PA POA Reform legislation on Governor's Desk

On June 18, 2014, the Pennsylvania House of Representatives adopted (193-0) the amended, compromise version of House Bill 1429, in Printer's No. 3708, regarding power of attorney reform.  The adopted legislation was transmitted to the Governor for signing into law on June 24, 2014. [Update: The Governor signed the legislation into law on July 2, 2014, as Act No. 95 of 2014.  See Update below.]

[Corrections on 06/23 & 24/14: Before going to the Governor, the  legislation required signature in the Senate also, as a formality.  That occurred on Monday June 23, 2014.  Thereafter, the legislation was sent to the Governor on June 24th for consideration and, with his agreement, signature into law.]

This is the formal summary of the legislation:

An Act amending Title 20 (Decedents, Estates and Fiduciaries) of the Pennsylvania Consolidated Statutes, in powers of attorney, further providing for general provisions and for special rules for gifts; providing for agent's duties and for principles of law and equity; further providing for form of power of attorney, for implementation of power of attorney and for liability; providing for liability for refusal to accept power of attorney and for activities through employees; and further providing for validity.

For background, see: PA EE&F Law Blog posting, PA Power of Attorney Reform Legislation Moves (06/17/14).

The legislation was debated for more than a year between the Pennsylvania House and Senate, and among various interest groups, including the Pennsylvania Bar Association, the Pennsylvania Banker's Association, and the Pennsylvania Chapter of the National Association of Elder Law Attorneys, upon proposals offered in two study reports issued by the Joint State Government Commission's Advisory Committee on Decedents Estate Laws.

With compromise and agreement attained by the advocacy groups, as evidenced by the mutual legislative adoptions in the past few days, I assume that the legislation will be signed into law by Governor Corbett.  A House sponsor of HB 1429 also seems positive about the legislation becoming law soon.  See: Keller’s Bill to Amend Power of Attorney Act Heads to Governor’s Desk (06/18/14).

Since his days as Pennsylvania' Attorney General, Tom Corbett has supported measures to curb and prosecute financial elder abuse.  This legislation contributes significantly towards that end.  Though not a gambler, I would bet this legislation will be signed by him, soon, to become law.

If so, the effective date for many provisions involving drafting of a document would be January 1, 2015.  

However, other provisions generally regarding effectiveness, presentment, recognition, or enforcement of a power of attorney document would be effective immediately:  "The amendment or addition of 20 Pa.C.S. §§ 5601(f) , 5608, 5608.1, 5608.2, 5611 and 5612 shall take effect immediately."

Those provisions to become effective immediately include:

• § 5601(f)  Definitions. -- The following words and phrases when used in this chapter shall have the meanings given to them in this subsection unless the context clearly indicates otherwise: 

  "Agent." A person designated by a principal in a power of attorney to act on behalf of that principal.

  "Good faith." Honesty in fact.

• § 5608  Acceptance of and reliance upon power of attorney.

• § 5608.1  Liability for refusal to accept power of attorney.

• § 5608.2. Activities through employees.

• § 5611. Validity.

• § 5612. Principles of law and equity.

Update: 07/07/14:

The Legislature's online bill information service posted an update on Monday, July 7, 2014, indicating that Governor Corbett signed the legislation into law, as Act No. 95 of 2014.

PA Power of Attorney Reform Legislation Moves

Legislative changes appear afoot regarding Pennsylvania's Power of Attorney laws.

On Monday, June 16, 2014, the Pennsylvania Senate adopted (50-0), after three required considerations, a revised version of House Bill 1429, into a new Printers No. 3708.  The Senate's version differs from the version that the House had adopted (198-0) nearly a year ago, on June 19, 2013, in the form of HB 1429, PN 2006.

Significant changes were suggested to Powers of Attorney, under Chapter 56, of Title 20, of the PA Probate, Estates & Fiduciaries Code, since at least March, 2010, due to a Report and Recommendations on Powers of Attorney, by the Joint State Government Commission's Advisory Committee on Decedents' Estate Laws.  

That Report was updated in a further June, 2011 Report and Recommendations on Powers of Attorney and Health Care Decision-Making, to address the concerns raised by the decision of the Pennsylvania Supreme Court in Vine v. Commonwealth, 9 A.3d 1150 (Pa. 2010). 

That case involved the statutory immunity afforded to third parties that act in good faith on the instructions of an agent pursuant to a facially valid power of attorney without actual knowledge that the power of attorney is void or voidable, has expired, or that the agent is exceeding the scope of his authority.  See: PA EE&F Law Blog posting, Proposed Amendments of PA POA, Guardianship & Health Care Directive Laws (06/14/11).

On March 12, 2013, the Senate Judiciary Committee reported from committee, its legislation in the form of Senate Bill 620. The Senate passed Senate Bill 620 on March 18, 2013, by a 48-0 vote.  

On June 19, 2013, the House passed its version of reform legislation, House Bill 1429, by a 198-0 vote.

The discussions resulting from that case, those Reports, and those two bills were long and detailed among representatives of the Pennsylvania Bar Association, the Pennsylvania Chapter of the National Association of Elder Law Attorneys, and the Joint State Government Commission staff.

Nearly a year later, on June 10, 2014, upon Senate Judiciary Committee consideration of HB 1429, PN 2006, and a package of amendments proposed to it, that bill's provisions were modified, reported to the Senate, and then adopted quickly by the Senate unanimously.  The Senate's own adopted bill, SB 620, remained pending before the House Judiciary Committee, even as HB 1429, as amended, was adopted by the Senate and returned to the House for concurrence.

Without knowing (but while holding hope), I assume that the recent Senate amendments are a form of compromise offered to achieve some legislation acceptable to both the House and Senate, and thereby end the long delay for reform of Pennsylvania's power of attorney law.

