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HomeMy WebLinkAbout12-21-01 {2,Z IN RE: APPOINTMENT OF A IN THE COURT Of COMMON PLEAS OF GUARDIAN OF THE PERSON OF CUMBERLAND COUNTY, PENNSYLVANIA MILDRED J. GERBER 21-01-92 ORPHANS' COURT IN RE: PETITION FOR THE APPOINTMENT OF A GUARDIAN OF THE PERSON OF MILDRED J. GERBER BEFORE BAYLEY. J. ORDER OF COURT. AND NOW, this /)-..tE"~" day of December, 2001: (1) Frederick E. Gerber, II, is appointed plenary guardian of the person of Mildred J. Gerber. (2) A hearing on the petition of Marilyn Gerber for access to her mother shall be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania, at 2:30 p.m., Monday January 28, 2002. The guardian of the person shall have Mildred J. Gerber present for the taking of her testimony. Edgar ~-.. B~;~y, 21-01-92 ORPHANS' COURT Richard C. Rupp, Esquire For Frederick E. Gerber, II Stanley J.A. Laskowski, Esquire For Marilyn Gerber Jacqueline Verney, Esquire For Mildred J. Gerber :saa IN RE: APPOINTMENT OF A IN THE COURT OF COMMON PLEAS OF GUARDIAN OF THE PERSON OF CUMBERLAND COUNTY, PENNSYLVANIA MILDRED J. GERBER 21-01-92 ORPHANS' COURT IN RE: PETITION FOR THE APPOINTMENT OF A GUARDIAN OF THE PERSON OF MILDRED J. GERBER BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., December 21, 2001:-- On September 5, 2001, Frederick E. Gerber, II, filed a petition seeking an order appointing him guardian of the person of his mother, Mildred J. Gerber. Mildred Gerber, age 87, was born on November 9, 1914. Her husband, a retired United States Army Officer, died in February, 1998. Mildred Gerber continues to live in her marital home in New Cumberland, Cumberland County. Hearings were conducted on October 8 and December 19, 2001. Through her counsel, Mildred Gerber supports the appointment of Frederick Gerber as her personal plenary guardian. ,The petition is supported by Mildred's daughter, Jane Heflin. It is opposed by Mildred's other child, Marilyn J. Gerber. On March 22, 2001, this court appointed PNC Bank as the plenary guardian of the estate of Mildred J. Gerber. That appointment followed hearings on the petition of Frederick Gerber, and, like the within petition, was opposed by Marilyn Gerber. In support of the order, we entered the following findings: 21-01-92 ORPHANS' COURT (1) Mildred J. Gerber, born November 9, 1914, suffers from dementia that impairs her capacity to make and communicate decisions. (2) Her ability to receive and evaluate information effectively and communicate decisions is impaired to such a significant extent that she is totally unable to manage her financial resources. (3) The estrangement between one of her daughters and her other daughter and son, and the substantial assets in her estate, requires the appointment of a corporate guardian. (4) A plenary guardian of the estate is necessary because her incapacity is permanent. (5) The guardianship must be for an unlimited period? In the current proceeding, Robert J. Cadieux, M.D., who is board certified in geriatric psychiatry, testified that he had conducted a comprehensive geriatric assessment prior to the proceedings in March, 2001. For the current petition, he reexamined Mildred Gerber in October, 2001. Last March, Dr. Cadieux's diagnosis of Mildred Gerber was senile dementia, probable mixture of vascular and alzheimer's type. His current diagnosis is the same. He found her cognitive impairment is severe, and she is in continuing decline. His prognosis is for a progressive decline. Mildred Gerber is taking a prescription drug for depression, and a prescription drug designed to slow the progress of her dementia. The dosage of the latter drug was doubled after she fell and fractured two rips in November, 2001. Mildred Gerber's condition is being monitored by a social worker in the office of Dr. Cadieux, who she sees every two weeks. Prior to November, 2001, she had been receiving 12 hour a day agency in- home care. Since her fall, she receives 24 hour a day agency in-home care. Dr. ~ No appeal was taken from this order. -2- 21-01-92 ORPHANS' COURT Cadieux's current assessment is consistent with our prior finding that Mildred J. Gerber is permanently incapacitated. Her lack of ability to receive and evaluate information effectively, or to adequately communicate decisions and care for herself, and the permanent nature of her condition, requires that a plenary guardian of her person be appointed for an unlimited period? Marilyn Gerber opposes the appointment of her brother as guardian of the person of Mildred Gerber. She suggests that she be appointed, or alternatively, she be appointed co-guardian with a guardianship care agency, or alternatively, that a guardianship care agency be appointed sole personal guardian. On January 21, 2001, Mildred J. Gerber nominated her son Frederick