HomeMy WebLinkAbout04-30-07
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P.65.37
IN RE: DAVID F. HECKENDORN, AN
ALLEGED INCAPACITATED PERSON
IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: DAVID F. HECKENDORN
No. 757 MDA 2006
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Appeal from the Order entered April 20, 2006, in the
Court of Common Pleas of Cumberland County,
Orphans' Court, at No. 21-06-0155.
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BEFORE: HUDOCK, BOWES and TAMILIA, JJ.
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MEMORANDUM:
FILED: March 20, 2007
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This is an appeal from an order adjudicating David F. Heckendorn
(Heckendorn) a totally incapacitated person and appointing his mother as
plenary guardian over his person and estate.! We affirm.
The certified record discloses that, at the time of the proceedings
underlying this appeal, Heckendorn was thirty-five years of age. For more
than twelve years, he was employed in a supervisory capacity as a network
administrator in the information technology division of the Pennsylvania
Department of Health. In October of 2001, he began to suffer from serious
mental health conditions including paranoid delusions. In addition to his
mental health problems, he also has been diagnosed with other serious
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conditions including ulcerative colitis and primary sclerosing cholangitis
1 This is a companion case to the appeal filed at No. 1089 MDA 2006. The
Honorable M. L. Ebert, Jr., presided over the proceedings underlying both
appeals.
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(P5C). Ulcerative colitis impairs the digestive system and P5C negatively
affects liver functions. Because of Heckendorn's P5C, he will require a liver
transplant at some point, likely within the next five years. Without the liver
transplant, he will die. However, Heckendorn will not be eligible to receive a
transplant unless his mental health problems are under control for a
significant period of time prior to his placement on the transplant list.
Heckendorn's mental instability created difficulties on the job, which
led to the loss of his supervisory authority and lowered results on his
employee evaluations. Although previously he had received very high
evaluations, in 2004 he was presented with an "average" evaluation.
Heckendorn refused to sign the evaluation form, but eventually drew a stick
figure with XiS over the eyes and a knife in the head. Heckendorn was
notified on December 14, 2004, that his employment was being terminated.
His actual separation date for payroll purposes was January 19, 2005.
After the onset of his illness in 2001, Heckendorn sometimes lived on
his own and sometimes resided with his parents. In July of 2005, he moved
into his parents' boathouse, but took his meals in the main house with his
parents. After his termination from state employment, Heckendorn did not
work but depleted his deferred compensation account to pay his bills. In
mid-August of 2005, he became violent. He broke dishes and destroyed
other property, threatened both of his parents with physical harm, and
actually beat his father. N.T., 4/20/06, at 29. Mental health treatment had
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been a condition of continued employment but Heckendorn stopped all such
treatment after his termination. The trial court found that Heckendorn
stopped taking the medications prescribed by the mental health care
provider approximately two and a half years prior to August of 2005. Trial
Court Opinion, 6/9/06, at 3.
Heckendorn's condition deteriorated over the next several months. On
December 15, 2005, he again became violent, and his parents served him
with an eviction letter as a result. He was arrested the next day on a charge
of criminal trespass for refusing to leave. On January 24, 2006, he was
again arrested for criminal trespass at a hotel in which he was staying.
Heckendorn would not leave his room or permit the cleaning staff to enter it
because he believed they were spying on him. He was incarcerated in the
Cumberland County Prison (CCP) after this incident. Because of incidents
that occurred subsequent to his arrest, a Cumberland County mental health
caseworker filed a petition for involuntary treatment pursuant to the
provisions of the Mental Health Procedures Act (MHPA).2 A hearing on the
petition was conducted on February 7, 2006. The hearing officer
recommended that Heckendorn be committed for a period of up to ninety
days for involuntary treatment. An order was so issued, and Heckendorn
2 50 P.S. ~~ 7101-7503.
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was involuntarily committed to Mayview State Hospital on March 2, 2006,
pursuant to section 7102 of the MHPA.
The trial court has explained the serious difficulties created by
Heckendorn's condition in the following apt manner:
Heckendorn has little money in his savings and after
depleting his deferred compensation account his parents
have been paying many of his bills. Meanwhile his serious
medical cond~tion is proving expensive-one required
medication for his liver condition costs between $50.00 to
$150.00 per week. Instead of requesting the benefits that
are available to him through his former state employment
which would cover his many medical needs, Heckendorn
filed for Regular Retirement from the Commonwealth of
Pennsylvania. This retirement option would provide him
little more than $300 a month and no medical benefits. He
refuses to apply for the disability benefits for which he is
eligible because of his adamant belief that he is in fine
mental health. Given his length of state employment, the
vested disability retirement for which he is eligible would
provide full medical benefits. . . and $1,486.65 per month
in disability payments for the rest of his life. Heckendorn
admits this option is available to him, but refuses to apply
for it because of his continued insistence that he is not
mentally ill, even though this conclusion endangers his life.