So, what might change?  I refer to an excellent summary of HB 1429, in its prior Printer's No. 2006, by Senate Counsel Gregg Warner, Esq. (a highly competent lawyer and a great guy), in his Memorandum of June 5, 2014, to the Senate Judiciary Committee, chaired by the prime sponsor of SB 620, Senator Stewart J. Greenleaf.

For the Senate's recent amendments, you must review the latest HB 1421, Printers No. 3708, which reveals additions and deletions. [See: Update below, which identifies most changes.]

The concepts discussed below highlight the many important changes proposed to PA's Power of Attorney statute, subject, still, to legislative agreement and to a Governor's concurrence.

Summary of House Bill 1429, 
in prior Printers No. 2006

Execution
 
A power of attorney shall be dated and signed by the principal. For a power of attorney executed on or after the effective date of this legislation, the signature or mark of the principal must be acknowledged before a notary public and witnessed by two individuals.

The notice provision that accompanies a power of attorney is expanded to inform the principal that the agent must act in accordance with the principal’s reasonable expectations to the extent those expectations are actually known by the agent and, otherwise, the agent must act in the principal’s best interest, in good faith and only within the scope of authority granted in the power of attorney.

If the principal grants broad authority to an agent, the notice warns the principal that the broad grant of authority may allow the agent to give away the principal’s property while the principal is alive or substantially change how the principal’s property is distributed at death. The notice advises the principal to seek the advice of an attorney.

The acknowledgement executed by the agent specifies that the agent must act with the principal’s reasonable expectations to the extent that the agent actually knows them and, otherwise, in the principal’s best interest. The agent must act in good faith and only within the scope of authority granted to the agent by the principal in the power of attorney.

The requirements for witnesses, notice and the agent’s acknowledgment do not apply to a power contained in an instrument used in a commercial transaction which authorizes an agency relationship.  The subsection has been restructured.

Also, the requirements of a notary, notice and the agent’s acknowledgment and the provisions relating to an agent’s duties do not apply to a power of attorney which exclusively provides for making health care decisions or mental health care decisions.

Agent’s duties
 
A section is added providing for the agent’s duties. Generally, an agent must act in accordance with the principal’s reasonable expectations to the extent the agent actually knows them and, otherwise, in the principal’s best interest. The agent must act in good faith and only within the scope of authority granted in the power of attorney.

In addition to the general duties, the amendment lists other duties of the agent that come into play unless otherwise provided in the power of attorney. They include acting loyally for the principal’s benefit; keeping the agent’s funds separate from the principal’s funds; acting as so not to create a conflict of interest; acting with care, competence and diligence; keeping records; cooperating with a person who has authority to make health care decisions for the principal; and attempting to preserve the principal’s estate plan.

Nonliability of an agent
 
The bill also lists when an agent is not liable. For example, an agent that acts in good faith shall not be liable to a beneficiary of the principal’s estate plan for failure to preserve the plan. Absence a breach of duty to the principal, an agent shall not be liable if the value of the principal’s property declines.

Disclosure of receipts, disbursements or transactions

Except as otherwise provided in the power of attorney, an agent shall not be required to disclose receipts, disbursements or transactions conducted on behalf of the principal unless ordered by a court or requested by the principal, a guardian, conservator, another fiduciary acting for the principal, governmental agency or, upon the principal’s death, the personal representative of the principal’s estate. The agent has 30 days to comply with the request or to indicate that additional time, up to an additional 30 days, is needed.

Specific and general grant of authority

A section is added limiting what an agent may do with the principal’s property. In these situations the power of attorney must expressly grant the agent the authority and the exercise of the authority may not have been prohibited by another instrument. The situations include powers such as creating, amending, revoking or terminating an inter vivos trust; making a gift; creating or changing rights of survivorship; and creating or changing a beneficiary designation.

Limited gifts
 
Section 5603 is amended to provide for the power to make limited gifts. Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to gifts authorizes the agent to make gifts in limited situations.

Third party liability

Sections 5601(f), 5608, 5608.1, 5608.2 and 5611 all apply to third party liability. A person who in good faith accepts a power of attorney without actual knowledge that it is invalid may, without liability, rely upon the power of attorney as if the power of attorney and agent’s authority were genuine, valid and still in effect and the agent had not exceeded and had properly exercised the authority.

A person who is asked to accept a power of attorney may, without liability, request further information including an agent’s certification, an English translation, or an opinion of counsel relating to whether the agent is acting within the scope of authority granted by the power of attorney.

Section 5608.1 provides for when a person may refuse to accept an acknowledged power of attorney. A person shall either accept a power of attorney or request an affidavit, certification, translation or an opinion of counsel not later than seven business days after presentation of the power of attorney for acceptance.

A power of attorney need not be accepted for certain reasons such as if the person is not otherwise required to engage in a transaction with the principal in the same circumstances; a request for a certification, a translation, an affidavit, or an opinion of counsel is refused; the person in good faith believes that the power of attorney is not valid or the agent does not have the authority to perform the act requested; or the person makes a report or has actual knowledge that another person has made a report under the Older Adults Protective Services Act stating a good faith belief that the principal is being exploited.

A person who refuses, in violation of this section, to accept a power of attorney shall be subject to civil liability for pecuniary harm to the economic interests of the principal proximately caused by the person’s refusal to comply.

Section 5608.2 provides for actions taken by employees. A person who conducts activities through employees shall be considered to be without actual knowledge of a fact relating to a power of attorney, a principal or an agent, if the employee conducting the transaction involving the power of attorney is without knowledge of the fact.

Update:  06/19/14:

The House concurred with the Senate and voted affirmatively on Wednesday, June 18th (193-0) to adopt the amended form of HB 1429, Printers No. 3708, as adopted on Monday, June 16th by the Senate.

The legislation was sent to the Governor for his signature, which I anticipate will be forthcoming, following the compromise attained in the Legislature.  For an update, see: PA EE&F Law Blog posting PA POA Reform legislation on Governor's Desk (06/19/14).

