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HomeMy WebLinkAbout05-28-09IN THE MATTER OF: IN THE COURT OF COMMON PLEAS ELISE RACHEL BINDER, :CUMBERLAND COUNTY, PENNSYLVANIA AN ALLEGED INCAPACITATED :ORPHANS' COURT DIVISION PERSON NO: ~~ '!~ - ~ ~(p ,~ a _ _ ~~ -,-, :.. PETITION UNDER 20 Pa. C.S.A. § 5511 OF THE PROBATE, ESTA ~ND ~ r; ::"u FIDUCIARIES CODE FOR ADJUDICATION OF INCAPACITY ~` `=~ ' -~~ m tv - -~ i APPOINTMENT OF PLENARY GUARDIAN OF ESTATE AND P ~ - ~' ~~~ ~_-, ` v «~ .~ D ~ _ -°' TO THE HONORABLE JUDGES OF SAID COURT: D-' w ~;:-~ .---, Petitioners Eric J. Binder and Lilli A. Binder, by and through their attorneys McNees Wallace & Nurick LLC, file this Petition in which they respectfully request that they be appointed co-guardians of Elise Rachel Binder, and aver the following in support thereof: 1. Eric J. Binder and Lilli A. Binder reside at 5264 Strathmore Drive, Mechanicsburg, Pennsylvania (hereinafter, "Petitioners"). 2. Petitioners are the parents of Elise Rachel Binder, an alleged incapacitated person (hereinafter, "Elise"). 3. Elise was bom on May 20, 1991, and attained the legal age of majority on May 20, 2009. 4. Elise resides with Petitioners at 5264 Strathmore Drive, Mechanicsburg, Pennsylvania, 17050, which address is also Elise's regular mailing address. 5. Elise has never been married and has no children. 6. Elise has never been a member of the armed services of the United States and is not receiving benefits from the United States Veterans' Administration. 7. The names and addresses of Elise's presumptive adult heirs are as follows: Eric J. Binder (father) and Lilli A. Binder (mother), all residing at 5264 Strathmore Drive Mechanicsburg, Pennsylvania. 8. Petitioners currently provide and have always provided Elise with all residential services, including meals, clothing, and care. Elise has never received residential services from an institution or third-party provider. 9. Petitioners seek a guardianship for Elise because she is autistic and mentally retarded. 10. Elise has been registered with the Cumberland 8~ Perry Counties' Mental Health/Mental Retardation Program, receiving services for individuals having cognative impairment, since July 12, 2000. Most recently, Elise's IQ was formally tested and found to be in the range of mental retardation in 2008, at the age of sixteen (16) years. 11. Elise was diagnosed as having many of the dysfunctions typical of those with autism at the age of three (3) years. The formal diagnosis of Autistic Disorder was attributed to her at the age of eight (8) years. 12. As a result of these disorders, Elise exhibits significant limitations in adaptive functioning in the areas of self-care, home living, interacting with others in social situations, financial skills and use of community resources. 13. Doctor Margaret J. Kay, a licensed psychologist practicing in Lancaster, Pennsylvania (hereinafter, "Dr. Kay"), completed a psychological examination of Elise on January 25, 2008. As a result of such examination, Elise was diagnosed as mentally retarded with afull-scale IQ score of 69 and adaptive functioning IQ scores of between 40 and 61. A true and complete copy of Dr. Kay's psychological examination report dated January 31, 2008 is attached as Exhibit "A" attached hereto and by this reference made a part hereof. 14. Elise receives regular psychiatric services from Charles E. Claudel, Jr., M.D. and Dr. Claudel is thoroughly familiar with her condition. 15. At a hearing Dr. Claudel will testify that Elise's condition significantly impairs her ability to receive and evaluate information effectively and communicate decisions such that she is totally unable to manage her financial resources or meet essential requirements for her health and safety. Even with continued service and support from experts, these conditions are likely to persist throughout Elise's lifetime. 