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HomeMy WebLinkAbout01-23-08 IN RE: DORCAS J. SHEARED : IN THE COURT OF COMMON ~~EAS : OF CUMBERLAND COUNTY, ,~; 0 "-0 : PENNSYLVANIA:.+, : ORPHANS' COURT DIVISION ;,=;. t...." c.:::;. = <.- ~p - n.... N W an alleged incapacitated person ; NO. ~/-()~-OOc( > -'00''' --... ~..lJ --j ) On the Petition of Lester L. Sheared en \.0 PETITION FOR APPOINTMENT OF GUARDIAN OF THE PERSON AND ESTATE OF AN ALLEGED INCAPACITATED PERSON TO THE HONORABLE PRESIDENT JUDGE OF SAID COURT: NOW COMES, Petitioner, Lester L. Sheared, by and through his attorney, Jacqueline A. Kelly, Esquire and files the within Petition for the Appointment of Guardian of the Person and Estate of an Alleged Incapacitated Person, and in support hereof, avers as follows: 1. DORCAS J. SHEARED the alleged incapacitated person, currently resides at 46 Erford Road, Camp Hill, PA 17011. She is 74 years old, her date of birth being June 21, 1932. 2. DORCAS J. SHEARED is married. 3. DORCAS J. SHEARED is not a patient in a mental hospital. 4. The Petitioner is Lester L. Sheared of 2000 Carlisle Road, Camp Hill, Pennsylvania 17011, and he is the spouse of DORCAS J. SHEARED. DORCAS J. SHEARED does not have any children. 5. The names and addresses of those persons who would be the intestate heirs (or next of kin) of DORCAS J. SHEARED are as follows: Lester L. Sheared (husband) 2000 Carlisle Road, Camp Hill, P A 17011 6. The names and addresses of the person or institutions providing residential services to DORCAS J. SHEARED are as follows: Golden Living Center. 46 Erford Road. Camp Hill. P A 17011 7. The names and addresses of other service providers are as follows: None. Her primary physician is: Dr. Greg Ehgartner, M.D. Susquehanna Internal Medicine Associates 890 Poplar Church Road Camp Hill, PA 17011 (717) 761-3875 8. DORCAS J. SHEARED was not a member of the Armed Services of the United States and is not receiving benefits from the United States Veterans Administration. 9. The Petitioner asks that he, Lester L. Sheared, be appointed as Guardian of the person and estate of DORCAS J. SHEARED. The proposed guardian is the husband of DORCAS 1. SHEARED. 10. The proposed guardian has no interests which are adverse to the interests of DORCAS J. SHEARED. 11. Petitioner believes, and therefore avers, that no Court has ever assumed jurisdiction in a proceeding to determine whether DORCAS J. SHEARED is incapacitated. 12. Petitioner believes, and therefore avers, that DORCAS 1. SHEARED has not previously had a guardian appointed, nor is a guardianship hearing pending in any other jurisdiction. 13. The reasons why this guardianship are being sought are as follows: DORCAS J. SHEARED is unable to manage her financial affairs or to make decisions regarding health care/medical decisions, due to Dementia. 14. The functional limitations and physical mental condition of DORCAS 1. SHEARED are: DORCAS J. SHEARED is not able to manage her financial affairs, nor is she able to make competent decisions as far as her welfare is concerned. DORCAS J. SHEARED is not able to communicate nor is she able to perform any of her activities of daily living without total assistance. 15. The following steps have been taken, in order to find less restrictive alternative to the appointment of a guardian: DORCAS J. SHEARED is not competent to execute a power of attorney. No less restrictive alternatives are available to adequately provide for the physical and financial care of DORCAS J. SHEARED. 16. The Petitioner requests that the guardian be granted powers to act for DORCAS J. SHEARED in the following specific areas: financial management and medical and health care affairs including care and placement decisions, access to all medical records and power to make all decisions regarding medical treatment and life support. 17. The proposed guardian has the following qualifications: The proposed guardian is the husband of DORCAS J. SHEARED. The proposed guardian loves and cares for his wife. 18. The gross value of the Estate of DORCAS J. SHEARED is approximately Nineteen Thousand Eight Hundred Fifty-Four Dollars ($19,855.00), not including joint property with husband which includes a house. DORCAS J. SHEARED's net income from all sources totals approximately Eight Hundred Eight Dollars $(808.00) per month. 