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HomeMy WebLinkAbout01-19-01 (2) COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION APPOINTMENT OF A GUARDIAN : OF THE ESTATE OF MILDRED J. GERBER, : an alleged incapacitated person : PETITION FOR APPOINTMENT OF A GUARDIAN OF THE ESTATE IN ACCORDANCE WITH 20 PA C.S.A. § 5511 and § 5513 TO THE HONORABLE, THE JUDGES OF SAID COURT: 1. The Petitioner is Frederick E. Gerber, II, the son of Mildred J. Gerber, the alleged incapacitated person. The Petitioner resides at 4287 Kearney Lane, Fairfax, VA 22033. 2. The alleged incapacitated person is 86 years of age, a widow, and resides at 623 Hilltop Drive, New Cumberland (Cumberland County), Pennsylvania 17070. 3. The following persons are the alleged incapacitated person's only living next-of-kin: 1. Frederick E. Gerber, II, son, 4287 Kearney Lane, Fairfax, VA 22033 2. Jane Heflin, daughter, 270 N. Garfield, Lombard, IL 60148 3. Marilyn J. Gerber, daughter, 42 Drexel Place, New Cumberland, PA 17070 4. The assets of the alleged incapacitated person are valued at approximately $462,000 comprised of the following: 1. Residence at 623 Hilltop Drive, New Cumberland, Pennsylvania 17070 - $145,000 2. Furniture and furnishings, equipment, etc. - $7,000 3. Jewelry and personal possessions - $10,000 4. Living Trust (Frederick E. Gerber, II, Trustee) - $300,000 5. The alleged incapacitated person's monthly income is approximately $4,228 per month which includes: 1. Social Security benefits - $653.00 2. Deceased husband's civil service pension - $1,053.00 3. Deceased husband's military pension - $2,122.00 4. Rent from rental property in Baltimore, MD - $400.00 6. The alleged 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. 7. The alleged incapacitated person is suffering from infirmities of old age and lack of short-term memory, becomes easily confused, cannot make intelligent decisions, and lacks ability to fully understand the consequences of her actions. 8. Because of her mental condition, the alleged incapacitated person is unable to manage her property, may have become the victim of a designing person, has dissipated her property, is liable to become the victim of designing persons and is liable to further dissipate her property. 9. The proposed Emergency Guardian of the Estate of the alleged incapacitated person is the Petitioner, Frederick E. Gerber, II. 10. The Petitioner is the Executor of his father's Estate, is the Trustee of a Trust established by his father, is the Trustee of the alleged incapacitated person's Living Trust, is the named Executor in the alleged incapacitated person's Will, is the Agent appointed in the alleged incapacitated person's Power-of-Attorney, is a Colonel in the United States Army stationed in Arlington, Virginia, is the Director of Health Care Operations under the Surgeon General of the United States. He has recently testified in excess of 12 times before Congressional Committees concerning the health care of military personnel. 11. The Petitioner has no personal adverse interests to the alleged incapacitated person. 12. The alleged incapacitated person is unable to resist the demands for money from her daughter, Marilyn J. Gerber, is unable to prevent Marilyn J. Gerber from making charges for Marilyn's personal uses to the alleged incapacitated person's credit card account, and is unable to prevent Marilyn from using the proceeds of checks drawn by the alleged incapacitated person payable to Marilyn, for Marilyn's benefit. 13. As a result of the alle. ged incapacitated person's inability to resist the demands of her daughter, Marilyn J. Gerber, Marilyn, from August 2000 to the present has removed more than $52,658 the entire amount, from the alleged incapacitated person's checking account at PNC Bank and approximately $9,000, the entire amount, from the alleged incapacitated person's money market account at PNC Bank and charges in the amount of approximately $13,300 have been made to the alleged incapacitated person's credit card, all or about all of which were for Marilyn's benefit, uses and purposes. 14. The alleged incapacitated person's monthly expenses amount to approximately $1,800. Approximately $8,000 of the money removed from the money market account was paid on the credit card account. Thus, approximately $12,000 was used for the alleged incapacitated person's maintenance and upkeep of her home. Subtracting the $12,000 used for the alleged incapacitated person and subtracting ....... $8,000 paid on the credit card from the money market account, leaves a balance of approximately $54,958 which Marilyn J. Gerber used or applied for her own benefit. 