Current through Register Vol. 54, No. 49, December 7, 2024
Section 163.4 - Procedures(a)Procedure to appoint guardian or trustee. The following procedures will apply to the appointment of a guardian or trustee: (1)Prospective guardian will pay cost of petition. If the court is to be petitioned to appoint the guardian, the county office will determine whether the prospective guardian will pay the cost of petitioning for his appointment. If he will, he shall take the necessary action to petition the court. The county office will take no part in the appointment procedure. The county office will take no part in the appointment procedure for a guardian or representative for a person who is a patient in a public nursing home, such as a medical institution operated by a county authority.(2)Prospective guardian may not pay cost of petition. If the prospective guardian is unable or unwilling to pay the cost of petitioning the court for his appointment, the Department will take the necessary action and pay the cost. There may be no costs for a natural guardian or a trustee in being appointed by State Office. The Department will neither take the court action nor pay the cost for appointment of a guardian or representative for an applicant or recipient of public assistance who is a patient in a public nursing home.(3)Request for guardian or trustee. The county office will send its request for a guardian or trustee to State Office Medical Division. Medical and social information will be required on every person for whom a guardian or trustee is requested. The county office will submit the following material in requesting a guardian or trustee:(i) A Form PA 50 (Request for Appointment of Guardian Representative or Trustee) containing the social information. If a court-appointed guardian is requested, both sides of the Form PA 50 will be completed and submitted in triplicate. Otherwise, the "Supplemental Information" section on the reverse side will be left blank, the "Recommendation" section signed, and the form submitted in duplicate.(ii) Any available completed reports of medical findings, such as Form PA 41, Form PA 258-N, and findings from allied fields such as psychological reports, will also be included.(iii) If the material in subparagraph (ii) is not available but the person is under the care of a physician, a letter from the physician, if he is willing to prepare one, will be submitted containing his diagnosis of the mental condition of the client, with supporting objective findings, and his evaluation of the competency of the client to manage his own affairs. Also any additional supporting medical evidence from the case record will be submitted.(iv) The County Assistance Office will review the report of the medical examination, submitted by the physician or clinic, for completeness and conclusiveness and, finding it satisfactory, send the Form PA 48, Form PA 259, and the required Invoice Transmittal, Form PA 259-S, directly to the Bureau of Finance in Harrisburg, having noted on the upper right hand corner of the Form PA 48 "report received." If the medical report is incomplete, inconsistent, or otherwise unsatisfactory, the medical examiner will be expected to amplify or clarify his report of findings before the county office forwards the Form PA 48 and invoice forms for payment. If the medical evidence in subparagraphs (ii) or (iii) is not available, a medical examination will be authorized to get an evaluation of the mental competence of the client. The County Office will send the following directly to the physician or general medical clinic: (A) One Form PA 48 (Authorization for Service and Supplies).(B) Five Form PA 259's (Standard Medical Invoice).(C) One envelope addressed to the County Board of Assistance to be used by the physician or clinic to return the Form PA 48 and the original and three copies of the invoice.(v) If the client is physically unable to communicate and his condition is as described in § 163.3(a)(2) (relating to requirements), a physician's statement that it is not medically possible to evaluate the mental competence of the client will be submitted.(vi) If a guardian and determination of total disability (AD) are to be requested for the same person, the Forms PA 41, 41-S, 62, 62-S, and 50 will be submitted simultaneously. If certification of visual acuity for BP and a guardian or trustee are to be requested for same person, the Form PA 40 and the Form PA 50 will be submitted simultaneously.(vii) If the medical or social information submitted by the county office in requesting a guardian or trustee is adequate, State Office Medical Division will notify the County Office.(4)Request for trustees for MH/MR clients released under community living arrangements, such as group homes, and the like. Requests for trustees for MH/MP clients released under community living arrangements will conform with the following: (i) If the County MH/MR Administrator or his delegate has decided that the client is mentally incapable of carrying out his eligibility responsibilities, he will send a memorandum to the County Assistance Office recommending a qualified person as prescribed in § 163.3(d) to be trustee. The memorandum must contain a statement as to why the County MH/MR Administrator or his delegate believes a trustee is needed. All social information and medical evidence, such as completed reports of medical findings, psychological reports and the like will be submitted with the memorandum.(ii) Upon receipt of the information, the County Assistance Office will prepare a memorandum to the Regional MH/MR Commissioner requesting that the recommended person be appointed as trustee. The social information and medical evidence will be transmitted with the memorandum. Upon review of the material, the Regional MH/MR Commissioner will advise the County Assistance Office by written memorandum that he has approved the recommended person and has appointed him as the trustee. The material will be returned to the County Assistance Office with the memorandum.