19. Lester L. Sheared and Dorcas 1. Sheared hold an interest in real property as tenants by the entireties. The property is located at 2000 Carlisle Road, Camp Hill, Pennsylvania, 17011 (hereinafter referred to as "the residence"). Lester L. Sheared still resides at the residence and it is his primary residence. 19. DORCAS J. SHEARED is likely to qualify for Medical Assistance during her residency at Golden Living Center. 20. Lester L. Sheared desires to have the residence transferred into his sole ownership. This transfer would serve to protect the property for him. 21. Pennsylvania statute provides that transfers for less than fair consideration do not result in an ineligibility period when the transfer is made between spouses (attached as Exhibit "A" is a copy of 55 Pa. C.S.A. S 178.104(e)(I)). Petitioner respectfully requests that the Court, under Section 5511 of the Probate, Estates and Fiduciaries Code, issue a Citation to DORCAS 1. SHEARED, DORCAS J. SHEARED's next of kin, Golden Living Center (health facility), and to such other persons as the Court directs, to show cause why DORCAS J. SHEARED should not be adjudged to be an incapacitated person and plenary guardian of her person and estate be appointed. Petitioner also respectfully requests this Honorable Court to enter an Order, pursuant to the Probate Estates and Fiduciary Code 20 PA C.S.A. S5536 (b)(2), authorizing Lester L. Sheared to sign a Deed transferring Dorcas 1. Sheared's interest in that real property located at 2000 Carlisle Road, Camp Hill, Pennsylvania, 17011 to her spouse, Lester L. Sheared. Respectfully submitted, JAN L. BROWN & ASSOCIATES Date: 1,- If - D ~ B : Ja 'ueline A. Kelly, Esqu' Attorney for Petitioner Attorney ID No. 91973 845 Sir Thomas Court, Suite 12 Harrisburg, Pennsylvania 17109 (717)541-5550 COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF DAUPHIN On this, the Lday of :fa nlAn /14--, 2008, before me, the undersigned officer, personally appeared Lester L. Sheared who, being duly sworn according to law, does depose and say that the facts set forth in the foregoing Petition are true and correct to the best of his knowledge, information and belief. IN WITNESS WHEREOF, I hereunder set my hand and official seal. c i~~/-l~~P Lester L. ea~___....- ,<I ~'- SWORN to and subscribed before me this ~ day of J"a YllAaf~ 2008. NOWtW. 11M --.. A IlU.Y Notary PubIc Cf1Y~ HMlftlUN. ~ -- Commtllton .... Dee 17. 2011 VERIFICA nON I verify that the statements made in this Petition are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. (~~trtD, Lester L. She3J:ed-------. - ..- IN RE: DORCAS J. SHEARED : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA : ORPHANS' COURT DIVISION an alleged incapacitated person : NO. CONSENT TO APPOINTMENT AS GUARDIAN 1. The name of the proposed guardian of the person of DORCAS J. SHEARED is Lester L. Sheared. 2. The name of the proposed guardian of the estate of DORCAS J. SHEARED is Lester L. Sheared. 3. The proposed guardian speaks, reads and writes the English language. 4. The proposed guardian does not have an interest adverse to the alleged incapacitated person. 5. The proposed guardian is not a fiduciary, or officer or employee of a corporate fiduciary of an estate in which the alleged incapacitated person has an interest; and is not the surety, or officer or employee of a corporate surety of such fiduciary. _._---~ , Dated: 1- J g, 0 g ;;F---:t' tA~/) Lester~ Sh'eared /' LexisNexis(TM) Basic Case Law & Statutes I Search - 1 Result - 55 Pa. C.S.A. 178.104 Page 1 of 4 Service: Get by Citation Terms: 55 Pa. C.S.A. 178.104 55 Pa. Code 9 178.104 PENNSYLVANIA ADMINISTRATIVE CODE Commonwealth of Pennsylvania Pennsylvania Code Copyright (c) 2008 Pennsylvania Legislative Reference Bureau. All rights reserved. *** THIS DOCUMENT IS CURRENT THROUGH THE JANUARY 2008 SUPPLEMENT *** *** Changes effective through 37 Pa.B. 6096 (November 10, 2007) *** TITLE 55. PUBLIC WELFARE PART II. PUBLIC ASSISTANCE MANUAL SUBPART D. DETERMINATION OF NEED AND AMOUNT OF ASSISTANCE CHAPTER 178. RESOURCE PROVISIONS FOR CATEGORICALLY NMP-MA AND MNO-MA SUBCHAPTER B. AGED, BLIND AND DISABLED CATEGORIES OF MA DISPOSITION OF PROPERTY AND FAIR CONSIDERATION PROVISIONS FOR THE AGED, BLIND AND DISABLED CATEGORIES OF MA 55 Pa. Code 9 178.104 (2008) 9 178.104. Disposition of assets and fair consideration provisions for transfers on or after July 30, 1994 (a) If assets are disposed of on or after July 30, 1994, 99 178.105 and 178.106 (relating to presumption of disposition of assets to qualify for MA for transfers on or