(a) A petitioner
may seek to offer into evidence an expert report for the determination of
incapacity in lieu of testimony, in-person or by deposition, of an expert using
the form provided in the Appendix to these rules. In an emergency guardianship
proceeding, an expert report may be offered into evidence if specifically
authorized by the court.
(b)
Notice.
(1) If a petitioner
seeks to offer an expert report permitted under subdivision (a), the petitioner
shall serve a copy of the completed report upon the alleged incapacitated
person's counsel and all other counsel of record pursuant to Pa.R.O.C.P. 4.3 no
later than ten days prior to the hearing on the petition.
(2) If a petitioner seeks to offer an expert
report, as permitted under subdivision (a), the petitioner shall serve pursuant
to Pa.R.O.C.P. 4.3 a notice of that fact upon those entitled to notice of the
petition and hearing no later than ten days prior to the hearing on the
petition.
(3) The petitioner shall
file a certificate of service with the court as to subdivisions (b)(1) and
(b)(2).
(c)
Demand.
(1) Within five days
of service of the completed report provided in subdivision (b)(1), the alleged
incapacitated person's counsel may file with the court and serve upon the
petitioner pursuant to Pa.R.O.C.P. 4.3 a demand for the testimony of the
expert.
(2) If a demand for
testimony is filed and served as provided herein, then the expert report may
not be admitted and an expert must provide testimony at the hearing, whether
in-person or by deposition.
(d) Unless otherwise demanded pursuant to
subdivision (c)(2), in the sole discretion of the court, incapacity may be
established through the admission of an expert report prepared in compliance
with the form provided in the Appendix to these rules. The expert must be
qualified by training and experience in evaluating individuals with
incapacities of the type alleged in the petition. The expert must sign, date,
and verify the completed expert report.
(e) In the interest of justice, the court may
excuse the notice and demand requirements set forth in subdivisions (b) and
(c).
Comment:
This rule is intended to permit the alleged incapacitated
person to exercise the right to cross-examine testimony as to the capacity of
the alleged incapacitated person. See
20 Pa.C.S. §
5518.1.
Permitting the use of an expert report in compliance with this rule replaces
the requirement of testimony, in-person or by deposition, of an expert.
See
20 Pa.C.S. §
5518.
"Deposition," as used in this rule, is intended to be a deposition conducted in
accordance with the Pennsylvania Rules of Civil Procedure. The rule is
permissive; whether an expert report is admitted in lieu of testimony is in the
sole discretion of the court. Nothing in this rule is intended to preclude the
court from requiring testimony from the expert or otherwise requiring
supplementation.
Notes
The provisions
of this Rule 14.3 adopted June 1, 2018, effective 6/1/2019, 48 Pa.B. 3524.
Amended by
Pennsylvania
Bulletin, Vol 55, No. 01. January 4, 2025, effective
1/4/2025