(5)Court appointment of a guardian. Court appointment of a guardian will conform with the following:(i) If the information which the county office submits to State Office Medical Division substantiates the county office decision and justifies proceeding with the appointment of a guardian, Claim Settlements Division will refer the case to an attorney to petition the local court to appoint the guardian. This attorney will get in touch with the prospective guardian, handle all papers, and arrange with Claim Settlements Division for payment of all costs incidental to the proceedings. At the attorney's request the county office will notify the person for whom assistance is being asked of the date, time and place of the court hearing; and the caseworker will testify at the hearing in support of the request for a guardian.(ii) If the court requires the prospective guardian to file a surety bond, Claim Settlements Division will obtain the original bond. The bond will be automatically renewed, and a copy of the invoice for the renewal sent to the county office. If the person is no longer receiving assistance, the county office will promptly notify Claim Settlements Division of the discontinuance, giving Reason Code Number, so that the bond may be cancelled.(iii) After the guardian is appointed, Claim Settlements Division will send the county office either a copy of the Order of the Court making the appointment, or other verification. If the attorney informs the county office of the appointment before it receives the required verification from Claim Settlements Division, the county office will proceed as if it had received the required verification.(iv) If the client has a court-appointed guardian, the case record must contain either a copy of the Order of the Court appointing the guardian, or the name and address of the guardian and the date of appointment; and sufficient information, such as court term, year and number, to identify the court record of the appointment. The entry will be made on the Form PA 740 in the right half of the space headed "Citizenship..." Caption entry "Court Guardian."(v) If for any reason the court does not appoint the proposed guardian, the county office will be advised of the decision of the court.(vi) If the court finds that the person for whom the guardian is requested is not legally incompetent, the person will be made the payee and continue as payee as long as he is eligible. If the county office still finds that the person is mentally incapable of carrying out eligibility responsibilities, it will request a trustee if this appears to be the best plan for protecting the welfare of the person. If not, other appropriate action will be taken.(vii) If the court finds that the proposed guardian does not qualify for appointment, assistance payments will be continued for not more than two months until another person is found who may qualify and will agree to act as guardian, or the client will be referred to the CID as provided in § 163.3(c).(6)Recognition of natural guardian and appointment of trustee. Recognition of natural guardian and appointment of trustee will conform with the following: (i) If the information which the county office submits substantiates its decision, the State office will recognize the parent as the natural guardian, or appoint the trustee. In either event, a signed copy of the Form PA 50 will be returned to the county office.(ii) If an assistance payment is made to a natural guardian or a trustee, the case record must contain a copy of the Form PA 50 signed by the State Office recognizing the natural guardian or appointing the trustee.(b)Action pending decision on request for guardian or trustee, if no court-appointed guardianship exists. Procedures relating to action pending decision on request for guardian or trustee, if no court-appointed guardianship exists, will be as follows:(1)Request for court-appointed guardian pending. If, pending decision on a county office request for a guardian or trustee, the county office has any new information that might affect the State Office decision, or decides that the client is capable of carrying out his eligibility responsibilities, it will send a memorandum to State Office Medical Division giving the new information. Pending decision on a request for a court-appointed guardian, the county office will take the following action:(i) If the eligibility of the client can be established through another person, and the client is able to sign his name or make his mark, and the client will derive benefit from his assistance grant, he will be made or will continue to be the payee for the type of assistance he is eligible for.(ii) If subparagraph (i) does not apply, and if the client is or may be a member of a grant group as set forth in § 171.21(b) (relating to policy), he will receive assistance as a member of the grant group.(iii) If subparagraphs (i) or (ii) do not apply, assistance will be granted only after a trustee has been appointed temporarily. The county office will grant GA or BP-B if the ward is eligible.(2)Request for trustee or natural guardian pending (no court action on guardian pending). Pending decision on a request for a trustee or natural guardian, paragraph (1)(i) and (ii) will govern the granting of assistance. Otherwise, assistance will not be granted until the trustee has been appointed, or the natural guardian recognized.