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HomeMy WebLinkAbout01-09-03IN RE: APPOINTMENT OF A GUARDIAN :IN THE COURT OF COMMON PLEAS OF THE PERSON OF : ORPHANS' COURT DIVISION MILDRED J. GERBER, : CUMBERLAND COUNTY, PENNSYLVANIA AN ALLEGED INCAPACITATED PERSON : NO. 21-01-92 REPORT OF FREDERICK E. GERBER II, GUARDIAN OF THE PERSON OF MILDRED J. GERBER, AN INCAPACITATED PERSON, IN ACCORDANCE WITH 20 PA C.S.A. § 5521 Frederick E. Gerber II, Guardian of the Person of Mildred J. Gerber, an incapacitated person, was appointed Guardian of the Person on December 21, 2001. A copy of said Order is attached and incorporated herein by reference. Frederick E. Gerber II, the Guardian of the Person of Mildred J. Gerber, an incapacitated person, makes the following Report in accordance with the requirements of 20 PA C.S.A. §5521 ( c ) (1) ( ii ): A. Address and Type of Placement Mildred J. Gerber, the incapacitated person, is currently residing at the Sunrise Assisted Living Center, 59 Carlton Ave., Glen Ellyn, IL 60137 since on or about August 23, 2002. Before that time, Mildred, following the appointment of the Guardian of the Person, resided with her daughter, the Guardian's sister, Jane Heflin, at 270 N. Garfield, Lombard, IL 60148. B. Major Medical/Mental Problems Mildred J. Gerber (Mildred), the incapacitated person, had or has the following medical problems: 1. Mildred suffers from clinical, physician diagnosed, advanced Alzheimer's disease. 2. Mildred developed pneumonia on or about December 18, 2002 and was temporarily hospitalized, treated and released from the Good Samaritan Hospital of Downer's Grove, IL. 3. Mildred developed pneumonia on or about December 28, 2002 and was hospitalized at Glen Oaks Hospital, Glendale Heights, IL. 4. In examining, treating and caring for Mildred, the physician staff at the Glen Oaks Hospital in Glendale Heights, IL, determined that a combination of medical/mental conditions provided for a terminal diagnosis, and pursuant to her Living Will Directive, was authenticated as a candidate for hospice care on or about January 1, 2003. 5. As of January 1, 2003, Mildred was returned from Glen Oaks Hospital to the Sunrise Assisted Living Center, Hospice Care Unit.. C. Livinq Arrangements/Caretakers (PART I) The living arrangements, etc., of Mildred J. Gerber, the incapacitated person, were as follows: 1. When Mildred resided with her daughter, Jane Heflin, in Lombard, IL, Mildred had her own private room at the Heflin 2 single family residence. It was approximately a 9' X 12' room with a private bath and access to the rest of the living areas, kitchen, living room, dining room, on the same level. Mildred had her own private television set and telephone extension. Mildred received full-time, round-the-clock care from a private, paid assisted living professional, referred to the Guardian by the Illinois Department of Aging. Mildred received in-home care from her geriatric physician and certified social work case manager on a weekly basis. Members of Mildred's extended family and friends had daily access and interactions with Mildred. At various periods of her stay with Jane, Mildred participated in church sponsored, adult day care programs on a bi-weekly basis. 2. WhJle a resident in the Alzheimer's Unit of the Sunrise Assisted Living Center, Mildred had a semi-private room approximately 9' X 12' which conjoined with another resident's room. A private, spacious, handicapped bathroom separated the two living sections. Mildred's room was furnished with her personal furnishings, brand new mattress and box spring, family pictures, mementoes, television set, clothing, toilet articles, etc. At the Center, Mildred had access to a well appointed social/activities room and dining room. She had access to other residents, staff and visitors. The Guardian chose Sunrise Assisted Living Center because it was a well recognized, industry leader in long term care and had an Alzheimer's Unit which provided planned activities and stimulation for Alzheimer's patients. The guardian consulted the Chicago Department of Aging in finding appropriate assisted living arrangements for Mildred. 3 3. In addition to the routine, world class services and activities provided by Sunrise Assisted Living Center, the professional firm of Sanders and Warren, a geriatric case management agency, visited Mildred once a week during her stay at the Sunrise Assisted Living Center and while living with Jane Heflin. Additionally, a geriatric physician, geriatric psychiatrist and board certified podiatrist saw Mildred on a routine basis and as required to ensure Mildred's health care needs were met or exceeded. 