Pennsylvania Orphans’ Court Affirms Ruling: Petitioner Failed To Establish Lack Of Capacity

In re D.G., Alleged Incapacitated Person, 7 Fiduc. Rep. 3d 116 (O.C. Div. Berks Cnty. Aug. 9, 2016).

Petitioner appealed the denial of his petition for adjudication of incapacity of his 91 year old mother and the denial of his appointment as the plenary guardian for his mother.  The Orphans’ Court held that there was no error.

On May 6, 2016, the petitioner filed a petition for adjudication of incapacity and appointment of guardian for his mother (herein after referred to as “Mother”).  The Court held a guardianship hearing on June 9, 2016.  Mother did not attend the hearing but sent her daughter-in-law, Beverly, and her sister, Nancy, as her representatives.  Id. at 117During the hearing, the following individuals testified: petitioner; Dr. Gary Champlin; Beverly; and Nancy. 

Petitioner testified that his mother refused assistance from home health aides in her home.  He also testified that Mother’s home was in poor condition, alleging that her basement had cobwebs and mice droppings, but admitted there was nothing “deplorable about the condition of her home.”  Id. at 118.  Further, he testified that he lived less than a mile from his mother’s home, stopped by twice daily, and was his mother’s power of attorney and handled all of her finances.  In general, he was concerned with two health issues regarding his mother:  (1) that she did not brush her teeth, which resulted in discoloration; and (2) that she had cataracts but refused to have surgery.

Dr. Gary Champlin, a licensed geriatric psychologist, testified that he saw Mother on February 9, 2016, for approximately 90 minutes.  Dr. Champlin testified that Mother suffered from a mild neurocognitive disorder, but that her testing results were marginal and he did not find any significant problems.  Instead, Dr. Champlin felt Mother’s problems were emotional, finding she suffered from an anxiety disorder and depression.

Mother’s daughter-in-law, Beverly, also testified.  She was married to Mother’s other son for 46 years until his death on January 24, 2016.  She testified that after her husband’s death, she visited Mother three times per week.  She noted that Dr. Champlin’s evaluation of Mother was 16 days after her son’s death.  She also testified that she believed that Mother was not mentally incapacitated.   In fact, Mother walked around her home with the aid of a walker, prepared her own lunches, and washed her own dirty dishes.  Beverly testified that she frequently made dinner for Mother and the days she did not Mother prepared her own meals.   Beverly also assisted Mother with her weekly shopping and laundry.  Id. at 119.

Finally, Nancy, Mother’s sister, testified that she wants what is best for Mother and she believed her sister was alert, although not always cooperative.

After extensive review of the testimony of the witnesses, the Court’s initial decision was that the petitioner did not meet his burden of proof to have his mother adjudicated incapacitated.  The Court found there was no testimony concerning Mother’s inability to care for herself.  Finally, there was no testimony that she had any ongoing medical conditions that needed frequent monitoring by a physician.  Id. at 119-20.   Finally, the Court noted that petitioner was Mother’s power of attorney, so he controls her finances and, therefore, it was unlikely Mother would become a victim of a designated person.

Petitioner appealed, and the Court affirmed its initial decision.

In upholding its decision, the Court found that pursuant to 20 Pa. C.S.A. § 5511(a) and § 5518, the petitioner must present clear and convincing evidence of incapacity.  The Court found that petitioner failed to meet this burden, in part because pursuant to Section 5511, the alleged incapacitated person shall be present at the hearing unless his or her physical or mental condition would be harmed by his or her presence according to the evidence presented by a physician or psychologist.  Mother did not attend the hearing, and there was no testimony that Mother would have been harmed by attending the hearing.  The statute also provides that the hearing could have been held at Mother’s residence, but petitioner did not request that this occur.

Finally, Section 5511 provides that the petitioner is required to notify the Court at least seven days prior to the hearing if counsel has not been retained by or on behalf of the alleged incapacitated person so that, in appropriate cases, the Court may appoint counsel to represent the alleged incapacitated person.  Petitioner never notified the Court that his mother did not have counsel.  For those reasons, the Court found the petition defective.

The last issue petitioner raised on appeal was that the Court erred in permitting Beverly and Nancy the opportunity to cross-examine his witnesses, because such testimony is subject to cross-examination by only counsel for the alleged incapacitated person.  The Court found this issue to be meritless. Nowhere in Section 5518 does it limit cross-examination to the alleged incapacitated person’s counsel.

Even assuming, for argument’s sake, it was an error to permit any questions by Beverly or Nancy, the Court found it to be a harmless error.  In the initial decision, the Court explicitly stated that it did not consider the evidence presented by Beverly or Nancy in determining that petitioner had not met his burden of proof.  Beverly and Nancy came to the Court as  interested family members, and the Court saw no prejudice to anyone and no delay in the proceedings by extending to each of them the opportunity to ask questions and to testify.  Id. at 124.