HomeMy WebLinkAbout04-0464IN RE: LEONA C. McCRARY
an incapacitated person
On the Petition of Lynne P. Donnelly
: iN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY
: PENNSYLVANIA
~.? ,~ .j :,
: ORPHANS' COURT DIVISION
:
: NO.
PETITION FOR APPOINTMENT OF GUARDIAN OF THE
PERSON AND ESTATE OF LEONA C. McCRARY AN AI.I.F. GED INCAPACITATED
PERSON
TO THE HONORABLE JUDGES OF SAID COURT:
NOW COMES, Petitioner, Lynne P. Donnelly, by and through her attorney, David P.
Perkins, Esquire and files the within Petition for the Appointment of Guardian of the Person and
Estate of Leona C. McCrary, an Alleged Incapacitated Person, and in support thereof, avers as
[onows:
1.
LEONA C. McCRARY the alleged incapacitated person, is currently domicile at 8
West Oakwood Drive, Carlisle, Cumberland County, Pennsylvania. On April 2004
one or more of the petitioner's siblings surreptitiously removed the alleged
incapacitated person from her place of residence. Leona C. McCrary is 76 years old,
her date of birth being July 19, 1927.
LEONA C. McCRARY is a widow. Her husband William McCrary died October
17, 2003 in Pennsylvania. At the time of his death William McCrary was domicile at 8
West Oakwood Drive, Carlisle, Cumberland County, Pennsylvania.
LEONA C. McCRARY is not a patient in a mental hospital.
The Petitioner is Lynne P. Donnelly of 8 West Oakwood Drive, Carlisle,
Cumberland County, Pennsylvania and she is the daughter of Leone C. McCrary.
LEONA C. McCRARY has 7 Children and one Step-child.
The names and addresses of those persons who would be the intestate heirs (or next
of kin) of LEONA C. McCRARY are as follows: Leonard Roy Edwards (son), RR
2 Box 99, Lamoni, Iowa 50140; Myrna Loretta Pitts Petree (daughter), 7832
Prospect Landing Road, Hilliard, FL 32046; Marshall Emory Pitts, Jr. (son), 3831
Soto Road, Groveland, FL 34736; Leona Ellen Pitts Sauder, also known as Ellen
Wilson (daughter), 20932 South Winema Drive, Tualatin, OR 97062; David Michael
o
o
Pitts (son), c/o Grace Gilbert Chapman, 221 Oakfell Road, Lady Lake, FL 32159;
Elizabeth Ann Pitts Pacelli (daughter), Bolling Lane, Elkton, FL; Lyrme Pitts
Donnelly also known as Ira Lynne Donnelly (daughter), 8 West Oakwood Dr,
Carlisle, PA 17013.
The names and addresses of those persons who would be interested in proceedings
upon the Petition for the Appointment of Guardian of the Person and Estate of
Leona C. McCrary, an Alleged Incapacitated Person are as follows: Nancy Rose Pitts
(step-daughter), of 80288 Cunningham Lane, Adena, Ohio 43901
The names and addresses of the person or institutions providing residential services
to LEONA C. McCRARY are as follows: NONE
The names and addresses of other service providers are as follows:
Her primary physician is:
Dr. Jay Townsand
Graham Medical Clinic
100 South High Street
Newville, PA 17241
Additional Physician:
Dr. Conner
Conner-Rich-Kerney-Torchia Assoc.
207 House Avenue
Camp Hill, PA 17011
Her psychiatrist is:
Dr. Joseph Barber
Penn State
Milton S. Hershey Medical Center
22 Northeast Drive
Hershey, PA 17033
10.
11.
12.
LEONA C. McCRARY is not a member of the Armed Services of the United States
and is not receiving benefits from the United States Veterans Administration.
The Petitioner asks that she, Lynne P. Donnelly, be appointed as guardian of the
person and estate of LEONA C. McCRARY. The proposed guardian is the
daughter of LEONA C. McCRARY.
The proposed guardian has no interests which are adverse to the interests of
LEONA C. McCRARY.
Petitioner believes, and therefore avers, that no Court has ever assumed jurisdiction
in a proceeding to determine whether LEONA C. McCRARY is incapacitated.
13.
14.
15.
16.
17.
18.
19.
20.
Petitioner believes, and therefore avers, that LEONA C. McCRARY has not
previously had a guardian appointed, nor is a guardianship hearing pending in any
other jurisdiction.
The reasons why this guardianship is being sought are as follows: LEONA C.
McCRARY is unable to manage her financial affairs or to make decisions regarding
health care and medical decisions, primarily due to a diagnosis of dementia, N.O.S.
with behavioral disturbances/anxiety/depressed mood.
The functional limitations and physical mental condition of LEONA C. McCRARY
are: LEONA C. McCRARY is not able to manage her financial affairs, nor is she
able to make competent decisions as far as her health and welfare are concerned.
LEONA C. McCRARY is not able to communicate effectively, nor is she able to
perform any of her activities of daily living without assistance. She is in need of
twenty-four (24) hour supervision, ideally in a dementia unit.
The following steps have been taken, in order to find less restrictive alternative to the
appointment of a guardian: On December 15, 2003LEONA C. McCRARY granted
power of attorney to her daughter Lynne Pitts Donnelly and/or her son-in-law
Patrick E. Donnelly. Leona C. McCrary is not presently competent to execute or
revoke a power of attorney.
No less restrictive alternatives are available to adequately provide for the physical and
financial care of LEONA C. McCRARY.
The Petitioner requests that the guardian be granted power to act for LEONA C.
McCRARY in the following and 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.
The proposed guardian has the following qualifications: The proposed guardian is
the daughter of LEONA C. McCRARY. The proposed guardian loves and cares for
her mother. The proposed guardian holds a Bachelor of Science degree and is a
Registered Nurse in the Commonwealth of Pennsylvania.
The gross value of the Estate of LEONA C. McCRARY is approximately one
hundred and eighty thousand Dollars ($180, 000). LEONA C. McCRARY's net
income from all sources totals approximately two thousand five hundred Dollars
($2,500) per month.
Petitioner respectfully requests that this Honorable Court, under Section 5511 of the
Pennsylvania Probate, Estates and Fiduciaries Code (20 Pa. C.S. ~ 5511 et secO, issue
a Citation to LEONA C. McCRARY, LEONA C. McCRARY's next of kin, and to
such other persons as the Court directs, to show cause why LEONA C. McCRARY
should not be adjudged to be an incapacitated person and that your petitioner Lynne
P. Donnelly be appointed as plenary guardian of her person and estate.
Date: May 11, 2004
Respectfully submitted,
By: David P. Perkins, Esqtfire
Attorney for the Petitioner
Attorney I.D. No. 34342
4 James Circle
Shippensburg, PA 17257
(717)532-6629
VERIFICATION
I verify that the statements made in the foregoing Petition are true and correct. I
understand that false statements herein are made subject to the penalties of 18 Pa C.S.
§ 4904, relating to unsworn falsification to authorities.
Dated: t~,~ I) , 2004
Lynn~ P.'D'~nnelly, Pet~e~er
IN RE: ESTATE OF LEONA C. MCCRARY
AN INCAPCITATED PERSON
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
NO. 21-2004-464
IMPORTANT NOTICE
CITATION WITH NOTICE
A petition has been filed with the Court to have you declared an Incapacitated Person. If the
Court finds you to be an Incapacitated Person, your rights will be affected, including your right to
manage money and property and to make decisions. A copy of the petition which has been filed by
Lvnne P. Donnelly is attached.
You are hereby ordered to appear at a heating to be held in Court Room No. 2, Cumberland
County Courthouse, Carlisle, Pennsylvania, on June 23 ,2004, at 11:30 AM. to tell the
Court why is 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 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 of 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 girl of your money to other property. If the
court finds that you are partially incapacitated, your legal tights will also be limited as
directed by the Court.
If you do not appear at the heating (either in person or by an attorney representing you)
the court will still hold the heating in your absence and may appoint the Guardian requested.
Clerk, Orphans' Court Division V']~~
Cumberland County, Carlisle, PA /J-
My Commission Expires 1 st Monday,
January, 2006
IN REi LEONA C. McCRARY : IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY
an incapacitated person : PENNSYLVANIA
:
: ORPHANS' COURT DIVISION
On the Petition of Lynne P. Donnelly
PRELIMINARY ORDER OF COURT
AND NOW, this ] ~0- day of May, 2004, the foregoing Petition having been presented in Court,
upon consideration thereof and on motion of David P. Perkins, Esquire, Counsel for the Petitioner
Lynne P. Donnelly, it is ORDERED and DECREED that a Citation be awarded, directed to
Leona C. McCrary to show cause why she should nor be adjudged an incapacitated person and a
plenary guardian of her estate and person be appointed, returnable ~~_, 2004 at ~ ~: 3 0 o'clock.
~_.g., prevailing time.
The time and place of hearing on the petition for appointment of a guardian of the estate
and person of the alleged incapacitated person are fixed for ~.~t~ a 3 ,2004, and ~ I ~3B o'clock,
0
_~_. M., prevailing time, in the Orphans' Court Division, Cumberland County Courthouse, Carlisle,
Pennsylvania 17013~ ~
At least twenty (20) days, written notice of the hearing shall be given to Leona C. McCrary,
the alleged incapacitated person, by serving her personally with the Citation and this Order of Court
and a copy of the foregoing petition together with an explanation of the content and terms of the
petition; and at least twenty (20) days written notice of the petition and hearing shall also be given to
the next of kin and to the following parties in interest: Leonard Roy Edwards (son); Myma Loretta
Pitts Petree (daughter); Marshall Emory Pitts, Jr. (son); Leona Ellen Pitts Sauder, also known as
Ellen Wilson ( daughter); David Michael Pitts (son); Elizabeth Ann Pitts Pacelli (daughter); Lynne
Pitts Donnelly also known as Iva Lynne Donnelly (daughter) and Nancy Rose Pitts (step-daughter)
either personally or by registered or certified mail.
C
BY THE COURT: /
HAROLD S. IRWIN, III, ESQUIRE
ATTORNEY ID NO.
84 SOUTH PITT STREET
CARLISLE PA t 70t 3
(7'1'7) ~.43-8o9o
ATTORNEY FOR PLAINTIFF
IN RE:
: IN THE COURT OF COMMON PLEAS OF
LEONA C. McCRARY, : CUMBERLAND COUNTY, PENNSYLVANIA
an alleged Incapacitated :
person : ORPHANS' COURT DIVISION
:
: NO. 21 - 04 - 0464
NOTICE TO PLEAD
To:
DAVID P. PERKINS, ESQ.
4 JAMES CIRCLE
SHIPPENSBURG PA 17257
You are hereby notified to file a written response to the New Matter contained
herein within (20) days of service or judgment may be entered against you.
June ~ 2004
!
~AttorneyforLeonaC.~and
Respondents
64 South Pitt Street
Carlisle, PA 17013
(717) 243-6090
Supreme Court ID No. 29920
IN RE: : IN THE COURT OF COMMON PLEAS OF
LEONA C. McCRARY, : CUMBERLAND COUNTY, PENNSYLVANIA
an alleged incapacitated :
person : ORPHANS' COURT DIVISION
:
: NO. 2t - 04 - 0464
ANSWER TO PETITION
FOR APPOINTMENT OF GUARDIAN
NOW comes Harold S. Irwin, III, Esquire, attorney for LEONA C. McCRARY, the
alleged incapacitated person, and the respondents, being all of the next-of-kin of Leona
C. McCrary, except for petitioner, as well as her stepdaughter, Nancy R. Dowdle, and
responds to this petition for appointment of guardian of the person and estate of
LEONA C. McCRARY, representing as follows:
1. The multiple averments of paragraph one of the petition are admitted in
part and denied in part. It is admitted that Leona C. McCrary is 76 years old, having
been born on July 19, 1927. The remaining averments of this paragraph are
specifically denied as follows:
A. While it is correct that Leona C. McCrary lived temporarily with the
petitioner and her husband at 8 West Oakwood Drive, Carlisle, Cumberland
County, Pennsylvania 17013, she is a resident of the State of Florida and the
owner of real property located at 740 County Road, 13A South, Lot E, Elkton,
Florida 32033, to which she returned on or about April 5, 2004.
B. It is also correct that following the death of her husband, William
McCrary, Leona C. McCrary requested that her children return her to her home in
Florida. All of her children, except the petitioner, and her stepdaughter
consented to that request and assisted her in returning home.
C. It is further correct that the move from Carlisle to Florida took place
without the knowledge or consent of the petitioner, who refused to honor the
legitimate and reasonable request of her mother, Leona C. McCrary, to return to
her home.
2. The averments of paragraph two of the petition are admitted in part and
denied in part. It is denied that William McCrary was domiciled at 8 West Oakwood
Drive, Carlisle, Cumberland County, Pennsylvania 17013 at the time of his death. On
the contrary, due to his failing health and his physical limitations, William McCrary
stayed with the Donnellys from early September, 2003 until his death on October 17,
2003. At all times relevant hereto, however, William and Leona C. McCrary remained
residents of the State of Florida and maintained ownership of the real property located
at 740 County Road, 13A South, Lot E, Elkton, Florida 32033.
