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HomeMy WebLinkAbout01-10-02 IN RE: APPOINTMENT OF A GUARDIAN OF THE PERSON OF MILDRED J. GERBER, and alleged incapacitated person, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS COURT DIVISION Respondent : NO. 21-01-92 EXCEPTIONS OF MARILYN JO GERBER AND NOW, comes Marilyn Jo Gerber, by and through her counsel, Caldwell & Kearns, and files the following Exceptions pursuant to Pa. Supreme Court, Orphans Court Rule 7.1, to the Order and Opinion of Court dated December 21,2001, respectfully stating in support thereof as follows: 1. On December 21, 2001, the Opinion and Order of Court was issued in the above matter regarding the Petition for Appointment. of Guardian of the person of Mildred J. Gerber. A true and correct copy of the Opinion and Order is attached hereto and marked as Exhibit A and incorporated herein by reference. 2. The Court has erred in determining that Mildred J. Gerber is permanently and totally incapacitated to require the appointment of a plenary guardian where the record does not substantiate clearly and convincing the total inability of Mildred J. Gerber to meet the essential requirements for her physical health and safety in accordance with 20 Pa. C.S.A. ~5501 and ~5512.1. 3. The Court has erred in failing to make specific findings of fact as required by 20 Pa. C.S.A. ~5512.1(3) pertaining to the specific needs by Mildred J. Gerber for guardianship services upon consideration of the availability of family and her daughter, Marilyn Jo Gerber, ac; friends, and supportive outside agencies such as Betra In-Home Care and ij~bo~od #1 ~ IT .: :;2. Q f1.> C.- ~~ () r ~ .'i'~ (t! .-4 a j~ :.~.~; v VJ :p;. N :..F~ Q, . . ". =::..: ,,!-' o r::: ~i D:"J {; ces, and that Mildred J. Gerber is totally incapacitated as required by 20 Pa. C.S.A. 4. Testimony presented at the hearings of October 8, 2001, and December 19, 2001, including agency personnel, established the day to day self-sufficient capabilities of Mildred J. Qerber to provide for her own needs in activities such as cooking, cleaning, eating, dressing and attending to personal matter and hygiene; Mrs. Gerber's ability to converse and communicate as well as make decisions regarding her person, home and well-being; Mrs. Gerber's ability to distinguish and take her own medication; and Mrs. Gerber's ability to be ambulatory without assistance. 5. Testimony presented at the hearing of the care givers, as well as documented care notes of same and nurse practitioners attending to Mrs. Gerber, establish a daily functional capacity of Mildred J. Gerber contradictory to the evaluations, assessment and findings of Dr. Cadieux. 6. Caretakers such as Betra In-Home Care, public agencies such as Neighborhood Services, and family members such as Marilyn Jo Gerber who resides within one block of Mrs. Gerber's residence, are available to provide and assist Mrs. Gerber with her daily needs. 7. Where an appropriate support system is in place and it is demonstrated that a person impaired with an alleged incapacity is counter-balanced by friends, family or other support systems, such person cannot be deemed to be totally incapacitated statutorily. In Re Peery, 556 Pa. 125, 727 A.2d 539 (1999). 8. The Court has therefore erred in failing to fully evaluate and give preference to a limited guardianship over the person where Mildred J. Gerber as required by 20 Pa. C.S.A. 2 ~'5tf 95512.1. 9. The Court has further erred in accepting the testimony of Dr. Cadieux as to the condition of Mildred J. Gerber where such evaluation was not complete and comprehensive in that: A. Dr. Cadieux has not examined fully and adequately the medical records and history of Mildred J. Gerber with respect to the evaluation and diagnosis made; B. Dr. Cadieux failed to interview any relevant family members, friends, neighbors or other individuals having regular contact with Mildred J. Gerber to fully assess her abilities and needs; C. Dr. Cadieux did not interview or consult with current care providers who provided assistance and services for Mildred J. Gerber; D. Dr. Cadieux has failed to interview or consult with Petiti~ner, Marilyn Jo Gerber who provided care and assistance to Mildred J. Gerber for a continuous and substantial period