16. With respect to personal and community living skills, Elise is unable to perform may basic tasks required to care for herself. Despite in her senior year of high school being instructed on preparation of simple meals, such as heat-and-serve soup, Elise cannot prepare a simple meal because she cannot always safely perform such tasks as Page2of5 removing the opened lid from a can of food without risking injury to herself from the sharp edge. Furthermore, Elise lacks the skills to plan or prepare a cooked meal, to store leftover food in a safe and appropriate manner, or to dispose of spoiled food. Although Elise is capable of dressing herself, she does not change soiled clothing unless prompted, and is not generally aware of the need to purchase and use personal care items (e.g., toothpaste). In addition, according to her mother, Elise does not accurately report her own physical condition and would not obtain needed medical attention without the direct intervention of others. Elise does not generally attend to such personal care tasks as clipping her nails (she is not able to do this herself), washing her hands and using a tissue to wipe her nose. 17. With respect to financial management skills, Elise, despite ongoing practice at school and discussion at home, remains unaware of the actual costs of everyday items and is confused in general about monetary values and amounts. For example, when planning her lunches, recently, Elise budgeted $7.50 for a can of baked beans and $10.00 for a can of soup. On a recent school-sponsored shopping trip for lunch supplies, Elise misplaced cash in the amount of $40.00, given to her by her parents, before reaching the supermarket checkout. 18. Petitioners have enrolled Elise in Autism Support classes in the Cumberland Valley School District, but Elise still requires constant supervision and care to satisfy her daily living requirements and protect her health and financial well-being. Petitioners believe that the assistance of other persons or services would not adequately enable Elise to participate effectively in the making of any decisions concerning her estate or person. 19. Petitioners are not aware that Elise has signed any powers of attarney or advance health care directives or in any other way has designated anyone to serve as her agent over any of her personal or financial affairs or over her medical care, or that she has designated in writing her wishes with regard to health care, including the use or refusal of life-sustaining treatment. Elise currently lacks the requisite capacity to comprehend or execute such documents. As a result, there are no less restrictive alternatives to the appointment of plenary co-guardians of Elise's estate and person. 20. The severity of Elise's mental condition, her inability to manage her financial resources, the lack of any viable, less-restrictive alternative, and the possibility that Elise could be taken advantage of by unscrupulous persons, necessitate the appointment of a Page 3 of 5 plenary guardian of her estate to manage and handle all aspects thereof, specifically including, but not limited to, all issues relating to cash, checks, bank or investment accounts held in her name, or any other assets, her entitlement to any governmental and non- governmental benefit plans, federal, state, and local taxes, claims made or to be made on behalf of her or against her, the execution of documents, entry into contracts affecting her and the payment of reasonable compensation or costs to provide services for her. 21. The severity of Elise's mental condition, her inability to care for herself, the lack of any viable, less-restrictive alternative, and the possibility that Elise could be taken advantage of by unscrupulous persons, necessitate the appointment of a plenary guardian of her person to handle all issues relating thereto, specifically including, but not limited to, her living arrangements, her medical and psychiatric care, the administration of medication to her, and the employment and discharge of physicians, psychiatrists, dentists, nurses, therapists and other professionals for her physical and mental treatment and care. 22. In order to ensure Elise's well-being and to provide her with contirnued care and services, Petitioners request that they be appointed as plenary co-guardians of Elise's estate and person. 23. As Elise's parents, the Petitioners are in the best position to serve as plenary co-guardians of Elise's person and estate. Eric J. Binder is 54 years of age. He has an M.D. and is currently a practicing physician with Susquehanna Internal Medicine Associates. Lilli A. Binder is 53 years of age. She has a J.D. and is a practicing attorney with the Commonwealth of Pennsylvania. 