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HomeMy WebLinkAbout11-12-08IN RE: MARGARET E. deSILVESTRI, IN THE COURT OF COMMON PLEAS OF An Alleged CUMBERLAND COUNTY, PENNSYLVANIA Incapacitated Person ORPHANS' COURT DIVISION NO. 21-08-0924 ~~ ~, ~t~ PETITIONER'S EXCEPTIONS `=- -:~~ - ..-~ _..- <, _, t~~ TO THE HONORABLE ORPHANS' COURT JUDGE: ~>`, ~~' _ a r~ -. _~ r:~ ; ; Pursuant to Pa. O.C. Rule 7.1, Cumberland O.C. Rule ~, and related provisions, petitioner files these Exceptions to the October 28, 2008 order entered by the Honorable Kevin A. Hess, ,and in support thereof states as follows: 1. On September 16, 2008, petitioner, Anna K. Bailey ("Mrs. Bailey"), filed a petition under Section 5511 of the ?robate, Estates and Fiduciary Code, seeking to adjudicate Margaret E. deSilvestri incapacitated and to appoint herself as guardian of Mrs. deSilvestri's person and estate. The averments of Mrs. Bailey's petition are incorporated by reference herein. 2. By preliminary decree dated September 16, 2008, the Honorable Kevin A. Hess directed all parties in interest to :>how cause why petitioner's requested relief should not be granted. Judge Hess's preliminary decree also scheduled a hearing (and a return date) on the petition for 3:00 p.m. on October 20, 2008. 3. No party in interest filed an answer to the petition. 4. At the scheduled hearing, Mrs. deSilvestri and Mrs. Bailey testified and the Court also received expert testimony from John M. Hume, M.D., a board-certified psychiatrist. 5. Dr. Hume testified that he performed a face-to- face mental capacity evaluation of Mrs. deSilvestri on August 13, 2008. 6. To a reasonable degree of medical certainty, Dr. Hume opined that Mrs. deSilvestri suffered from dementia and a paranoid disorder of psychotic proportions. 7. In Dr. Hume's opinion, Mrs. deSilvestri was totally incapacitated and needed a guardian to handle her personal/medical and financial affairs. 8. At the conclusion of the hearing, Judge Hess asked Mrs. Bailey's attorney, Brad Dorrance, and Mrs. deSilvestri's attorney, James Walsh, to submit briefs in support of their respective positions. 9. By letter dated October 28, 2008, and directed to Judge Hess, Mr. Dorrance confirmed that the parties were exploring the possibility of a financial institution's serving as 2 Mrs. deSilvestri's financial guardian or financial co-guardian (in the event of any finding of incapacity). Mr. Dorrance's letter therefore requested that the parties defer any briefing schedule and report back to the Court within 20 days. Attached as Exhibit "A" is a copy of Mr. Dorrance's October 28, 2008 letter. 10. By order dated October 28, 2008, Judge Hess denied Mrs. Bailey's petition and found that Mrs. deSilvestri's incapacity had not been established by clear and convincing evidence and that Mrs. deSilvestri`s requested appointment as guardian would violate the condition set forth in 20 Pa. C.S. § 5511(f). Attached as Exhibit "B" is a copy of Judge Hess's order. 