of time; E. Dr. Cadieux has had no contact or observations of Mildred J. Gerber other than only two offices visits in March 2001 and October 2001; F. Testimony and documented notes and records of caretakers for Mildred J. Gerber established daily functional capacity contradictory to the evaluations, assessments and findings of Dr. Cadieux; G. Dr. Cadieux has not opined that as of November 5, 2001, injury to Mildred J. Gerber, the 24-hour per day agency care supervision is required; H. The opinion of Dr. Cadieux that possible improprieties alleged between 3 Petitioner Marilyn Jo Gerber's interaction with Mildred J. Gerber has complicated her cognitive conditions is inconclusive and unsubstantiated, the full nature and extent of such interaction has not been in investigated or evaluated; no contact has been made with Marilyn Jo Gerber for such investigation or evaluation; nor has such interaction been differentiated from the dementia diagnosis that has been made. I. No specific medical follow-up and testing regarding the efficacy of the continued use of Aricept and Celexa medications with Mildred J. Gerber sufficient to support a dementia diagnosis a disregard of Mildred J. Gerber's complaints of dizziness, nausea and feeling ill as a result of the medications and lack of proper monitoring of medication dosage, all contributing ultimately to Mildred J. Gerber's injuries of November 5,2001. J. Lack of neurological and geriatric medical examinations such as laboratory work, CAT scans, physical and mobility examinations to assess Mildred J. Gerber's condition. K. Lack of a neurological and geriatric specialist in Mildred J. Gerber's continued medical care and management. 10. The Court has erred in not granting Petitioner's Motion for Independent Evaluation and requiring that said evaluation be completed as cause has been shown by reason of the foregoing. 11. Testimony and record evidences cause not to appoint Frederick E. Gerber, II, as plenary guardian in that: A. In November, 2000, Marilyn Jo Gerber and Mildred J. Gerber filed an 4 action in the Court of Common Pleas of Cumberland County to obtain an accounting for the trust and assets under the control of Frederick E. Gerber. B. On or about December 26, 2000, Mildred J. Gerber revokes all power of attorneys including that of Frederick E. Gerber. C. Within three days thereafter, Frederick E. Gerber stops and precludes the use of Mildred J. Gerber of all personal accounts. D. On or about January 6,2001, Frederick E. Gerber causes Mildred J. Gerber to terminate the services of prior engaged legal counsel, Joseph Metz. E. Mildred J. Gerber is removed from the care of her primary and personal physicians by Frederick E. Gerber, II. F. Commencing the weekend of January 13,2001, Frederick E. Gerber, with the assistance of Jane Heflin, assert possession and control over the person and residence of Mildred J. Gerber, change the door locks and provide an unlisted phone number. G. On January 19,2001, Frederick E. Gerber causes execution of the power of attorney appointing him as agent and on the same date initiates a Petition for the appointment of a guardian of the elit,!!.e of Mildred J. Gerber to the above captioned matter. H. Frederick E. Gerber has obstructed, the physical and personal acts as, by Mildred J. Gerber with her daughter, Marilyn Jo Gerber. I. Marilyn Jo Gerber and not Frederick E. Gerber provided personal care and professional assistance to Mildred Jo Gerber on a regular basis for a substantial period of time from September 1999 to January 2001 prior to the institution of the current 5 'I; , r- proceedings, assisted her in meal preparation, household chores and maintenance, grocery shopping and errands, attended to medical appointments and therapy and assisted in social and pleasure outings and engagements; attended to Mildred J. Gerber's recovery from and rehabilitation of a broken hip, discovered misdiagnosed medical conditions which were improperly attended to by Frederick E. Gerber. J. Prior to the institution of the proceedings, Frederick E. Gerber did not participate or assist in any regular medical care, treatment, other assistance to Mildred J. Gerber. K. No dispute has been raised by Frederick E. Gerber with regard to any of the personal care provided by Marilyn Jo Gerber to her mother, Mildred J. Gerber. L. Frederick E. Gerber resides a substantial distance from Mildred J. Gerber and is not readily accessible in the event of emergency; similarly Jane Heflin resides in Chicago at an even greater distance and is unavailable on a daily basis to attend to the needs of Mildred J. Gerber. 