4. At Sunrise Assisted Living Center, some of the planned, routine activities provided to its patients included supervised, assisted exercise, singing, play groups and recreational types of activities. (PART II) Mildred J. Gerber's medical providers are as follows 1. Her attending physician is Dr. Andrea Lawless, MD, while she resides at the Sunrise Assisted Living Center. 2. Her geriatric psychiatrist is Dr. Pauline Weiner, M.D., a board certified psychiatrist in geriatric medicine. (Reports attached) 3. Mildred also receives routine care from Joan Jackson, a licensed geriatric case manager, and employee of the Sanders and Warren geriatric professional case management firm. 4. While at Sunrise, Mildred was provided physical therapy services at least twice per week. 4 5. Dr. Mangisto, M.D. was one of Mildred's attending physician at Glen Oaks Hospital and in consultation with her physician group practice partners and members of the Hospital Ethics Committee, diagnosed Mildred with a terminal medical condition. D. Opinion of Guardian It is the opinion of the Guardian the guardianship should continue because: 1. Mildred is physically and mentally incapacitated and unable to care for herself. 2. Mildred's mental and physical conditions are deteriorating daily. 3. Mildred is in a physician documented, medically terminal condition. 4. Mildred needs physician prescribed hospice care which she is now receiving at Sunrise Assisted Living Center. 5. The Guardian demonstrated loving, compassionate care for his mother and a demonstrated, competent ability to ensure Mildred receives world class attention and care for her Alzheimer's terminal diagnosis. E. Visits/Contacts/Care of Incapacitated Person by Guardian 1. Fred Gerber, the Guardian, visited with his mother while she resided with her daughter, Jane Heflin, approximately once every four to six 5 her daughter, Jane Heflin, approximately once every four to six weeks. The Guardian was In constant, multiple weekly communications with both his mother, Jane, health care providers via land line, cell phone, pager, small and/or lettar/oarde. After Mildred moved to the Sunrise Assisted Living Center, the Guardian further maintained constant communication with the staff and supervisors at Sunrise Assisted Living Center. 2. The Guardian felt very comfortable with Mildred's living arrangements while she was residing with his sister, Jane Heflln, who saw their mother on a dally basis, except when she had minimal, work-related travel to New York City. Jane Heflln, Mildred's grandchildren and/or friends of the family were physically present with Mildred throughout this pest year, as well as a full- time, live-in, round-the-clock, paid assisted living/long term care professional. Additionally, a certified social work case manager visited Mildred on a weekly basis in addition to routine health care provider visits. 3. After Mildred J. Gerber resided at the Sunrise Assisted Living Center, Jane visited their mother, Mildred J. Gerber, either every day or every other day, but at least five days per week when Jane ~vas in town. Mildred's grandchildren and friends made frequent visits with Mildred. RESPECTFULLY SUBMITTED, ~.~ o~al Service, US Army G~---'~__/aj~of~[he Person 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, Madlyn 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 Madlyn Gerber. In support of the order, we entered the following findings: EXHIBIT A 21-01-92 ORPHANS' COURT (1) Mildred J. Gerber, bom 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 everytwo 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 pdor 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 551 l(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 8a, 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 ddve from New Cumberland. He or his sister Jane see their mother on most weekends. Mildred Gerber's pdmary 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. Marllyn 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 vadous 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, Madlyn 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 ~ 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~lisqualification. 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, Madlyn Gerber petitioned for access to her mother. Madlyn 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 .E. state 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 Madlyn 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 Madlyn 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 Madlyn, 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.4 As suggested in the Estate of Haertsch, we will schedule another hearing on the petition of Madlyn Gerber for access to her mother. ORDER OF COURT AND. NOW, this ~- ~'-~" day of December, 2001' (1) Frederick E. Gerber, II, is appointed plenary guardian of the person of Mildred J. Gerber. (2) A headng on the petition of Madlyn Gerber for access to her mother shall be 4 After conducting