15. The Petitioner has attempted to protect the Estate of the alleged incapacitated person in the following ways: a. Changed her bank account at PNC Bank in New Cumberland, Pennsylvania, to a new account with the request that if Marilyn appears with her mother and attempts to take money out of the new account, that the Bank notify him first. b. Notified the alleged incapacitated person's credit card company - MBNA - that the account should be closed. c. Notified the Schwab brokerage office in Harrisburg that the Petitioner should be called before any withdrawals were 3 permitted from the Living Trust which is invested by Schwab. d. Requested Jane Heflin, daughter of the alleged incapacitated person, to stay in the alleged incapacitated person's home for the past week. e. Requested with Jane that the alleged incapacitated person consult legal counsel with respect to her rights in connection with the Petitioner's intent to ask for the appointment of a Guardian of the Estate of the alleged incapacitated person. 16. These restrictive measures have not been successful because the Petitioner learned as. recently as January 17, 2001, the following: a. A new credit card account has been established for the alleged incapacitated person and credit cards have been issued to the alleged incapacitated person and to Marilyn J. Gerber. b. On Friday, December 12, 2000, Marilyn J. Gerber took the alleged incapacitated person to the PNC Bank office in New Cumberland, Pennsylvania, and demanded that the bank officer, Jennifer Conway, give to the alleged incapacitated person all of the money in the alleged incapacitated person's newly established account. When Ms. Conway called the Petitioner, by prior arrangement, the Petitioner said his mother should receive $500. After the phone call was terminated, all of the money was removed by the alleged incapacitated person from the new bank account, a total of about $1,300. 17. The Petitioner believes that Marilyn J. Gerber will continue to exert undue influence upon the alleged incapacitated person to obtain monies for Marilyn J. Gerber's own benefit and uses. 18. Marilyn J. Gerber claims that the house at 623 Hilltop Drive, New Cumberland, Pennsylvania belongs to her - that her father told her that he wanted her to have it. 19. The Petitioner believes that Marilyn will have a Deed prepared from Mildred J. Gerber to Marilyn J. Gerber transferring the house without consideration and with the alleged incapacitated person either not understanding or unable to resist Marilyn's demands that the house be transferred to Marilyn. 4 20. On December 26, 2000, Marilyn J. Gerber prepared a document entitled "Revocation by Mildred J. Gerber of all Trusteeships and Powers-of-Attorney", and caused her mother to sign the document, a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference. 21. The Petitioner asked the alleged incapacitated person whether she signed the document and she said she did not, thus evidencing her lack of short-term memory. 22. The Petitioner asked 'the alleged incapacitated person whether she wished to replace him as her Power-of-Attorney Agent and/or as Trustee of her Living Trust and she said she did not, thus evidencing her confusion. 23. Marilyn J. Gerber attempted to use the document, Exhibit "A", at the New Cumberland Branch Office of PNC Bank to withdraw monies from the alleged incapacitated person's account. 24. Marilyn J. Gerber attempted to use the document, Exhibit "A", to terminate the Petitioner as the Trustee of the alleged incapacitated person's Living Trust at the Harrisburg office of Schwab and attempted to have the Living Trust revoked and all assets in the Trust transferred to the name of the alleged incapacitated person. 25. It is believed that although Marilyn was unsuccessful in attempting to have your Petitioner removed as Trustee of the Living Trust (Schwab account) that she will continue to make the attempt to do so and will have a document prepared for the alleged incapacitated person's signature terminating your Petitioner as Trustee and appointing Marilyn as Trustee of the Living Trust. 26. The Petitioner believes, from the above and from other past experiences, that Marilyn J. Gerber will continue to exert undue influence upon the alleged incapacitated person, that she will continue to obtain monies from the alleged incapacitated person by undue influence, that she will continue to attempt to have the alleged incapacitated person revoke the Petitioner as Trustee of the Living Trust and have the assets transferred to the name of the alleged incapacitated person with subsequent transfer to Marilyn for Marilyn's 5 own uses and benefits and not for the uses and benefit of the alleged incapacitated person and that by undue influence she will obtain a Power-of-Attorney from the alleged incapacitated person and transfer the residence at 623 Hilltop Drive, New Cumberland, Pennsylvania, to Marilyn J. Gerber as her sole property. 