12. Marilyn Jo Gerber has objected to and submitted testimony as to: the quality and quantity of care personally provided by Frederick E. Gerber prior to the execution of the power of attorney on January 19,2001; the quality and quantity of care prior to the November 5,2001, injuries to Mildred J. Gerber consisting of only two doctor visits in eleven months, only two registered nurse supervisory visits in eleven months, and the resulting loss of body weight, physical strength, possible dehydration, malnutrition and infections which have occurred to Mildred J. Gerber all under the care and supervision of Frederick E. Gerber as a result of which Mildred J. Gerber has failed to thrive; the inconsistent maintenance of care records, the failure to 6 c' , /~ i ,t, provide and engage regular qualified nursing care supervision, inconsistent administration and documentation of medications to Mildred J. Gerber; failure to consider and make modifications to Mildred J. Gerber's home such as exit ramps, additional railings and personal comfort measures; and the improper removal despite the objections ofPNC as plenary guardian of the estate and the American Red Cross of a telephone lifeline previously installed by Marilyn Jo Gerber and the American Red Cross in December 2000. 13. On November 5,2001 while under the care of Frederick E. Gerber, Mildred J. Gerber sustained injuries purportedly as a result of a fall in her home and due to ,the unavailability of lifeline emergency communication and lay on the floor for potentially up to ten hours resulting in hospitalization and suffering and where the prior care notes indicated a potential for her instability. 14. The Court has erred therefore in giving preference to Frederick E. Gerber to be appointed as Mildred J. Gerber's nominee for guardian as provided by 20 Pa. C. S. 95604(c)(2). 15. No affirmative sworn statement, testimony, deposition of a physician or licensed psychologist has been submitted of record at the physical or mental condition of Mildred J. Gerber would have been harmed by her presence at either the October 8, 2001, and December 19, 2001, hearings as required by 20 Pa. C.S.A. ~5511(a) to excuse the presence of Mildred J. Gerber at such hearing. 16. The burden of proof as to all issues of incapacity statutory compliance rest upon the petitioning party, Frederick E. Gerber. Matter of Caine, 490 Pa. 24, 415 A2d 13 (1980); Smith v. Smith, 365 Pa. Super. 195,529 A.2d 466 (1987); 20 Pa. C.S.A. ~5511(a). 17. The Court has erred in failing to require the presence of Mildred J. Gerber at the 7 - .11 hearings of October 8, 2001, and December 19,2001, as required by 20 Pa. C.S.A. ~5511(a). See Rymans Case, 139 Pa. Super. 212, 11 A.2d 677 (1940). 18. The incapacity of Mildred J. Gerber, was litigated in March, 2001, but only as to the determination of her abilities to receive and evaluate financial information, communicate and make decisions regarding her financial affairs and manage her financial resources; a determination was not made nor findings supportive of or pertaining to any partial or total inability to meet the essential requirements for her personal physical health and safety as required by 20 Pa. C.S.A. ~5501 and 5512.1 WHEREFORE, Petitioner, Marilyn Jo Gerber, respectfully requests that the Order of Court dated December 21, 2001, be vacated af!d the matter be remanded for further proceedings for determination of the need for and appointment of a limited guardian, or a limited co-guardian, in accordance with the requirements of20 Pa. C.S.A. 95512.1(b) with the presence of Mildred J. Gerber being required. Respectfully submitted, CALDWELL & KEARNS By: Stan ey J. A. owski, Esquire 3631 North Front Street Harrisburg, P A 17110 (717) 232-7661 LD.#37422 Attorney for Appellant 34359 8 I r VERIFICATION I, Marilyn Jo Gerber, verify that the averments in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to ----- authorities. ):~ if: