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HomeMy WebLinkAbout01-04-08 SMIGEL, ANDERSON & SACKS, LLP HEATHER D. ROYER, ESQUIRE ID No. 76327 River Chase Office Center 4431 North Front Street, 3rd Floor Harrisburg, P A 17110-1778 (717) 234-240 I E11lail: hroyer@sasllp.c011l Attorney for Petitioner C) c~~ \-.~. .r--> = c.;:.;:."l' = <- :P>> :;~ I .s:- --~) (~) --n J> :K CO .:r:- \D TRACY A. MCHALE IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA ORPHANS 'COURT DIVISION IN RE: ALLEGED PARTIALLY INCAPACITATED PERSON NO. :1 / -' ()r~()J1 / PETITION FOR ADJUDICATION OF PARTIAL INCAPACITY AND APPOINTMENT OF LIMITED GUARDIAN OF THE ESTATE IN ACCORDANCE WITH 20 PA. CONS. STAT. ANN. &5511 AND NOW COME, Michael J. McHale and Karin M. McHale, by and through their counsel, Smigel, Anderson & Sacks, LLP and they aver as follows: 1. Petitioner, Michael J. McHale, is the father of Tracy A. McHale (the "Alleged Partially Incapacitated Person"). 2. Petitioner, Karin M. McHale, is the mother of the Alleged Partially Incapacitated Person. 3. The Alleged Partially Incapacitated Person was born on January 21, 1986, and is twenty-one (21) years of age. She is single. She resides at 218 Woods Drive Mechanicsburg, Cumberland County, Pennsylvania, with the Petitioners. 4. Tracy A. McHale is not in an institution or a mental hospital at this time. 5. The following persons are, to the best of Petitioners' knowledge, information and belief, the only living next of kin of the Alleged Partially Incapacitated Person: a. Petitioner, Michael J. McHale, Father, residing at 218 Woods Drive Mechanicsburg, Pennsylvania 17050 b. Petitioner, Karin M. McHale, Mother, residing at 218 Woods Drive Mechanicsburg, Pennsylvania 17050 c. Renee Denise D' Agostino, sister, residing at 3 Randi Road, Enola, Pennsylvania 17025 d. Amy Lynne Smith, sister, residing at 3512 Walnut Street, Apt. C, Camp Hill, Pennsylvania 17011 6. To the extent known by Petitioners, the assets of the Alleged Partially Incapacitated Person are as follows: a. Fifty Thousand ($50,000) Dollars in cash, bank accounts and money market funds; b. Sixty Thousand ($60,000) Dollars in listed stocks and mutual funds; c. Four Thousand ($4,000) Dollars in a Vanguard retirement plan; and d. Metropolitan Life Insurance Company Annuity valued at Four Hundred Thousand ($400,000) Dollars. 7. To the extent known by Petitioners, the income of the Alleged Partially Incapacitated Person is comprised of the following: a. One Thousand Twenty-Four ($1,024.52) Dollars and Fifty-Two Cents monthly annuity payment from a settlement agreement with Pennsylvania National Mutual Casualty Insurance Company due to the motor vehicle accident in which the Alleged Partially Incapacitated Person sustained her lllJunes. b. Approximately Three Hundred Forty-Four ($344.00) Dollars bi-weekly earned income from Capital Area Children's Center, UCP of Central Pennsylvania. 8. The Alleged Partially Incapacitated Person was not a member of the armed services of the United States and is not receiving benefits from the United States Veterans Administration. 9. The Alleged Partially Incapacitated Person suffers from a closed head injury sustained as a result of a motor vehicle accident in which she was a passenger. This injury has caused her to suffer from posttraumatic dementia which prevents her from understanding complexities. She is unable to weigh and make complex economic decisions. 10. The Alleged Partially Incapacitated Person's treating physicians include the following: a. Lawrence J. McCloskey, PhD, ABPP (Clinical Neurologist) Wellspan Behavioral Health 3550 Concord Road York, PA 17402 b. Jeanette C. Ramer, MD (Developmental Pediatrician) Penn State Milton S. Hershey Medical Center Penn State College of Medicine Health Information Services, HU24 500 University Drive P.O. Box 850 Hershey, P A 17033-0850 c. Denise Harr, MD (Family Physician) Good Hope Family Physicians 1830 Good Hope Road Enola, P A 17025 d. Barbara Schmitt P A Counseling Services 445 Gettysburg Pike Mechanicsburg, P A 17055 Dr. McCloskey's letter regarding the Alleged Partially Incapacitated Person's medical diagnosis and prognosis is attached hereto as Exhibit A. 11. Because of her mental condition, the Alleged Partially Incapacitated Person is unable to manage her financial affairs with respect to her complex structured settlement and to make and communicate responsible decisions relating thereto. 12. The Alleged Partially Incapacitated Person has executed a General Power of Attorney for financial decisions, appointing Petitioners as her agents. However, Petitioners' concern relates to the structured settlement and decisions relating thereto in light of the complex nature of the settlement and the likelihood that this amount will be the only means of income for the Alleged Partially Incapacitated Person. Petitioners fear that the structured settlement could be sold, assigned, or compromised to a person or company offering a lump sum payment for this structured settlement. Petitioners seek this limited guardianship of the estate in order to protect and preserve the structured settlement. 13. The severity of the Alleged Partially Incapacitated Person's mental condition and the improbability that her condition will improve necessitate the need for a limited guardian of her estate in addition to the Power of Attorney. The limited guardianship is the least restrictive viable option to manage and handle only her settlement agreement. The Petitioners have and continue to assist the Alleged Partially Incapacitated Person with issues relating to her cash, checks, bank and saving savings accounts, her income, and the preparation and filing of her federal, state, and local income taxes. Petitioners assist the Alleged Partially Incapacitated Person daily on these matters to improve her skills as they relate to her finances. 14. The Alleged Partially Incapacitated Person consents to this Limited Guardianship of her estate as it applies to her Metropolitan Life Insurance Company Annuity Structured Settlement. Tracy A. McHale's consent is attached hereto as Exhibit B. 15. The proposed limited guardians of the Alleged Partially Incapacitated Person are Petitioners, Michael J. McHale and Karin M. McHale, parents of the Alleged Partially Incapacitated Person. They reside at 218 Woods Drive Mechanicsburg, Pennsylvania 17050. 16. The proposed Petitioners have no interest adverse to the Alleged Partially Incapacitated Person. 17. The consents of the proposed limited guardians of the estate are attached hereto as Exhibit C. 18. No other court has ever assumed jurisdiction in any proceedings to determine the capacity of the Alleged Partially Incapacitated Person. 