Gerber, as her durable power of attorney. The Legislature has provided at 20 Pa.C.S. Section 5511(f), that "The court may appoint as guardian any qualified individual .... If appropriate, the court shall give 2 On December 19, 2001, the day of the second hearing, and a month and a half after Dr. Cadieux testified on October 8~h, Marilyn Gerber filed a petition seeking an order for an independent medical examination of Mildred Gerber. We denied the petition because there is clear and convincing evidence that Mildred Gerber is incapacitated, that her condition is permanent, and that her condition has deteriorated from when we found her incapacitated on March 22, 2001. There is no cause shown for an independent evaluation under 20 Pa.C.S. § 551 l(d). -3- 21-01-92 ORPHANS' COURT preference to a nominee of the incapacitated person."3 Frederick Gerber is a Colonel in the United States Army, and Director of Operations for the Army Surgeon General. He lives in Alexandria, Virginia, which is a two-hour drive from New Cumberland. He or his sister Jane see their mother on most weekends. Mildred Gerber's primary care physician practices in the Dunham Army Hospital in Carlisle. Mildred Gerber's medical care has been provided through U.S. Army medical facilities since 1936. Marilyn Gerber, a nurse, scoffs at the quality of this care. To the contrary, Frederick Gerber has seen to his mother having received sound medical care for her various maladies. Mildred Gerber is in decent health given her age and her increasing frailty. After spending several days in a hospital in November following her rib fractures, with resulting pneumothorax, she was prescribed four weeks of in-home physical therapy. She made a complete recovery in two weeks, so the last two weeks of therapy were cancelled. Unfortunately, Marilyn Gerber is estranged from her brother Frederick, and sister Jane. Mildred Gerber has told Dr. Cadieux that she is very supportive of her son, and ¥ disturbed by her daughter. The credible evidence warrants giving preference to her nominee, Frederick Gerber, as her personal guardian. It is his hope to maintain Mildred 3 The Pennsylvania Probate Code at 20 Pa.C.S. 5604(c)(2) provides: A principal may nominate, by a durable power of attorney, the guardian of his estate or his person for consideration by the Court if incapacity proceedings for the principal's estate or person are thereafter commenced. The Court shall make its appointment in accordance with the principal's most recent nomination in a durable power of attorney except for good cause or disqualification. 21-01-92 ORPHANS' COURT in her own home, as she desires, for as long as feasible. Frederick Gerber is qualified to be personal guardian, and by his conduct has shown that he is committed to his mother's well-being for the time she has remaining. We are completely satisfied that he will fulfill his guardianship duties in accordance with the law and the best interest of his mother. On December 19, 2001, the day of the second hearing, Marilyn Gerber petitioned for access to her mother. Marilyn Gerber lives in New Cumberland, and last saw her mother on January 14, 2000. Frederick Gerber testified that he will allow his sister to see her, but that her mother has said that she does not want to see Marilyn. The mother's attorney is opposed to Marilyn's seeing her mother. This issue of access to an incapacitated adult is a different issue than that of incapacity, and the need for the appointment of the guardian of the person. There should not be a continuous and upsetting adversarial relationship that is contrary to the incapacitated person's best interest; however, a well-meaning desire on the part of a child to see her mother should not be discarded lightly. See Estate of Haertsch, 437 Pa. Super. 187 (1994). Having now appointed Frederick Gerber as his mother's plenary personal guardian, we consider it his duty to tell his mother that Marilyn wants to see her, to continually determine if she wishes to see her, and if at any time she does, to notify Marilyn and allow access. No one called Mildred Gerber as a witness. Given the difficulties between Marilyn and her mother, and upon reflection, we are hesitant to make a decision on this last minute petition for access without Mildred Gerber's testimony. We -5- 21-01-92 ORPHANS' COURT want to assess her understanding of the situation, what her wishes are, whether they are rational, if she remains opposed to seeing Marilyn, and if she does, whether forcing such access would be in her best interest. We take this step with some hesitation because, having taken the testimony of Mildred Gerber in the proceedings for the appointment of a guardian of her estate, we know that it will be very difficult for her, and will undoubtedly result in considerable