Gregg Warner, Esq., as Senate Judiciary Counsel, also drafted on June 5, 2014, a summary of the amendments (per Amendment No. A07520) considered by the Senate Judiciary Committee that resulted in the most current printers number for HB 1429.  

Following is that summary of the Senate's amendments, which resulted in the most recent version, which was adopted by the Senate on June 16th and returned to the House for concurrence.

Summary of Senate's Amendments
to House Bill 1429, into new Printers No. 3708

• This amendment makes additional revisions in the execution of powers of attorney when the principal is unable to sign but specifically directs another person to sign the power of attorney.  The notary public or other individual authorized by law to take acknowledgments for a power of attorney may not be the agent designated in the power of attorney.  Witnesses must be 18 years of age or older.

• The provision in the bill requiring an agent to keep the agent’s funds separate from the principal’s funds is revised.  There is already an exception if the funds were not kept separate as of the date of the execution of the power of attorney.  The amendment adds an exception in the case of a principal who commingles the funds after the date of the execution of the power of attorney and the agent is the principal’s spouse.

• A principal may specify certain powers by referring to the language in the statute.  A provision is added making clear that the principal may modify the authority of an agent that is incorporated by reference.

• Currently the statute states that an executed copy of the power of attorney may be filed with the clerk of the orphans’ court.  The amendment changes the provision to an originally executed power of attorney and allows a power of attorney executed in electronic form to be recorded.  Except for the purpose of filing or recording with the clerk, a photocopy or electronically transmitted copy of an originally executed power of attorney has the same effect as the original.

• The power to engage in securities transactions is clarified to include consolidations, dissolutions and liquidations.

• A person who is asked to accept a power of attorney may request an English translation of or an opinion of counsel regarding a power of attorney.  Generally the translation or opinion is at the principal’s expense unless the request is made more than seven business days after the power of attorney is presented.  The provision is expanded to include a power of attorney which was previously accepted but is presented to exercise a power not previously exercised by the agent in a transaction with that person.

• The effective date is changed to January 1, 2015.

NPR Broadcasts "Managing Your Elderly Parents' Finances"

On Thursday morning (11:06 AM to Noon), February 27, 2014, The Diane Rehm Show, as broadcast from WAMU through the National Public Radio network, focused on the topic Managing Your Elderly Parents' Finances, with guest host Elise Labott.

The highly-qualified and well-spoken guests were:

Sally Hurme, Project Advisor, Education and Outreach, at AARP

Naomi Karp, Senior Policy Analyst, Office for Older Americans, Consumer Financial Protection Bureau

Elizabeth Loewy, Chief, Elder Abuse Unit, Special Victims/Special Prosecutions Bureau, New York County District Attorney's Office

This is the overview of the program topic:

Millions of elderly Americans suffer from dementia, Alzheimer’s disease and other disabilities that make them unable to make decisions about their finances. 

About a quarter of all people over the age of 65 rely on relatives, often their children, for help managing their money and assets. But the task of caring for elderly parents and managing their bills and property can be overwhelming and time consuming. It can also be filled with ethical and legal pitfalls and a source of family conflict.

Two of these guests were quoted recently in an article by Ann Carrns, in The New York Times published October 30, 2013, entitled New Guidelines Aim to Help Financial Caregivers. So I knew that these guests were experts.

As I listened, I heard accurate information and sound advice, without one error or overstatement. The discussion covered such concerns as:

• Need for reliable and appropriate assistance for elderly relatives by family members who care
• Mental capacity and incapacity 
• Changeability of circumstances faced by elderly relatives
• Nature of services involving banks, businesses, investments, bills, living expenses, and medical costs
• Accountability by, and communications among, persons providing assistance or care
• Fiduciary responsibilities under a power of attorney or trust 
• Conflicts of interest of a family member with an elderly person
• Potentials for personal and financial abuse of a vulnerable adult 
• Roles of family members and assistance by community, government, or church organizations
• Planning processes -- when and how
• Helpful advisors, including attorneys, accountants, bankers, and special service organizations
• Devices for financial management, including direct deposits and payments, online banking, joint bank accounts (including problems with survivorship designations, versus "convenience" accounts), Social Security representative payees, agent appointments under a power of attorney document, voluntary trust arrangements, and court-ordered guardianship
• Scams, such as those involving mortgages, lottery awards, and telemarketing
• Reports of suspected abuse to local law enforcement, abuse hotlines, or special elder abuse investigation units  

During the program, more than twenty comments from listeners accumulated [increased to 37 comments as of March 8, 2014] that shared personal experiences and raised questions.

The program's webpage provided links to accurate, helpful resources:

AARP Guide to Managing Finances

CFPB Guide: Help for Representative Payees and VA Fiduciaries

CFPB Guide: Help for Trustees Under a Revocable Living Trust

CFPB Guide: Help for Agents Under a Power of Attorney

CFPB Guide: Help for Court-Appointed Guardians of Property and Conservators 

Selected broadcasts of The Diane Rehm Show are supplemented with links to a transcript or an audio replay sometime after the broadcast.  If that happens, I will update this posting.

Update:

To read a complete transcript of the broadcast access this link. 

To listen to the recorded broadcast with a multimedia computer, access this link. 

Enact Mandatory Financial Elder Abuse Reporting in PA

On December 11, 2013, Professor Katherine C. Pearson, of Penn State Law (The Dickinson School of Law, Carlisle, PA Campus), posted a four-page article entitled Law Financial Abuse and Exploitation in Pennsylvania: The Importance of Early Response and Clearer Lines for Recovery, available as a PDF download on the Social Science Resource Network.

On January 15, 2014, Professor Gerry Beyer referenced the article on the Wills, Trusts & Estates Prof Blog in a posting entitled Article on Financial Abuse in Pennsylvania.  He included the SSRN abstract of the article:

Protection of older adults from exploitation requires a careful balance. On the one hand is the concern for individual autonomy; on the other hand, there is increasing recognition of the potential for vulnerability to influence, manipulation or outright fraud. 