19. No other guardian has been appointed for the estate of the Alleged Partially Incapacitated Person. WHEREFORE, Petitioners respectfully request that this Court award a citation directed to Tracy A. McHale, the Alleged Partially Incapacitated Person, and to such other persons as this Court may direct, to show cause why she should not be adjudged a partially incapacitated person, and why Michael J. McHale and Karin M. McHale should not be appointed limited guardians of her estate. Respectfully submitted, SMIGEL, ANDERSON & SACKS, LLP By: eather D. Royer, Es uir Attorney LD. No. 76327 4431 North Front Street, 3rd floor Harrisburg, PA 17110 (717) 234-3611 Attorneys for Petitioners VERIFICATION I, MICHAEL J. MCHALE, verify that the statements contained in the foregoing Petition for Adjudication ofIncapacity and Appointment of Limited Guardian of the Estate in Accordance with 20 Pa. Cons. Stat. Ann. 95511 are true and correct to the best of my knowledge, information and belief. I understand that false statements therein are made subject to the penalties of 18 Pa.C.S. 94904 relating to unsworn falsification to authorities. Date: /d-/3/07 / / ~1;'1u:lL..t;.}1tk 1/~ MIC'HAEL J. ~CHALE VERIFICATION I, KARIN M. MCHALE, verify that the statements contained in the foregoing Petition for Adjudication ofIncapacity and Appointment of Limited Guardian of the Estate and in Accordance with 20 Pa. Cons. Stat. Ann. 95511 are true and correct to the best of my knowledge, information and belief. I understand that false statements therein are made subject to the penalties of 18 Pa.C.S. 94904 relating to unsworn falsification to authorities. I i Date: 1/-,3/D7 / ~ >/ 44 // i / {tWM ~4 /'fL c4YL-. KARIN M. MCHALE CERTIFICATE OF SERVICE { 10- AND NOW, this ~ day of January, 2008, I, Heather D. Royer, counsel for the Petitioners, hereby certify that I served a copy of the Petition for Adjudication of Partial Incapacity and Appointment of Limited Guardian of the Estate in Accordance with 20 P A. Cons. Stat. Ann. 9 5511 this date by depositing a copy of same in the United States mail, postage prepaid in Harrisburg, Pennsylvania, addressed as follows: Michael 1. McHale 218 Woods Drive Mechanicsburg, P A 17050 Karin M. McHale 218 Woods Drive Mechanicsburg, P A 17050 Tracy A. McHale 218 Woods Drive Mechanicsburg, P A 17050 Renee Denise Agostino 3 Randi Road Enola, P A 17025 Amy Lynne Smith 3512 Walnut Street, Apt. C Camp Hill, PA 17011 SMIGEL ANDERSON & SACKS, LLP Heather D. Royer, squire Attorney J.D. 76327 4431 N. Front Street 3rd Floor Harrisburg, PAl 711 0 (717) 234-2401 Attorney for Petitioners 3550 Concord Road York, PA 17402 717.851,6340 Tel 717.851.6349 Fax www,wellspaneap,org " VVELrSPAN Employee Assistance Program NAME: McHale, Tracy 'J ,t""";;'. .1f1.'1 ~:""..::.\ t """~ :or -,~~ ~.,-~ It \~.c~,fuj;;;;,' f""J I Oct - }()-Ol /3q5-3-5 NEUROPSYCHOLOGICAL EVALUATION (4 Hours) MRN: 68568 DATE OF BIRTH: January 21,1985 DATE OF EVALUATION: September 10, 2007 REASON FOR REFERRAL: This 21-year-old right-handed single white female was evaluated for a fifth time for neurobehavioral sequelae of her closed-head injury, pursuant to her parents' petition for a limited guardianship of her finances. COLLATERAL INTERVIEW: The patient lives with her parents, who with her matemal uncle run a family business in employment consultation. Her two older sisters are out of the house. Her mother's breast cancer, diagnosed 8 years ago, is in remission. Her first cousin has been diagnosed with attention-deficit/hyperactivity disorder. As a preschooler, the patient was so shy that she resisted talking. She always has been a passive "follower," her mother said, but with familiarity she made and kept friends. The patient had not leamed the letter sounds by the beginning of the second grade, when 50-percent bilateral hearing loss due to recurrent otitis media was discovered. Myringotomy tubes normalized her hearing. "Reading support" in the classroom and a "reading clinic" two or three times per week, her mother said, raised her to grade level by the end of that academic year, after which no special education was needed. Quite reasonably, her mother thinks that her partial deafness was the cause of her early reading delay. As the material became more difficult in the higher grades, the patient often read aloud to herself in her room while doing her homework, explaining that doing so would help her "to remember what I read." In the third or fourth grade, the patient developed a chronic cough that was attributed to unspecified "allergies," her mother said. She still takes Claritin for frequent stuffiness. Her persistent limp on one foot (her mother could not remember which) in the fifth grade was finally attributed to a Lisfranc's joint that was cured by two castings. Thereafter, she shied from what she perceived as especially risky activities, such as water skiing. Although she was not afraid to pariicipate in the several sports into which her parents enrolled her, she was never much interested in athletics, perhaps partly because she was "not ajoiner," as her mother put it. Neuropsychological Evaluation Page 2 September 2, 2005 Tracy McHale, MRN: 68568 The patient made good friends in high school, and had a steady boyfriend in the tenth grade. Until the motor vehicle accident in which she was injured, she had been earning A's and B's while working part-time. Even though she was functioning and feeling well, her mother knew that the patient "was up to something" through her junior year. Without other evidence of alcohol abuse, she believes that the patient's drinking must have been limited to some weekends. In the accident, the patient was the intoxicated passenger of an intoxicated driver, her girlfriend. She has settled with the insurance company ofthat girlfriend's parents for lost earnings due to the permanent disability from her CHI. Her mother reported that, just having finished her junior year in high school, in June 2003 the patient was in coma for seventeen days. A fracture to her right wrist has healed well. Her shattered lower jaw also has healed, but her mother believes, though a stranger would not notice, that her teeth were left a little crooked and her speech subtly altered. During her recovery, the patient's agitation was only mild. At her discharge from rehabilitation in September, she was passive and cooperative but flat, apathetic, incontinent and completely disoriented. She used a hemi walker for ambulation. After a course of daily educational therapy as an outpatient, the patient was placed in homebound instruction before returning to school with an aide in May 2004. In August, she began her senior year in learning support, where she earned A's and B's because of her cooperativeness and persistence. At her last neuropsychological examination in July 2006, her mother reported that the patient had kept up with three or four girlfriends, former classmates then in college. Although she saw them only during their trips home and on special occasions like their baby showers, genuine affection remained on both sides. The patient had made no new