3. The averments of paragraph three of the petition are admitted.
4. The averments of paragraph four of the petition are admitted.
5. The averments of paragraph five of the petition are admitted except that
the addresses given for Myrna and Elisabeth are incorrect. Both Myrna and Elisabeth
reside with their mother, Leona C. McCrary, at 740 County Road, 13A South, Lot E,
Elkton, Florida 32033.
6. The averments of paragraph six of the petition are admitted.
7. The averments of paragraph seven of the petition are specifically denied.
On the contrary, Leona C. McCrary's daughters, Myma Loretta Pitts Petree and
Elisabeth Anne Pitts Pacilli, reside with Leona C. McCrary at the Elkton, Florida
residence and, along with Ms. McCrary's sons, David Pitts and Marshall Pitts, Jr., and
Marshall's wife, Stacy Pitts, are providing 24-hour care to her seven days a week.
Marshall E. Pitts, Jr. is also providing assistance with Ms. McCrary's financial affairs
pursuant to a power-of-attorney executed by Ms. McCrary on April 5, 2004.
8. The averments of paragraph eight of the petition are specifically denied.
On the contrary, Leona C. McCrary resides in the State of Florida; none of the
physicians named in this paragraph are providing care or treatment to her and none
have any knowledge of her present physical and / or mental condition.
9. The averments of paragraph nine of the petition are admitted.
10. The averments of paragraph ten of the petition are neither admitted nor
denied and require no response. However, it is denied that petitioner should be
appointed guardian of Leona C. McCrary or that this Court has jurisdiction over Leona
C. McCrary.
11. The averments of paragraph eleven of the petition are specifically denied.
On the contrary, respondents believe and therefore aver that petitioner may have
interests which are adverse to the health and welfare of Leona C. McCrary.
Specifically, counsel for Leona C. McCrary has demanded of petitioner and her counsel
that they provide an accounting of all financial transactions performed by petitioner
during her tenure as power-of-attorney for Leona C. McCrary and that they turn over
any and all legal documents executed by Ms. McCrary during the time she stayed with
the Donnellys in Carlisle. To date, petitioner and her counsel have refused and
continue to refuse to produce the same or any part thereof.
12. The averments of paragraph twelve of the petition are admitted.
13. The averments of paragraph thirteen of the petition are admitted.
14. The averments of paragraph fourteen of the petition are admitted in part
and denied in part. It is admitted that Leona C. McCrary requires assistance in
managing her financial affairs and making medical decisions, the causes for which
respondents demand proof at trial, if relevant. However, respondents believe and
therefore aver that Leona C. McCrary is, and was at all times relevant to these
proceedings, competent to express her desire to return home to Florida, competent to
understand that she needs assistance in her financial and medical affairs and
competent to select agents of her own choice to provide such assistance. As such, it is
specifically denied that she requires the appointment of a guardian since she has
designated her son, Marshall E. Pitts, Jr., as her agent and her stepdaughter, Nancy R.
Dowdle, as her alternate agent, who continue to act as such.
15. The averments of paragraph fifteen of the petition are admitted in part and
denied in part. It is admitted that Leona C. McCrary requires assistance in managing
her financial affairs and making medical decisions, the causes for which respondents
demand proof at trial, if relevant. However, respondents believe and therefore aver that
Leona C. McCrary is, and was at all t~'rnes relevant to these proceedings, competent to
express her desire to return home to Florida, competent to understand that she needs
assistance in her financial and medical affairs and competent to select agents of her
own choice to provide such assistance. With the assistance of her current agents and
the children with whom she resides, she is able to communicate effectively and to
perform some activities of her daily life. She does have 24-hour supervision, as stated
above in paragraph seven, and certainly does not require the services of a dementia
unit.
16. The averments of paragraph sixteen of the petition are admitted in part
and denied in part. It is admitted that for a time, petitioner and her husband served as
co-agents for Leona C. McCrary. It is specifically denied that at any time relevant
hereto Ms. McCrary lacked the capacity to execute or revoke a power-of-attorney. On
the contrary, respondents believe and therefore aver that Leona C. McCrary is, and was
at all times relevant to these proceedings, competent to express her desire to return
home to Florida, competent to understand that she needs assistance in her financial
and medical affairs and competent to select agents of her own choice to provide such
assistance. As such, it is specifically denied that she requires the appointment of a
guardian since she has designated her son, Marshall E. Pitts, Jr., as her agent and her
stepdaughter, Nancy R. Dowdle, as her alternate agent, who continue to act as such.
17. The averments of paragraph seventeen of the petition are specifically
denied. On the contrary, less restrictive alternatives are not only available to
adequately provide for the physical and financial care of Leona C. McCrary, but such
alternatives are already in place in Florida where she resides.
18. The averments of paragraph seventeen of the petition do not require a
response. However, it is specifically denied that such guardianship powers should be
granted to petitioner over Leona C. McCrary or that this Court has jurisdiction to do so.
On the contrary, not only are less restrictive alternatives are available to adequately
provide for the physical and financial care of Leona C. McCrary, but such alternatives
are already in place in Florida where she resides.
19. The averments of paragraph nineteen of the petition are admitted in part
and denied in part. It is admitted that petitioner may possess the educational
qualifications listed. However, respondents believe and therefore aver that petitioner
does not have her mother's best interests at heart. Furthermore, regardless of
petitioner's educational qualifications, it is specifically denied that such guardianship
powers should be granted to petitioner over Leona C. McCrary or that this Court has
jurisdiction to do so. On the contrary, less restrictive alternatives are not only available
to adequately provide for the physical and financial care of Leona C. McCrary, but such
alternatives are already in place in Florida where she resides.
20. The averments of paragraph twenty of the petition are denied by reason
that after reasonable investigation, respondents are without knowledge or information
sufficient to form a belief as to the gross value of Leona C. McCrary's estate or her
income and proof thereof at trial is demanded, if relevant. By way of further response,
counsel for Leona C. McCrary and all of her other children and stepdaughter has
demanded of petitioner and her counsel that they provide an accounting of all financial
transactions performed by petitioner during her tenure as power-of-attorney for Leona
C. McCrary and that they turn over any and all legal documents executed by Ms.
McCrary during the time she stayed with the Donnellys in Carlisle. To date, petitioner
and her counsel have refused and continue to refuse to produce the same or any part
thereof.
WHEREFORE, respondents demand that petitioners' petition be dismissed and
that petitioner be assessed with the costs of the defense of this matter, including
attorney fees and the costs of respondents' travel to Cumberland County to participate
in these proceedings.
NEW MATTER
21. Respondents' responses to the petition, paragraphs one through twenty,
inclusive, are incorporated herein by reference as if fully set forth herein at length.
22. Leona C. McCrary is a resident of the State of Florida, where, at all times
relevant to these proceedings, she has owned the real property in which she currently
resides with two of her children. As such, this Court has no jurisdiction to make a
decision as to her legal, mental or physical capacity, or to appoint a guardian for her.
23. Leona C. McCrary's temporary stay in Carlisle was at the insistence of her
husband, William McCrary. Upon his death in October, 2003, Leona C. McCrary
expressed her desire to return to her home in Florida, but petitioner refused to allow Ms.
McCrary to do so, contrary to her mother's express wishes and outside of any authority
conferred upon petitioner by virtue of the former power-of-attorney.
24. Since her return to her home in Florida, Ms. McCrary has responded
favorably to her familiar home environment and the care and treatment given her by her
daughters, Myrna and Elisabeth, and her sons, David and Marshall. In addition, her
physician in Florida has decreased the number and quantity of medications being
administered to her while she stayed with the Donnellys in Pennsylvania, thus
permitting her to be more aware of her surroundings, more able to do things for herself
physically, more able to enjoy life and to communicate effectively.
25. Counsel for Ms. McCrary and all of her other children has demanded of
petitioner and her counsel that they provide an accounting of all financial transactions
performed by petitioner during her tenure as power-of-attorney for Leona C. McCrary
and that they turn over any and all legal documents executed by Ms. McCrary during
the time she stayed with the Donnellys in Pennsylvania. To date, petitioner and her
counsel have refused and continue to refuse to produce the same or any part thereof.
26. Petitioner's requests that Leona C. McCrary be adjudged incompetent and
that petitioner be appointed her guardian are neither in the best interests of nor for the
permanent welfare of Ms. McCrary in that her legal, financial and medical needs are
being adequately met in a far less restrictive manner at her home in Florida under the
care and supervision of her daughters, Myrna and Elisabeth, and her sons, David and
Marshall.
27. Except for petitioner, all of Ms. McCrary's children and her step-daughter
agree that the best interests and permanent welfare of their mother, Leona C. McCrary,
require that this petition be dismissed, that this Court recognize its lack of jurisdiction in
the matter, that their mother remain at her home in Florida under the care and
supervision of her daughters, Myrna and Elisabeth, and her sons, David and Marshall,
and that her son, Marshall continue to provide financial assistance to her through the
power-of-attorney granted to him.
28. The Florida Department of Children and Families has conducted an
investigation of this matter, including a home visit to the Florida residence of Leona C.
McCrary and have declined to take any action whatsoever to modify the living and
supervisory arrangements undertaken by her children, Myrna, Elisabeth, David, and
Marshall.
29. In fact, by letter dated May 20, 2004 (a copy of which is incorporated
herein by reference and attached hereto as Exhibit "A"), Karen Knapp, investigator for
the Florida Department of Children and Families, after conducting an investigation at
the apparent insistence of petitioner, wrote directly to Leona C. McCrary and concluded
the following:
A. "That the provision of treatment and/or services are not
necessary for [Leona C. McCrary]";
B. That among the various services available through the Florida
Department of Children and Families, or at their direction, "no other
services needed at this time"; and
C. That "the investigation is now complete and the investigative
file is closed."
29. Respondents believe and therefore aver that it would be harmful to the
health and welfare of their mother, Leona C. McCrary, to require that she attend any
proceedings held in Pennsylvania. However, all of the respondents, whose residences
are in Oregon, Florida and Ohio, are prepared to travel to Pennsylvania, if necessary, to
attend a hearing and present their objections to the petitioner's requests in this
proceeding.
30. Respondents believe and therefore aver that in light of the circumstances
of this case as related above, the filing of this petition by the petitioner is arbitrary and
capricious, done solely for petitioner's personal benefit, without any consideration
whatever for the needs or wishes of Leona C. McCrary and without any basis in law or
in fact. As such, this Court should require that the petitioner reimburse to Leona C.
McCrary and respondents any and all costs and attorney fees associated with the
defense of this matter.
WHEREFORE, respondents demand that petitioners' petition be dismissed and
that petitioner be assessed with the costs of the defense of this matter, including but
not limited to attorney fees and the costs of respondents' travel to Cumberland County
to participate in these proceedings.
June ~ , 2004
i~~OL J
64 South Pitt Street
Carlisle, PA 17013
(717) 243-6090
Supreme Court ID No. 29920
VERIFICATION
The facts stated in this answer and new matter are true and correct to the best
of my knowledge, information and belief. I understand that false statements made
herein are subject to the penalties of 18 Pa.C.S.A. Section 4094, relating to unsworn
falsification to authorities.
, 20~ ~4~
r~ONARD ROY EDWARDS
., 2004
,,, 2004
, 2004
,2004
,2OO4
,2004
MYRNA LORETTA PITTS PETREE
MARSHALL EMORY PI'ri'S, JR.
ELLEN WILSON
DAVID MICHAEL Pi'Frs
EMZABETH ANN PITTS PACELU
NANCY ROSE DOWDLE
VERIFICATION
The facts stated in this answer and new matter are true and correct to the best of
my knowledge, information and belief. I understand that false statements made herein
are subject to the penalties of 18 Pa.C.S.A. Section 4094, relating to unsworn
falsification to authorities.
,,,2004
,~,2004
,2004
MARSHALL EMORY PITTS, JR.
,20U4
ELLEN WILSON
,2004
DAVID MICHAEL PITTS
,2004
ELIZABETH ANN PITTS PACELLI
., 2004
NANCY ROSE DOWDLE
71.7 ~4~ 9200 05/26/2004 1.6;08 ~54 P.0~8/019
From:IRWIN LAM OFFICE
VERIFICATION
The facts stated in this answer and new matter are true and ~orreot to the best of
my knowledge, Information and belief. I understand that false statements made herein
am subject to the penalties of 18 Pa.C.S.A, Section 4094, relating to unswom
falsification to authorities.
_, 2004
LEONARD ROYEDWARD$
_.. , 2004
· 2004
MYRNA LORETTA PITT~ET:~:
MARSHALL EI~OI~ PITTS,
ELLEN WILSON
2004
DAVID MICHAEL PITTS
_, 2004
ELIZABETH .~'~iN PITTS PACELLI
2004
NANCY ROSE DOWDLE
VERIFICATION
The facts stated in this answer and new matter are true and correct to the best of
my knowledge, information and belief. I understand that false statements made herein
are subject to the penalties of 18 Pa.C.S.A. Section 4094, relating to unsworn
falsification to authorities.