Trial Court Opinion, 6/9/06, at 4 (footnotes omitted).
The certified record amply supports the trial court's factual findings in
this regard. In particular, we note that the regular retirement income that
Heckendorn would receive would be only $315.81 per month whereas his
disability retirement income would be $1,486.65 per month. N.T., 4/20/06,
at 8-9, 12-13. The cost of the health insurance he would receive as a
permanent benefit pursuant to disability retirement was $768.12 per month
at the time the hearing was conducted on April 20, 2006. Id. at 8-9. Thus,
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the cost value of the health insurance alone is more than twice the monthly
income Heckendorn would receive under the regular retirement option.
Heckendorn testified that he has no psychiatric problems. Id. at 63. He
also testified that he realized he could not pay for health insurance with his
own income if he took regular retirement rather than disability retirement.
Id. at 63-64. He indicated that he had asked his mother to pay for his
health insurance. Id. at 64. Heckendorn also admitted that he had not had
health insurance since the fall of 2005. Id. at 67.3
In February of 2006, Heckendorn's mother filed an emergency petition
for appointment of a guardian of his person and estate and requested that a
permanent guardianship be established. Pursuant to this petition, the trial
court found Heckendorn to be incapacitated and appointed his mother as
temporary guardian. The trial court then appointed counsel to represent
Heckendorn and ordered an independent psychiatric evaluation to be
performed. The trial court directed Heckendorn's counsel to recommend the
name of a "reputable licensed mental health professional" to conduct the
evaluation. Counsel did so, and the trial court appointed John Hume, M.D.,
a board certified psychiatrist as well as a medical doctor. Heckendorn
refused to meet with Dr. Hume because he distrusts medical doctors.
3 The record is silent on the question of whether Heckendorn can, in fact,
obtain private health insurance following this lapse in coverage and in light
of his serious pre-existing medical conditions.
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Based on an examination of Heckendorn's health records,
Dr. Hume stated that the mental illness from which
Heckendorn appeared to suffer since 2001 was correctly
diagnosed as Bipolar Affective Disorder I with psychosis.
This illness is characterized by periods of normalcy-
perhaps months or years-interspersed with episodes of
bizarre or psychotic behavior. Heckendorn "feels like he's
okay, and for brief periods of time between episodes, he is
okay," which contributes to his problems with taking
medication. His refusal to take medication to treat this
illness has serious consequences on his mental state. With
each new psychotic episode, it becomes more difficult to
get the illness under control, making ongoing medication
the treatment of choice. Heckendorn's eligibility for the
liver transplant that will soon be necessary to prolong his
life rests on receiving ongoing treatment of his mental
illness with medication. Dr. Hume also reviewed
Heckendorn's laboratory studies of his liver function, and
stated that although they have remained fairly stable,
Heckendorn has shown a tendency to fail to keep up with
necessary testing in a timely fashion.
Trial Court Opinion, 6/9/06, at 5 (footnotes and citations omitted). Dr.
Hume stated that, within a reasonable degree of medical certainty,
Heckendorn's mental illness impairs his ability to make and communicate
decisions and renders him incapable of handling his financial affairs or to
make decisions concerning his own medical care. Id.
The trial court determined that the record presented in this case
provided clear and convincing evidence that Heckendorn's ability to receive
and evaluate information effectively and to communicate decisions was
significantly impaired. As a result of this impairment, the trial court found
that Heckendorn was unable to manage his financial resources or to meet
the essential requirement for his own physical health and safety.
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Accordingly, on April 20, 2006, the trial court granted plenary guardianship
of Heckendorn's person and estate to his mother, Mary Anne Heckendorn. A
timely notice of appeal was filed on May 1, 2006. The trial court ordered
Heckendorn to file a Rule 1925(b) statement, and he complied. The trial
court wrote a full opinion addressing the claims raised therein. On appeal,
Heckendorn raises one issue: whether the trial court erred in determining
that he is in need of a guardian. Heckendorn's Brief at 5. The thrust of this
claim is that the trial court purportedly lacked sufficient current information
to sustain the appointment of a guardian.
When reviewing an order appointing a guardian, or declining to do so,
we are bound by the trial court's findings of fact unless those findings are
not based on competent evidence. In re Peery, 727 A.2d 539, 540 (pa.
1999). The trial court's factual findings in a guardianship case must receive
the same deference that would be accorded to the factual findings of a jury.
In re Estate of Rosengarten, 871 A.2d 1249, 1253 (Pa. Super. 2005).