friends in her new high-school class or below, but she had recently found a girlfriend, physically injured in an accident, in outpatient rehabilitation. Otherwise, her socialization had been restricted to family, including a younger cousin to whom she had drawn close. At the present examination, her mother reported that visits with her former classmates have become rare, and that her cousin has gone to college, but that the patient's social circle has widened a bit. She and the friend from outpatient rehabilitation spend a lot of time together, often at the gym, restaurants and stores. Having moved into an apartment, that friend wants the patient to join her as a roommate. Her mother has convinced her to stay at home for a while longer, however, believing that she is not yet safe and independent enough. Occasionally, a female coworker takes her dancing. As far as her mother knows, they dance only with each other, and the patient does not drink. Her mother sees the patient's frequent e-mails and text messages to various people as both a social outlet and a threat. After she posted her telephone number on "My Space," an unknown "man" called several times. While the patient is of age and there is no reason to think he was predatory, her mother is concerned because the patient does not ask the questions, such as about marriage or employment, that women use to screen their suitors. By snooping in her cell phone, Neuropsychological Evaluation Page 3 September 2, 2005 Tracy McHale, MRN: 68568 her mother leal11ed that one electronic acquaintance was pressing her to send him "naked photos." Her mother was so apprehensive that the patient is so "boy crazy," obsessing over any young man she meets (on family vacation, for example) that she enrolled her again in "counseling." She and a young man, introduced by a coworker, have met twice for something like dates, her mother believes, but she doubts that the patient has had intercourse. Gradually realizing that her peers have left her behind, her mother said at last examination in July 2006, the patient became angry at her former friend, the driver, because she had been injured so much less. When frustrated or confused, she withdrew or shut down. Rarely, she shouted exclamations like, "I hate my stupid head!" Lately, however, she had done so more often as a rueful joke. Her mother had come to regret that she acquiesced to the patient's demand that she be allowed to graduate in June 2005, instead of continuing in leal11ing support for another year or two, as she was entitled to do. At the present examination, the patient has become even more accepting of her impainnents. Nevertheless, she can become frustrated when she cannot remember something or cannot follow a conversation. Often, she pretends to understand more than she does, until she fouls the execution. Her mother is often surprised by her incomprehension, rigidity or concreteness. For example, she insisted that her sandals were lying where she had placed them, despite her mother's insistence that she had packed them, and she did not grasp that the instruction that she should dry a garment "for 50 minutes" implied that she first should wash it. After a brief hiatus in the summer of 2005, the patient had to go back on her Sinemet and naltrexone for the coarse, variable tremor in her left hand because, for example, she no longer could put on her own earrings. While the naltrexone was stopped as a "marginal" benefit, her mother ssaid, even on the Sinemet she can insert only some earrings, and sometim~s drops things. She can button clothes and tie shoes, but two-handed tasks like cooking are hard. Her cooking is impaired fmiher by errors, such as confusing flour with sugar, so unsupervised she prepares mostly cereal and sandwiches, though she has leal11ed within the past couple of years to heat frozen dilmers in the microwave oven. Very concrete, she has attained no general facility with the microwave, but must be taught the directions on each new package. At last examination in July 2006, her mother considered that Adderall had somewhat counteracted her fatigability, but at the present examination, she was not so sure. Whether or not, still on this drug, her energy has improved. Provigil was useless. Her mother is confident that the Aricept that the patient was prescribed early on has been of substantial benefit. She quit her psychiatrist in the summer of 2005, never having been in much distress anyway, but is still in equestrian therapy, and continues occasionally in neurobiofeedback. At last examination in July 2006, her mother repOlied that the patient showed almost no initiative. She did check her electronic mail, occasionally called an old girlfriend, and loved to work puzzles, including on the computer, but she did not go out to buy them. Her mother then had to prompt her to call her new girlfriend (from outpatient rehabilitation) for a visit. At the Neuropsychological Evaluation Page 4 September 2, 2005 Tracy McHale, MRN: 68568 present examination, her mother was gratified to say that the patient has begun to plan on her own to get her haircuts and manicures when she will be off work. Last week, she retrieved the recycling bin without prompting. Recently, she volunteered to get milk, which she saw was running low, but she got lost in the store. As at last examination, the patient still writes copious notes to herself (such as to watch a particular television program later in the week) that she sometimes follows, but often loses. Although her license was never taken, the patient was treated informally as a "student driver," her mother said at last examination in July 2006, being allowed behind the wheel only with a parent. A driving evaluation found her reaction time too slow to be unsupervised, but she was encouraged to practice. On the way to the bank, she missed the turn. When her mother cued her some time later, she had recognized her error, but had not thought to turn around. After she missed the bank again, her mother directed her to do so on the third pass. At the present examination, the patient's problem-solving has not improved, her mother said. When she becomes lost, as she usually does on the rare occasions when she ventures from her familiar routes, she either calls her mother or sister for directions or backtracks home, if she can. Having grown in confidence once she has learned a route, however, she drives to work and to her friend's apartment, for example. Instead of leaving the patient a list of chores, from taking a shower to cleaning the bathroom, when she leaves for work as she used to do the year before, her mother at her July 2006 examination had been prompting her the night before to create her own list, which she promptly wrote down,. Her thorouglmess had improved enough that her mother no longer consistently checked her cleaning, vacuuming and dusting. She sorted and folded laundry competently. Her