headngs 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 headngs are a nullity because Mildred Gerber was not present. The Legislature at 20 Pa.C.S. Section 551 l(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, Madlyn Gerber, or counsel for Mildred Gerber, sought to have Mildred Gerber present. Given the manner in which Madlyn Gerber's counsel raised this issue, and the fact that Madlyn Gerber's incapacity was previously litigated in March, 2001, the objection is waived. -Sm 21-01-92 ORPHANS' COURT conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania, at 2:30 p.m., Monday January 281 2002. The guardian of the person shall have Mildred J. Gerber present for the taking of her testimony. Edgar B. Bayle~, J. Richard C. Rupp, Esquire For Frederick E. Gerber, II Stanley J.A. Laskowski, Esquire For Marilyn Gerber Jacqueline Vemey, Esquire For Mildred J. Gerber :saa -7- PAULINE K. WIENER, M.D., S.C. 27W350 HIGH LAKE ROAD, ROOM 240 WINFIELD, ILMNOIS 60190 PHONE (630) 682-2746 FAX (630) 933-1933 July 18, 2002 RE: Mildred Gerber To Whom It May Concern:, This letter is written with the goal of providing an update on Ms. Mildred Gerber.'s psychiatric and psychological status. I base my current recommendations on my visit with Ms. Gerber on July 17, 2002. Ms. Gerber continues to display significant depressive and anxious symptoms. I am very concerned about her slow but continuous weight loss. Her cognition appears to be deteriorating. I am very concerned about the effect the weekly visits with daughter Marilyn have had on Ms. Gerber's state. Despite Ms. Gerber's emotional upheaval surrounding these weekly visits, it is my understanding that the court has authorized that these visits continue. As noted in my previous letter, I must recommend a cessation of the visits with Marilyn until Ms. Gerber's psychiatric status improves. My next office appointment with Ms. Gerber is scheduled for August 28, 2002. At this time I will reassess Ms. Gerber's condition. Sincerely, Pauline K. Wiener, M.D. Pauffae ILIlOener. MD. S.e. - ~-~ 27W350 Highlake Road · Room 240 · Winfield, Illinois 60190 Phone (630) 682-2746 · Fax (630) 933-1933 October 15, 2002 RE: Mil&ed Gerber To whom it may concern; This letter is written with the goal of providing an up.d, ate on Ms. Mil&ed Gerber's psychiatric and psychological status. I base my current recommendations on my October 14~", 2002 visit with Ms. Gerber. I have been treating Ms. Gerber since March 13, 2002. She has diagnoses' of dementia and depression. Over the last 6 months Ms. Gerber's cognition has greatly deteriorated. And her depression has been somewhat "a'eatment-resistant." Ms. Gerber is currently undergoing treatment with Remeron (an antidepressant), as she did not respond to the initial antidepressant course with Zoloft. I continue to be very concerned about the profound effect that the visits with Marilyn (her daughter) have on Ms. Gerber's psychological state. Ms. Gerber's emotional upheaval from these court-mandated weekly visits significantly undermines whatever progress we might be making with her medication treatment. Also available at my most recent visit witk Ms. Gerber were a nurse (Michelle) from the Sunrise Assisted Living facility where Ms. Gerber resides, and Joan Jackson, the pnvate duty social worker. They reported to me that Ms. Gerber continues to display increased anxiety during and after the visits between Ms. Gerber and her daughter, Marilyn. And the 8 lbs. weight loss over the last 6 weeks is relevant as well when their report of poor appetite over the 2-3 days after each of these visits is considered. In summary I wish to indicate how fragile Ms. Gerber's overall state of mind is, and the clear negative impact that the weekly visits have on her health. I urge the court to discontinue the visits with Ms. Gerber's daughter, Marilyn. I make this recommendation with the simple goal of reducing unnecessary stressors on Mil&ed Gerber. It is important to emphasize how quickly Ms. Gerber can deteriorate from her present level of functioning, and how much these traumatic visits can hasten such a deterioration. At my 8-week follow-up visit, if Ms. Gerber's health stabilizes, then.I would be inclined to agree with supervised visits with her daughter, Marilyn. Please call if any questions arise. Sincerely, Pauline K. Wiener, M.D. CERTIFICATE OF SERVICE AND NOW, this 9th day of January, 2003, 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. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Amy J. Mendelsohn, Esquire Rhoads & Sinon One South Market Square, 12th Floor P. O. Box 1146 Harrisburg, PA 17108-1146 Jaqueline M. Verney, Esquire 44 South Hanover Street Carlisle, PA 17013 Stanley J. A. Laskowski, Esquire Caldwell & Kearns 3631 N. Front St. Harrisburg, PA 17110 Ms. Jane N. Heflin 270 North Garfield Lombar