A Pennsylvania Guardian of the Estate: Reasonable Expenditures to Preserve It, or Abandon It

Pennsylvania writes no property duty into its subchapter on guardians of incapacitated persons. It writes a list instead. Section 5521(b) of Title 20 names roughly thirty provisions from elsewhere in the title - the law of personal representatives and of guardians of minors' estates - and declares that the powers, duties and liabilities of a guardian of an incapacitated person's estate are the same. The section that decides what happens to the ward's house is on that list, and it is unusually direct.

The Borrowed Section

Section 5141 is headed "Possession of real and personal property" and reads in full: "The guardian of the estate of a minor appointed by the court until it is distributed or sold shall have the right to, and shall take possession of, maintain and administer, each real and personal asset of the minor to which his appointment extends, collect the rents and income from it, and make all reasonable expenditures necessary to preserve it. He shall also have the right to maintain any action with respect to such real or personal property of the minor."

Three things in one sentence. Possession is both a right and an obligation - shall take possession. Maintenance and administration ride with the possession. And the last limb is the one that matters most in practice: "make all reasonable expenditures necessary to preserve it."

Be careful with the second sentence. To "maintain any action" is to bring or continue a lawsuit, not to maintain the building. The property obligation is in the first sentence.

Why It Is Written About a Minor

Because Pennsylvania did not duplicate the drafting. Subchapter E of Chapter 51 governs guardians of minors' estates. Subchapter D of Chapter 55 governs guardians of incapacitated persons, and rather than restate thirty provisions it incorporates them by reference at Section 5521(b). The effect is the same, but anyone reading Section 5141 in isolation would conclude it has nothing to do with an adult ward. It has everything to do with one.

Section 3332, also on the list, preserves what the enumeration does not cover: "nothing in this title shall be construed to limit the inherent powers and duties of a personal representative." Pennsylvania's guardian, unlike Ohio's, is not confined to an enumerated set.

Reasonable Expenditures Necessary to Preserve It

No other state in this series puts the spending authority in the duty itself. Texas imposes a repair duty and leaves funding to the accounting. Oklahoma requires maintenance "out of the income or other property of the estate." Alabama requires prior court approval for repairs to a decedent's estate property. Pennsylvania authorises the guardian, in the same breath as the duty, to spend what preservation reasonably needs.

Two words carry the limit. Reasonable, which is judged after the fact on the annual report; and necessary to preserve, which is not the same as necessary to improve. A roof that is letting water into the structure is preservation. A kitchen is not. The guardian who cannot show which side of that line an expenditure sat on will be arguing it at the audit of the account.

The Abandonment Clause

Section 5143 has no counterpart in the Texas, Louisiana, Alabama, Oklahoma or Ohio provisions covered in this series: "When any property is so burdensome or is so encumbered or is in such condition that it is of no value to the estate, the guardian may abandon it. When such property cannot be abandoned without transfer of title to another or without a formal renunciation, the court may authorize the guardian to transfer or renounce it without consideration if it shall find that this will be for the best interests of the estate."

Three triggers, any one of which is enough: burdensome, encumbered, or in such condition that it is of no value to the estate. The third is a condition test, and establishing it is an evidentiary exercise - what the building is, what it would cost to make it worth something, and what it would be worth then.

The provision cuts both ways for a guardian holding a deteriorating house. It is a route out of a property that is consuming the estate. It is also the reason a guardian who has simply let a property fall apart cannot later describe the outcome as abandonment: Section 5143 contemplates a decision taken on the property's condition, against Section 5141's standing duty to preserve it, not a duty quietly dropped.

Disposition Needs the Court

Section 5155 is the other half of the picture. Whenever the court finds it to be for the best interests of the ward, a guardian may - "for any purpose of administration or distribution, and on the terms, with the security and after the notice directed by the court" - sell at public or private sale, pledge, mortgage, lease or exchange any real or personal property, or grant an option for the sale, lease or exchange.

So the division is clean. Preserving the asset is the guardian's job and needs no order. Converting it, encumbering it or letting it does.

The Inventory and the Annual Report

Section 5142 sets the opening obligation: within three months after real or personal estate of the ward comes into the guardian's possession, verify by oath and file with the clerk an inventory and appraisement of the personal estate, a statement of the real estate, and a statement of any estate expected to be acquired later. The real estate is stated, not appraised, which leaves the condition question to be answered elsewhere.

Section 5521(c)(1)(i) then asks a guardian of the estate for four things annually: the current principal and how it is invested, the current income, the expenditures of principal and income since the last report, and the needs of the incapacitated person the guardian has provided for. Preservation spending appears in the third of those - a line of expenditure, unexplained unless the guardian explains it.

Act 114 of 2018 added the enforcement. Under Section 5521(c)(3) the clerk of the orphans' court must, no less than quarterly, give the court a list of guardians at least 30 days delinquent in filing, and "the court shall take appropriate enforcement action against such guardians." Subsection (c)(4) requires the court to develop a procedure for examining the annual reports to ensure guardians are acting in the best interests of the incapacitated persons. The reports are read.

Not the Same as an Act 135 Conservator

Pennsylvania has two court-appointed roles that end with someone responsible for a building, and they are unrelated. A guardian of the estate is appointed because a person has been adjudicated incapacitated, and the duty runs to that person's assets. A conservator under the Abandoned and Blighted Property Conservatorship Act is appointed because a building is blighted, on a petition by a neighbour or a municipality, and the duty runs to the building. The statutes, the triggers and the funding are different in every respect - see Act 135 conservatorship.

What This Means on a Ward's Vacant House

• Take possession promptly - Section 5141 makes it an obligation, not an option
• File the Section 5142 inventory inside three months of the property coming into possession, verified by oath
• Spend on preservation under the authority already granted; no order is needed for it
• Document each expenditure as preservation rather than improvement, because the annual report shows only a figure
• Record the condition at the outset; nothing requires it, and both the preservation standard and any Section 5143 decision are measured against it
• Treat sale, lease, mortgage or exchange as court business under Section 5155
• If the property has become worthless to the estate, make that case on evidence under Section 5143 rather than letting it happen
• File the annual report on time - the orphans' court clerk reports 30-day delinquencies quarterly

For the neighbouring regimes, see a Texas guardian of the estate, a Louisiana curator and the interdict's property, an Alabama conservator, an Oklahoma guardian of the property and an Ohio guardian of the estate.