Pennsylvania is considering amendment of its Older Adult Protective Services Act. Professor Pearson's written testimony for hearings in December 2013 addresses measures to encourage early reporting of suspicions of abuse by banks and other financial institutions. 

Further, to assist in early recovery, Professor Pearson recommends adoption of a private right of action under the Act to provide statutory grounds for recovery of money or other property, or appropriate injunctive relief.

Katherine's suggestions are set forth on page two of her written testimony, which was presented during a hearing held by the Aging and Older Adult Services Committee, of the Pennsylvania House of Representatives, in Harrisburg, PA, on December 11, 2013.

1. That to facilitate early reporting, Pennsylvania take additional measures to create an environment where banks and other financial institutions are more likely to report suspicions of financial abuse, and 
2. That to facilitate early recovery, Pennsylvania create a private right of action under the Older Adult Protective Services Act (OAPSA), permitting the victim of exploitation (or the victim's legal representative) to allege statutory grounds against the perpetrator in order to seek recovery of money or other property, or other appropriate injunctive relief.

Her first recommendation mirrors one that I have advocated since 2007, and again referred last year to the Pennsylvania Bankers Association for consideration.  Seven years ago, California first mandated financial institutions to report suspected financial abuse of an elder or a dependent adult.

James P. Bessolo, a senior attorney with Northern Trust, N.A., summarized and then explained in great detail (with extensive citations) California's then-new law in his article entitled Mandatory Reporting Requirements for Financial Elder Abuse (October, 2007; Vol. 30, No. 7), published in the Los Angeles Lawyer.

In an effort to combat financial abuse, California law requires individuals in certain positions, who are known as mandated reporters, to report incidents that reasonably appear to constitute elder or dependent adult abuse.  The reports are generally made to the local Adult Protective Services (APS) agency or to local law enforcement.

Effective January 1, 2007, officers and employees of financial institutions became mandated reporters of suspected financial abuse of an elder or dependent adult. 

The [California] Elder Abuse and Dependent Adult Civil Protection Act defines "financial abuse" as occurring when a person or entity takes, hides, appropriates, or retains real or personal property of an elder or dependent adult for wrongful use and/or with the intent to defraud, or assists in doing so. * * *

I recall reading articles at that time about the initial opposition to that proposal, and the subsequent concerns during the phase-in period from financial institutions after Governor Arnold Schwarzenegger signed the legislation on August 29, 2005.  

Under that expansion of California's Elder Abuse and Dependent Adult Civil Protection Act, originally enacted in 1982, California banks and other financial institutions would become liable if they would fail to report suspicions of financial elder abuse, beginning January 1, 2007. For example, see: Financial Institutions Need to Know Elderly Customers (January 2006), by Steven Wasserman and Sunny Shapiro.

Since then, the California experience seems to have worked.  Indeed, the mandatory reporting was streamlined in 2011 to enable quicker reporting through the Internet.  See: Regulatory Compliance Bulletin: Elder Abuse Law Extended; Internet Reporting Now Permitted, posted on November 2, 2011, by the California Bankers Association.  It stated, with citations, the modifications to the system established in 2007 affecting banks:

Pursuant to a new California bill SB 718, mandated reporters of elder or dependent adult abuse, including banks, may submit mandatory reports through a confidential Internet reporting tool if the county or long-term care ombudsman implements such a system. * * *

If the initial report is made through this tool to APS or ombudsman, as applicable, rather than by telephone then the reporter is not required to follow up with a written report. This would represent a significant reduction in the reporting burden on all reporters. * * *

Our neighbor state, Maryland, joined the movement by its new mandatory reporting law, which took effect in October, 2012, as reported by Eileen Ambrose in The Baltimore Sun in her article, New Md. law aims to halt financial abuse of the elderly (05/14/12).

Maryland banks and credit unions are likely to be among the first to notice that an elderly customer is being financially exploited by a con artist or an unscrupulous relative.

So it makes sense that these institutions take part in an effort to protect older Marylanders from being ripped off. Thanks to a new state law, they will.

Starting in October, banks and credit unions here will be required to report suspected financial exploitation of Marylanders age 65 and up. They must convey their suspicions within 24 hours by phone to Adult Protective Services — part of the state's Department of Human Resources — or law enforcement and must follow up in writing. Financial institutions that fail to do so will face a penalty of as much as $5,000.

Financial institutions usually aren't keen on more regulation. But many are on board in this case, saying the mandate will raise awareness of a serious problem. * * *

The articles notes:

Many other states already have such a reporting mandate, and it's about time Maryland joined them. * * *

Around 20 states require the reporting of such cases, including California since 2007. By the end of 2010, California banks reported that more than 26,000 cases of potential elder abuse had been turned over to authorities.

The Maryland Legislature adopted the House bill and the companion Senate bill, unanimously.

I support both of Katherine's recommendations.  

However, I believe that the first priority is for Pennsylvania to join the states that have enacted statutes to mandate potential financial elder abuse reporting by financial institutions.  

Such a law in Pennsylvania could be crafted as an amendment to the existing Older Adult Protective Services Act using statutory models from those other states.  The effect, after implementation, would be to uncover much more financial elder abuse, earlier.

Such mandatory reporting by banks and financial institutions is workable, would have a substantial and immediate effect to reduce financial elder abuse, and therefore should be pursued by legislators in Pennsylvania.

Joint State's Amazing Record and Report

On August 1, 2013, the Pennsylvania Joint State Government Commission posted a Report, dated August, 2013 (PDF, 4.7 MB), entitled The Probate, Estates and Fiduciaries Code and Orphans' Court Matters: Legislation Recommended by the Advisory Committee on Decedents' Estates Laws, which encapsulates -- in 291 pages of history, descriptions, summaries, lists, and tables -- the amazing impact of that organization upon probate, estate, fiduciary, and related statutes, and upon Orphans' Court matters generally, since 1945 in this Commonwealth.