attire used often to be too skimpy for the occasion, but not intentionally provocative, her mother believed. At the present examination, her mother reported that the patient performs routine household chores competently, but she has to be taught each new one explicitly, and told when to do it. The patient can be trusted alone at home and in familiar places, her mother said, but she gets lost easily and is slow to learn new spatial layouts, such as the campus of the community college where she completed a course in Remedial English in the fall of 20051 and another in Childcare in the spring of 2006. At first, she seemed to be remembering some of what she read, but her mother soon realized that her comprehension and retention were so poor, her reading so slow, and her written summaries of the material so sparse that she was compelled to become her "one- to-one tutor." Having essentially earned her A's for the patient, her mother has concluded that academics are beyond her. While the patient can use a calculator, her aritlunetic is generally poor. She has difficulty finding words. Her thinking is concrete. Despite her ready laugh, she misses jokes, or gets them late. Despite repeated tutoring over the year before the present examination, the patient barely understands her checkbook. Sometimes, she forgets to sign or to date her checks. She can Neuropsychological Evaluation Page 5 September 2, 2005 Tracy McHale, MRN: 68568 progress no fariher toward balancing her checkbook than marking off the checks in her ledger that appear on her statement. Most generally, she cannot remember how much is in her account. She has no idea how much money should be carried in a checking account by a person of her means. Although she has been told, she does not understand or remember that some of the monthly annuity, the final settlement from her accident, is automatically transferred to her savings account. She does not understand a celiificate of deposit (or any other investment), and would never think to buy one. Amounts of money beyond several hundred dollars, such as she might imagine spending in a store, seem to elude her comprehension. She reacted blandly to the check that her attorney presented to her as her initial settlement. Shortly afterward, she guessed that it had been for $ 19,000-not 119,000, as it was, all invested by her parents. Fortunately, the patient is not a spendthrift. While she vaguely understands the power of the credit card that her parents obtained for her a couple of months ago, she scarcely has used it. Her mother has concluded that she most likely considers the cash on her person as all the funds she has available. Usually, she shops for a specific purchase, without impulse buying. Only on her cell phone does she lose control of her spending, sometimes racking up bills of more than $200 per month in frills like fancy ringtones, apparently forgetting how much she had spent already. Her mother described the patient's memory as variable, better for events or activities than for what she merely has been told. She forgets where she has put things and why she has written some of her notes. Her thinking is slow, and her attention span short. Distractible, she commonly gets sidetracked. When she was taking her colleges courses, she would abandon her studies because she was diverted by the television on her way back from a drink of water. Only upon wandering back to her room to find her open books would she remember what she had been doing. Not long before her last evaluation in July 2006, distracted by something in her bedroom, she had come downstairs, the lights left on in the bathroom, before she has finished washing herself at the sink. At the present examination, her mother reported that her task completion has improved somewhat. Not surprisingly, her mother observed, the patient does better with routine, which she prefers. Although she has become somewhat more independent, and clings less to her mother at family and church functions, she seems afraid to try things on her own. She wants and complies with supervision and direction. Through the Office of Vocational Rehabilitation, the patient was enrolled in a job re-entry program that had placed her briefly in a couple of stores as a clerk or stocker to detelmine whether she can follow simple directions. Her job prospects are hindered, her mother said, not just by her memory and attention, but also by the incoordination of her left hand, which is sometimes so marked that she cannot cut her meat at dilmer. Her mother believes that the patient needs a routine job in a forgiving niche. Because she babysits so well at church, her parents by her last examination in July 2006 had found her a halftime job at a daycare for "special-needs" children where, he mother thinks, her supervisors are also tolerant and supportive of the staff. At Neuropsychological Evaluation Page 6 September 2, 2005 Tracy McHale, MRN: 68568 first, she did not know how to respond to their tantrums, but she has learned well from other staff how to handle them. Because she functions well only with routine, and feels uncomfortable alone with her charges, her boss has told her mother that she cannot rise to "leadership." At the present examination, her mother considered that she probably has topped out at her salary of $8 per hour. However, the patient seems quite happy in her work, where she is much appreciated for her diligence and compliance. After each shift, she rests for two or three hours. By the end of the week, she is so fatigued that her thinking becomes perceptibly slower and her comprehension perceptibly poorer. At last examination, her mother considered that her maximum endurance over the long haul might be three-quarters time; but at the present examination, she thought that any more than her CUlTent 24 to 28 hours per week might be too much for her. She is "fried" after her occasional 8-hour shifts. PATIENT INTERVIEW: The patient admitted that she experimented with cannabis several years ago and that she used to drink alcohol, but she could not remember how much. She keeps up with a few friends from her old class and her younger cousin. With her friend from rehabilitation, she dines out, watches movies and visits back and forth. Although she would like to accept her invitation to move into her apartment, she doubts that she could "handle" the independence, so she is "glad I'm living at my house," she concluded. While she allowed her interest in boys at last examination in July 2006, she was not ready for a boyfriend, she said. At this examination, she admitted that she has expressed her wish to the male friend whom she met through her coworker that he should become her boyfriend, but she has resolved to settle for the mere friendship that he has to offer. She dances at clubs only with her girlfriend from work, she maintained. There have been no hookups. Maintaining at her