781 Proposed adoption of new Pa.O.C. Rule 14.6 and Form G-05

PART II. ORPHANS' COURT RULES

[ 231 PA. CODE PART II ]

Proposed Adoption of New Pa.O.C. Rule 14.6 and Form G-05

[46 Pa.B. 2306]
[Saturday, May 7, 2016]

 The Orphans' Court Procedural Rules Committee is planning to propose to the Supreme Court of Pennsylvania the adoption of new Pa.O.C. Rule 14.6 and Form G-05 governing the use of depositions by written interrogatories in guardianship proceedings, for the reasons set forth in the accompanying explanatory report. Pursuant to Pa.R.J.A. No. 103(a)(1), the proposal is being published in the Pennsylvania Bulletin for comments, suggestions, or objections prior to submission to the Supreme Court.

 The Committee invites all interested persons to submit comments, suggestions, or objections in writing to:

 Lisa M. Rhode, Counsel
Orphans' Court Procedural Rules Committee
Supreme Court of Pennsylvania
Pennsylvania Judicial Center
PO Box 62635
Harrisburg, PA 17106-2635
FAX: [phone]
[e-mail]

 All communications in reference to the proposal should be received by June 20, 2016. E-mail is the preferred method for submitting comments, suggestions, or objections; any e-mailed submission need not be reproduced and resubmitted via mail. The Committee will acknowledge receipt of all submissions.

By the Orphans' Court
Procedural Rules Committee

JOHN F. MECK, Esq., 
Chair

EXPLANATORY REPORT

Proposed Adoption of New Pa.O.C. Rule 14.6 and Form G-05

 In 2014, the Elder Law Task Force delivered a comprehensive 284-page report detailing 130 specific recommendations to help lay the foundation for improvements in tackling elder law issues in the courts and by other government entities. The report contained a number of specific recommendations for amendment of the Orphans' Court Procedural Rules. Those recommendations are currently under consideration by the Committee. The report also suggested modification of current statewide forms for guardianship matters and the addition of several new forms to assist in monitoring guardianships.

 In 2015, the Committee published for comment the proposed rescission and replacement of several guardianship forms, as well as the addition of several new forms. 45 Pa.B. 1070 (March 7, 2015). One of the proposed forms was a ''Deposition of Written Interrogatories of Physician or Licensed Psychologist,'' which was intended to be completed by the evaluator and reflect the evaluator's assessment of the capacity of the alleged incapacitated person. In uncontested matters, this form could be submitted to the court in place of sworn testimony. With this form, it is intended that the evaluator could be relieved of the burden of testifying in person, as well as avoiding unnecessary fees in uncontested cases. Moreover, the need for one less witness to appear would ease scheduling difficulties. This form is not intended to replace the need for live testimony in contested cases.

 Currently, an expert is permitted by statute to submit his or her evaluation by deposition in lieu of live testimony, 20 Pa.C.S. § 5518; however, the form for providing this evaluation by written deposition varies by county. The proposed form would become a mandatory statewide form to be used by each and every evaluator who is providing testimony by deposition regarding the capacity of an alleged incapacitated person where incapacity is uncontested.

 The Committee reviewed the comments received from the prior publication of this form, formed a subcommittee, and invited a physician and practitioners in the field to participate. After much deliberation, the now-titled ''Deposition by Written Interrogatories'' was substantially revised.

 With sincere appreciation for the volunteer efforts of the subcommittee, the Committee has accepted the revised form to be published anew for comment. The Committee also proposes a new Rule 14.6 to implement this form, establish the circumstances in which it may be used, and provide commentary guiding its intended use. The Committee invites the bench, bar, and public to submit their comments, suggestions, or objections to this proposal.

 During the interim, the Committee continues its efforts to develop more comprehensive statewide rules and forms for guardianship proceedings. These rules and forms will be published for comment at a later date.

Annex A

TITLE 231. RULES OF CIVIL PROCEDURE

PART II. ORPHANS' COURT RULES

CHAPTER XIV. GUARDIANSHIPS OF INCAPACITATED PERSONS

 (Editor's Note: See Supreme Court Order No. 682, dated December 1, 2015, effective September 1, 2016, published at 45 Pa.B. 7098 (December 19, 2015) for the text of Rule 14.5 as follows.)

Rule 14.5. Forms.

 The following forms located in the Appendix shall be used exclusively.

 (a) Important Notice—Citation with Notice;

 (b) Annual Report of Guardian of the Estate;

 (c) Annual Report of Guardian of the Person; [and]

 (d) Guardian's Inventory[.]; and

 (e) Deposition by Written Interrogatories.

 Explanatory Comment: In accordance with Rule 1.8, these forms must be used exclusively and cannot be replaced or supplanted by a local form.

 (Editor's Note: The following rule is new and printed in regular type to enhance readability.)

Rule 14.6. Deposition by Written Interrogatories.

 Evidence of incapacity may be admissible through a deposition by written interrogatories using the form provided in the Appendix to these rules under the following circumstances:

 (a) The deponent is qualified by training and experience in evaluating individuals with incapacities for the type alleged in the petition;

 (b) The deponent signs, dates, and verifies the response to the written interrogatories; and

 (c) Incapacity is uncontested.

 Explanatory Comment: This rule and referenced form are intended to permit the admission of expert testimony by written deposition rather than live testimony. See 20 Pa.C.S § 5518. The rule is permissive; whether a deposition is admitted in lieu of testimony is at the discretion of the court. Nothing in this rule is intended to preclude the court from requiring the deponent to appear or requiring supplementation if the court is not satisfied with the response contained within the deposition. With the necessity of cross-examination, when capacity is contested, the use of a deposition by written interrogatories pursuant to this rule is not permitted.

INDEX TO APPENDIX

ORPHANS' COURT AND REGISTER OF WILLS FORMS ADOPTED BY SUPREME COURT PURSUANT TO Pa.O.C. Rule [1.3] 1.8

*  *  *  *  *

 B. Guardianship Forms

 1. Important Notice—Citation with Notice
(Pa.O.C. Rule 14.5)
G-01

 2. Annual Report—Guardian of Estate
G-02

 3. Annual Report—Guardian of Person
G-03

 4. Guardian's Inventory
G-04

 5. Petition for Adjudication—Guardian of
Estate of Incapacitated Person
OC-03*

 6. Petition for Adjudication—Guardian of
Estate of Minor
OC-04**

 7. Deposition by Written Interrogatories
G-05

 * Form OC-3 is not reprinted here and is located under Audit and Administration Forms at No. 3.

*  *  *  *  *

 

 

 

 

 

 

[Pa.B. Doc. No. 16-781. Filed for public inspection May 6, 2016, 9:00 a.m.]