The Joint State Government Commission itself was established on July 1, 1937, to serve as "the primary and central non-partisan, bicameral research and policy development agency for the General Assembly of Pennsylvania."  

Its first appointed advisory committee -- the Advisory Committee on Decedents Estates Laws. (ACDEL) -- was established in 1945.  Since then, the "Advisory Committee has generated more than 40 reports that have served as the basis for legislation introduced during numerous legislative sessions of the General Assembly", which have improved Pennsylvania law in Title 20 of the Pennsylvania Consolidated Statutes (the Probate, Estates and Fiduciaries Code -- "PEF Code") and related statutes.  

The Report provides not only a history of ACDEL, but also a compiled reference of its work products, developed by various JSGC ad hoc study groups, legislative resolution task forces, and the standing ACDEL.  Such groups have analyzed, drafted, reviewed, revised, and recommended statutory law in the Commonwealth for the past sixty-eight years.

This report first recounts the purpose of 1945 Senate Resolution No. 46, which authorized the Joint State Government Commission to form a legislative task force and advisory committee to review decedents’ estates laws.

This is the Report's Summary of its contents:

The section titled The Task Force and Advisory Committee on Decedents’ Estates Laws also discusses the membership and leadership of the Task Force and Advisory Committee and outlines the process used to develop statutory recommendations.  Finally, that section summarizes the projects of the Advisory Committee from 1945 to 1972, the codification of the PEF Code (including the original chapter organization of the PEF Code), and proposed legislation since 1972.

The next section, Advisory Committee Reports, lists all 43 published reports of the Advisory Committee since its creation.  Numerous reports published after the 1972 codification contain proposed omnibus amendments to the PEF Code and, in some instances, to other titles of the Pennsylvania Consolidated Statutes.  Other reports focus on one particular topic, such as guardianships, powers of attorney, or trusts.

The list of Advisory Committee reports is followed by Proposed Legislation Organized by Advisory Committee Report.  This section details the contents of each report and provides the specific section and subsection that is the subject of the proposed amendment or repeal or that is newly proposed.  The reports are listed in reverse chronological order.

The next section, Proposed Legislation Organized by Statutory Section, comprehensively lists each specific section and subsection to which the Advisory Committee has made a recommendation.  It then summarizes the nature of the recommendation (proposed amendment, repeal or addition) and the report containing the recommendation.  Of note is that, in a number of instances, the Advisory Committee has revisited the same provision over the years, and several reports capture the multiple or recurring recommendations.

The section that then follows is Proposed Legislation Organized by Legislative Session.  Listed here are each bill introduced that is based on the recommendations of the Advisory Committee, along with the relevant provisions included in the bill and a summary of the disposition of the bill.  If the bill was enacted, the act number and enactment date is provided.  In two instances, a bill containing the Advisory Committee’s recommendations was vetoed by the Governor, despite having passed both chambers of the General Assembly unanimously.

The next section of this report provides a detailed table of contents for the PEF Code, as it was enacted in 1972.

Finally, this report contains a list of the Advisory Committee Chairs and Advisory Committee members, with dates of service and county of practice.

The Report itself is impressive in its sweep and detail.  But the story of passion and perseverance that it implies -- if you can read between the lines (because this is not pulp fiction) -- is even more impressive.

Consider that, since 1945, only 110 volunteer experts spread over 68 years -- many devoted until only death ceased their efforts -- donated their time, expertise, experiences, intellect, skills, and visions to suggest statutory frameworks that still evolve today.  Presently, the ACDEL has 34 members appointed by the Legislature, in roles either as lawyers or judges, serving pro bono.

Their work addressed the most difficult issues in human experience and the most fundamental laws affecting everyone -- disability, incapacity, death, reproductive technology, surrogate health care management, fiduciary administrations, and end-of-life decisions.

The most recent JSGC-ACDEL comprehensive report was issued in October, 2012, regarding reform of Pennsylvania guardianship law, contained in Chapter 55 of the PEF Code. See: Guardianship Law: Proposed Amendments to the Probate, Estates and Fiduciaries Code, which presently is embodied in Senate Bill 117 of the 2012-13 Session, as reviewed in a Legislative Analysis, dated February 12, 2013.

If that is not enough to impress you, check out the companion report also posted on August 1st -- Domestic Relations Law: Legislation Recommended by the Advisory Committee on Domestic Relations Law 1993-2010 (PDF, 218 pages).

The current supervising Legislative members of JSGC are listed.  All volunteer members of the ACDEL since 1945 were named.  The current supporting staff are listed, but past staff are not.  All were devoted to their craft.

JSGC-ACDEL produces studies and makes recommendations that are non-political, independent, expert, comprehensive, and reliable, in a cost-effective process. In this time of reduced funding and personnel, this organization is beyond special -- it is amazing.

The Joint State Government Commission is a one-of-a-kind blessing to this Commonwealth that, hopefully, will continue its work long into the future.

PA Orphans' Court Rules Proposed for Sweeping Changes

On April 3, 2013, the Pennsylvania Unified Judicial System website posted a news article entitled Input Sought on Proposed Rewrite of 40-year-old Orphans' Court Rules, which announced: "A substantial overhaul of the current Orphans’ Court Procedural Rules, which have remained relatively intact for nearly four decades, is being proposed."

The article continued:

The Supreme Court’s Orphans’ Court Procedural Rules Committee is seeking input from attorneys, judges and the public concerning the proposal, including those comments that may address only a specific rule or series of rules.

Interested parties may submit suggestions, comments, and/or objections in writing to the committee no later than June 13, 2013 to Lisa M. Rhode, Counsel, in the following ways:

Email:
orphanscourtproceduralrules@pacourts.us

Fax:
(717) 231-9551

USPS:
Supreme Court of Pennsylvania
Orphans’ Court Procedural Rules Committee
601 Commonwealth Avenue, Suite 6200
Harrisburg, PA 17106-2635

Proposed new Pennsylvania Orphans' Court Rules (PDF, 56 pages; See also: Official forms as published in the Pennsylvania Bulletin on Saturday, April 13, 2013, in Vol. 43, No.15, beginning at Page 654) -- when revised after consideration of comments to be offered (no later than June 13, 2013) by the public, then finalized by the Committee, and thereafter submitted for adoption by the Pennsylvania Supreme Court -- will be more than five years in the making, about forty years after the last comprehensive restatement of such rules.  