last examination in July 2006 that her spirits always have been good, the patient did not know why she might have been seeing her psychiatrist, though she did not mind doing so. She was no longer in psychotherapy, during which she just "talked about my week." She was painfully aware of the unchanging ataxia in her left upper extremity. She allowed that her mentation was "not the best it could be" and no longer improving. Her thinking was slow; her word finding was inconsistent; and she forgot "little things." She compensated with a logbook and lots of sticky notes. Her medicines were of some help, she believed. She agreed with her mother that academic study was too "difficult for me" to continue. At the present examination, the patient admitted that she is still upset with her fon11er friend, the driver of the car in which she was hmi, for neglecting to visit her in hospital. She is mildly frustrated continually by her limitations: for example, she can cook only "macaroni-and-cheese and Spaghettio's." Nonetheless, she mostly has stopped the "what-ifs." She is generally happy, including in her work. Since the accident, she believes, she has been nicer and more patient. At the present examination, the patient allowed that she should not have unsupervised access to her money, as she probably would buy "stupid stuff," though she has been deprived of nothing Neuropsychological Evaluation Page 7 September 2, 2005 Tracy McHale, MRN: 68568 and her tastes are cheap. She would never spend "more than $20" for a gmment, for example. When asked, the patient could not tell how much a c?at might cost. Her mother takes her shopping for such necessities. Likewise, she could not guess how much she might spend on groceries or toiletries if she were to move in with her friend, nor how much on rent. She enumerated the costs of living singly and concretely: "air, refrigerator, washer, dryer, water." She hazarded that a new car might be purchased for "three or six thousand dollars." She could not define a certificate of deposit. She knew from her father's alternate disappointments and exultations nothing more than that a stock can rise or fall in value. While she knew that she usually works 4 hours per day, and that she has been losing hours, she could not say how many hours she works in a week or her biweekly pay period. She guessed that she might have netted $300 last paycheck, and remembered that her mother had called it light; but she could not say how much she usually brings home. She cashes her own paycheck, but her mother tells her how to apportion it between savings and checking. She did not know the balance in either account. She could not define "interest." She did not know whether her annuity, the principle of which she could not explain, is paid monthly or every "few months." Blankly, she denied having received an initial settlement. When I told her that she had, she that she could not recall having seen the check, much less its amount. RECORD REVIEW: The patient's July 2003 discharge summary after her MV A records diagnoses of closed head injury, mandibular fracture, left zygomatic fracture and right pneumothorax. Neuroimaging had demonstrated bilateral frontal contusions, subarachnoid hemorrhage, and sheer injuries of both temporal lobes, the corpus callosom and the periventicular region. The patient had been found umesponsive in the right-front passenger seat, her vehicle having struck a tree. She was intubated in the field. A right intracranial-pressure monitor and a right-frontal ventriculoperitoneal shunt were placed. She received Mannitol and tube feeding. Her left mandible and left zygoma were reduced and internally fixated. Her premorbid medical history was significant only for allergic rhinitis. At her July 2003 transfer to rehabilitation, the alert patient could occasionally follow simple commands. There was little spontaneous movement of either left limb. During rehabilitation, she was weaned from her tracheostomy tube, and she had an open reduction and intemal fixation of the fracture to her right wrist. By her September discharge, a period of agitation had resolved. She had progressed to independent ambulation, brief verbalization, and comprehension of one- step directions; but impulsivity, safety awareness and memory were still significant problems. She was considered to be at a Ranchos Level V. Her medicines were Sinemet and Adderall. By follow up later in September, the patient had become continent of both urine and stool. Otherwise, she was most improved in motor function, and least in memory, initiation and spontaneity. She ambulated with a hemi walker. A new finding was tremor, especially of the right leg and lower trunk. Her Sinemet was increased, and her Remeron, initially given for Neuropsychological Evaluation Page 8 September 2, 2005 Tracy McHale, MRN: 68568 agitation, was reduced. At her October follow up, motor function continued to improve and memory to lag. Tremor of the head, trunk and both right extremities had become more evident. Dulcolax and Senokot were still needed for constipation. Aricept was added. At the patient's first neuropsychological evaluation, performed by myself in November 2003, her mother reported that both of the patient's sisters had started psychotherapy from grief at her injury. Otherwise, only one first cousin had been diagnosed with any kind of mental illness. Her mother admitted her knowledge that the patient had been attending weekend drinking parties with her peers, perhaps twice per month. Once, she had returned home frankly drunk; once, she was identified by the police during a raid. Her mother suspected that the patient may have smoked cannabis at these parties. She knew of one or two boyfriends, with whom she believes that the patient had been sexually active. Nevertheless, she had behaved well in all other respects. The patient had first spoken at two or tlu"ee weeks post injury, and had walked at one month post. At discharge from rehabilitation, she was still rather weak on her left side. Later, a tremor had developed in both her left leg and arm. I observed intermittent, coarse tremor of the left hand, a wide-based, tottering gait, and hypokinesis. Her mother reported that she was her sweet, polite old self. Because of poor balance and judgment, her activities of daily living had to be supervised. Her memory was so poor that she would forget visitors an hour after they had left. The patient had limited insight into her physical deficits. She denied premorbid cannabis abuse and any alcohol consumption beyond just one drink about once per week. I diagnosed posttraumatic dementia. As frequently happens after closed head injury, language was a relative strength, but it was still only borderline. Most of her cognitive functions were quite depressed. On the positive side, her compliance and affability had not changed and, according to her educational therapist, she