27. Marilyn J. Gerber, for her own uses and benefits and not for the uses and benefits of the alleged incapacitated person, without the permission of the alleged incapacitated person, has removed from the residence of the alleged incapacitated person the following alleged incapacitated person's property: jewelry, family photos and records, wedding dress, one ~ifle and one shotgun,."G" monogrammed silver set, plates, dishes and other dining items, 35 mm. slide projector, 35 mm. slides, 8 mm. movie projector, 8 mm. movie film, records and other personal papers of Fred E. Gerber, the deceased husband of the alleged incapacitated person. In addition, Marilyn J. Gerber, without the permission of the alleged incapacitated person, has removed from the residence of the alleged incapacitated person a wooden sleigh bed belonging to the Petitioner. 28. The Petitioner from past experience, believes that Marilyn J. Gerber will continue to remove property from the home of the alleged incapacitated person at 623 Hilltop Drive, New Cumberland, Pennsylvania, without permission from the alleged incapacitated person or will be unable to prevent Marilyn J. Gerber from removing the items. 29. Marilyn J. Gerber exercised undue influence upon the alleged incapacitated person to become a party to a lawsuit of Marilyn J. Gerber against the Petitioner. 30. The alleged incapacitated person never intended to initiate any legal action agai~t the Petitioner. Copy of letter of January 6, 2001, to Joseph U. Metz, attorney of record for the alleged incapacitated person, is marked exhibit "B" attached hereto and incorporated herein. 31. Marilyn J. Gerber demanded the sum of $25,000 from the Petitioner, Trustee of his father's Trust, and the alleged incapacitated person demanded the sum of $25,000 as well. 6 32. The alleged incapacitated person told .the Petitioner that she did not need nor want $25,000. The Petitioner believes that Marilyn J. Gerber exercised undue influence upon the alleged incapacitated person to demand $25,000 from the Trust with intent to convert the alleged incapacitated person's money to Marilyn's own uses, purposes and benefits and not for the benefit of the alleged incapacitated person. 33. The alleged incapacitated person is represented by Jacqueline E. Verney, Esquire, Carlisle, Pennsylvania. The alleged incapacitated person advised Ms. Verney that she did not want Marilyn J. Gerber as her Power-of-Attorney and requested that a new Power-of-Attorney be prepared naming the Petitioner as the Agent, all of which was accomplished on January 19, 2001. 34. The alleged incapacitated person included the following provisions in her Power of Attorney: "For the purpose of recording my wishes in convenient place, I record here that if it is necessary to appoint a guardian of my person or a guardian of my estate it is my desire that my agent be appointed." 35. The alleged incapacitated person advised her attorney, Ms. Verney, that she did not wish to remove the Petitioner as Trustee of her Living Trust and instructed Ms. Verney to prepare a Revocation of the Revocation removing him as Trustee, all of which was accomplished on January 19, 2001. 36. The alleged incapacitated person stated to the Petitioner that sometimes she does things which Marilyn J. Gerber demands of her because Marilyn's demands are continued over a long period and the alleged incapacitated person gives in to the demands to get some peace and quiet. 37. No other court has ever assumed jurisdiction in any proceeding to determine the competency of the alleged incapacitated person. 38. No Guardian has been appointed for the Estate of the alleged incapacitated person. 39. The statement of Proposed Guardian is marked exhibit 'C', attached hereto and incorporated herein. 7 40. Guardian's Consent is marked exhibit "D", attached hereto and incorporated herein. 41. The Petitioner requests that he be appointed Emergency Guardian of the Estate of Mildred J. Gerber, the alleged incapacitated person. 42. Failure to appoint an Emergency Guardian of the Estate of Mildred J. Gerber, the alleged incapacitated person, will result in irreparable harm to her Estate. WHEREFORE, The Petitioner respectfully requests this Honorable Court award a citation directed to Mildred J. Gerber, the alleged incapacitated person, with notice thereof to be given to such other persons as this Honorable Court may direct, to show cause why she should not be judged an incapacitated person and Frederick E. Gerber, II, appointed Emergency Guardian of her Estate. ~R, II, Petitioner Respectfully submitted, Richard C. Rupp Sup. Court I.D. No.: 34832 355 North 21st Street, Suite 205 Camp Hill, PA 17011 (71 7) 761-3459 Attorney for Petitioner 8 Statement of Frederick E. Gerber~ Ii, proposed