,2004
LEONARD ROY EDWARDS
,2004
MYRNA LORETTA PITTS PETREE
,2004
,2004
,2004
MARSHALL EMORY PITTS, JR.
ELLEN WILSON
DAVID MICHAEL PITTS
,2004
ELIZABETH ANN PITTS PACELLI
,2004
NANCY ROSE DOWDLE
Fror,:IR~iN LA~I OFFICE
717 243 9200'
05/?6/2004 16:08 ~1054 P.013/018
._vE. RIFICATION
Ths facts stated in this answer and new matter are true and ~orre~t to the bast of
my knowledge, i~formatlon and belief, I understand that false statementS made herein
are subject to the penalties of 18 Pa.C.S.A, Se=riCh 4094, relating to un,worn
falsification to authorities,
_, 2004
, . .... , 2004
. ~,2004
2004
...~~2004
LEONARD ROY EDWARDS
MYRNA'LORETTA PI~S P'ETRE~
~LLtN WIL~SO~I, ~
2004
'ELIZABETH XNN Pi'TY$ PACELLI
2004 N.M~CY ROSE DOWDLE
From:iRWIN LAW OFFICE 717 243 9200 05/27/2Ci34 10:57 ,'~360 P,013/016
VERIFICATION
The facts stated in this answer and new matter are true and correct to the best of
my knowledge, information and belief. I understand that false statements'made herein
are subject to the penalties of 18 Pa.C.S.A. Section 4094. relating to unswom
falsification to authorities.
,2004
,2004
,2004
,2004
,2004
,2004
,2004
LEONARD ROY EDWARDS
MYRNA LORETTA PITFS PETREE
MARSHALL EMORY PITTS, JR.
111~ UICHAEL PITT% ~--'~~ ~
ELIZABETH ANN PITTS PACELLI
NANCY ROSE DOWDLE
Fr~; IRNIN LA~ OFFICE
717 243 9200
~26/2004 16:08 ~ P.013/013
_VK~IUFICATION
The fa=ts stated in this answer and new matter are true and con'e~t to the best of
my Iqtowledge, infommtJon and belief. I understand tttat false statements made herein
are subject to the penalties of 18 Pe.C.$.A. Section 4094, relating to unswom
fal~flcation to authorities,
__, 2O04
,2004
2004
~_~., 2004
LEONARD ROY EDWARDS
~-YRNA L.ORETTA PI'FrS P~ ikon-
MARSHALL EMORY PI I~&, Jl~'~
EL.L N W L.SON
DAVID MIGH~M~I' PITTS
EUZABETH ANN PITTS PACELM
EXHIBIT "A"
04 04: OSp
LORIDA DEPARTMENT OF
CHILDREN
& FAMILIES
Jeb Bush
Governor
Jerry Regier
Secretary
STATE OF FLORIDA
DEPARTMENT OF CHILDREN AND FAMILY SERVICES
ADULT PROTECTIVE SERVICES
NOTICE OF CONCLUSION OF INVESTIGATION
RE: FAHIS Number: 2004-009367
May 20, 2004
Leona McCrary
74O CR 13A
Elkton, FL 32033
Dear Ms. McCrary:
The Department of Children and Family Services (DCF) wants to take this opportunity
to thank you for cooperating in the performance of its statutory obligation to investigate
reports of abuse, neglect, or exploitation. It appears that the provision of treatment
and/or services are not necessary for you.
If treatment and/or sewices may be helpful, the Department recommends:
Medical examination, diagnosis or treatment of the vulnerable adult;
Referral of the vulnerable adult to Department of Children and Family
Services for Community Care for Disabled Adults services;
Referral of the vulnerable adult to Department of Elder Affairs for
Community Care for the Elderly services;
Protective supervision to be provided by Department of Children and
Family Services;
Implementation of case management to ensure continuing services over
time;
X No other services needed at this time.
District Four · Serving Baker, Clay, Duval, Nassau, & St. Johns Counties
1955 US 1 South St. Augustine, FL 32086
(904) 825-6812 · · Fax (904) 825-5012
Working in partnership with local communities to help people be self-sufficlent
and live in stable families and communities.
If treatment and/or services are recommended, the Department understands
that:
the person entitled to receive the treatment/services has agreed to accept
these services.
the person entitled to receive the treatment/services has not agreed to
accept them.
a court of competent jurisdiction has ordered that treatment/services be
delivered to the person entitled to receive them.
Again, thank you for having assisted in this important legally required endeavor to
protect Florida's vulnerable adults. The investigation is now complete and the
investigative file is closed.
zs~gn~ 7 ' Certificate of Service
I hereby certify that on this 20th day of May 2004, I have sent copies of this notification
letter to the person initially identified in this investigation as the vulnerable adult. I have
also sent copies to that person's guardian, guardian advocate, and caregivers, if any,
as identified as a result of the investigation. In addition, ! certify that I have sent a copy
of this letter to the case counselor at the Department of Children and Family Services if
ongoing case management is recommended.
Karep4~napp : .//,/~/ ~,
Signature of Inve~!~a~r '
1955 US 1 South
Saint Augustine, FL 32086
Please use correspondence and refer to the FAHIS number if
communication is necessary in this matter.
Thank you.
IN RE: ESTATE OF LEONA C.
MCCRARY, AN INCAPACITATED
PERSON
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 21-2004-464
ORDER OF COURT
AND NOW, this ~ ~ day of June, 2004, there appearing to be a
jurisdictional issue regarding the petition for the appointment of a guardian upon which a
hearing is now set for Wednesday, June 23, 2004, IT I$ ORDERED:
(1) The hearing set for June 23, 2004, IS CONTINUED GENERALLY.
(2) A hearing on the issue of jurisdiction shall be conducted in Courtroom
Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 1:30 p.m.,
Monday, June 21,2004.
(3) If the court has jurisdiction the hearing on the guardianship petition will be
rescheduled.
-~-...~David P. Perkins, Esquire ~' F°r Petiti°ner
Harold S. Irwin, III, Esquire
For Leona C. McCrary and Respondents
:sal
By t~eCour
Edgar B.
~ley~+:JT..
IN RE: LEONA C. MCCRARY
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
21-04-464 ORPHAN'S COURT
IN RE: PETITION FOR GUARDIANSHIPS; CHALLENGE TO JURISDICTION
ORDER OF COURT
AND NOW, this ~---'~day of June, 2004, IT IS ORDERED:
(1) This court has jurisdiction on the petition of Lynne P. Donnelly seeking her
appointment as the guardian of the person and guardian of the estate of her mother,
Leona C. McCrary, an alleged incapacitated person.
(2) A hearing on the petition shall be conducted in Courtroom Number 2,
Cumberland County Courthouse, Carlisle, Pennsylvania at 9:00 a.m., Wednesday, July
21,2004.
~)avid P. Perkins, Esquire
For Petitioner
Harold S. Irwin, III, Esquire
For Leona McCrary
:sal
IN RE: LEONA C. MCCRARY
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
21-04-464 ORPHAN'S COURT
IN RE: PETITION FOR GUARDIANSHIPS; CHALLENGE TO JURISDICTION
OPINION AND ORDER OF COURT
Bayley, J., June 23, 2004:--
On May 14, 2004, Lynne P. Donnelly, filed a petition seeking her appointment as
the guardian of the person and guardian of the estate of her mother, Leona C. McCrary,
an alleged incapacitated person. A citation and rule were issued on May 18, 2004, and
a hearing set for June 23, 2004. Service on Leona C. McCrary was made by the Sheriff
of St. John's County, Florida, on June 1,2004. On June 7, 2004, an answer in
opposition to the petition, including a challenge to jurisdiction, was filed through counsel
for Leona C. McCrary and for seven of her relatives. It is averred that Leona C.
McCrary is a resident of the State of Florida where she owns real property at 740
County Road, 13 A South, Lot E, Elkton, Florida, and:
·.. Leona C. McCrary's daughters, Myma Loretta Pitts Petree and
Elisabeth Anne Pitts Pacilli, reside with Leona C. McCrary at the Elkton,
Florida residence and, along with Ms. McCrary's sons, David Pitts and
Marshall Pitts, Jr., and Marshall's wife, Stacy Pitts, are providing 24-hour
care to her seven days a week. Marshall E. Pitts, Jr. is also providing
assistance with Ms. McCrary's financial affairs pursuant to a power-of-
attorney executed by Ms. McCrary on April 5, 2004.
A hearing was conducted on June 21,2004, at which evidence was taken as to
jurisdiction. The Probate, Estates and Fiduciaries Code at 20 Pa.C.S. Section 5511
provides:
21-04-464 ORPHAN'S COURT
(a) Resident.--The court, upon petition and hearing and upon the
presentation of clear and convincing evidence, may find a person
domiciled in the Commonwealth to be incapacitated and appoint a
guardian or guardians of his person or estate. (Emphasis added.)
Section 5512 of the Code provides:
(a) Resident incapacitated person,--A guardian of the person or
estate of an incapacitated person may be appointed by the court of the
county in which the incapacitated person is domiciled, is a resident
or is residing in a long-term care facility. (Emphasis added.)
Leona McCrary married William McCrary in 1982. They had both been married
previously. They lived together in Florida in a jointly owned property. They did not have
children. On September 2, 2003, Lynne P. Donnelly, using her mother's power-of-
attorney to her and another daughter, listed the McCrarys' Florida property for sale.
The McCrarys then moved to Lynne Donnelly's home at 8 West Oakwood Drive,
Carlisle, Cumberland County, Pennsylvania. Before the move, the McCrarys sold some
of their personal property and gave other things to their many siblings by prior
marriages. They brought some of their furniture to Carlisle which was put into 8 West
Oakwood Drive, with the remainder placed in storage. When they started to live in
Carlisle medical services were obtained for them from local providers. On October 17,
2003, William McCrary died suddenly from heart failure. A death certificate was issued
by the Commonwealth of Pennsylvania listing his mailing address as 8 West Oakwood
Drive, Carlisle, Pennsylvania.
On November 7, 2003, Leona McCrary was issued a Pennsylvania identification
card. She registered to vote in Cumberland County on December 12, 2003. On
-2-
21-04-464 ORPHAN'S COURT
December 15, 2003, through a Carlisle attorney, she executed a new power-of-attorney
to her daughter Lynne Donnelly and her husband Patrick E. Donnelly. Leona McCrary
suffers from dementia, Alzheimer type, and her condition worsened as time passed.
When the Donnellys were both working her mother stayed in an adult daycare center
which was arranged through the Cumberland County Office of Aging. A week before
April 5, 2004, several of Leona McCrary's children came to Carlisle and told their sister
that they were going to move their mother to Florida. On April 5th another daughter
moved her to Florida.
"Domicile is the place where a person has voluntarily fixed his habitation with a
present intention to make it either his permanent home or his home for the indefinite
future." Coulter Estate, 406 Pa. 402 (1962). We find that when the McCrarys moved
into their daughter's Carlisle home in early September, 2003, and when Leona McCrary
continued to live there after her husband's death, it was her intent to make it a
permanent home for the indefinite future. Thus, she was domiciled in Pennsylvania and
a resident of 8 West Oakwood Drive, Carlisle, Cumberland County. In the responsive
pleading it is averred that upon her husband's death, Leona McCrary "[e]xpressed her
desire to return to her home in Florida, but petitioner refused to allow Ms. McCrary to do
so, contrary to her mother's expressed wishes and outside of any authority conferred
upon petitioner by virtue of the former power-of-attorney." Respondents did not present
any evidence at the hearing in support of that averment. Respondents did
acknowledge in their pleading that Leona McCrary's return to Florida "took place without
-3-
21-04-464 ORPHAN'S COURT
the knowledge or consent of the petitioner."
The burden of proving a change of domicile rests upon the party asserting it.
Coulter Estate, supra. "To effect a change of domicile there must be a concurrence of
the following factors: (1) physical presence in the place where domicile is alleged to
have been acquired, and (2) an intention to make it his home without any fixed or
certain purpose to return to his former place of abode..." Id. There is a familial
dispute as to Leona McCrary's care now that her husband has died. Some of her
children have moved her back to Florida where she has been a resident for over a
month before this petition was filed. She is alleged to be incapacitated. We do not
know whether it is her intent, or whether she has the capacity to form the intent, to now
make Florida her permanent home for the indefinite future. Her change of residence
may have or may not have been of her choice. We are left with the conclusion that
respondents have not proven a change of domicile from Pennsylvania to Florida.
Accordingly, this court has jurisdiction.
ORDER OF COURT
AND NOW, this '~---""~/'.~ day of June, 2004, IT IS ORDERED:
(1) This court has jurisdiction on the petition of Lynne P. Donnelly seeking her
appointment as the guardian of the person and guardian of the estate of her mother,
Leona C. McCrary, an alleged incapacitated person.