anxiety. Hopefully, it will not result in harm to her mental condition." As suggested in the Estate of Haertsch, we will schedule another hearing on the petition of Marilyn Gerber for access to her mother. ORDER OF COURT AND NOW, this ~ [3'~- day of December, 2001' (1) Frederick E. Gerber, II, is appointed plenary guardian of the person of Mildred J. Gerber. (2) A hearing on the petition of Marilyn Gerber for access to her mother shall be "After conducting hearings on two separate days, during which Mildred Gerber was not present, and immediately after the record was closed, counsel for Madlyn Gerber, in an act of brinkmanship, suggested that the hearings are a nullity because Mildred Gerber was not present. The Legislature at 20 Pa.C.S. Section 5511(a) has provided: The alleged incapacitated person shall be present at the hearing Unless: (1) the court is satisfied, upon the deposition or testimony of or sworn statement by a physician or a licensed psychologist, that his physical or mental condition would be harmed by his presence. No testimony was presented in this regard, yet neither Frederick Gerber, Marilyn Gerber, or counsel for Mildred Gerber, sought to have Mildred Gerber present. Given the manner in which Marilyn Gerber's counsel raised this issue, and the fact that Marilyn Gerber's incapacity was previously litigated in March, 2001, the objection is waived. -6- CERTIFICATE OF SERVICE AND NOW, this day of January, 2002, I hereby certify that I have served a copy of the within document on the following by depositing a tree and correct copy of the same in the U.S. Mails at Harhsburg, 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 VERIFICATION I, Marilyn Jo Gerber, verify that the averments in the foregoing document are tree 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 I, Michael J. Kane, do hereby certif3, that, on the 31st day of January, 2001, I placed a true and correct copy of: PlaintiffMarilyn J. Gerber's Answer to Defendant's Motion to Dismiss Action and New Matter in the United States Mail, first class postage prepaid, and addressed to: Lindsay Dare Baird, Esquire 37 S. Hanover St. Carlisle, PA 17013 Attorney for Defendant Jacqueline M. Vetoer, Esquire 44 South Hanover St. Carlisle, PA 17013 Attorney for Plaintiff Mildred J. Gerber Michael J. Ka~ MILDRED J. GERBER and : THE COURT OF COMMON PLEAS OF MAR1LYN J. GERBER, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : ORPHANS COURT DIVISION VS. : : NO. 00-7831 Equity : FRED E. GERBER Il, TRUSTEE : Defendant : Civil Action-Equity PLAINTIFF MARILYN F. GERBER'S ANSWER TO DEFENDANT'S MOTION TO DISMISS ACTION AND NEW MATTER AND NOW, Plaintiff Marilyn J. Gerber, through her attorney Michael J. Kane, respectfully submits this answer to Defendant's Motion to Dismiss. 1. Admitted 2. Admitted 3. Admitted that Defendant filed an answer to Plaintiff's Petition on November 20, 2000 and averred, inter alia, that the requested relief of an accounting was accomplished. Denied that the requested relief of an accounting was, in fact, accomplished. 4. Plaintiff has no basis to either admit or deny Defendant's presumption. To the extent that Defendant avers that Plaintiff somehow contributed to that presumption, the averment is denied. 5. Admitted that Plaintiff is seeking discovery of further information 6. Admitted that Plaintiff'filed the action in the wrong division of the Court of Common Pleas. NEW MATTER 8. 42 Pa.C.S. § 5103(c): provides: If an appeal or other matter is taken to, brought in or transferred to a division ora court to which such matter is not allocated by law, the court shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper division of the court, where the appeal or other matter shall be treated as if originally filed in the transferee division on the date first filed in a court or magisterial district. 9. The remedy of 42 Pa.C.S. § 5103(c) is mandatory. 10. The proper remedy to Plaintiff's Motion is for the court to transfer the matter to the Court of Common Pleas, Orphan's Court Division and not dismissal. In re Estate of Cantor., 424 Pa. Super 24, 621 A:2d 1021 (1993). ~ - :~ '" '~ '~ WHEREFORE, Plaintiff' Marilyn J. Gerber respectfully requests that the court: 1. Order that the matter be transferred from the Court of Common Pleas, Equity Division to the Court of Common Pleas, Orphan's Court Division. 2. Direct the Prothonotary of Cumberland County to transfer the file to the Clerk of the Orphan's Court, Register of Wills. 3. Vacate the Court's Order of January 22, 2001 that Plaintiff's Motion to Dismiss be argued on March 26, 2001. 4. Enter an Order Denying Defendant's Motion to Dismiss as Moot Respectfully submitted, Michael J. Kane'l~g. No. 46215 Kane and Mackin, LLP 3300 Trindle Rd. Camp Hill, PA 17011 (717) 214-3700 Attorney for PlaintiffMarilyn J. Gerber