11. Mrs. Bailey files these Exceptions to Judge Hess's October 28, 2008 order (and requests a supplemental hearing and related relief) based on the following: (a) Mrs. Bailey did not ask to be appointed .personal and financial guardian for her long-time friend, Mrs. deSilvestri; Mrs. Bailey filed her petition on the recommendation of her attorneys because: 3 (i) Dr. Hume had opined that Mrs. deSilvestri was incapacitated and needed a personal and financial guardian; (ii) no party in interest objected to Mrs. Bailey's appointment; (iii) there was no other individual who was willing or able to serve as guardian; and (iv) in the opinion of various legal counsel, a guardian was necessary to handle Mrs. deSilvestri's finances including her anticipated receipt of more than $500,000 from BNY Mellon, trustee under the will of Mabel R. Reigle, deceased; (b) it would not represent a conflict of interest for Mrs. Bailey to serve as Mrs. deSilvestri's personal and financial guardian or alternatively to serve as her personal guardian subject to the oversight of an independent financial guardian and the Court generally; (c) Section 5511 (f) of the Probate, Estates and Fiduciaries Code does not prohibit a personal caretaker such as Mrs. Bailey from serving as an incapacitated person's personal or financial guardian (especially when there is no other person available to serve as guardian); 4 (d) in accordance with Section 5511(f), Mrs. Bailey should be preferred as the proposed guardian because she is the residuary beneficiary and executrix under Mrs. deSilvestri's current will and is the proposed agent in Mrs. deSilvestri's unsigned power of attorney; (e) appointing Mrs. Bailey, a long-time friend and caretaker, to serve as a personal guardian would be more cost-effective and beneficial for Mrs. deSilvestri than appointing an institution to serve in that capacity; (f) through medical and lay testimony, Mrs. Bailey established or will be able to establish that Mrs. deSilvestri is partially or totally incapacitated and needs a personal and financial guardian; (g) it is in Mrs. deSilvestri's best interest to undergo a mental capacity evaluation by another independent geriatric psychiatrist or to receive a more comprehensive evaluation by the duly qualified psychiatrist, Dr. Hume; (h) the trustee, BNY Mellon, may be unwilling or unable to distribute Mrs. deSilvestri's share of Mabel Reigle's trust estate without the appointment of a financial guardian. 12. Mrs. Bailey requests that the Court order a further mental capacity evaluation of Mrs. deSilvestri and 5 schedule a supplemental hearing at which time additional lay and expert testimony can be received on the determinative issues of incapacity and of guardianship. 13. Petitioner believes that the transcription of the testimony from the October 20, 2008 hearing is currently unnecessary and should be deferred pending the completion of any supplemental hearing. See Pa. O.C. Rule 7.2. WHEREFORE, petitioner, Anna K. Bailey, respectfully requests that the Court enter the accompanying preliminary decree and, after any supplemental hearing, grant such other relief as it deems appropriate, including an adjudication of incapacity and the appointment of a personal and financial guardian for Margaret E. deSilvestri. Respectfully submitted, KEEPER WOOD ALLEN & RAHAL, LLP :Dated: I I 6jo g By: (Attorneys for Petitioner/Exceptant) 6 1..J1 QUlV1U LV11U11~..G I.D. No. 32147 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8014 CHp,RLES W'. RUBEN DALL. II KEEPER Vv C~®Q ALLEN ~c RAHAL, LLP ESTABLISHED IN 1878 RCE3ERT L. wELDON ATTORNEYS AT LAW - EUGENE E. PEPINSKY. JR. OF COUNSEL: JOHN H. ENDS 210 WALNUT STREET HEATH L. ALLEN GAF'Y E. FRENCH P O. BOX 11963 N. DAVID RAHAL DONNA S. VJELDON SAMUEL C. HARRY BRADFORD DORRANCF_ HARRISBURG, PA 17108-1963 JEFFREY 5. STOKES `NEST SHORE OFFICE: ROE'ERT P. CHURCH PH©NE (7171 255-8000 635 NORTH !2`" ST.. 4'"" FLOOR STEPHEN L GROSE LEMOYNE, PA 17043 