(2) A hearing on the petition shall be conducted in Courtroom Number 2,
Cumberland County Courthouse, Carlisle, Pennsylvania at 9:00 a.m., Wednesday, July
-4-
21-04-464 ORPHAN'S COURT
21,2004.
David P. Perkins, Esquire
For Petitioner
Harold S. Irwin, III, Esquire
For Leona McCrary
:sal
BY.the court-i~'/'
Edgar B. Bayley, J.
-5-
HAROLD S. IRWIN; II1~ ESQUIRE
ATTORNEY ID NO. 29920
35 EAST HIGH STREET
CARLISLE PA 17013
(717) 243-6090
AI'rORNEY FOR RESPONDENTS
IN RE:
: IN THE COURT OF COMMON PLEAS OF
LEONA C. McCRARY, : CUMBERLAND COUNTY, PENNSYLVANIA
an alleged incapacitated :
person : ORPHANS' COURT DIVISION
:
: NO. 21 - 04 - 0464
PRAECIPE FOR ENTRY OF DEFAULT JL~GMENT ~
TO THE PROTHONOTARY:
A. Pursuant to PA. R. CIV. P. 237.1, please enter judgment in favo_,~ of
respondents and against the petitioner for failure to file an a~Swer t~
respondent's New Matter within twenty (20) days of service thereof, based upon
the following:
1. Petitioner's counsel was served with the New Matter on June 10, 2004
(see signed return receipt card attached as Exhibit "A").
2. The New Matter was properly endorsed with a Notice to Plead (copy
attached as Exhibit "B").
3. Respondents provided petitioner's counsel with a Ten Day Notice to
respond to the New Matter (copy attached as Exhibit "C").
4. Petitioner's counsel received this notice on July 14, 2004 (copy of signed
receipt card attached as Exhibit "D").
5. On July 26, 2004, respondent's counsel notified petitioner's counsel by e-
mail that if no answer had been filed by Noon on July 27, 2004, counsel for petitioner
would file a praecipe for a default judgment (Copy of e-mail attached as Exhibit "E").
6. No response has been filed by the petitioner to respondents' New Matter.
B. Enter judgment as prayed for in respondents New Matter as follows:
1. The New Matter requested that petitioners' petition be dismissed and that
petitioner be assessed with the costs of the defense of this matter, including but not
limited to attorney fees and any costs of respondents' travel to Cumberland County to
participate in these proceedings.
2. To date, respondents' attorney fees and costs have amounted to
$4,150.54.
July 27, 2004
· Complete items 1, 2, and 3. Also complete
item 4 if Restricted Delivery is desired.
· Print your name and address on the reverse
so that we can return the card to you,
· Attach this card to the back of the maitpiece,
or on the front if space permits,
A. Signature
/
B Received by (Pnnted N~m~ ~ ~ C. Date of De~ive~
D. Is delivew address different from item 17 ~ Yes
Jf YE~t~¢~ address below: ~ No
~;,' ,,
/~ &e~tfied Mbil .<[] Express Mail
[] Regi~s rf~cT~ [] Return Receipt for Merchand!se
[] Insured Mail [] CO.D.
4 Restricted Deliven/? (~fra Fee) [] Yes
7003 1010 0001 1204 7351
PS Form 3811, August 2001
Domestic Return Receipt
102595-02 M 1035
EXHIBIT "A"
EXHIBIT B
ATTORNEY ID NO. 29920
64 SOUTH PITT STREET
CARLISLE PA 17013
(717) 243-6O9O
ATTORNEY FOR PLAINTIFF
IN RE: : IN THE COURT OF COMMON PLEAS OF
LEONA C. McCRARY, : CUMBERLAND COUNTY, PENNSYLVANIA
an alleged incapacitated :
person : ORPHANS' COURT DIVISION
: NO. 2t - 04. 0464
NOTICE TO PLEAD
To:
DAVID P. PERKINS, ESQ.
4 JAMES CIRCLE
SHIPPENSBURG PA 17257
You are hereby notified to file a written response to the New Matter contained
herein within (20) days of service or judgment may be entered against you.
June z~-., 2004 ~
Attorney for Leona C.~ and
Respondents
64 South Pitt Street
Carlisle, PA 17013
(717) 243-6090
Supreme Court ID No. 29920
EXHIBIT C
· Complete items 1, 2, and 3. Aisc complete
item 4 if Restricted Delivery is desired.
· Print your name and address on the reverse
so that we can return the card to you.
· Attach this card to the back of th
or on the front if space permits.
1. A~icle Addressed to:
A. Signature
X ~ /~' ¢ '~ Agent
C. Da of livery
,!
[] ~ified Mail ~ Ex_~ress Mail
7003 3110 0004 5775 3996
PS Form 3811, August 2001
Domestic Return Receipt
102595 02-M 1035
EXHIBIT "D"
EXHIBIT E
Page 1 of l
Harold S. Irwin III
From:
To:
Sent:
Subject:
"Harold S. Irwin II1" <irwinlaw@earthlink. net>
"dpp" <david perkins@comcast, net>
Monday, July 26, 2004 1:24 PM
McCrary
Dave:
I need an answer, one way or the other, to our settlement proposal.
Also, on July 14th, you were served with a 10 day notice to respond to my new matter within ten days. To my
knowledge, you have not done so. Out of professional courtesy, I will withhold filing for default judgment until
noon tomorrow. I am not authorized, however, to grant any other extensions of additional time within which to
respond.
Hal
7/27/2004
IN RE: LEONA C. McC1L\RY
an incapacitated person
On the Petition of l,ynne P. I)onnelly
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND C()UN2~
: PENNSYLVANIA
: ORPkLkNS' COURT DIVISION
:
: NO. 21 04 0464
PETITIONER'S ANSWER TO RESPONDENTS' NEW MATTER
TO THE HONO1LIBLE JUDGES OF SAID COURT:
NOW COMES your Petitioner, L,~mne P. Donnelly, by and through her attorney, David
Patrick Perkins, Esqtfire and files the within \nsxver to Respondents' New Matter which was filed in
reply to Petidon for the Appointment of- Guardian of the Person and Estate of I,eona C. McCrary,
an Alleged Incapacitated Person, and ansxvers as follows:
21. Paragraphs one through P,venty one of Petitioner's Petition for the Appointment
of Guardian of thc Person and Estate of Lcona C. McCrarv, ~:Allege~ lncapacsTated
Person, are incorporated hcrch~ by reference as if set forth herein in dmir entirety.
22. Detfied. Leona C. McCrarv is a resident of the County c~ Cumbe nd,
Commomvcalth of Pennsylvania. The issues of thc residency of Leona C. lx, f44~;rary and the
jurisdiction of this Court are rcs judicata pursuant to order of this tl0norab'D Court dated
June 23, 2004, xvhich is incorporated hereto by reference thereto.
23. Denied. While petitioner ~velcmned her mother into her home and provided care
to her mother, Leona C. McCrarv did not independently express to petitioner a desire to
move to the state of Florida. Petitioner did not refl~se to allow her modmr to move to
Florida. By xvay of fi~rthcr answer it is alleged that more than one of the respondents
conspired to surreptitiously remove Leona C. McCrarv from her residence at 8 West
Oakwood Drive, Carlisle, Cumberland CotmD', Pennsylvania, and eventually the3, m fact did
so on or about April 5, 2004.
24. Denied. Petitioner is without sufficient information to titan an opinion or belief
as to the truth of this allcgatiun and prouf thereof is demanded at trial.
25. Denied in part, achnitted in part. It is admitted that respondent, through their
cotmsel, have ~nade demand upon cotmsel for petitioner for an accotmfng of financial transactions
duting the time Leona C. McCrary physically resided in petitioner's home. It is further adnfittcd that
prior to July 27, 2004 counsel fur petitioner had not pro~Sded the requested information. It is
denied that petitioner refused to produce the requested infi)rmation. Counsel had been unable to
fully and adequately conmmtficate with petitioner concerning these matters due to petitioner's active
service in the military and com~sel's vacation schedule. On July 27, 2004 counsel for petitioner
provided to counsel for respondents a written statement of financial transactions during the ~ne
l.eona C. McCraiT physically resided in petitioner's home.
26. Denied. It is denied that thc financial and medical needs of Leona C. McCrarv arc
being adcquatcly met trader her present circumstm~ces in the state of Florida and proof thereof is
demanded at trial. It is denied that Leona (2. McCrao' is under adequate care and supervision by
Myma, Elisabeth, David, and Marshall at her real proper~ in lqorida and proof thereof is demanded
ar trial.
27. Denied. Petitioner is without sufficient information to fi)nn an opininn or behef
as to the trufl~ of thc allegation that a//ofLeona C. McCau"s children, with the exception of
petitioner, and her stepdaughter, agree tbat thc best interests and permanent welfare of their
mutter require that petitioner's petition be dismissed, and proof thereof is demanded at trial.
It is denied that Leuna C. McCrary had the legal capacity to grant a power of attorney to
Marshall Pitts, and any ducuments executed by Lcona C. Mc(;rau' would have been so
executed at the insistence of Marshall Pitts or those individuals acting on his behalf.
28. Denied. Petitioner is without sufficient information to form mt opinion or belief as to the
truth of this allegation. The type ur extent of any alleged "investigatinn" is outside of the ka~owlcdge
and infimnation available to petitioner, and proof thereuf is demanded at trial.
29. A.B.C. I)enied. Petitioner is without sufficient inforinadon m form an opinion or belief as to thc
troth of this allegation. The t31*e or extent of any alleged "invesfig'afion" is outside of the kmoxvledge
and information available to petitioner, and proof thereof is demanded at trial.
29. Denied. It is denied that it would be hannfid to thc health and welfare of Lcona C. McCrary to
require her to attend Court proceedin~ held itt Pennsylvania and proof thereof is demanded at trial.
By way of flxrther answer petitioner avers that to require Leona C. McCraq' to return to
Pcm~sylvania for Court proceedings would be no more harmful to her health and welfare than the
prior removal of Lcona C. McCrary from her borne in Carlisle, Pennsylvania to thc state of Florida.
30. Drafted. The petition filed by petitioner l,?mc P. Donnellv ~vas filed based upon her concern for
the medical, emotional, and financial well-being of her mother l,cona C. McCrar.~, and rite belief that
Leona C. McCran.' cannot be adequately cared for at her real property in Florida by her children
Myrna, Elisabeth, David, and Marshall trader the present circumstances.
WHEREFORE, Petitioner rcspcctfiflly requests that this 1 tonorable Court appoint
your petitioner Lynne P. Donnetly as plenary guardian of the person and estate of Leona C.
McCraD~ under authorirv of Sccdon 5511 of the Pennsylvatfia Probate, Estates and Fiduciaries Code
(20 Pa. C.S. ~ 5511 et seq).
Date: Jtfly 27, 2004
Respectfully submitted,
By: 1)a~qd Patrick Perkins, Esqtfirc
\ttorney for the Petitioner
Attorney I.D. No. 34342
4 James Ckcle
Shippensburg, PA 17257-2165
(717)532 6629
VERIFICATION
I verify that the statements made in the fbregoing PETITIONER'S ANSWER TO
RESPONDENTS' NEW MATTER are true and correct. I understand that false statements
herein are made subject to the penalties of 18 Pa C.S. § 4904, relating to unsworn falsification to
authorities.
Dated: July 27, 2004
,~/
~ .,& ~L~ . ormelly ' ' tioner~/~(ti
IN RE: ESTATE OF LEONA C.
MCCRARY, AN INCAPACITATED
PERSON
: IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
: No. 21-2004-464 ORPHANS' COURT
AND NOW, this
ORDER OF COURT
.day of July, 2004, on relation by counsel, the
hearing scheduled for August 11, 2004, IS CANCELLED, The hearing may be
rescheduled at the request of counsel.
David P. Perkins, Esquire
For Petitioner
By the Court,,
Harold S. Irwin, Ill, Esquire
For Leona C. McCrary and Respondents
HAROLD S, IRWIN, I I I
RHONDA S. IRWIN
ROBERT D STAMBAUGH
PARALEGALS
IRWIN LAW OFFICE
64 SOUTH PITT STREET
CARLISLE, PENNSYLVANIA 17013
www. ifwinlawoffice.corn
e-mail: irwinlaw@earthlink, net
717-243-6090
PHONE
717-243-9200
FACSIMILE
July 28, 2004
HON EDGAR B BAYLEY
CUMBERLAND COUNTY COURTHOUSE
ONECOURTHOUSESQ
CARLISLE PA17013
RE: In re: Leona C. McCrary
No. 21 - 04-0464 (Orphans' Court)
Dear Judge Bayley:
This letter is written in regard to the hearing scheduled in this matter for August 11,
2004. After the jurisdictional hearing held previously, the parties entered into
discussions to resolve the case. I have drafted a settlement stipulation and presented it
to the petitioner's counsel, David Perkins, Esquire, but the negotiations are ongoing.