Once adopted, the final version of such new rules would take effect some time thereafter to be applicable statewide to all Orphans' Court jurisdiction matters and in all Orphans' Court Division proceedings in the Courts of Common Pleas in this Commonwealth.

The Proposed New Pa.O.C. Rules 1.1 – 11.6 and Publication Notice and Explanatory Notes are posted in PDF forms on the web page devoted to the PA Supreme Court Orphans' Court Procedural Rules Committee.  See also: Official forms as published in the Pennsylvania Bulletin on Saturday, April 13, 2013, in Vol. 43, No.15, beginning at Page 654).

The Publication Notice for the proposed new rules states as follows:

The Orphans' Court Procedural Rules Committee intends to recommend that the Supreme Court of Pennsylvania vacate Orphans’ Court Rules 1.1 through 14.5 and adopt new Orphans’ Court Rules governing the practice and procedures for the areas currently covered by these rules.

The new rules are divided into sections addressing, inter alia, the filing and audit of Accounts, procedures for Orphans’ Court matters raised by citation and petition, pre-hearing and post-hearing dispositions, and rules for practice before the Registers of Wills.

In some cases, the current Orphans’ Court rule has not been modified substantially, but is merely being relocated to a new section based upon the revised structure of the proposed new rules (e.g., Rules governing Specific Types of Petitions are moved from Rule 12 to Chapter IV and Rules governing Guardianships are moved from Rule 14 to Chapter V).

The proposal also contains Explanatory Comments, which accompany certain rules to elucidate upon the addition or modification of certain provisions or to provide additional analysis of the relationship between the particular rule and another Orphans’ Court rule and/or statutory provisions in the Probate, Estates and Fiduciaries Code.

This proposal has not been submitted to the Supreme Court of Pennsylvania for review in advance of this publication. The proposal, though, has been reviewed by an advisory group of Orphans’ Court judges appointed by then-Chief Justice Ralph J. Cappy, and these judges have provided insights, comments, and suggestions incorporated into the proposal that is being published. * * * [Paragraphing added.]

The Explanatory Report notes the objectives of the revision project outlined in October, 2007, and the extent of the revision project since then:

The proposed rule review is intended to:

• Promote standardization of statewide practice and reduce variations caused by reliance on local practice.
• Provide better direction to practitioners and judges throughout the state, especially in counties without dedicated Orphans’ Court divisions.
• Clarify certain procedures involving citation practice and pleadings.
• Harmonize Orphans’ Court proceedings with general civil practice to the extent possible, given the unique subject matter within Orphans’ Court jurisdiction.

This project has continued in earnest for nearly five years. The Committee extends recognition and gratitude to prior Committee Chairs, Judge Calvin S. Drayer and Mary Jane Barrett, Esq., for their leadership and commitment to this project.

The Committee now publishes its proposal and solicits the input, comments and suggestions of practitioners and jurist throughout the Commonwealth, particularly those who practice routinely in the Orphans’ Court divisions of various counties. * * *

The Pennsylvania Supreme Court's Orphans’ Court Procedural Rules Committee reviews current rules governing statewide practice and procedure in the Orphans’ Court and recommends new rules as necessary.

The Committee's current Members are: Margaret Gallagher Thompson, Esq., Chair; Lisa Marie Coyne, Esq.; Eugene H. Gillin, Esq.; Neil E. Hendershot, Esq.; Jeffrey R. Hoffmann, Esq.; Paul Kuntz, ex officio; John F. Meck, Esq.; and Honorable Lawrence J. O'Toole.

The Committee is supported by staff members: Lisa M. Rhode, Esq., as Counsel; James F. Mannion, Esq., as Deputy Counsel; and Elizabeth J. Knott, as Administrative Assistant.

I will make a presentation upon the proposed new Orphans' Court Rules during the 2013 Annual Meeting of the Pennsylvania Bar Association, through its Real Property, Probate & Trust Law Section, on Wednesday, May 8, 2013, from 3:15 - 4:15 p.m., at the Wyndham Grand Pittsburgh Hotel Downtown.

I will speak not as an Orphans' Court Procedural Rules Committee member (for the past six years), but as a PBA-RPPT member during its Annual Retreat.  I will encourage local bar associations and the two statewide PBA sections having an interest -- the Real Property, Probate & Trust Law Section, and the Elder Law Section -- to offer comments in writing before June 13, 2013.

Other community, governmental, business, and service organizations interfacing with Orphans' Court proceedings should also review the proposed new rules and make comments towards improvement or clarification.

New Postings of PA OC & R/W Forms Online

While seeking to access Pennsylvania Orphans' Court forms through this Blog's sidebar links to their source on the Internet, I discovered my links are no longer valid.  What happened?  Something changed.

On January 31, 2013, the website of the Uniform Judicial System of Pennsylvania was completely refreshed and reformatted.  Not only is there a new homepage for the PA UJS, there is also a new "portal" leading into it.

Those Orphans' Court forms were reposted to different Internet references.  Now, these forms are displayed in a more pleasant presentation, along with other content formerly on that website.

On the related new PA UJS Portal, the layout is straightforward and efficient.  The left column offers many direct links to various sections of the new website, much like a book index, thereby avoiding navigation delays.  Such links include:

• UJS Web Portal
• Attorney Registration
• County Court Calendar
• Rules of Court
• Public Calendar Schedule
• Public Web Docket Sheets
• Financial Records

The main PA UJS website is more colorful and animated.  "Welcome to the Pennsylvania Judiciary's New Website" presently is displayed upon opening its home page:

Pennsylvania’s Unified Judicial System was the second state court system—by one week—to launch a website in 1995. With nearly 60 million hits last year, Pennsylvanians have come to depend on pacourts.us for information about the judiciary, court cases and the most recent court news and statistics.