R. SCOTT SHEARER EIN No. 23-G716135 17171 612-5800 ELY:SE E. ROGERS 1W `N'N.CEBPBrW000L COfYI CRAIG A. LONGYEAR OCt Ober 2 8 , 2 0 0 8 WRITER'S CONTACT INFORMATION: JOHN A. FEICHTEL Phone No. (717) 255-8014 STEPHANIF_ KLEINFELTER DcrJALD M, LEw1s~ Fax No.: (`717) 255-8042 ERIC R. A1!GUSTINE TODD F. TRUNTZ CAROL L.. VER1Shl The Honorable Kevin A. Hess Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 1013 Re: Margaret E. deSilvestri, an Alleged Incapacitated Person Dear Judge Hess: The parties and their respective counsel are exploring the possibility of a financial institution serving as Ms. deSilvestri's financial guardian or co-financial guardian (in the event of any finding of incapacity). Therefore, I request that you permit the parties to defer any briefing schedule and to report back to you within 20 days. Messrs. Walsh and Nicholas are in complete agreement with this approach. Thank you for your consideration. Respectfully, KEEPER WOOD ALLEN & RAHAL, LLP By: Bradford Dorrance BD/raw cc:: Mrs . Anna K. Bailey James L. Walsh, Esquire Steve C. Nicholas, Esquire Exhibit "A" IN RE: IN THE COURT OI~ COMMON PLL- AS OF MARGARET E. deSIL\~'ES~1'RI CUMBERLAND COtINTZ'. PENNS~'L.~'Al'~iA An Alleged hicapacitate Person OP.I'HANS~ CO! 1RT DIy'ISIO! NO. ? 1-08-09?4 1N ICE: PETITION U1~TDER SI/CTION ~~ ] 1 OT~ TI-IE PROB.ATL_ ESTATL:S AND FIDUCIARIES CODE TO AD:IlJDICATE MARGARET E. deSIL/ESTRI INCAPACITATED .AND TO APPOINT A Gl!ARDIAN OF HER PERSON AND ES"KATE ORDER AND NOW. this 2~' da}~ of October, 2008; after hearing, the COLII'1 Tieing satisfied that the incapacity of Margaret E. deSilvestri has not been established by clear and convincing evidence and; in any event, the appointment of Anna K. Bailey as her guardian would violate the condition set forth in 20 Pa.C.S.A. ~~ 1 I(f), the within petitionto adjudicate Margaret E. deSilvestri incapacitated and to appoint a guardian of her person and estate is DENIED. BY THE COURT. Bradford Dorrance. Esquire For the Petitioner James Walsh. Esquire S~_eve Nicholas. Esquire For I~Iar~~aret E. diSilvestri rlm ~~ :~ ~/~ ~, ~ , , Kevin'A. Hess, .l. ~" /~ / A TF?U~ COf~Y FF~C3t~i ~iE.C~;-tl:, In Testimony wherof, I hereunto set my hand and the seal of said Cou ~~~~t Aisle, f'f/~ hi ~~d j~.~fk°..- __~0~--~~~~. CI ~ t ` ~ Qrphan~ Court , y CumbE rlan~ County VERIFICATION I, the undersigned, hereby verify and state that: 1. I am counsel for petitioner/exceptant in the foregoing matter and I am signing this verification in accordance with Pa. R.C.P. No. 1024(c). 2. The facts contained in the foregoing exceptions are true and correct to the best of my knowledge, information, and belief. 3. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. X4904, relating to unsworn falsification to authorities. Dated: ( ~ ~~og Bradford Dorrance CERTIFICATE OF SERVICE I hereby certify that I have this day served a copy of the foregoing document upon the person(s) and in the manner indicated below: First-Class Mail, Postacfe Prepaid Addressed as Follows: Mrs. Anna K. Bailey 18 Central View Road Dillsburg, PA 17019-9739 James L. Walsh, Esquire c/o Commonwealth of Pennsylvania Legislative Reference Bureau 641 Main Capitol Building Harrisburg, PA 17120-0033 (Attorney for Margaret E. deSilvestri) ]Kr. Roger J. Pleva ~~/o Marlin R. McCaleb, Esquire P.O. Box 230 Mechanicsburg, PA 17055 13NY Mellon c/o Robert P. Grubb, Esquire METZGER WICKERSHAM I?.O. Box 5300 Harrisburg, PA 17110-0300 Dated: ( ( ~6~0~ Bradford Dorrance