, who suffered from dementia, pursuant to 20 Pa.C.S. § 5536(b),9 and disinherit the husband’s children.”
In Re: Kline, C., an Incapacitated Person (Pa. Super. Ct. 2016).
“20 Pa.C.S. § 5536(a). ____________________________________________ 9 The following checks payable to Biros were identified at the hearing as being written after September 27, 2013: Check #25[sic] — $1,000.”
In Re:Petition of Navarra, S. Appeal of:Navarra,C (Pa. Super. Ct. 2018).
“The issue of whether the orphans’ court has the authority to substitute its judgment for that of that of Wife in order to disinherit Husband’s legatees is governed by 20 Pa.C.S. § 5536(b). Although the statute has some broad language, the only section concerning the modification…”
— 20 Pa. Cons. Stat. § 5536(b)(11) — 1 case
In Re:Petition of Navarra, S. Appeal of:Navarra,C, 185 A.3d 342 (Pa. Super. Ct. 2018).
“The issue of whether the orphans' court has the authority to substitute its judgment for that of that of Wife in order to disinherit Husband's legatees is governed by 20 Pa.C.S. § 5536(b). Although the statute has some broad language, the only section concerning the modification…”
— 20 Pa. Cons. Stat. § 5536(b)(8) — 1 case
Allstate Life Ins. Co. v. Mckean (W.D. Pa. 2023).
“On December 29, 2020, Allstate preliminarily denied the termination/surrender request and stated that it could not complete said request unless Kirke McKean provided a court order, pursuant to 20 Pa.C.S. § 5536(b)(8). Id. at ¶ 8. On December 30, 2020, Allstate also advised that…”
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