(c)Termination of guardian or trustee. Whenever a person has a guardian or trustee, the county office will deal directly with the guardian or trustee. Periodically, as necessary, the county office must reassure itself that the guardian or trustee is carrying out his responsibilities as set forth in § 163.3(d) and that the person for whom assistance is being paid continues to need a guardian or trustee. This exploration will include seeing the person for whom assistance is being paid. (1)Guardian or trustee no longer appears to be needed. The following procedures will apply when a guardian or trustee no longer appears to be needed: (i)County office action. If the client has a trustee or guardian but no longer appears to need one, the following procedure will apply, whether the guardian or trustee is living or deceased:(A) The county office will send the earlier Form PA 50 with a memorandum to State Office Medical Division stating why the county office believes the guardian or trustee is no longer needed, and whether he is living or deceased.(B) In the case of a deceased court-appointed guardian, a new Form PA 50 will also be sent proposing a trustee or natural guardian, pending court action. In clause (A), the information given on the earlier PA 50 should not be repeated.(ii)State Office action. If State Office Medical Division finds that the information submitted by the county office substantiates the request as required, State office will comply with the following procedures:(A) In the case of a trustee or natural guardian, the appointment or recognition will be cancelled and the earlier Form PA 50 will be marked "Cancelled." In every case, the earlier Form PA 50 will be returned to the county office.(B) In the case of a court-appointed guardian, action will be taken to have the appointment terminated by the court and the ward restored to full legal capacity. The County Office will also be kept informed.(2)Guardian or trustee still needed, not acting. The following procedures will apply when a guardian or trustee is still needed but is not acting:(i)County office action. If a guardian or trustee is living and not carrying out his responsibilities, or is deceased, and if the ward continues to need a guardian or trustee, the county office will send the earlier Form PA 50, along with a new Form PA 50, to the State Office Medical Division proposing a new guardian or trustee, as appropriate. In item a, how and why the existing guardian or trustee is not carrying out his responsibilities, or that he is deceased, will be stated. If the county office is proposing a new guardian to be appointed by the court, it will request that he, or another person, be appointed trustee pending court action. If an MH/MR appointed trustee as set forth in § 163.3(b)(4) is living and not carrying out his responsibilities, or is deceased, and the client continues to need a trustee, the county office will send a memorandum to the County MH/MR Administrator or his delegate requesting that a new trustee be appointed and state how and why the existing trustee is not carrying out his responsibilities, or that he is deceased.(ii)State Office action. If State Office Medical Division finds that the information submitted by the county office substantiates the request as required, State office will comply with the following procedures:(A) In the case of a trustee or natural guardian, the appointment or recognition will be cancelled and the earlier Form PA 50 will be marked "Cancelled." In every case, the earlier Form PA 50 will be returned to the county office.(B) In the case of a court-appointed guardian, action will be taken to have the appointment terminated by the court and the ward restored to full legal capacity. The county office will also be kept informed.(C) Action will be taken to have the court terminate the existing court-appointed guardianship, and appoint a new guardian, if the county office has so requested. State office will make a trustee appointment until the existing guardian is discharged and a new guardian is appointed. The county office will be kept informed.(3)Payment of cost to terminate court-appointed guardianship. If the guardian is willing to pay the cost of petitioning the court to terminate his appointment, the county office will take no part in the action. Therefore, before requesting the Department to petition the court, the county office will determine if all the conditions set forth in this paragraph have been met. The Department will then petition the court to terminate the guardianship, and pay the costs, only if the following conditions exist:(i) The ward is continuing to receive assistance.(ii) The guardian is unwilling or unable to pay, or is deceased.(iii) The welfare of the ward would be adversely affected if the existing guardianship were to continue.(d)Payment name. The following procedures will apply to payment name designation: (1)If court-appointed guardianship exists. If the guardian is living, assistance may be paid only to him, except that if a trustee has been appointed because the guardian has not been carrying out his responsibilities, assistance will be paid to the trustee until a new guardian is appointed. If the guardian is deceased, assistance may be paid only to a trustee or recognized natural guardian, and only pending court action on the existing guardianship.(2)If trustee appointment or recognition of natural guardian exists. If the court has appointed a guardian, assistance may be paid only to him, even if a trustee or natural guardian exists. Otherwise, pending decision by State office on a county office request to terminate the appointment because the condition of the ward no longer appears to require a trustee or natural guardian, the payment name will be as follows:(i) If the trustee or natural guardian is living and carrying out his responsibilities, assistance may be paid to him only.(ii) If he is living and not carrying out his responsibilities, or if he is deceased, assistance may be paid under subsection (b)(1). This section cited in 55 Pa. Code § 163.3 (relating to requirements).