Guardian of the Estate of Mildred J. Gerber The proposed Guardian is an individual, the son of Mildred J. Gerber, and: 1. Is a citizen of the United States of America and is able to speak, read and write the English language, and 2. Does not reside in the same household as Mildred J. Gerber, and 3. Is the Executor of his father's estate (the deceased husband of Mildred J. Gerber) in which estate Mildred J. Gerber has an interest, and 4. Is the Trustee of a Trust established by his father for the benefit of Mildred J. Gerber and other family members, and 5. is the Agent of Mildred J. Gerber appointed in her Power of Attorney, and 6. Is the Trustee of the Living Trust at Mildred J. r~er~er, and 7. Is the named Executor in the Will of Mildred J. Gerber, and 8. Has no personal interest adverse to Mildred J. Gerber. GUARDIAN'S CONSENT I, FREDERICK E. GERBER, II, consent to be the Emergency Guardian of the Estate of Mildred J. Gerber, an alleged incompetent, for the purpose of preserving her Estate. Date: /'~ ~/'~"J**~L~_ I~ ,, Frederick E. G-~r.r~, II VERIFICATION I, Frederick E. Gerber, II, verify that the facts set forth in the foregoing Petition are tree -- and correct to the best of my knowledge, information and belief. The undersigned understands that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 4904 relating to unswom falsification to authorities. Date: /'~ F~ IN RE: ~ ' : IN THE COURT OF COMMON PLEAS OF MILDRED J. GERBER : CUMBERLAND COUNTY, PENNSYLVANIA an alleged in~pacita~d person : Nf,'21,Q1-92 ORPHANS' COURT IMPOR TAN T NO TICE ClTATION WITH NOTICE A petition has been filed with this Court to have you declared an Incapacitated Person. If the Court finds you to be an Incapacitated Person, your rights will be affected, including our right to menage money and proDerty and to make decisions. A copy of the petition which has been filed by Richard C.Rupp is attached. You are hereby ordered to appear at a hearing to be held in Court Room No. 2 , Cumberland Country Courthouse, Carlisle, Pennsylvania, on Febrt~ 21 .2001 , at 3:00 P .M to tell the Court why it should not find you to be an Incapacitated Person and appoint a Guardian to act on your behalf. To be an Incapacitated Person means that you are not able to receive and effectively evaluate information and communicate decisions and that you are unable to manage your money and/or other property, or to make necessary decisions about where you will live, what medical care you will get, or how your money will be spent. At the hearing, you have the right to appear, to be represented by an attorney, and to request a jury trial. If you do not have an attorney, you have the right to request the Court to appoint an attorney to represent you and to have the attorney's fees paid for you if you cannot afford to pay them yourself. You also have the right to request that the Court order that an independent evaluation be conducted as to your alleged incapacity. If the Court decides that you are an Incapacitated Person, the Court may appoint a Guardian for you, based on the nature of any condition or disability and your capaCity to make and communicate decisions. The Guardian will be of your person and/or your money and other property and will have either limited or full powers to act for you. If'the court finds you are totally incapacitated, your legal rights will be affected and you will not be able to make a contract or gift of your money or other property. If the court finds that you are partially incapacitated, your legal rights will also be limited as directed by the Court. If you do not appear at the hearing (either in person or by an attorney representing you) the court will still hold the hearing in your absence and may appoint the Guardian requested. Cumberland County, Carlisle, PA My Commission Expires 1st Monday, January, 2002 DATED: FEBRUARY 1,2001 , COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION IN RE: .' No. 21-01-92 APPOINTMENT OF A GUARDIAN : OF THE ESTATE OF MILDRED J. GERBER, · an alleged incapacitated person · ORDER OF COURT Petition of Frederick E. Gerber, II, for appointment of a Guardian for Mildred J. Gerber, IT IS HEREBY ORDERED AND DECREED: · A Citation is awarded, directed to Mildred J. Gerber to show cause why Frederick E. Gerber, II, should not be appointed Guardian of her Estate for the purpose of preserving her assets. · At least 20 days notice of the hearing shall be given to Mildred J. ............. Ge4rb~the~'alleged incapacitated person, b'yi0erson~al-s~er~ic~ of~a-'~-~'~ .......... of the Petition and the Citation, and by service of notice of the hearing, the Petition and Citation, upon the following persons, by personal service or by certified or registered mail: 1. Jane N. Heflin - daughter 2. Marilyn J. Gerber~- daughter J.