24. Petitioners aver that they have no interest that is adverse to Elise and further aver that the gross value of Elise's estate is less than $1,000, and consists of the assets set forth at Exhibit "B" attached hereto and by this reference made a part hereof. 25. Income and benefits currently received by Elise are also set forth at Exhibit ..B ~~ 26. Petitioners have indicated their willingness to serve as plenary co~guardians of Elise's estate and person by Consents attached hereto as Exhibits "C" and "D". 27. No guardian has ever been appointed for Elise's estate or person. Page 4 of 5 28. No other court has ever assumed jurisdiction in any proceeding to determine Elise's capacity. WHEREFORE, Petitioners respectfully request that this Honorable Court award a citation directed to Elise Rachel Binder and to such other persons as this Court may direct, to show cause why Elise should not be adjudicated a fully incapacitated person and why Eric J. Binder and Lilli A. Binder should not be appointed plenary co-guardians of Elise's person and estate. Respectfully submitted, MCNEES WALLACE 8~ NURICK LLC BY: Attorne No. 763 100 Pine Street, .Box 1166 Harrisburg, PA 17108-1166 Tel. 717-237-5243 Fax: 717-260-1729 Attorney for Petitioner Dated: May ~, 2009 Page 5 of 5 VERIFICATION ERIC J. BINDER deposes and says that he is a Petitioner in the foregoing Petition for appointment of Guardian, and that the facts contained therein are true and correct to the best of his knowledge, information, and belief. The undersigned understands that the statements herein made are subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Eric J. Bin e Dated: May ~~ , 2009 VERIFICATION LILLI A. BINDER deposes and says that she is a Petitioner in the foregoing Petition for appointment of Guardian, and that the facts contained therein are true and correct to the best of her knowledge, information, and belief. The undersigned understands that the statements herein made are subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. ~. Lilli A. Binder Dated: May ~,, 2009 EXHIBIT A • • LICENSED PSYCHOLOGISTS • LEARNING DISABILITIES 8PECIALISTS • CERTIFIED SCHOOL PSYCHOLOGISTS • COGNITIVE THERAPISTS 2818 LITITZ Pi1fE LANCASTER, PA 17601-8322 TELEPHONE:17173568-6223 fAX: 1717) 560-9931 To Whom This May Concern: RE: Elise R. Binder INTERNET: HTTPJM/MVW.MARGARETKAY_C0.b1 January 31, 2008 e•mai1: M.1K@margaretkaycom I completed a psychological examination for Elise- Binder on January 25, 2008. She was credited with the following scores, all of which fall within the range of Mental Retardation: WALS-III Full Scale IQ ABAS-II General Adaptive Composite (GAC) ABAS-II Conceptaal Adaptive Functioning ABAS-II Social Adaptive Behavior ABAS-II Practical Adaptive Functioning 69 Mental Retardation 45 Mental Retardation 55 Mental Retardation 61 Mental Retardation 40 Mental Retardation Elise displays significant limitations in adaptive functioning in the areas of communit~tion, self- care, home living, social and interpersonal skills; use of community resources; self-direction; .functional academic skills; leisure activity; health; and safety. The onset of these de$cits in functioning occun~d before her 22°d birthday. Elise meets all eligibility requirements established by the Pennsylvania Department of Public Welfare Office of Developmental Programs (ODP) in accordance with 55 PA. Code. 4210.101 and should be classified as an individual with mental retardation. Sincerely yours, ~~ Margaret J. Kay, _ NCSP, DABPS SM Enclosure Licensed Psychologist PS003431 L Nationally Certified School Psychologist Pa. Department of Education Certified School Psychologist Diplomate, American Boazd of Psychological Specialties -with Forensic Specialization in Educational and School Psychology ~~ ',~ EXHIBIT B IN THE MATTER OF: ELISE RACHEL BINDER, AN ALLEGED INCAPACITATED PERSON IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION . NO: EXHIBIT B Listed below are the assets and income of Elise Rachel Binder, the alleged incapacitated person, as currently