Prior to submitting the stipulation to Mr. Perkins, I indicated that if a hearing was going
to take place in this action, I had a variety of discovery matters to resolve. We both
agreed that in an effort to hold down our clients' costs, we would not pursue that
discovery unless we could not arrive at a settlement.
In addition, since the petitioner has not responded to our New Matter after due service
of a 10 day notice to respond, yesterday I filed a praecipe for default judgment. This
effectively ends the case. Nevertheless, I have indicated to Mr. Perkins that my clients
are still wiling to settle the case along the lines of the stipulation I presented to him.
In any case, the hearing scheduled for August 11,2004, may be canceled as we will
either resolve the case by agreement or by the filing of the default judgment.
rwi~~erely'
cc: David Perkins, Esq.
IN RE:
LEONA C. McCRARY,
an alleged Incapacitated
person
: IN THE COURT OF COMMON PLBA8 OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: ORPHANS' COURT DIVISION
: NO. 21 - 04 - 0464
ORDER
AND NOW, this -7~'~day o~/~201~, upon presentation and
consideration of the attached stipulhtiDn and upon agreement of the parties, it is hereby
ordered and decreed that the attached agreement is made an Order of Court.
IN RE: : IN THB COURT OF COMMON PLEAS OF
LEONA C. McCRARY, : CUMBERLAND COUNTY, PENNSYLVANIA
an alleged Incapacitated :
person : ORPHANS' COURT DIVISION
:
: NO. 21 - 04 - 0464
STIPULATION OF COUNSEL
WHEREAS, the petitioner, Lynne Donnelly, filed a petition alleging the incapacity
of her mother, Leona C. McCrary, and seeking to have petitioner appointed guardian of
her person and estate; and
WHEREAS, pursuant to that stipulation the Court issued a Citation to the alleged
incapacitated person to appear in Court for a hearing in this matter, which hearing has
been continued until August 11, 2004; and
WHEREAS, after a challenge by the alleged incapacitated person, filed on her
behalf by all of her children and stepchildren (except for petitioner), to the jurisdiction of
this Court to hear and decide this matter, the Court found that such jurisdiction does
exist; and
WHEREAS, after investigation by the Florida Department of Family Services it
has been determined that the provision of treatment or services by that department is
not necessary at this time; and
WHEREAS, Leona C. McCrary's physician, Miguel M. Limeres, Jr., M.D., has
issued his opinion that she is suffering with dementia, but that her family is managing to
be able to take care of her very well at her residence in Florida and that the level of care
she is receiving at home is appropriate to her condition; and
WHEREAS, Leona C. McCrary's physician, Dr. Barber, issued an opinion from
his observation and treatment of her while she lived in Pennsylvania, indicating that she
is suffering from the beginning stages of dementia; and
WHEREAS, the parties, after consultation with their respective counsel, are
desirous of resolving this matter on an amicable basis and have authorized counsel to
enter into this settlement stipulation;
IT IS HEREBY AGREED AS FOLLOWS:
1. That Leona C. McCrary, the alleged incapacitated person, is for the
purposes of this proceeding, based upon the opinion of her physicians, an incapacitated
person and is in need of assistance in the activities of her daily life and in the handling
of her finances and the management of her health requirements.
2. That such assistance may best be provided by the appointment of a
guardian of her person and estate.
3. That her daughter, Ellen Pitts Wilson Sauter, of Portland, Oregon, is
willing and able to perform the duties of guardian of the person and estate of Leona C.
McCrary.
4. That the parties understand and agree that Leona C. McCrary will
continue to reside in her residence located at 740 County Road, 13A South, Lot E,
Elkton, Florida 32033, for so long as her finances and health permit and that any
change in her residence shall be undertaken only upon the decision of her proposed
guardian, Ellen Pitts Wilson Sauter, after consultation with her physician and with Leona
C. McCrary's children and step-child.
5. That the parties understand and agree that despite the appointment of
Ellen Pitts Wilson Sauter as guardian of the person and estate of Leona C. McCrary,
Myrna Loretta Pitts Petree and Elizabeth Anne Pitts Pacilli shall continue to reside with
her at the residence in Elkton, Florida and provide day-to-day personal assistance in the
activities of her daily life and the management of her health requirements while the
proposed guardian will be responsible for the handling of her finances and will provide
and accounting to the petitioner or any of the respondents within a reasonable time after
receipt of a written request by any of the parties.
6. That notwithstanding the provisions of paragraph five above, all parties
understand and agree that Ellen Pitts Wilson Sauter, for so long as she serves as
guardian of the person and estate of Leona C. McCrary, shall have the ultimate
authority and responsibility to make decisions about the living arrangements, medical
treatment and the management of her financial resources and obligations and may, in
the exercise of her judgment as guardian, make alternative arrangements for the same
if she deems it necessary and proper.
7. That within seven (7) days from the date of this stipulation and order, the
petitioner, Lynne Donnelly, shall make available to the guardian or her designated agent
(other than Marshall, Nancy or Elizabeth), all of the personal property of Leona C.
McCrary now in petitioner's possession, including, but not limited to any financial
assets, such personal property and financial assets to be recovered by the guardian or
designated agent within thirty days thereafter.
8. That within thirty (30) days from the date of this stipulation petitioner shall
make a full and complete accounting of her handling of the finances and other assets of
Leona C. McCrary from September 4, 2003 through the date of the accounting;
9. That petitioner and her husband, Patrick Donnelly, are executing this
stipulation along with their counsel, but that due to the fact that the respondents reside
in several states across the country, they have authorized their attorney, Harold S.
Irwin, III, to execute this stipulation on their behalf and on behalf of their mother, Leona
C. McCrary.
WHEREFORE, the parties request that the Court enter an Order in accordance
with the stipulation contained herein.
August '~.~, 2004
IN RE.' : IN THE COURT OF COMMON PLEA8 OF
LEONA C. McCRARY, : CUMBERLAND COUNTY, PENNSYLVANIA
mn nlleged Incapacitated :
person : ORPHANS, COURT DIVISION
:
: NO. 21 - 04 - 0464
AMENDED ORDER OF COURT
AND NOW, this '~O day of August, 2004, upon presentation and consideration
of the attached stipulation and upon agreement of the parties, the Order of August 25,
2004, is hereby amended as follows:
That the attached agreement is made an Order of Court; and
That LEONA C. McCRARY is adjudged an incapacitated person; and
That ELLEN PITTS WILSON SAUTER is appointed plenary guardian of
the person and of the estate of LEONA C. McCRARY. No bond shall be
required of the guardian.
By the Court,,/
Sent By: BENCHMARK;
9048291497;
Jun.18.04 4:58PM;
Page 9
.-.
,_.--~------------ -..-
APPL!CATION NO.
52-179
MARRIAGE RECORD
FLORIDA
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740 CR 13 A
Q A-lA 6-, (j.ryy
$179,900
4.25 acres, fenced with deep pond.
2 Barns, lots of storage.
3 bdrm/2 ba, MH 1344 sq ft. split plan
Log siding with full length porch.
Wood burning fireplace, cathedral
ceilings.
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Pudge Reese
Cell 501-5200
Qmuy2l.
St. Augustine Properties, Inc.
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St. Augustine PropertIes_ Inc.
282()'A US 1 South (Century PIIIZ8)
St Auguslfne. Aortda 32088
(904) rg7~ (800) 94O-e06O
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ESTlMA TED SELLING EXPENSES
Name'!Jle ~
Property: 1t/fJft" ce /..J 71
Title Insurance
/1q .0,00 '0
.
I Il'ff (Ie.
'P15 , "OcJ,OO
11 ") 0
Documenta
DO
7- (!) . CP
/
00
~
Tax Re
Orber
Total Ex enses
I.
2J.ACJ 3..
Cash
.OutstaDdiD Mort a e
d~1 mo'h
. Re:8TEstate Taxes
7 J-.
.
3m ()()
- Other 0d
ICO. DO
1-).
i Net Cash
DIsc/oSlIn' / ulldtrstand these figures are Ollly estimates and rharfinal costs and prorattons will b<
determined by the closing atlomey or agent. andfurlher. Cenrory 2/ St. Augustine Proptrtles do<s not
warrant or guaralltee arry of the ahove est/matedjlgures.
Seller
Seller
Date
Realtor
St. Augustine Properties, Inc.
2820A us I South - Centwy Plaza
St. Augustine, Florida 32086
(904) 797-6000
I
2
r'>,
~.
G.u.L.O
. medallion
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QUAUrYSERVICl:
. . . . .
EXCLUSIVE RIGHT OF SALES LISTING CONTRACT
("Seller") (' If d IV) ::1 q, kl'Hld C I!- Ora r-
is herewith entering into an Exclusive Right of Sale Listing Contract with:
("Broker") CENTURY 21. ST. AUGUSTINE PROPERTlES. INC. under th terms and conditions herein:
I. AUTHORITY TO SELL PROPERTY: SELLER gives BROKER the EXCLUSIVE RIGHT TO SELL the real and
pe on property (colle 'vel, "Property") at the price and terms de~r~ below, b . ing the ~da)' of ~J
and terminating at 11:59 p.m. the~ day of tL r ~y
"T rmination Date"). Upon full execution of a contract for sale and purchase of the roperty, all ghts and
obligations of the Contract will automatically extend through the date of the actual closing of the c ntract for sale and
purchase. SELLER certifies and represents that he/she/it is legally entitled to convey the Property and all
improvements.
2. DESCRIPTION OF PROPERTY:
(a) Real Property: Street Address:1'-JO Crf2 r3 AS. ,Z{ire.
(b) Real Property: Legal Description:
(c) Personal Property:
3. PRICE AND TERMS:
(a) Price: $ J "1Q '- q-fX) W
(b) Financing Terms: /Cash V- Conventional Loan _VA Loan_FHA Loan ./
Seller Financing: SELLER will hold a purchase money mortgage in the amount of approximate If IJ
with the following terms
(c) Closing Costs: SELLER will assist with closing costs up to 0
(d) Selling Bonus: Seller will offer a sales bonus to the Cooperating Broker of 0
PLEASE DO NOT ASK OR EXPECT TO RESTRICT THE SALE OF YOUR PROPERTY ACCORDING TO
RACE, COLOR, RELIGION, SEX, HANDICAP, FAMILIAL STATUS, OR NATIONAL ORIGIN. REALTOR
POLICY AS WELL AS FEDERAL LAW PROHIBITS REALTORS FROM PLACING ANY SUCH
RESTRICTIONS ON SHOWING OR INFORMATION ABOUT THE AVAILABILITY OF HOMES FOR SALE
OR RENT.
4. BROKER OBLIGATIONS AND AUTHORITY: BROKER agrees to make diligent and continued effort to sell the
property until a contract for sale is pending on the Property. SELLER authorizes BROKER to (check if applicable):
L Advertise Property as BROKER deems advisable in newspapers, publications, or other media.
,/1>lace appropriate transaction signs on the Property, including For Sale/Sold signs.
....,..cPl~ce the Property in a multiple .listin~ servi~e ("MLS"): SELLE~ a~th~rizes BRO~~ ~ ~ooperate with
5. COMPENSATION:
In consideration of the obligations of BROKER, SELLER agrees:
I"
To pay the BROKER at the time of closing the sale of~~operty, from the disbursement of the
proceeds of said sale, a commission in the amount of f % of the gross purchase price or
$ for REALTORS' services in effecting the sale by procuring a BUYER ready, willing and
able to purchase the property. To pay REALTOR the compensation above stated in the event of sale,
exchange, or transfer of any interest in the Property during the term of this Contract, whether such
transaction, sale or exchange be accomplished by the REALTOR or any other person or entity including
the Owner.
Buver Default: In the event the BUYER declines to close and the SELLER retains a deposit as
liquidated damages due to BUYERS' breach, BROKER is entitled to receive 50% of the deposit as
consideration for services. Fee may not exceed compensation in excess of Sea) above.
Seller Default: In the event the SELLER declines to close on the Contract, provided that BT,JYER has
met all obligations, SELLER may be liable for BROKERS' commission as per Sea) above. SELLER may
also be subject to legal action for failure to perform.
Inquiries: To refer promptly to BROKER all inquires relative to the showing or purchase of the
property and to further advise BROKER about leasing, mortgaging or otherwise encumbering property.
SELLER agrees to cooperate with BROKER in carrying out the purpose of this contract.
A vailabilitv: SELLER will provide reasonable access to show the property and/or to provide BROKER
with keys (if applicable).
Protection Period: SELLER agrees to pay BROKERS' fee if, within 90 days after Termination Date,
SELLER transfers or contracts to transfer the Property to any prospects with whom SELLER, BROKER
or any agent communicated regarding the Property prior to Termination Date. BROKER must provide
SELLER with a list of those prospects that BROKER intends to protect under this subparagraph within 10
calendar days after Termination Date to collect a fee under this subparagraph. SELLERS' obligation to
pay BROKERS' fee ceases upon SELLERS' entering into a good faith exclusive right of sale or agency
contract with another broker after Termination Date, except for those names submitted on BROKERS'
list.