The UJS is dedicated to continuously improving the way we provide information about the courts. Our goal was to develop something that is easy to use, attractive in appearance and capable of serving our vastly diverse audience. We want to keep you up-to-date regarding events in the judiciary and news and issues, and this space will allow us to do that. 

In a Press Release entitled Redesigned courts website helps meet changing user expectations, dated January 31, 2013, the Administrative Office of Pennsylvania Courts announced the redesigned website:

Enhancements to the new website include redesigned page layouts, improved navigation and organization of various court information areas, and highlighted news of interest to the court community and general public. * * *

The changes provide Pennsylvania’s judiciary a unified website while providing each court the opportunity to feature its own news and information on separate web pages. * * *

Among the radical changes to the PA UJS website is a redesigned home page, offering recent news involving Pennsylvania's Court System.  On the right sidebar are links for the Court's welcome message, Opinions, Docket Sheets, Fee or Fine Payments, Public Records, and Forms.

In an expansive area below is a listing, with links, to components of the Court System, by function and organization, like a "mini-portal".  This lower banner appears consistently on every web page, so you can't get lost.

A link to the Orphans' Court and Register of Wills forms is prominently featured as the first category in the full list of all types of court forms provided "For the Public".

The current approved OC/RW forms, which remain unchanged so far in 2013, are then divided into categories:

• Audit and Administration (7 forms)
• Guardianship (6 forms)
• Abortion Control Act (2 forms)
• Register of Wills (10 forms)
• Model Account Forms (4 forms)
• Foreign Adoption Forms (9 forms)

My random sampling of forms indicates that most are in fillable PDF format.  This allows data entry into the form, which could be saved using PDF editing software to retain it for later revision.  PDF reader or viewer software could only print the form with data, but not save it, so that, upon closing it online, such personalized data would be lost. See: Wikipedia's List of PDF Software.

These website revisions mean greater convenience for the public and for practitioners.  

But it creates work for me.  I must go back -- once again -- and reset links in my Blog to those forms' new online references.

“This is a new year. A new beginning.

And things will change.”

― Taylor Swift
(popular singer, born December 13, 1989,
in Wyomissing, Berks County, PA) 

New PA Court System Initiative on Senior Issues

In Issue 2 of 2011 (July) of AOPConnected  the newsletter of the Administrative Office of Pennsylvania Courts, on page 3, I found a column entitled An All Too Common Tale, by Zygmont A.  Pines, Esq., the Court Administrator of Pennsylvania.

He identifies a new "initiative" that I would equate with a "sea change" for the Pennsylvania court system regarding elder abuse issues and controversies.

That initiative "will examine some of the myriad issues, (e.g., technology, information-gathering, fiduciary misconduct, monitoring of guardianships), that have an impact on seniors in our legal system."

He and I have talked in the past about the need for the Pennsylvania court system to respond to the increasing and specific needs of the Commonwealth's aging population.  I anticipate he wants to spread the word about the Pennsylvania Supreme Court's new initiative, so he should not object to this Blog's re-posting and highlighting of his column.

This is it:

Last year, in connection with the Interbranch Commission on Juvenile Justice’s report, this column made reference to the fairy tale of Little Red Riding Hood.

The Grimm brothers described their stories as Children’s and Household Tales.  Now is an apt time for another one.

The Old Grandfather and His Grandson is a tale of a very elderly man who was abused and neglected by his son and his wife.  The old man was physically frail and often spilled his soup at the kitchen table.  When the old man with shaking hands dropped and broke his earthenware soup bowl, he was harshly scolded and given a wooden bowl to eat from.

One day the four-year old grandson was found making something with wood.  When the father asked his son what he was doing, he simply said, “Oh, I’m making a little trough for you and Mother to eat from when I’m big.” The man and woman looked at each other and cried.  Thereafter, they brought the old man to the table and let him eat with them. According to the tale, “And if he spilled a little, they did not say a thing.”

This simple childhood tale came to mind when I read the following article on the web.  The story was from South Carolina.  It was captioned: “Parrot’s Chilling Comments Aid Police in Elder Abuse Case.”

A talking parrot provided what could be taken as chilling evidence in the case of a 60-year old South Carolina woman charged with neglecting her 98-year old mother, who was found on the verge of death suffering from severe bedsores.

The parrot was mimicking,“Help me.  Help me.” Then he would laugh.  “We thought he was mimicking the mother when he said, ‘Help me.  Help me,’ and mimicking the daughter when he laughed,” said Sergeant Bonnette.

Anne Copeland died at a hospital Tuesday after being found by authorities in poor condition at her home Monday…Her daughter, Gloria Park Clark, has been charged with abuse and neglect resulting in the death of a vulnerable (Source: ABA Journal, December 2010, article by Martha Neil)

Truth mirrors fiction and vice versa.  The parrot story about poor Anne Copeland could serve as a simple plot line for a “CSI” or “Law and Order” episode.

As for the grandfather’s tale, it is fiction in form only.

The childhood story was reportedly based on an autobiographical novel that the Grimm brothers had read.
Both reflect the timeless theme of elder abuse.

During the last few decades, courts have done exceptionally good work (particularly in Pennsylvania) addressing the needs of society’s abused and neglected children.  The paramount concern has been on the protection of children who depend on others for their safety and welfare.

More recently, some court systems have been paying closer attention to the other side of life’s spectrum, the so-called twilight years, when infirmities and isolation increase one’s helplessness in dealing with the evils of abuse and neglect.  The Conference of State Court Administrators speaks in terms of “the demographic imperative.” Simply put, it is the other face of dependency.