was resolute when set a task. I suspected that, then about 5 months post injury, the period of most rapid recovery was passing, but that the patient would make good use of the skills with which she ultimately would be left. By her December 2003 rehabilitation follow up, Aricept seemed to have improved the patient's memory, but her worsening tremor, primarily of the left arm, had precluded many bimanual activities. Her personality having begun to emerge more and more, she had gone out a few times with friends. Although her left side, mostly her leg, was still weaker than her right, the tremor was considered due to thalamic dysfunction, not just to weakness. The Aricept was increased, and the Adderall reduced, in case it might have aggravated the tremor. At her January 2004 follow up, the patient's memory and academic skills had been progressing more quickly than her motor recovery. Clonidine had not subdued her then stable tremor. Clear atrophy of the intraosseous muscles of the left hand could be appreciated. Her educational therapist had refelTed her to mental health for mild frustration and depression, both considered to be of "nol111al intensity." Bromocriptine was substituted for the Sinemet. Later that month, the patient complained to her psychiatrist of poor memory and attention since her accident. She was diagnosed with mixed organic mood disorder and polysubstance abuse. Her Neuropsychological Evaluation Page 9 September 2, 2005 Tracy McHale, MRN: 68568 Aricept was increased, and psychotherapy was started. By her February rehabilitation follow-up, academic testing had estimated about fifth-grade achievement in most areas. Although her gait had improved significantly, balance was still problematic. The action tremor of her left upper extremity was associated with more obvious wasting of the intrinsic muscles of her left hand. Her Bromocriptine was increased. Later in February, her psychiatrist found her unchanged. In March she reported herself to be happy with her progress. By her April follow-up in rehabilitation, Valium had also failed against her tremor, but the patient thought that it had improved on its own. The physician thought it had changed somewhat in character, having become more athetotic. Naltrexone was tried. The patient was judged to be doing well overall, and as continuing to improve "in all areas." By her May 2004 psychiatric follow-up, the patient was taking Adderall, Aricept and naltrexone, as well as Claritin. In June she was said to have been making "slow and steady progress." By her rehabilitation follow-up in July, her mother had said that her social awareness and judgment had improved sufficiently for her to be left alone briefly at home. Her tremor had been variable. The Sinemet, apparently re-instituted, was switched to its extended release preparation. In August, her psychiatrist wrote that the patient enjoyed time with her friends. Having retumed to high school, she anticipated in November that she would graduate the next June. Later that month at rehabilitation follow-up, it seemed that skipping doses of the Adderall had increased her distractibility. She was taking Retin A for acne. Speech and occupational therapy had been discontinued. Leaming support had been going well. Her left-hand tremor was unchanged. Despite slight wasting ofthe intrinsic muscles of her right hand, too, her grip strength was described as "quite reasonable." At rehabilitation follow-up in November, she was unchanged. Equestrian therapy was prescribed the next month. At her next visit to her psychiatrist in February 2005, the patient was considering community college and vocational rehabilitation, perhaps so that she could perform childcare. By her rehabilitation follow-up in April, she had started driving retraining. Although her strength had improved, the coarse tremor, primarily of the left hand, continued. Sinemet was stopped for unceliain benefit, and a holiday over the summer from the Adderall was suggested. The examiner (not me) for her second neuropsychologic evaluation in May 2005 documented that at psychoeducational testing the previous May the patient's general intelligence had been borderline, her sight vocabulary average, her mathematics and writing low average, and her reading comprehension defective. On the Third Edition of the Wechsler Intelligence Scale, her IQ's were nom1al at 87 for the Verbal Scale, borderline at 79 for the Perfonnance Scale, and borderline at 82 for the Full Scale. Her index scores were nonnal at 94 for Verbal Comprehension, borderline at 84 for Perceptual Organization, borderline at 82 for Working Memory, and defective at 69 for Processing Speed. (Especially poor processing speed is common after head injury.) From the Third Edition of the Wechsler Memory Scale, her Index Scores were borderline at 74 for Auditory Immediate Memory, defective at 55 for Auditory Delayed Memory, n01111al at 90 for Auditory Recognition Delayed Memory, and normal at 88 for Neuropsychological Evaluation Page 10 September 2, 2005 Tracy McHale, MRN: 68568 Working Memory. (Nom1al recognition and working memory but poor recall, especially delayed recall, may feature in head injury.) From the Tests of Achievement of the Third Edition of the Woodcock-Johnson Psycho-Educational Battery, the patient's standard scores were nonnal at 89 for Letter- Word Identification and 85 for Calculation. Measures of problem solving were mixed. The Category Test was nonnal at a T score of 43, but the Total Time for the Tactual Perfol111ance Test, perhaps because of its strong motor component, was defective at a T score of 22. TPT Memory was borderline at 31 T, but Localization was normal at 40T. The Trail Making Test-a measure of infom1ation processing-was borderline at 31 T for Part A and defective at 25T for Part B. The Seashore Rhythm Test and the Speech-Sounds Perception Test-measures of attention/concentration-were defective at 27 and 14T, respectively. Aphasia Screening was defective at 22T. The TPT showed little Difference between hands. The Dominant Trial was borderline at 33T, while the Nondominant Trial was defective at 28. The Both Hands Trial was defective at 20T. Consistent with her coarse tremor, the Finger Tapping Test-a measure of psychomotor function-was normal at 40T for the dominant right hand, but defective at 29T for the left. The examiner noted her gain of 20 points in Full Scale IQ over her first neuropsychological evaluation, when it was only a defective 62; but, judged to be "approaching her upper level improvement," the patient was still diagnosed with "dementia due to a head injury." To the vocational counselor who had requested the second examination, the following recommendations were offered: specific instmctions and frequent feedback; one-to-one instmction; breaking tasks down into small sections; demonstration and visual versus auditory learning; extra time for all tasks