Loading...
HomeMy WebLinkAbout12-19-01IN RE: APPOINTMENT OF A GUARDIAN : IN THE COURT OF COMMON PLEAS OF THE PERSON OF MILDRED J. GERBER, : CUMBERLAND COUNTY, PENNSYLVANIA and alleged incapacitated person, : ORPHANS COURT DIVISION : Petitioner : NO. 21-01-92 MOTION FOR INDEPENDENT EVALUATION OF AND CONTACT WITH MILDRED J. GERBER AND NOW, comes the Petitioner, Marilyn Jo Gerber, by and through her undersigned counsel, and requests that an independent evaluation of the alleged incapacitated person, Mildred J. Gerber be completed and contact with her be allowed by Petitioner, stating in support thereof as follows: 1. Petitioner is Marilyn Jo Gerber who has a Pennsylvania residence of 42 Drexel Place, New Cumberland, Pennsylvania 17070. 2. Petitioner is an adult individual and daughter of the alleged incapacitated person, Mildred J. Gerber. 3. On or about September 5,2001, a Petition for Appointment of Guardian of the Person of Mildred J. Gerber was filed to the above-captioned matter by and on behalf of Frederick E. Gerber, II. 4. On October 8, 2001, hearing was commenced pursuant to a citation and Order of Court issued September 6, 2001, regarding the appointment of a guardian for the alleged incapacitated person, Mildred J. Gerber. 5. At hearing of the matter on October 8, 2001, Petitioner Frederick E. Gerber, II, presented testimony of Roger J. Cadieux, M.D., Frederick E. Gerber, II, Mildred R. Scott and Jane N. Heffiin in support of the Petition for Appointment of a Guardian. 6. The opinion, evaluation and examination of Mildred J. Gerber by Dr. Cadieux, was incomplete and improper in that: A. Dr. Cadieux's testimony establishes that he had failed to examine fully and adequately the medical records and medical history of Mildred J. Gerber with respect to his evaluation and diagnosis of Ms. Gerber and recommendations for treatment; B. Dr. Cadieux's testimony establishes that he failed to interview any relevant family members, friends, neighbors, or other individuals having regular contact with Mildred J. Gerber, both before the initial evaluation of March 21, 2001 (Exhibit C, Petition for Appointment of Guardian), and the report of October 3,2001; C. Dr. Cadieux's testimony establishes that he did not interview or consult with current care providers at Betra In Home Care, who are and have been providing daily care and supervision services for Mildred J. Gerber, at least since March 21, 2001; D. Dr. Cadieux failed to interview or consult with in any respect Petitioner, Marilyn Jo Gerber, a registered nurse licenced in Pennsylvania, who provided care and assistance to Mildred J. Gerber for a continuous period in excess of sixteen (16) months prior to institution of these guardianship proceedings in January, 2001. E. Dr. Cadieux had no contact with or made observations of Mildred J. Gerber other than for the limited evaluations performed at his offices. 7. Petitioner, Marilyn Jo Gerber, is a registered nurse licensed in Pennsylvania since 1985 with sixteen (16) years of experience as intensive care, coronary care and geriatric nurse in home healthcare; Petitioner is a licensed nurse in California, Pennsylvania, Maryland, Virginia, Vermont and New Hampshire; her professional medicine career has included service at John Hopkins Medical Center, Stanford Medical Center, Pacific Medical Center, Einstein Hospital- Philadelphia, Pennsylvania, and various hospitals in the Harrisburg area. 8. Testimony as to Mildred J. Gerber's physical and cognitive abilities by caretaker Mildred Scott, of Betra In Home Care, who has been providing assistance and services to Mildred J. Gerber, establishes a daily functional capacity of Mildred J. Gerber contradictory to the evaluation, assessment and findings of Dr. Cadieux. 9. Testimony of Mildred Scott establishes: the day to day self-sufficient capabilities of Mildred J. Gerber to provide for her own needs such as by cooking, cleaning, eating, dressing and attending to personal hygiene; Mrs. Gerber's ability to converse and communicate as well as make decisions regarding her person and well-being; Mrs. Gerber's ability to distinguish and take her own medication; Mrs. Gerber's ability to be ambulatory without assistance. 10. Testimony of Mildred Scott establishes a distinct and independent ability on behalf of Mildred J. Gerber to meet the essential daily requirements for her own physical health, safety and well-being. 