after July 30, 1994; and reestablishment of MA eligibility after transfers made on or after July 30, 1994) and this section apply to an institutionalized individual who is applying for or receiving MA for NFC as defined in 9 178.2 (relating to definitions), including services in an ICF/MR, or a level of care in an institution equivalent to NFC, or home or community-based services furnished under a Title XIX waiver and the individual or the individual's spouse transfers assets for less than FMV. (b) An institutionalized individual who disposes of assets for less than FMV on or after the look back date in subsection (c) is ineligible for MA for NFC which includes the services set forth in subsection (a). A transfer of assets by the community spouse to a person other than the institutionalized spouse is treated and affects the eligibility of the institutionalized spouse the same as a transfer by the institutionalized spouse. (c) The look-back date shall be 36 months from the date on which the individual is both institutionalized and has applied for MA, except in the case of payments from a trust, or portions of a trust, as described in 9 178.7(e)(1)(iii) and (2)(ii) (relating to treatment of trust amounts for all categories of MA for trusts established on or after July 30, 1994) which are https:/ /www3.lexisnexis.com/bcls/auth?cacheKey=T38897484&srv=ols _ GetADocRetriev... 1/17/2008 LexisNexis(TM) Basic Case Law & Statutes I Search - 1 Result - 55 Pa. C.S.A. 178.104 Page 2 of 4 considered assets disposed of for less than FMV by the individual. In this instance, the look- back date shall be 60 months. (d) The number of months of ineligibility for the institutionalized individual who disposes of assets for less than FMV shall be equal to the total cumulative UV of all assets transferred by the individual or the individual's spouse on or after the look-back date divided by the average monthly cost to a private patient of NFC in effect in the Commonwealth at the time of application. (e) An individual will not be ineligible for payment for NFC if: (1) The assets were the resident property and title to the home was transferred to: (i) The spouse of the individual. (ii) The individual's child who is under 21 years of age, or blind or permanently and totally disabled as determined under ~ 140.81 (relating to deductions from earned income), or is blind or disabled based on 551 criteria as specified in 42U.S.C.A. ~ 1382c(a)(3). (iii) A sibling of the individual who has an equity interest in the home and who resided in the individual's home for at least 1 year immediately before the date the individual became an institutionalized individual. (iv) A son or daughter of the individual, other than a child described in subparagraph (ii), who resided in the individual's home for at least 2 years immediately before the date the individual became an institutionalized individual and who provided care to the individual which permitted the individual to reside at home rather than in an institution or facility. (2) The assets were transferred to one of the following: (i) The individual's spouse or to another for the sole benefit of the individual's spouse. (ii) To another for the sole benefit of the individual's spouse, from the individual's spouse. (iii) The individual's child described in paragraph (l)(ii), or to a trust, including one described in ~ 178.7(f), established solely for the benefit of the individual's child. (iv) A trust, including a trust described in ~ 178.7(f), established solely for the benefit of an individual under 65 years of age who is disabled based on 551 criteria as specified in 42 U.5.C.A. & 1382c(a)(3). (3) The individual, the individual's spouse or someone else acting on behalf of the individual can show that one of the following applies: (i) The individual intended to dispose of the assets either at FMV or for other valuable consideration. (ii) The assets were transferred exclusively for a purpose other than to qualify for MA. (iii) The assets transferred for less than FMV were returned to the individual. (4) The Commonwealth determines that denial of eligibility would cause undue hardship as defined in 9 178.2. (f) If an asset is held by an individual in common with other persons in joint tenancy, tenancy in common or a similar arrangement, the asset or the affected portion of the asset https://www3.1exisnexis.comlbcls/auth?cacheKey=T3 8897 484&srv=ols _ GetADocRetriev... 1/17/2008