and assignments; a logbook; and a scribe for school. OBSERVATIONS: Having skipped at her mother's suggestion her Adderall for her third examination in September 2005, so that I could see her unmedicated, the patient presented as a buxom, attractive brunette who frequently twirled her long hair or arched her back, exposing her midriff, apparently innocent of the sexual signals. She limped mildly on the left while walking straight; her gait was rather unsteady and wide-based on turns. Her mood was cheerful; her affect was appropriate and broad. Her thinking was rather slow, but logical and goal-directed. She showed some insight into her cognitive deficits. On the morning of the fOUlth examination in July 2006, having forgotten her Adderall, she said, her dress and posture were appropriately demure. At this, the fifth and presumably final examination, she wore a modest jean jacket and her hair rather short. Her gait looked nonnal on a level surface, but she hopped unsteadily, especially on the left foot. Because of her right-hand tremor, filling the bubbles on the fonn for the personality inventory was tedious. Her left-hand tremor is still so bad, she reported, that she essentially "ignores" that hand. Yet her mood was cheerful, and her cooperation good. Her thinking was logical, but clearly stultified by her memory loss. Neuropsychological Evaluation Page 11 September 2, 2005 Tracy McHale, MRN: 68568 SEPTEMBER 2005 RESULTS: From the WMS-III, Information and Orientation was borderline at a percentile rank of 3 because the patient did not know the city and misestimated the time by almost an hour. Her standard scores were borderline at 71 for Visual Immediate Memory and defective at 65 for Visual Delayed Memory. Percent Retention for Faces II was nonnal at a scaled score of 7, but Percent Retention for Family Pictures II was defective at a scaled score of 1. Because their distributions are both so highly skewed, differences between these indexes may be unreliable. On Word Lists I, her scaled scores were normal at 9 for the first Recall Total Score, defective at 3 for the Recall Total Score, borderline at 5 for Learning Slope, nornlal at 9 for Contrast 1, and borderline at 5 for Contrast 2. For Word Lists IT, her scaled scores were borderline at 4 for the Recall Total Score, normal at 10 for the Recognition Total Score, and borderline at 4 for Percent Retention. Again, the patient seems to have good auditory recognition memory, but poor auditory recall and retention. From the Rey-Osterrieth Complex Figure Test., Immediate and Delayed Memory were defective at <20 and 20T, respectively. Overall, both verbal and visual memory were poor across her first three examinations. Like the Category Test-another measure of problem solving given at second examination- the Wisconsin Card Sorting Test was fine. The Total Number of Errors and Perseverative Responses were nonnal at 45 and 43T, respectively. Consistent with other measures of information processing and attention/concentration given last time, the Gordon Diagnostic System was poor. The Vigilance Tasks were normal at the nnd %-ile for Total Commissions but borderline at the ih %-ile for Total Correct. The Distractibility Tasks were borderline at <8th %- ile for Total Commissions and <4th %-ile for Total Correct. The patient could not take the set of the Paced Auditory Serial Test. From the Woodcock-Johnson III, Form A of the Spelling Test was normal at a standard score of 94. The Boston Naming Test-a measure of confrontation naming-was borderline at 37T. Category and Letter Fluency were defective at 24 and 23T, respectively. Visuospatial skills seem better than language. The Short FOlm of the Facial Recognition Test-a measure of visual perception-was nonnal at the 16th %-ile. The Copy Trial of the Rey Figure-a measure of constructional praxis-was nonnal at> 16th %-ile, despite poor pencil control. The patient's outstretched hands revealed a coarse tremor of the left upper extremity. On finger-to-nose testing, she missed her nose grossly with her left hand and slightly with her right. Her long nails might have hindered her performance on the Grooved Pegboard-a measure of psychomotor function. The dominant right-hand trial was defective at 8T with an abnOlmal 3 drops. Her left-hand tremor was so bad that that trial was discontinued. Yet Grip Strength was 110lTIlal at 43T for each hand. Fornl A of Finger Localization-a measure of finger gnosis-was nornlal at the 80th %-ile for the right hand but borderline at the 4th %-ile for the left. Coordination and somatosensory perception, but not strength, have been deeply affected. While the patient perfOlmed n0l111ally with her dominant hand at her third examination on the Finger Neuropsychological Evaluation Page 12 September 2, 2005 Tracy McHale, MRN: 68568 Tapping Test-a measure of simple manual speed-the more complex Pegboard stymied even that better right hand. The Symptom Checklist 90-Revised was entirely within nOffi1al limits (all T <60). The patient seemed to be in no significant subjective distress. JULY 2006 RESULTS: On Form 1 of the Verbal Selective Reminding Test, the patient's T scores were defective at 6 for Total Recall, <0 for Long- Tenn Store, 9 for Consistent Long- Tellli Retrieval and <0 for Delayed Recall, but normal at 50 for Recognition. Better recognition than recall is the rule in head injury. From the Third Edition of the Wechsler Memory Scale, Visual Reproduction I and II were borderline at scaled scores of 6 and 5, respectively, but Percent Retention and Recognition were nOffi1al at scaled scores of 7 and 10, respectively. Like recognition, retention in head injury is often good. The Raven Progressive Matrices-a measure of nonverbal intelligence-was borderline at a percentile rank of 9. Again, the Paced Auditory Serial Addition Task was abOlied because the patient could not follow the practice items. Again, the Grooved Pegboard was hampered mildly by her long nails, but severely by her bilateral action tremor, so bad on the left that its trial was aborted. The dominant right hand was defective at 13T, with 2 drops. This short battery was given to make certain, as it did, that no surprising interval recovery had occurred, and that her performances remained consistent with head injury, not malingering. SEPTEMBER 2007 RESULTS: The only clear deviation on the Personality Assessment Inventory was a depression of <30T on Dominance. Passive and submissive, the patient would seem at risk for mistreatment or exploitation through her willingness to subordinate her own interests to those of others. COMMENT: I concluded at her last neuropsychological examination in July 2006 that, since her first examination in July 2003, the patient has improved quite a bit, but that she still had posttraumatic dementia. A little over 3 years having passed then since her injury, significant fmiher neurologic recovery could not be