3 11. Dr. Cadieux's testimony indicated contrary to his opinions of March 21, 2001 and October 3, 2001, that 24-hour supervision was not necessary as of the date of the October 8, 2001, hearing; Dr. Cadieux then also indicated that additional ancillary assistance could be provided to Mildred J. Gerber so that she could continue to be cared for and supervised in her current environment and home. 12. Despite the limited of examination by Dr. Cadieux of Mildred J. Gerber, and failing to interview and contact friends, neighbors and relatives, including Petitioner Marilyn Jo Gerber, regarding Mildred Gerber's condition and abilities, he opined that Mrs. Gerber would benefit from ongoing counseling and case management services but failed to provide the full nature and extent of such services which are required at this time. 13. The opinion of Dr. Cadieux dated March 21, 2001, that the ongoing guardianship process was contentious and emotionally draining to Mildred Gerber, thus impacting her condition, is inconclusive and unsubstantiated in that the full nature and extent of such impact has not been investigated or evaluated by Dr. Cadieux, nor differentiated from the dementia diagnosis that has been made. 14. The opinion of Dr. Cadieux that the possible impropriety as it relates to Petitioner Marilyn Jo Gerber's interaction with Mildred J. Gerber has complicated her cognitive condition is inconclusive and unsubstantiated as no contact has been made with Marilyn Jo Gerber, nor has the full nature and extent of such interaction been investigated or evaluated by Dr. Cadieux, nor differentiated from the dementia diagnosis that has been made. 4 15. Access to and contact with Mildred J. Gerber, physically and personally, by Petitioner Marilyn Jo Gerber has totally been denied and obstructed by Petitioner Frederick E. Gerber, II, and his representatives; such access has been denied since challenges had been originally made by Mildred Gerber and her daughter, Marilyn Jo Gerber, with regard to the propriety of management of the family trusts by Frederick E. Gerber, II. 16. Prior to the actions initiated in January 2001 of Frederick E. Gerber, II, for the appointment of guardian of the Estate over Mildred E. Gerber, Petitioner Marilyn Jo Gerber: (a) enjoyed a loving, caring and productive relationship with her mother, Mildred J. Gerber over a period of sixteen (16) continuous months from approximately September 1999 to January 2001; (b) was a substantial daily companion to Mildred J. Gerber, assisting her in meal preparations, household chores and maintenance, grocery shopping and errands, attending to medical appointments and physical therapy; (c) transporting Marilyn J. Gerber to social engagements, pleasure outings, attending Catholic mass, assisting in the attending to medical needs and appointments; (d) attending to Mildred J. Gerber an additional six (6) month period in 1997 to assist Mildred J. Gerber in the care and rehabilitation for a broken hip; (e) was instrumental in discovering three misdiagnosed medical conditions of Mildred J. Gerber in August and September 2000; and (f) is a healthcare professional who has followed Mildred J. Gerber's condition and care on a continuous basis since 1995, provided and attended to consistent medical, dental and physical therapy care for Mildred J. Gerber. 17. Petitioner Marilyn Jo Gerber desires to maintain a relationship with her mother and provide love, care and support. 18. The opinion and testimony of Dr. Cadieux indicates that Mildred J. Gerber is susceptible to pressure and influence. 19. It is submitted that the continuous and systematic denial of access by Frederick E. Gerber, II, of Marilyn Jo Gerber to Mildred J. Gerber for a period in excess of eleven months upon inception of these proceedings, has fostered significant influence and untoward pressure upon Mildred J. Gerber by Frederick E. Gerber, II, and/or his representatives. 20. The continued absence and systematic preclusion by Frederick E. Gerber, II, of contact by Marilyn Jo Gerber with Mildred J. Gerber has served to emphasize the acrimony and contentious relationship as alleged by Frederick E. Gerber, in the Petition for Appointment of Guardian and propagate an estrangement of Mildred J. Gerber from her daughter. 