However, this Court must ensure that the decision of the trial court is free
from legal error. Id.
The question of whether a person should be adjudicated in need of a
guardian is governed by the Probate Estates and Fiduciaries Code (the PEF
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Code).4 Chapter 55 of the PEF Code, which relates to incapacitated persons,
20 Pa.C.5.A. sections 5501-5555, sets forth the following stated purpose:
Recognizing that every individual has unique needs and
differing abilities, it is the purpose of this chapter to
promote the general welfare of all citizens by establishing
a system which permits incapacitated persons to
participate as fully as possible in all decisions which affect
them, which assists these persons in meeting the essential
requirements for their physical health and safety,
protecting their rights, managing their financial resources
and developing or regaining their abilities to the maximum
extent possible and which accomplishes these objectives
through the use of the least restrictive alternative; and
recognizing further that when guardianship services are
necessary, it is important to facilitate the finding of
suitable individuals or entities willing to serve as
guardians.
20 Pa.C.5.A. 9 5502. The term "incapacitated person" means "an adult
whose ability to receive and evaluate information effectively and
communicate decisions in any way is impaired to such a significant extent
that he is partially or totally unable to manage his financial resources or to
meet essential requirements for his physical health and safety." ld. 9 5501.
The determination that a person is incapacitated must be made
pursuant to section 5512.1 of the PEF Code, which states:
(a) Determination of incapacity.-In all cases, the
court shall consider and make specific findings of fact
concerning:
4 20 Pa.C.5.A. 99 101-8814.1. In 1974, the heading of Title 20 was changed
from "Probate, Estates and Fiduciaries" to "Decedents, Estates and
Fiduciaries." However, the short title was not altered and remains the
"Probate, Estates and Fiduciaries Code." 20 Pa.C.5.A. 9 101. Title 20
commonly is called the "PEF Code," and we shall apply that abbreviation.
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(1) The nature of any condition or disability which
impairs the individual's capacity to make and communicate
decisions.
(2) The extent of the individual's capacity to make and
communicate decisions.
(3) The need for guardianship services, if any, in light of
such factors as the availability of family, friends and other
supports to assist the individual in making decisions and in
light of the existence, if any, of advance directives such as
durable powers of attorney or trusts.
(4) The type of guardian, limited or plenary, of the
person or estate needed based on the nature of any
condition or disability and the capacity to make and
communicate decisions.
(5) The duration of the guardianship.
(6) The court shall prefer limited guardianship.
(b) Limited guardian of the person.-Upon a finding
that the person is partially incapacitated and in need of
guardianship services, the court shall enter an order
appointing a limited guardian of the person with powers
consistent with the court's findings of limitations, which
may include:
(1) General care, maintenance and custody of the
incapacitated person.
(2) Designating the place for the incapacitated person
to live.
(3) Assuring that the incapacitated person receives such
training, education, medical and psychological services and
social and vocational opportunities, as appropriate, as well
as assisting the incapacitated person in the development of
maximum self-reliance and independence.
(4) Providing required consents or approvals on behalf
of the incapacitated person.
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(c) Plenary guardian of the person.- The court may
appoint a plenary guardian of the person only upon a
finding that the person is totally incapacitated and in need
of plenary guardianship services.
(d) Limited guardian of the estate.-Upon a finding
that the person is partially incapacitated and in need of
guardianship services, the court shall enter an order
appointing a limited guardian of the estate with powers
consistent with the court's finding of limitations, which
shall specify the portion of assets or income over which the
guardian of the estate is assigned powers and duties.
(e) Plenary guardian of the estate.-A court may
appoint a plenary guardian of the estate only upon a
finding that the person is totally incapacitated and in need
of plenary guardianship services.
(f) No presumption.-No presumption of incapacity
shall be raised from the alleged incapacitated person's
institutionalization.
(g) Legal rights retained.-Except in those areas
designated by court order as areas over which the limited
guardian has power, a partially incapacitated person shall
retain all legal rights.
(h) Information as to rights.-At the conclusion of a
proceeding in which the person has been adjudicated
incapacitated, the court shall assure that the person is
informed of his right to appeal and to petition to modify or
terminate the guardianship.
20 Pa.C.5.A. ~ 5512.1.
The appointment of a plenary guardian is required only upon a dual
finding that a person is both totally incapacitated and in actual need of a
guardian. Peery, 727 A.2d at 541. If a trial court determines that a person
is totally incapacitated, but finds that the "circle of support" provided by
friends and family is adequate to ensure the safety and financial security of
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the incapacitated person, then it is not necessary to appoint a guardian of
the person or of the estate. Id. at 540-41. This inquiry is a matter to be
resolved by the trial court, not by the appellate courts. Id. at 541.