Conditional Termination: At SELLERS' request, BROKER may agree to conditionally terminate this
contract. If BROKER agrees to conditional termination, SELLER must sign a withdrawal agreement and
pay a cancellation fee of n . BROKER may void the conditional termination and SELLER
shall pay the fee stated in Paragraph 6 less the cancellation fee in the event SELLER transfers or contracts
to transfer the Property during the time period from the date of conditional termination to Termination
Date and Protection Period, if applicable.
SELLER agrees to abide by FIRPT A laws if SELLERS' status is foreign.
6.
7.
8.
9.
10.
a)
b)
c)
d)
e)
1)
g)
h)
COOPERATION WITH OTHER BROKERS: BROKERS' office policy is to cooperate with all BROKERS,
and to offer compensation to Buyers' agents, Transaction brokers and Nonrepresentatives. SEE ATTACHED
Brokerage Relationship Disclosure.
ATTORNEY'S FEES AND COSTS: In the event any litigation arises out of this Contract, the prevailing party
shall be entitled to recover reasonable attorney's fees and costs.
PERSONS BOUND: This Contract shall bind BROKER'S and SELLER'S heirs, personal representatives,
administrators, successors, and assigns.
SELLER WARRANTY: SELLER warrants that there are no facts known to SELLER materially affecting the
value of the Property which are not readily observable by BUYER or which have not been disclosed to BUYER.
Broker will not be liable for failure to disclose or misrepresentation of facts.
SPECIAL CLAUSE: /' none See Attachment to Exclusive Right of Sale Listing Contract.
~ 1, ~cc.
SELr,,~ IZ' V
, /./ Il_~~c:::L) A,. IJ .)
~It &->
/ Date
91 K/.n ~
.Z..--. d. ;, ~ <2t?7d
SELLER
Date
Brokerage Relationship Disclosure
FLORIDA ASSOCIATION OF REAL TORSI!)
,
~..,
IMPORTANT NOTICE
FLORIDA LAW REQUIRES THAT REAL ESTATE LICENSEES PROVIDE THIS NOTICE TO ALL POTENTIAL SELLERS AND
BUYERS OF REAL ESTATE.
You should not assume that any real estate broker or salesperson represents you unless you agree to engage a real estate
licensee in an authorized brokerage relationship, either as a single agent or as a transaction broker. You are advised not to
disclose any information you want to be held in confidence until you make a decision on representation.
SINGLE AGENT NOTICE
FLORIDA LAW REQUIRES THAT REAL ESTATE UCENSEES OPERATING AS SINGLE AGENTS OlSCLOSETO BUYERS AND
SELLERS THEIR DUTIES. As a single agent, 'h'_ ..G_..ro:.\!=-.:u...JI~~.!J.n...Jl;9~~...~.1D5'~_._.--_.
and its assoclat~ owe to you the follov.ing dulies:
1. Dealing honestly and fairly;
2. Loyalty;
3. Confidentiality;
4. Obedience;
5. Full disclosure;
6. Accounting for all fundS;
7. Skill, care. and diligence in the transaclion;
8. Pr~enting all offers and counteroffers in a timely manner, unless a party has previously directed the licensee otherwise
in wrnlng; and
9. Disclosing all known facts that materially affect the value of residential real property and are not readily observable.
~.L.1 4Joj v""~Z- LrC0<<t!-
Date Signature C7 .
IMPORT ANT NOTICE
FLORIDA LAW REQUIRES THAT REAL ESTATE LICENSEES PROVIDE THIS NOTICE TO ALL POTENTIAL SELLERS AND
BVYERS OF REAL ESTATE.
You should not assume that any real estate broker or salesperson represents you unless you agree to engage a real estale
licensee in an authorized brokerage relationship, either as a single agent or as a transaction broker. You are advised not to
disclose any information you want to be held in confidence until you make a decision on representation.
TRANSACTION BROKER NOTICE
FLORIDA LAW REQUIRES THAT REAL ESTATE UCENSEES OPERATING AS TRANSACTION BROKERS DISCLOSE TO
BUYERS AND SELLERS THEIR ROLE AND DUTIES IN PROVIDING A LIMITED FORM OF REPRESENTATION. As a
transaction broker. __ c.n~~nu.\1l'~J1....l!!.,"-,-__.__...__..__.
and ns associates. provides to you a limited form of representation that includes the follov.ing dulies:
1. Dealing honestly and fairly;
2. Accounting for all funds;
3. Using skill, care, and diligence in. the transaction;
4. Disclosing all known facts that materially affect the value of residential real property and are not readily observable to the
buyer;
5. Presenting all offers and counteroffers in a timely manner, unless a party has previously directed the licensee otherwise in
wr~ing;
6. Umited confidentiality, unless waived in writing by a party, This limited confidentiality will prevent disclosure that the seller
will accept a price less than the asking or listed price, that the buyer will pay a price greater than Ihe price submitted in a
written offer, of the motivation of any party for selling or buying property, that a seller or buyer will agree to financing
terms other than lhose offered, or of any other information requested by a party to remain confidential; and
7. Any additional duties that ar.e entered into by this or by separate written agreement.
Umited repr~entation means that a buyer or seller Is not respOnsible for Ihe acts of the licensee. Additionally, parties are giving
up their rights to the undivided loyalty of the licensee. This aspect of Iimiled representation allows a licensee to facilitate a real
estate transaction by assisting both the buyer and the seller, but a licensee will not work to represent one party to the detriment
of the other party v.f1en acting as a transaction broker to both parties.
Date
Signature
Signature
CONSENT TO TRANSITION TO TRANSACTION BROKER
FLORIDA LAW ALLOWS REAL ESTATE UCENSEES WHO REPRESENT A BVYER OR SELLER AS A SINGLE AGENT TO
CHANGE FROM A SINGLE AGENT RELATIONSHIP TO A TRANSACTION BROKERAGE RELATIONSHtP IN ORDER FOR
THE UCENSEE TO ASSIST BOTH PARTIES IN A REAL ESTATE TRANSACTION BY PROVIDING A LIMITED FORM OF
REPRESENTATIONTO BOTH THE BUYER AND THE SELLER. THIS CHANGEIN RELATIONSHIP CANNnT t"\t"'I"'''O "'''TU~''-
Jll()~},I)~ REV '1M;
This is to certify that the information here given is correctly copied from an original certificate of death duly filed with
Local Registrar. The original certificate will be forwatded to the State Vital Records Office for permanent filmg.
me as
WARNING: It is illegal to duplicate this copy by photostat or photograph.
No.
3.-.-..~. ~"....~~...\..e~.,
Local Registrar
Fee for this certificate. $2.00
p
9749757
OCT 2 1 2003
Date
11105.T-$3A....2/17
COMMONWEALTH OF PENNSYLVANIA. DEPARTMENT OF HEALTH. VITAL RECORDS
CERTIFICATE OF DEATH
..,
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UNOEA 1 VUlt
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UHDEAIOJIt
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,'A1I'Il[NU"'8EA
SOC!Al.5ECUFlII'YNU~BER
tENT
...
N./>MEOfDECEDENTlf~...M_.l_1
I. William J. Me era
,. 304 - 30
- 7892
D...UOFDERN,~.o.r.. '_l
.. 10/17/2003
BlRTHPl..OCEIC.ty,.""
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COU"lTY OF OEnH
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DECEDEN'T'SU$U"'l UMl'1ON I(INDOFSUSlNE.SS./I!<<llJST~V
oI-:...~~~.::~::r City of Jacksonv~
. 11 Mechanic u-. Florida
O€CUlV<<"MAlUNG#.OOM."\5h".Cfyl'bo.n.su..ZiI>~ D1!CfDEN'T'S
8 W. Oakwood Drive ~~~f
Carlisle, PA 17013 ~~
RACE..............-.IlIM:ll.WII.......
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Cunningham
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" Ra nd B. McCrary
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L e P _ Donnelly
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INFOFI......NT'S .....lllNG AOOAESS,SIr..,- CfIolToon'l. s.... LpCotttoI
.8 W. Oakwcx:xi Drive, Carlisle, PA 17013
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PLAINTIFPS
EXHIBIT
&.;)J- oy
LAW OFFICES OF
STEPHENJ. HOGG
19 S. HANOVER STREET
SUITE 101
CARLISLE, PA 17013
POWER OF ATTORNEY
I, Leona C. McCrary of Cumberland County, Carlisle,
Pennsylvania, do hereby nominate, constitute and appoint Lynne Pitts
Donnelly and/or Patrick E. Donnelly, as my true and lawful Attorney-In-
Fact, to act in my name, place and stead to do and perform any act
that I myself might perform if I were personally present in regard to the
following:
To endorse checks, notes, drafts and any other commercial
papers in my name and to withdraw money from any bank accounts
that I may have for my benefit, and to sign orders or receipts therefore
in my name;
To enter into any safe deposit box I may have in my own name
or jointly with another person to inventory the contents of such box or
to do or perform any act with respect to the contents that I might legally
perform if I were personally present;
To grant, bargain, sell and convey my real property or any part
thereof for such price and on such terms and conditions as she shall
deem proper, with or without the taking back of a purchase money
mCJrtqage 01' clfled of trust and to collect and receive tho pr'Jceeds from
any sale;
To enter into any contract or contracts for the sale of the
premises, or any part thereof with such persons and on such terms as
she shall in his discretion elect and to execute, acknowledge and
deliver in my name such deeds or conveyances, with such covenants
and conditions as she may deem proper, that may be required for the
transfer of said property or any part thereof or of any interest therein;
To execute a mortgage or deed of trust on my real property in
such amount and on such terms and conditions as she may deem
necessary and proper and to sign, execute and deliver, in my name or
otherwise, such instruments as may be required in connection with
obtaining the mortgage or deed of trust, and to do any other acts as I
might or could do in obtaining the mortgage or deed of trust on the
property;
To sell and enter into a contract or contracts for the sale of all or
any part of my personal property, effects and belongings of every kind
and nature wherever situated for my benefit with full power to deliver
possession of said personal property and to execute in my name any
documents necessary to transfer title to said personal property,
PLAINTlFPS
EXHIBIT
fR'd/C't/ ItlS
LAW OFFICES OF
STEPHEN J. HOGG
19 S. HANOVER STREET
SUITE 101
CARLISLE. PA 17013
security interest for any unpaid balance which my Attorney-In-Fact in
her discretion may deem necessary and proper, and to buy, sell,
assign or transfer stocks, bonds or any other personal property;
To borrow money from such sources and on such terms as my
Attorney may deem fit and proper, and to execute in conjunction with
any loan of money a security agreement covering any of my real or
personal property and to execute, sign, acknowledge and deliver in
any form that instrument that may be required in conjunction with the
transaction;
To authorize my admission to medical, nursing, residential or
similar facility and to enter into agreements for my care. This power is
to be construed and implemented in accordance with the provisions of
Chapter 56 of Title 20, Consolidated Pennsylvania Statutes, in effect
on the date of execution of this Power of Attorney;
To authorize medical and surgical procedures. This power is to
be construed and implemented in accordance with the provisions of
Chapter 56 of Title 20, Consolidated Pennsylvania Statutes, in effect
on the date of execution of this Power of Attorney.
I direct that this Power of Attorney shall be a durable Power of
Attorney and shall become effectl'/e immediately.
\C:-) .e L1 c..,o .
c..~-I?-p."u'~ . !I ~4
Leona C. McCrary' CJt
( <'/1 r;(f!
Date
~~H-~
Witness
ACKNOWLEDGEMENT
I, Lynne Pitts Donnelly have read the attached Power of
Attorney and am the person identified as the agent for the principal. I
hereby acknowledge that in the absence of a specific provision to the
contrary in the Power of Attorney or in 20 Pa. C.S. when I act as agent:
I shall exercise the powers for the benefit of the principal.
I shall keep the assets of the principal separate from my
assets.
I shall exercise reasonable caution and prudence.
I shall keep a full and accurate record of all actions,
receipts and disbursements on behalf of the principal.
~~
~
DfJ,,!-f, ;lfTN!
Da e
nne Pitts Donnelly
LAW OFFICES OF
STEPHEN J. HOGG
19 s. HANOVER STREET
SUITE 101
CARLISLE. PA 17013
LAW OFFICES OF
STEPHEN J. HOGG
19 S. HANOVER STREET
SUITE 101
CARLISLE. PA 17013
Commonwealth of Pennsylvania
SS
County of Cumberland
On this /5 day of f) ...k?,-cttt~ ' 2003,
before me, the undersigned officer, personally appeared Leona C.
McCrary known to me or satisfactorily proven to be the person whose
name is subscribed to the attached Power of Attorney, and
acknowledged that she executed the same for the purposes therein
contained.
IN WITNESS WHEREOF, I hereunto set my hand and official
seal.
