Substituted Judgment to Change Incapacitated Person’s Will

The Orphans’ Court had the power to change the will of an incapacitated person and substitute its judgment for that of the incapacitated person even though changes to an incapacitated person’s will are not among the specific powers listed in 20 Pa.C.S. § 5536(b), and the decision of the Orphans’ Court to disinherit stepchildren after their father had disinherited the incapacitated person and her children was supported by a preponderance of the evidence.   In re: Petition of Sandra Navarra by the Limited Guardian of Her Estate, 185 A.3d 342, 2018 PA Super 84 (4/11/2018), aff’ng 7 Fid.Rep.3d 39 (O.C. Lawrence Co. 2016).

The Superior Court also held that the death of one of the stepchildren during the proceeding deprived the Orphans’ Court of jurisdiction over the dispute with that stepchild, and so vacated the judgment of the court as to that stepchild.  See “Death of a Litigant in the Orphans’ Court” for a more detailed analysis of that part of the decision.

Public Access Policy Amendments

The Supreme Court has entered an order with attached amended public access policy (and explanatory report) that amends the public access policy for courts of record.  The main purpose of the amendments is to include magisterial district courts within the public access policy.

There seem to be only a few changes that might affect practitioners in the Orphans’ Court:

  1. The name of the policy has been changed from “Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts” to “Case Records Public Access Policy of the Unified Judicial System of Pennsylvania.”
  2. The official commentaries to sections 7 and 8 have been revised to make it clear that a certification of compliance is required with EVERY document that is filed with a court regardless of whether the document includes confidential information or a confidential document.  (The only filings that do not need a certification of compliance are filings in cases which are entirely exempt from public access.  See commentary to sections 7 and 8.)
  3. The official commentary to the definitions in section 1 specifically states that registers of wills are not “custodians” subject to the public access policy.

The order is effective July 1, 2018.

“In re: Order Amending Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts,” 48 Pa.B. 2113 (4/14/2018), No. 496 Jud. Admin. Doc. (3/28/2018), republished as amended,  48 Pa.B. 2602 (5/5/2018).

[This news post was revised on 3/30/18 to include item #3 on the change in the commentary on the definition of “custodian” and on 5/4/18 to include a citation to the amended version of the order, which apparently did nothing but change “Case Record” to “Case Records” in the title of the policy.]

Drafting Health Care Powers of Attorney

Posted on by March 26, 2018

This article will explain some of the drafting decision reflected in the author’s sample form of combined health care power of attorney and living will (“the form”). Like other articles, the comments below are the opinions of the author, are offered…

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Gifts by Principal to Agent

The power “to make gifts, including gifts to my agent,” that was included in a power of attorney signed in 2006, was unlimited, and not limited to gifts to spouse and issue, when the principal had no spouse or issue and the agent was a cousin.  The agent also presented credible evidence that the disputed gifts were made at the direction of the principal, and so the agent was not exercising the discretionary power to make gifts.  The agent did not breach any fiduciary duty by allowing the principal to make other, larger gifts to the agent and his mother in the absence of evidence of any undue influence or an impaired mental state.  Finally, a single accounting discrepancy in an account covering almost seven years was not substantial evidence warranting a surcharge of the agent.  Tyreman Estate, 8 Fid.Rep.3d 66 (Monroe Co. O.C. )

Adoption Decisions and Materials

Posted on by March 21, 2018

Notice to Subscribers:

When I began adding summaries of court decisions and other materials to this site, I included all cases decided through the Orphans’ Court, including cases on adoptions and parental rights.  I now realize that this does not really serve my intended audience, because there is very little to connect adoptions, which are governed by the Domestic Relations Code (Title 23 Pa.C.S.) and not the Probate, Estates and Fiduciaries Code, with estates and trusts (other than the the jurisdiction of the Orphans’ Court).  In most cases, practitioners who work with estates and trusts will not be representing parties in adoptions.

I will therefore not be adding new decisions of the Orphans’ Court on adoptions or child custody issues, and the coverage of this site will be limited to issues arising under the Probate, Estates and Fiduciaries Code (Title 20 Pa.C.S.) and other issues related to trusts and to the estates of decedents, minors, and incapacitated persons.

DBE

 

Local Public Access Rule for Bedford County

Bedford County has adopted a new local rule to comply with Section 7 of the Public Access Policy of the Unified Judicial System of Pennsylvania, which applies to the Clerks of the Orphans’ Courts.  (See “Public Access Compliance Policy for Orphans’ Court Filings” for additional information.)

“Local Rule of Judicial Administration 510; No. 1 for 2018 Administrative Doc.” (Bedford Co. 2/21/2018), 48 Pa.B. 1497 (3/17/2018).

 

Proposed Amendments to O.C. Rules

Posted on by March 9, 2018

The Orphans’ Court Procedural Rules Committee has proposed three minor amendments to Pa. O.C. Rules:

  • Rule 2.1(b)(4)(iv), on forms of accounts, will be amended by deleting the words “and verification” because the requirement that there be “signature and verification pages” signed by all accountants was inconsistent with the rest of the sentence, which requires verification by only one accountant.
  • Rule 4.6, on notices of adjudications and orders, will be amended by changing “parties” to “interested parties,” so that notice is not required for parties who chose not to participate in the proceeding.
  • Rule 7.1, on discovery practice, will be amended to include “subpoenas to attend and testify” along with other forms of discovery that may be addressed by local or special rule.

Comments on the proposed amendments should be submitted by April 6, 2018.

“Proposed Amendment of Pa. O.C. Rules 2.1, 4.6 and 7.1,” 48 Pa.B. 1271 (O.C. Proc. Rules Com. 3/3/2018).