known to the Petitioner: Asset Approximate Clurrent Value Members 1$ Checkin Account 'oint with Lilli A. Binder $30 Total $30 Income Amount Center For Industrial Trainin a roximatel $10 er a eriod EXHIBIT C IN THE MATTER OF: ELISE RACHEL BINDER, AN ALLEGED INCAPACITATED PERSON IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO: CONSENT TO SERVE AS CO-GUARDIAN OF THE PERSON AND ESTATE I, Eric J. Binder, do hereby consent to serve as Plenary Permanent Co-Giuardian of the person and estate of Elise Rachel Binder, an alleged incapacitated person, and do certify that: 1. I am 54 years of age and currently reside at 5264 Strathmore Drive, Mechanicsburg, Pennsylvania, 17050. 2. I am currently employed as a physician by Susquehanna Internal Medicine Associates. 3. I speak, read, and write the English language. 4. I am a citizen of the United States. 5. I have no interest that is adverse to the alleged incapacitated person. I am not an individual fiduciary, nor an officer or employee of a corporate fiduciary, of an estate in which the alleged incapacitated person has an interest. Neither am I an individual surety, nor an officer or employee of a corporate surety, of a fiduciary of an estate in which the alleged incapacitated person has an interest. ~~~ ~~~~ Eric J. Binde Dated: May ~ , 2009 EXHIBIT D IN THE MATTER OF: ELISE RACHEL BINDER, AN ALLEGED INCAPACITATED PERSON IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION . NO: CONSENT TO SERVE AS CO-GUARDIAN OF THE PERSON AND ESTATE I, Lilli A. Binder, do hereby consent to serve as Plenary Permanent Co-Guardian of the person and estate of Elise Rachel Binder, an alleged incapacitated person, and do certify that: 1. I am 53 years of age and currently reside at 5264 Strathmore Drive, Mechanicsburg, Pennsylvania, 17050. 2. I am currently employed as an attorney by the Commonwealth of Pennsylvania. 3. I speak, read, and write the English language. 4. I am a citizen of the United States. 5. I have no interest that is adverse to the alleged incapacitated person. I am not an individual fiduciary, nor an officer or employee of a corporate fiduciary, of an estate in which the alleged incapacitated person has an interest. Neither am I an individual surety, nor an officer or employee of a corporate surety, of a fiduciary of an estate in which the alleged incapacitated person has an interest. Lilli A. Binder Dated: May ~, 2009 MWN McNees Wallace & Nurick LLC attorneys at law ELIL4BETH P. MULLAUGH DIRECT DIAL: (717) 237-5243 DIRECT FAX: (717) 260-1729 E-MAIL ADDRESS: EMULLAUGH(I.~MWN.COM May 27, 2009 Register of Wills/Orphans' Court Cumberland County Court of Common Pleas One Courthouse Square Carlisle, PA 17013-3387 RE: Elise Rachel Binder, An Alleged Incapacitated Person Cumberland County Court of Common Pleas Orphans' Court Division No. ~ I ~ •d ~ 9(0 Petition Under 20 Pa.C.S.A. § 5511 for Adjudication of Incapacity and Appointment of Plenary Guardian of Estate and Person Dear Ms. Strasbaugh: Enclosed is a Petition for Adjudication of Incapacity and Appointment of Plenary Guardian of the Estate and Person of Elise Rachel Binder on behalf of Petitioners, Eric J. Binder and Lilli A. Binder. Kindly date-stamp the copy enclosed and return it in the stamped envelope provided. Also enclosed is a $50 check for the filing fee as well as two sets of addressed, stamped envelopes for the Court's use in sending Notice to the interested parties. Because of the very limited availability of our medical expert, we request; that, if at all possible, the hearing in the matter be scheduled for a Monday, pefiaps in the r~hiddle of the day. We understand the Court's limitations in scheduling and we deeply appreciate any efforts to accommodate us in this regard. Thank you and please contact me with any questions. Very truly yours, McNEES WALLACE & NURICK LLC Elizabeth P. M a EPM/mha Enclosures cc: Eric J. Binder and Lilli A. Binder, Individually and as Parents and Natural Guardians of Elise Rachel Binder (w/encl.) Charles E. Cladel, Jr., M.D. (w/encl.) P.O. Box 1166.1 OO PINE STREET • HARRISBURG, PA 17108-1166 • TEL: 717.232.8000 • FAx: 717.237.5300 • WWW.MWN.COM COLUMBUS, OH • STATE COLLEGE, PA • LANCASTER, PA • HAZLETON, PA • WASHINGTON, ~C