My Commission expires:
/~/
NOTARW. SEAL
STEPHEN J. HOGG, NOTARY PUBLIC
CARLISLE BORO. CUMBERLAND CO.. PA
MY COMMISSION IXPtMS SEPTEMBER a, 2lI05
Notary Public
LAW OFFICES OF
STEPHEN J. HOGG
19 S. HANOVER STREET
SUITE 101
CARLISLE, PA 17013
, .
NOTICE
THE PURPOSE OF THIS POWER OF ATTORNEY IS TO GIVE
THE PERSON YOU DESIGNATE (YOUR "AGENT") BROAD
POWERS TO HANDLE YOUR PROPERTY, WHICH MAY INCLUDE
POWERS TO SELL OR OTHERWISE DISPOSE OF ANY REAL OR
PERSONAL PROPERTY WITHOUT ADVANCE NOTICE TO YOU OR
APPROVAL BY YOU.
THIS POWER OF ATTORNEY DOES NOT IMPOSE A DUTY
ON YOUR AGENT TO EXERCISE GRANTED POWERS, BUT WHEN
POWERS ARE EXERCISED, YOUR AGENT MUST USE DUE CARE
TO ACT FOR YOUR BENEFIT AND IN ACCORDANCE WITH THIS
POWER OF ATTORNEY.
YOUR AGENT MAY EXERCISE THE POWERS GIVEN HERE
THROUGHOUT YOUR LIFETIME, EVEN AFTER YOU BECOME
INCAPACITATED, UNLESS YOU EXPRESSLY LIMIT THE
DURATION OF THESE POWERS OR YOU REVOKE THESE
POWERS OR A COURT ACTING ON YOUR BEHALF TERMINATES
ycun AGENT'S AUTHORITY.
YOUR AGENT MUST KEEP YOUR FUNDS SEPARATE FROM
YOUR AGENT'S FUNDS.
A COURT CAN TAKE AWAY THE POWERS OF YOUR
AGENT IF IT FINDS YOUR AGENT IS NOT ACTING PROPERLY.
THE POWERS AND DUTIES OF AN AGENT UNDER A
POWER OF ATTORNEY ARE EXPLAINED MORE FULLY IN 20 PA.
C.S. CH. 56.
IF THERE IS ANYTHING ABOUT THIS FORM THAT YOU DO
NOT UNDERSTAND, YOU SHOULD ASK A LAWYER OF YOUR
OWN CHOOSING TO EXPLAIN IT TO YOU.
I HAVE READ OR HAD EXPLAINED TO ME THIS NOTICE
AND I UNDERSTAND ITS CONTENTS.
-~:~'J'Jul.- ~;' 7~1/ C!.--Cu:::t
''':,- ,~ -(( r 1/
LEONA C. MCCRARY
/2//5/0'5
DATE I I
,
IN RE: LEONA C. McCRARY
an incapacitated person
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY
: PENNSYLVANIA
: ORPHANS' COURT DIVISION
On the Petition of Lynne P. Donnelly
: NO. 21-04-464
PROOF OF SERVICE
Proof of service in accordance with the Preliminary order of Court dated May 18, 2004 is
attached here to.
g~G-~
David P. Perkins
Attorney for the Petitioner
RETURN OF SERVICE
PERSON TO BE SERVED:
RECEIPT NUMBER: 0001820-04
LEONA C MCCRARY
740 CR 13 A SLOT E
ST AUGUSTINE FL
PLAINTIFF: IN RE
-VS-
DEFENDANT: LEONA C MCCRARY
TYPE WRIT: PRELIMINARY ORDER OF COURT/IMPORTANT NOTICE CITATION WITH NOTICE/
COURT: COMMON PLEAS/PENNSYLVANIA
CASE #: 21-04-464
Received the above-named writ on May 24, 2004, at 3:10 PM,
and served the same on June 1, 2004, at 2:23 PM,
in ST JOHNS County, Florida, as follows:
INDIVIDUAL
By delivering a true copy of this writ together with a copy of the
initial pleadings, if any, with the date and hour of service endorsed
thereon by me, to: LEONA C MCCRARY
PETITION FOR APPOINTMENT OF GUARDIAN OF THE PERSON AND ESTATE OF
LEONA C MCCRARY AN ALLEGED INCAPACITATED PERSON
SERVICE COST: $20.00
ENTJP, CIVIL CLERK
CONTENTS OF WRIT READ
NEIL J. PERRY,
ST JOHNS COUNTY,
TO DEFENDANT/SERVICE MADE IN PRESENCE OF
SHERIFF
FLORIDA
MAIL TO:
BY;
&R ~~~
BETH PATTERSON, D.S.
--
717-532-6629
DAVID P PERKINS, ESQUIRE
4 JAMES CIRCLE
SHIPPENSBURG, PA 17257
IN RE: LEONA C. McCRARY
an incapacitated person
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY
: PENNSYLVANIA
: ORPHANS' COURT DIVISION
On the Petition of Lynne P. Donnelly
: NO. 21-04-464
PROOF OF SERVICE
1. ArtIcle Ad:t "to:
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an incapacitated person
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY
: PENNSYLVANIA
IN RE: LEONA C. McCRARY
: ORPHANS' COURT DIVISION
On the Petition of Lynne P. Donnelly
: NO. 21-04-464
PROOF OF SERVICE
, -
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r Marshall E. Pitts, Jr.
, 3831 Soto Rd
Groveland, FL 34736
/'JYM
7003 0500 0003 7597 6929
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Leona Sauder
a/kla Ellen Wilson . i
20932 South Winema Dnve ,
Tualatin, OR 97062
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7002 3150 0002 0773 2959
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an incapacitated person
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY
: PENNSYLVANIA
IN RE: LEONA C. McCRARY
: ORPHANS' COURT DIVISION
On the Petition of Lynne P. Donnelly
: NO. 21-04-464
"'
David Michael Pitts :
c/o Grace Gilbert Chapmad .
221 Oakfell Road -1
Lady Lake, FL 32159
2 ~. 7001 2510 0001
ForTi1.11,~m1 I lOlli, \1091eotk;1jlolw1-'"
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Elizabeth Pacelli
6371 Bolling Lane
Elkton, FL 32033
2.
7003 0500 0003
Domestic Relum _pt
1~1&40
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IN RE: LEONA C. McCRARY
an incapacitated person
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY
: PENNSYLVANIA
: ORPHANS' COURT DIVISION
On the Petition of Lynne P. Donnelly
: NO. 21-04-464
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80288 Cunningham Lane
Adena, Ohio 43901
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7003 0500 0003
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IN RE: ESTATE OF MICHAEL
P. CALABRESE, JR., LATE OF
SILVER SPRINGS TOWNSHIP,
CUMBERLAND COUNTY
AND NOW, this
/11
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: 21-03-0848 ORPHANS' COURT
ORDER OF COURT
day of January, 2005, the hearing now
scheduled for February 4,2005, at 9:30 a.m., before Hoffer, J., having been reassigned
to this judge, the time for the hearing on that date is rescheduled for 10:00 a.m., in
Courtroom Number 2.
John M. Eakin, Esquire
Executor
Andrew C. Sheely, Esquire
For Susan C. Calabrese
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IN RE: : IN THE COURT OF COMMON PLEAS OF
LEONA C. McCRARY, : CUMBERLAND COUNTY, PENNSYLVANIA
an alleged incapacitated :
person : ORPHANS' COURT DIVISION
: NO. 21 - 04 . 0464
PETITION FOR APPROVAL OF SALE OF REAL ESTATE
NOW comes Harold S. Irwin, III, Esquire, attorney for Ellen Pitts Wilson Sauter,
guardian of Leona C. McCrary, an incapacitated person, and presents this petition for
approval of the sale of real estate, representing as follows:
1. Petitioner is ELLEN PITTS WILSON SAUTER, guardian of the person and
estate of Leona C. McCrary, an incapacitated person, and residing in Portland Oregon.
r-..>
2. Said guardianship is pursuant to an Order of this Court dated Augu~(~5, 20~,
. -~;') ::t:'....
as amended by further Order dated August 30,2004.:", z;
(...f1
The incapacitated person is the owner of certain homestead real est~te'lbca~
~_;-:l _
in St. Johns County, Florida, being known and numbered as 740 CR 13 A,$outh, LqLE, . n
Elkton, Florida 32033. 0'1
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3.
4. Pursuant to Florida Statute 744.441 (12), court approval is required before the
sale of homestead property of an incapacitated person. A copy of the statute is
attached as Exhibit "A" and incorporated herein by reference.
5. The incapacitated person is no longer able to reside in the property due to failing
health and has relocated to the home of her guardian, petitioner herein, in Portland,
Oregon.
(}Jf
"
6. The petitioner has entered into a Contract for Sale and Purchase of said real
estate, subject however to obtaining court approval of the sale. A copy of the Contract
for Sale and Purchase is attached hereto as Exhibit "8" and incorporated herein by
reference.
7. The petitioner believes that the sale of this real estate is in the best interests and
financial welfare of the principal in that she can no longer live there, no one is otherwise
able to properly maintain the premises and the real estate is now vacant.
8. The petitioner believes and therefor avers that the selling price of $185,000.00 is
an appropriate price for the sale of this real estate and represents the fair market value
thereof.
WHEREFORE, petitioner requests that the Court enter an Order approving the sale of
the real estate as described herein.
HAROLD S. IRWIN, III
Attorney for Petitioner
--
August IV 2005
64 South Pitt Street
Carlisle, PA 17013
(717) 243.6090
Supreme Court ID No. 29920
-. '.
VERIFICATION
The facts stated in this petitioner are true and correct to the best of my knowledge,
information and belief. I understand that false statements made herein are subject to
the penalties of 18 Pa.C.SA Section 4094, relating to unsworn falsification to
authorities.
AU9USt~,2005
-~._--........_.......
GUARDIANSHIP
)f ward.l'
I of the)
, ward'llk
nd then,
cost of;,
~mationl
I of thek
at suffl.'
rize the,
~rposeai' ,
Isection ,i.,
re legalf
rson O~i
Iy obllJ<
ing, b
use of
g ne
or, pra-
nee, 0
e, sup-
'.-;eiot of the petitioner shall be a sufficient release of
, tie guardian for payments made pursuant to the order.
i.lhe property of the ward is derived in whole or in part
",110m payments of compensation, adjusted compensa-
"'Ion, pension, insurance, or other benefits made
\dlectly to the guardian by the United States Depart-
,tIl8f1t of Veterans Affairs, notice of the petition for sup-
.,.port shall be given by the petitioner to the office of the
; I/nited States Department of Veterans Affairs having
" ~diction over the area in which the court is located
:hl the chief attorney for the Department of Veterans'
Mairs in this state at least 15 days before the hearing
;,llI\the petition. The court may not authorize payments
, tom the ward's property unless the ward has been
:' .qudicated incapacitated to handle such property in
llO:Cordanc6 with s. 744.331; except in a voluntary
guardianship, in which case such petition may be
'lJlInted only upon the written consent of the ward.
thlory,-s, " ch. 74-106; 55. 16,26, ch 75-222; s. 1, ch. 77-174; s. 1, ch
.> ")is- S 80, ch. 81-167; s. 84, ch. 83-55; s. 30, ch. 88-290: s. 67, ch 89.96; s
/", 11,c:h.'90-271; s, 37, ch. 93-268.
Mact.-Crealed from former s. 744.65.
744.441 Powers of guardian upon court approval.
After obtaining approval of the court pursuant to a peti-
Ion for authorization to act, a plenary guardian of the
,,' popelty, or a limited guardian of the property within the
pll'IIers granted by the order appointing the guardian or
III approved annual or amended guardianship report,
, may:
'. (1) Perform, compromise, or refuse performance of
5 . ward's contracts that continue as obligations of the
1tllate, as he or she may determine under the circum-
1itlances,
\ (2) Execute, exercise, or release any powers as
:,Mlee, personal representative, custodian for minors,
'ClDnServator, or donee of any power of appointment or
'GIller power that the ward might have lawfully exer-
~cised, consummated, or executed if not incapacitated,
Ilhebest interest of the ward requires such execulion,
'txercise, or release.
.' (3) Make ordinary or extraordinary repairs or alter-
'~s in buildings or other structures; demolish any
rovements; or raze existing, or erect new, party
'l!lII1s or buildinQs,
". (4) Subdivide, develop, or dedicate land to public
: make or obtain lhe vacation of plats and adjust
Iloundaries; adjust differences in valuation on
'trchange or partition by giving or receiving consider-
'~IIon: or dedicate easements to public use without con-
ration.
. (5) Enter into a lease as lessor or lessee for any
'lIlIPOse, with or without option to purchase or renew,
'iDr a term within, or extending beyond, the period of
prdianship.
" (6) Enter into a lease or arrangement for explora-
'ton and removal of minerals or other natural resources
i<<enter into a pooling or unitization agreement.
",(7) Abandon property when, in the opinion of the
" rdian, it is va~eless or is so encumbered or in such
'Cllndition that it is of no benefit to the estate.
(8) Pay calls, assessments, and other sums
~ rgeable or accruing against, or on account of,
;lIcunties,
(9) Borrow money, with or without security, to be
repaid from the property or otherwise and advance
money for the protection of the estate.