21. No dispute has been raised by Frederick E. Gerber, II, with the personal care that has been provided by Marilyn Jo Gerber to Mildred J. Gerber. 22. It is submitted that the current actions of Frederick E. Gerber, II, and slanderous accusations set forth in the Petition for Guardian of the Person and Over the Estate of Mildred J. Gerber, an alleged incapacitated person, are indicative of the significant influence and untoward 6 pressure desired and imposed upon Mildred J. Gerber by him, and also indicative of the physical, emotional and financial abuse inflicted by Frederick E. Gerber, II, upon Marilyn Jo Gerber. Petitioner incorporates herein by reference her response to the Petition of Frederick E. Gerber, II, for Appointment of Guardian over Person of Mildred J. Gerber, an alleged incapacitated person. 23. A complete and independent evaluation of Mildred J. Gerber is necessary in order to fully examine her medical history, communicate with appropriate relatives, friends, neighbors, and care providers, not only to determine the full extent of her current capabilities, but in the event of incapacity being found, to define the specific needs to be addressed regarding appointment of a guardian. 24. An independent evaluation is submitted as necessary at this time, particularly in the event that a determination of incapacity is made, in order to determine in her best interests whether a plenary or limited guardianship would be appropriate and the least restrictive alternatives for her care. 25. An independent evaluation would further provide recommendations with regard to Mildred J. Gerber's current functional abilities, to assist in defining the powers to be delineated for any appointed guardian. 26. The alleged incapacity of Mildred J. Gerber at this time is the primary issue presented for determination; an independent evaluation is in the best interest of Mildred J. Gerber, such evaluator being appointed without the recommendation or influence of either Marilyn Jo Gerber or Frederick E. Gerber, II. 7 27. Since approximately January 13, 2001, personal contact with Mildred J. Gerber by Marilyn Jo Gerber has been denied under the threat of criminal prosecution. 28. Petitioner, Marilyn Jo Gerber, also desires that personal contact, communication and visitation with her mother be permitted and re-established; Petitioner desires and requests that such personal contact and visitation specifically be permitted on Christmas 2001. 29. Counsel for Respondent, Frederick E. Gerber and Mildre_d J. Gerber, (agrees with) (opposes) (has not responded to) notice of this Motion by fax this date. WHEREFORE, Petitioner Marilyn Jo Gerber requests that this Court appoint an independent evaluator for purposes of examination, recommendation and report to the Court and address requirements of 20 Pa. C.S.A. {}5512.1; that access, direct personal contact and visitation be forthwith permitted by Petitioner Marilyn Jo Gerber, independently with her mother, Mildred J. Gerber, specifically commencing no later than and including December 25, 2001, and such other relief as this Court may deem proper and just. Respectfully submitted, CALDWELL & KEARNS Sta ~nley J.A. Iyasl~Owsl~i,~E~uir~~e' ~''*-' Attorney ID# 37422 3631 North Front Street Harrisburg, PA 17110-1533 Dated: /2- - / a--/ (717) 232-7661 /3 ~ 3ol A ttorney for Petitioner, Marilyn d. Gerber VERIFICATION I, Marilyn Jo Gerber, verify that the averments in the foregoing Motion 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 unswom falsification to authorities. CERTIFICATE OF SERVICE AND NOW, this / f~ day of December, 2001, I hereby certify that I have served a copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Richard C. Rupp, Esquire 355 North 21st Street Suite 205 Camp Hill, PA 17011 Jacqueline M. Vemey, Esquire 44 South Hanover Street Carlisle, PA 17013 CALDWELL & KEARNS By: ~~~~' .,. -' tz.ZO-Oi IN RE : IN THE COURT OF COMMON PLEAS OF APPOINTMENT OF A GUARDIAN: CUMBERLAND COUNTY, PENNSYLVANIA OF THE PERSON OF MILDRED J. : ORPHANS' COURT DIVISION GERBER, : NO. 21-01-92 An alleged incapacitated person : ORDER OF COURT AND NOW, this day of December, 2001, upon consideration of the Motion of Marilyn Jo Gerber and Answer and New Matter of Midlred J. Gerber, the Motion for contact is hereby DENIED. BY THE COURT Edgar B. Bayley, J.