We have carefully scrutinized the record certified on appeal in light of
the arguments advanced by Heckendorn and by his mother. In particular,
we have reviewed the certified record to ascertain whether it supports, by
clear and convincing evidence, the factual findings and the legal conclusions
of the trial court. In this case, it is clear that the trial court has carefully
weighed the evidence in consideration of the requirements of the relevant
statutory provisions. The trial court was well aware of the fact that a
guardianship is not necessary if an incapacitated person has a "circle of
support" provided by friends and family members:
Heckendorn's parents and other family members are
obviously available to him but cannot be effective as a
support system without the appointment of guardianship.
Heckendorn's tendency toward violent outbursts and his
history of attacking his parents, during psychotic episodes,
along with his continued insistence that he is in fine health,
render it nearly impossible for his parents to have a real
positive impact on his decision-making. Furthermore, his
medical needs are financially and likely emotionally
exhausting for family members. Without the appointment
of guardianship, Heckendorn is simply incapable of both
financially supporting himself and receiving the medical
treatment he needs to prolong his life.
Trial Court Opinion, 6/9/06, at 7. We agree with this assessment of the
evidence presented to the trial court. See also N.T., 4/20/06, at 73
(testimony by Heckendorn indicating that no matter how many psychiatric
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evaluations or how many doctors state otherwise, he will continue to
maintain that he is not sick, that there is nothing wrong with him and that
he does not need medications).
We understand the fact that Dr. Hume did not personally examine
Heckendorn. However, it was Heckendorn himself who refused to meet with
Dr. Hume, a board certified psychiatrist and medical doctor. Thus, Dr. Hume
was forced to prepare his report for the court entirely predicated solely on
his evaluation of Heckendorn's medical records rather than on the basis of
interviews with Heckendorn as well as a review of the medical records. Dr.
Hume testified that he was prepared to go to Mayview 5tate Hospital to
meet with Heckendorn, but that Heckendorn refused to speak with him or
even meet with him. Id. at N.T., 4/20/06, at 51. Heckendorn himself
corroborated this point. Id. at 70. Dr. Hume also testified that he did not
base his report in any way on conversations with Heckendorn's parents or
with court appointed counsel. Id. at 51-52.
Dr. Hume's testimony was unequivocal that Heckendorn would not be
considered for the necessary liver transplant as long as he has untreated
medical and/or mental health issues. Id. at 56. As Dr. Hume explained, the
demand for liver transplants is so high that only patients who are considered
likely to remain compliant with the post-operative medication regimen will
be considered for the surgery. Id. A transplant patient is required to take
additional medication for organ rejection and deal with "a whole host of
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other issues," some of which can create psychiatric side effects. Id. If
mental health issues are treated, an otherwise ineligible candidate may be
approved for the surgery. Id. However, a candidate would not be
considered for the surgery unless continued stability was demonstrated for
one to two years. Id. Dr. Hume acknowledged that the available laboratory
studies of Heckendorn's liver function were "fairly stable," but only "up to
the last ones that he was willing to do[.]" Id. at 57. But Heckendorn had
become "non-compliant in terms of getting his laboratory studies done in a
timely fashion." Id. Under cross-examination, Dr. Hume stated that
Heckendorn could suffer a psychotic episode even while he was taking
medication. Id. at 60. Furthermore, there is no clear indication of when
such episodes would occur. Id. Dr. Hume also testified that refusing
treatment creates a "more adverse outlook" than would occur if Heckendorn
were compliant with the prescribed medical regimen. Id.
We are also aware of the fact that Heckendorn was not physically
present in the courtroom during the guardianship hearing. However, the
trial court made provision for him to be present via telephone conference so
that he could hear the proceedings and testify. 5 Heckendorn did, in fact,
testify at the hearing. Id. at 61-73. We conclude, after carefully reviewing
5 We note that Heckendorn filed a petition on March 15, 2006, requesting
that he be permitted to testify by telephone at a different proceeding
because he wanted to avoid the stress of transfer from Mayview, an
institution located at a significant distance from Cumberland County.
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the certified record, that the trial court's factual findings are supported by
clear and convincing evidence. Moreover, we find no indication that the trial
court has committed any error of law in reaching its determination that
Heckendorn is incapacitated and in need of a guardian. In particular, we
find that the record supports the trial court's conclusion that n[i]t is not the
fact that Heckendorn's parents, medical experts, and general common sense
are at odds with his refusal to stay on medication or to forego financial
opportunities; it is his insistence that he is healthy that precludes him from
making informed decisions on his own behalf. n Trial Court Opinion, 6/9/06,
at 6-7. We must therefore affirm the trial court's ruling.
Order affirmed.
Judgment Entered:
March 20, 2007
Date:
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