expected. Verbal intelligence, basic academic skills, visuospatial skills and problem solving-at least of the abstract kind, where almost no motor output is required-seemed to be her strengths. Psychomotor function, attention/concentration, naming, infoffi1ation processing, nonverbal intelligence and ideational fluency were her weaknesses. Much of this profile could be expected after severe closed head injury, I noted. Some of it, like her good abstract reasoning, would not. Clinical lore suggested that the patient's good reasoning might be cOlTelated with the preservation of her premorbid personality. I had no real idea why she has such tremor, ataxia and finger agnosia with her left hand. I wonder now whether those symptoms may be markers of injury to the brainstem. Neuropsychological Evaluation Page 13 September 2, 2005 Tracy McHale, MRN: 68568 Despite the patient's good reasoning, good cheer, and sweet compliance, her self-direction and self-regulation remained quite poor at that last examination in July 2006. She had very little initiative; her mother prompted her to plan her day; and she was deficient in instmmental activities of daily living, despite some recent steps toward independence. She had made only one new friend to replace those who have moved ahead of her. By the present examination, the patient has taken a few more steps toward independence. She drives along familiar routes, has begun to plan appointments for her hair and nails, has tolerated a few more hours each week on the job, and has shown glimmers of initiative. She has made another friend and has established a so far umequited romantic interest. Nonetheless, she remains highly dependent on her mother for almost all decisions and problem-solviing (her good score on a test of that ability notwithstanding). . The patient's memory and information processing were so poor at her examination in July 2003 that I predicted cOlTectly then that she would not profit from more formal schooling. On the other hand, her residual ability to leam, albeit slowly, and her fine persistence suggested that she could be taught to perfom1 routine tasks in stmctured enviromnents, as she has at the job that her parents secured. As I predicted, and as her boss has observed, her duties have had to be menial and routine. Nor can they call for speed or coordination. As her mother realizes, the patient requires a suitable niche and a tolerant supervisor, which she fortunately has found as a subordinate at a daycare-just the position at which her mother and I thought that she might succeed at 4 years ago. I am happy that she has done so without the job coach that I thought she might have needed, but disappointed that at a little more than half-time she may be near the limit of her stamina. Given her disposition, I can believe that she relates well to small children. The question at her last examination in July 2006 was the patient's lost income. I concluded then that, before her injury, she was a good student from a good family with bright prospects for career and marriage. I expected that she had been a social, binge drinker before her accident, like so many adolescents, but free of psychopathology. There is no question that her employability and marriagability have been profoundly diminished. If she were not to fall back on disability, her best chance was to keep her current job, or switch to one quite like it, I concluded. I wished that I could think of much that she might do except to be an assistant babysitter. Factory labor, the manual trades, and most office work seem to be beyond her. Because of her good verbal comprehension and basic academic skills, I could imagine her as a file clerk at a slow-paced office, perhaps in govemment, that does not rely extensively on computerized records, since it would be very hard for her to type or to master electronic storage. Despite her nice personality, I did not think that she had the memory and judgment to deal with the public, except superficially, perhaps as a cashier. She has the strength for unskilled work like stocking shelves, but probably not the speed, coordination or stamina. At the present (and presumably last) examination, the question is whether the patient can manage the settlement from her accident. To me, the answer is a resounding "no." As I believe Neuropsychological Evaluation Page 14 September 2, 2005 Tracy McHale, MRN: 68568 the interviews with her and her mother establish, she has viliually no understanding of her finances. She cannot remember having seen a check for over a hundred thousand dollars. Although she cashes her own paychecks, she does not know what she usually makes. Despite a year's tutoring, she can barely begin to balance her checkbook. She does not even know how much money she has in the account. She has not the first idea of interest, investment or alUluity. Her memory is so poor that I doubt very much that she ever could learn well enough to make wise financial choices. I fear that she may never grasp sums beyond pocket money. There is besides the danger of exploitation. The patient is a profoundly dependent and passive young woman who quite easily could come under the sway of an unprincipled broker or financial adviser, not to mention a lover, before whom she would be especially gullible. She realizes herself that she needs the guidance of her parents, to whom she has been happy to entrust her finances so far. --7# (~/~--;7"____ Lawrence McCloskey, PhD, ABPP WellSpan Behavioral Health LM/hf EXHIBIT B CONSENT OF TRACY A. MCHALE I, TRACY A. MCHALE, do hereby consent to the Petition of my parents, MICHAEL J. MCHALE and KARIN M. MCHALE, to have them appointed Limited Guardians of my Estate for purposes of making any and all decisions affecting my Metropolitan Life Insurance Company Annuity Structured Settlement. Date '\ 'J. W 01 ~ Q,1l11\1-k,h TRA~MCHALE EXHIBIT C CONSENT OF LIMITED GUARDIAN OF THE EST ATE I, MICHAEL J. MCHALE, hereby consent to act as Limited Guardian of the Estate of Tracy A. McHale. I reside at 218 Woods Drive Mechanicsburg, Pennsylvania 17050, and am the Vice President at Interstate Tax Service Bureau. I am a citizen of the United States of America and can speak, read and write the English language. I have no interest adverse to Tracy A. McHale, the Alleged Partially Incapacitated Person. Date: /;J /3/0 7 II -/}7;~:4/:L7/JJc ~. MICHAEL J.ifCHALE CONSENT OF LIMITED GUARDIAN OF THE ESTATE I, KARIN M. MCHALE, hereby consent to act as the Limited Guardian of the Estate of Tracy A. McHale. I reside at 218 Woods Drive Mechanicsburg, Pennsylvania 17050, and am the Office Manager at Interstate Tax Service Bureau. I am a citizen of the United States of America and can speak, read and write the English language. I have no interest adverse to Tracy A. McHale, the Alleged Partially Incapacitated Person. Ii jY' "11/ /J . ' . 1AA /l ~'r~ KARIN M. MCHALE ! / Date: ~2 /~':Jil) 7