Pennsylvania ranks third in the nation for the percentage of people 65 and older.  Recognizing the harsh realities behind this statistic, our Supreme Court has endorsed an initiative that will examine some of the myriad issues, (e.g., technology, information-gathering, fiduciary misconduct, monitoring of guardianships), that have an impact on seniors in our legal system.

Chief Justice Castille recently advised us that the Supreme Court has designated Justice Debra Todd to work with the AOPC in forming a small working group.

It is a promising start.

AOPC looks forward to working with Justice Todd and others.  We hope to learn from court systems (both local and nationwide) that have pioneered good practices in the elder field.  It is an example of our justice system once again adapting and changing and helping, despite austere economic times.

For nearly five years on this Blog and elsewhere, I have advocated for such a focus and for changes to the court system that will protect seniors.  I am thrilled with the possibilities that such an initiative can pursue.

PA's New Orphans' Ct Accounting Forms

On March 29, 2007, the Pennsylvania Supreme Court issued an Order approving the final form of new model account forms for use by estates, trusts, & charitable unitrusts, and placing the previously-approved Uniform Fiduciary Accounting Principles as an appendix to an applicable Orphans' Court Rule.

For background about the previously-approved Principles, and the then-proposed model forms of accounting, see: PA EE&F Law Blog posting "PA SC OC Rls Cte Proposes Revised Model Fiduciary Accounts" (November 3, 2006).

The PA Supreme Court acted upon the recommendations of its Orphans' Court Procedural Rules Committee, which had "spent the last 18 months reviewing and developing proposed revisions and forms." On October 31, 2006, that Committee had issued a Publication Notice in the Pennsylvania Bulletin, the Commonwealth's official gazette for information and rulemaking. The Committee requested comments about the proposed model forms from interested persons by December 15, 2006.

The Administrative Office of Pennsylvania Courts (AOPC) issued a Press Release, also dated March 29, 2007, announcing the approved new model accounting forms and providing links for reference:

A more uniform and understandable way for people or institutions appointed by a judge to administer a trust fund, or the dealings of someone who's deceased, was put into effect today by the Supreme Court of Pennsylvania.

The Supreme Court amended Orphans' Court Procedural Rule 6.1, revised several existing forms, and created a new one for use by fiduciaries, or those who are required to regularly provide a history of the transactions of a trust or estate.

Though models of such accountings are an integral part of Orphans' Court proceedings and have long been used as guides, today's Supreme Court order requires statewide use of forms of account that are consistent with the model forms - except upon special order of the court. Standardization assists the Orphans' Court when there is a need to review multiple accounts, and it also enhances a beneficiary's understanding of how a fiduciary is handling the affairs of a trust or estate. * * *

The 2-page Court Order provides, as follows:

(1) Pennsylvania Orphans’ Court Rule 6.1 is amended as follows;

(2) The Model Executor’s Account and Model Trustee’s Account previously attached to the Uniform Fiduciary Accounting Principles, approved pursuant to Rule 6.1(g) and included in an Appendix following Rule 6.1 are rescinded and the revised model accounts (renamed “Model Estate Account” and “Model Trust Account” respectively) are approved and included in the Forms Appendix following the Pennsylvania Orphans’ Court Rules;

(3) A Model Charitable Unitrust Account is approved and is set forth in the Forms Appendix following the Pennsylvania Orphans’ Court Rules;

(4) The Uniform Fiduciary Accounting Principles previously approved pursuant to Rule 6.1(g) and included in an Appendix following Rule 6.1(g) are relocated to the Forms Appendix following the Pennsylvania Orphans’ Court Rules; and

(5) The Index to Appendix is amended as follows.

Paragraph 5. of the Order references the Index to Appendix of the Orphans' Court and Administrative Forms, which is now updated. All forms listed in the Index are available online, in a "fill-in" format, under the heading Orphans' Court Forms. On that webpage, these forms are marked "NEW":

Model Forms of Account

National Fiduciary Accounting Standards Project - 1983 Report of Fiduciary Accounting Standards Committee

Model Estate Account

Model Trust Account

Model Charitable Remainder Unitrust Account

The rulemaking actions are reflected in the mark-up of amended Supreme Court Orphans' Court Rule 6.1, which shows additions & deletions.

The Press Release mentioned the recent activity of the Committee and the Supreme Court's reliance upon its work:

Today's action marks the Supreme Court's third significant Orphans' Court rule improvement within a year.

The Supreme Court adopted new rules last fall to ease the burden of people who adopt children from another country by creating a standardized registration process and making those forms available online.

Another enhancement was the approval of new statewide forms - which also are available for the first time online - that fell into four defined categories: audit and administration; guardianship; abortion control act and register of wills. * * *

[See: PA EE&F Law Blog posting New Uniform Orphans' Court Forms in PA (October 18, 2006).]

According to the Supreme Court's Order, these changes "shall become effective thirty days from the date of entry". This Order is unlike some other orders amending procedural rules that state an effective date.

So, we are left, again, to count the days to an effective date, just as for the effective date of the PA UTA in 2006 and the effective date of Act 169 in 2007.

Dan Evans, Esq., of Philadelphia -- who first drew the attention of the Bar to these published changes last Friday -- calculated the effective date as follows: "These changes are effective in 30 days, which should be April 28th (if my calendar math is correct)."

But, April 28th is a Saturday. (Dan told me, he knew that; and he figured that someone who needed to file an account would too.)

Since Monday, April 30th will be the first business day after the weekend, the changes will certainly be in effect by then. So the changes will be effectively "effective" on & after April 30, 2007.

* * *

Update: 04/03/07:

Vince F. Lackner, Jr., Esq. provided a comparison of the old suggested format (1974), to the new mandatory formats (2007). See: PA EE&F Law Blog, "Comparison of PA's Old & New Accounting Formats" (04/03/07).

Update: 04/06/07:

For my posting of Mr. Gillin's comments, see: PA EE&F Law Blog, "Clarifications on PA's New Accounting Formats" (04/06/07).