(10) Effect a fair and reasonable compromise with
any debtor or obligor or extend, renew, or in any man-
ner modify the terms of any obligation owing to the
estate,
(11) Prosecute or defend claims or proceedings in
any jurisdiction for the protection of the estate and of
the guardian in the performance of his or her duties,
(12) Sell, mortgage, or lease any real or personal
property of the estate, including homestead property,
or any interest therein for cash or credit, or for part cash
and part credit, and with or without security for unpaid
balances,
(13) Continue any unincorporated business or ven-
ture in which the ward was engaged.
(14) Purchase the entire fee simple title to real estate
in this state in which the guardian has no interest, but
the purchase may be made only for a home for the
ward, to protect the home of the ward or the ward's
interest, or as a home for the ward's dependent family.
If the ward is a married person and the home of the
ward or of the dependent family of the ward is owned by
the ward and spouse as an estate by the entirety and
the home is sold pursuant to the authority of subsection
(12), the court may authorize the investment of any part
or all of the proceeds from the sale toward the purchase
of a fee simple title to real estate in this state for a home
for the ward or the dependent family of the ward as an
estate by the entirety owned by the ward and spouse.
If the guardian is authorized to acquire title to real
estate for the ward or dependent family of the ward as
an estate by the entirety in accordance with the preced-
ing provisions, the conveyance shall be in the name of
the ward and spouse and shall be effective to create an
estate by the entirety in the ward and spouse.
(15) Exercise any option contained in any policy of
insurance payable to, or inuring to the benefit of, the
ward.
(16) Pay reasonable funeral, interment, and grave
marker expenses for the ward from the ward's estate,
up to a maximum of $6,000.
(17) Make gifts of the ward's property to members of
the ward's family in estate and income tax planning pro-
cedures.
(18) When the ward's will evinces an objective to
obtain a United States estate tax charitable deduction
by use of a split interest trust (as that term is defined in
s. 737.501), but the maximum charitable deduction oth-
erwise allowable will not be achieved in whole or in
part, execute a codicil on the ward's behalf amending
said will to obtain the maximum charitable deduction
allowable without diminishing the aggregate value of
the benefits of any beneficiary under such will.
(19) Create revocable or irrevocable trusts of prop-
erty of the ward's estate which may extend beyond the
disability or life of the ward in connection with estate,
gift, income, or other tax planning or in connection with
estate planning.
(20) Renounce or disclaim any interest by testate or
intestate succession or by inter vivos transfer.
(21) Enter into contracts that are appropriate for, and
in the best interest of, the ward.
515
Ch.744
Ch.744
GUARDIANSHIP
(22) As to a minor ward, pay expenses of the ward's
support, health, maintenance, and education, if the
ward's parents, or either of them, are alive.
History.-s. 1, ch. 74-106: 55. 22, 26, ch. 75-222: s. 1, ch. 77-174; 5. 2. ch.
77-328; s. 281. ch. 79-400; s. 4. ch. 80-203; s. 3, ch. 86-120; s. 2, ch. 87-317; s.
73, ch. 89-96; s. 52. ch. 90-271; s. 1100. ch. 97-102; s. 11, ch. 97-240
Note.-Created from former 55 744.501, 745.03(2) and (3), 745.20. 745.23.
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744.444 Power of guardian without court approval.
Without obtaining court approval, a plenary guardian of
the property, or a limited guardian of the property within
the powers granted by the order appointing the guard-
ian or an approved annual or amended guardianship
report, may:
(1) Retain assets owned by the ward.
(2) Receive assets from fiduciaries or other
sources.
(3) Vote stocks or other securities in person or by
general or limited proxy or not vote stocks or other
securities.
(4) Insure the assets of the estate against damage,
loss, and liability and insure himself or herself against
liability as to third persons.
(5) Execute and deli'Jer in his or her name as
guardian any instrument necessary or proper to carry
out and give effect to this section.
(6) Pay taxes and assessments on the ward's prop-
erty.
(7) Pay valid encumbrances against the ward's
properly in accordance with their terms, but no prepay-
ment may be made without prior court approval.
(8) Pay reasonable living expenses for the ward,
taking into consideration the accustomed standard of
living, age, health, and financial condition of the ward.
This subsection does not authorize the guardian of a
minor to expend funds for the ward's living expenses if
one or both of the ward's parents are alive.
(9) Elect whether to dissent from a will under the
provisions of s. 732.2125(2) or assert any other right or
choice available to a surviving spouse in the adminis-
tration of a decedent's estate.
(10) Deposit or invest liquid assets of the estate,
including moneys received from the sale of other
assets, in federally insured interest-bearing accounts,
readily marketable secured loan arrangements, money
market mutual funds, or other prudent investments.
The guardian may redeem or sell such deposits or
investments to pay the reasonable living expenses of
the ward as provided herein.
(11) Pay incidental expenses in the administration of
the estate.
(12) Sell or exercise stock subscription or conver-
sion rights and consent, directly or through a committee
or other agent, to the reorganization, consolidation,
merger, dissolution, or liquidation of a corporation or
other business enterprise.
(13) When reasonably necessary, employ persons,
including attorneys, auditors, investment advisers, care
managers, or agents, even if they are associated with
the guardian, to advise or assist the guardian in the per-
formance of his or her duties.
(14) Execute and deliver in his or her name as
guardian any instrument that is necessary or proper to
carry out the orders of the court.
(15) Hold a security in the name of a nominee
other form without disclosure of the interest of the
but the guardian is liable for any act of the nomi
connection with the security so held.
(16) Payor reimburse costs incurred and fe
able fees or compensation to persons, including
neys, employed by the guardian pursuant to subs
(13) Irom the assets of the guardianship estate, s
to obtaining court approval of the annual accoun'
(17) Provide confidential information about a
that is related to an investigation arising under part
chapter 400 to a local or state ombudsman c
member conducting such an investigation. Any
ombudsman shall have a duty to maintain the con
tiality of such information.
History.-s. 1, ch. 74-106; 55. 23, 26. ch. 75-222; s. 3, ch. 77-328;5
79-400; s, 5, ch. 64.31; s. 74, ch. 69-96; s. 53. ch. 90-271; s. 1101, ch.S1.
8, ch. 2000-155; s. 12, ch. 2003-57
744.446 Conflicts of interest; prohibited acll
court approval; breach of fiduciary duty.-
(1) It is essential to the proper conduct and
agement 01 a guardianship that the guardian
independent and impartial. The fiduciary relati
which exists between the guardian and the ward
not be used for the private gain of the guardian
than the remuneration for fees and expenses pro'
by law. The guardian may not incur any obiigatioo
behalf of the guardianship which conflicts with
proper discharge of the guardian's duties.
(2) Unless prior approval is obtained by court
or unless such relationship existed prior to appoin
of the guardian and is disclosed to the court in the
tion for appointment of guardian, a guardian may
(a) Have any interest, financial or otherwise,
or indirect, in any business transaction or activity
the guardianship;
(b) Acquire an ownership, possessory, secu'
other pecuniary interest adverse to the ward;
(c) Be designated as a beneficiary on any life'
ance policy, pension, or benefit plan of the ward
such designation was validly made by the ward .
adjudication of incapacity of the ward; and
(d) Directly or indirectly purchase, rent, lea
sell any property or services from or to any bu .
entity of which the guardian or the guardian's sp
any of the guardian's lineal descendants, or coli
kindred, is an officer, partner, director, shareho
proprietor, or has any financial interest.
(3) Any activity prohibited by this section is
able during the term of the guardianship or by the
sonal representative of the ward's estate, and
guardian is subject to removal and to impositiond
sonal liability through a proceeding for surcha
addition to any other remedies otherwise availa
(4) In the event of a breach by the guardiand
guardian's fiduciary duty, the court shall take
necessary actions to protect the ward and the
assets.
History.-s. 75, ch. 89-96; s.
2002-195.
516
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CHAPTER 16
HOMESTEAD
RESERVED FOR NEW SC
SC 16.01
Reserved for New Title Note
TN 16.01 01
Reserved for New Title Note
TN 16.01.02
ALIENATION OF HOMESTEAD
SC 16.02
Alienation of Homestead Property by Guardian
TN 16.02.01
(Rev. 12/95)
For issuing a Fund policy, should a conveyance or mortgage of
homestead property by a guardian for an incompetent owner or spouse be relied
on as effective?
The answer turns on the date of delivery of the deed or mortgage. There
has been considerable change in the law on this subject.
Prior to October 1, 1970, guardian deeds of homestead property were
generally not relied on as effective. However, pursuant to the 1968 Constitution,
which provided for alienation of an incompetent's homestead through statute, Sec.
745.15, F .S. 1969, was amended October 1, 1970 to include alienation of
homestead property by guardians. This statute remained valid until subsection (1)
was repealed, effective July 1, 1975, to be re-enacted as Sec. 744.44, F.S. 1975,
but without a specific provision for the alienation of homestead property. In light of
prior and subsequent remedial legislation it appears that the Legislature intended
Sec. 744.441, F .S. 1975, to provide a means for alienation of an incompetent's
homestead property. However, pending judicial clarification of the legislative intent
in the repeal of Sec. 745.15, F.S., and the enactment of Sec. 744.441, F.S., a
guardian's deed of homestead executed from July 1, 1975, through October 1,
1977, should not be relied on as effective. See Title Standards 18.4 and 18.5.
Sec. 744.441 (2), F.S., was amended effective October 1. 1977, to state
that with court approval the guardian may alienate or encumber real property of
the ward's estate, including homestead property. See Title Standard 18.6.
Dr
HOMESTEAD
331
This situation should not be confused with situations involving property
that has lost its status as homestead and is hereafter sought to be alienated by a
guardian. See TN 16.04.09.
Reserved for New Title Note
TN 16.02.02
Interspousal Conveyances of Homestead
Property Owned by the Entirety
TN 16.02.03
Title to homestead property was held as a tenancy by the entirety.
Pursuant to a property settlement agreement, the husband deeded the property to
the wife. The wife did not join in the execution of the deed, but it was otherwise
properly executed. Thereafter, the marriage of the parties was dissolved. The
question is whether the deed to the wife before the dissolution of marriage
conveyed the title to the homestead property to her.
Property held as tenants by the entirety can be conveyed by one spouse
to the other without the joinder of the other spouse under Sec. 689.11, F .S., even
though the property is a homestead. There was no change between the 1885
constitutional provision and the 1968 constitutional provision concerning the
disposal of homestead property which is held as a tenancy by the entirety.
Williams v. Foerster, 300 So.2d 33 (Fla. 1st DCA 1974), aff'd in part and rev'd in
part, 335 So.2d 810; Jameson v. Jameson, 369 So.2d 436 (Fla. 3d DCA 1979),
rev'd 387 SO.2d 351. Therefore, a Fund policy may be issued based on the deed
to the wife. See TN 16.02.04 for The Fund's position where the homestead
property is solely owned by one of the spouses.
Interspousal Conveyances of Homestead
Property Owned by One Spouse
TN 16.02.04
(Rev. 12198)
The Florida Constitution as amended in 1968 permits interspousal
conveyances of homestead real property. Art X, Sec. 4 (c), Fla. Const. 1968 (as
amended), provides:
. . . The owner of homestead real estate, joined by the spouse if
married, may alienate the homestead by mortgage, sale or gift
and, if married, may by deed transfer the Iitle to an estate by the
entirety with the spouse. . . .
Sec. 689.11 (1), F.S., allows interspousal transfers of homestead
property without joinder of the grantee spouse.
In Jameson v. Jameson, 369 So.2d 436 (Fla. 3d DCA 1979), rev'd
387 So.2d 351, the Supreme Court of Florida said that joinder of the spouse is
HOMESTEAD
m\r
332
CONTRACT FOR SALE AND PURCHASE
PARTIES: Ellen W. Sauter, Guardian of Leona C. McCrary ("Seller"), and Jo L. Boyett ("Buyer"), hereby
agree that Seller shall sell and Buyer shall buy the [ollowing described Real Property and Personal Property
(collectively "Property") pursuant to the terms and conditions of this Contract [or Sale and Purchase and any
riders and addenda ("Contract"):
I. DESCRIPTION:
(a) Legal description oUhe Real Property located in S1. Johns County, Florida: Pt of SE 1/4 orNE
1/4 ofSE 1/4 of Lot 17, Lagassee FalIDS, Unrec Plat) - PA#10031020-0170.
(b) Street address, city, zip, of the Property: 740 CR 13 A South, Lot E, Elkton FL 32033.
(c) Personal Property includes existing range(s), refrigerator(s), dishwasher(s), ceiling fan(s), light
fixture(s), and window treatment(s) unless specifically excluded below.
Other items included are:
Items ofPcrsonal Property (and leased items, if any) excluded are: None
II. PURCHASE PRICE (U. S. cun'ency): $ 185.000.00
PAYMENT:
(a) Deposit held in escrow by
(Escrow Agent) in the amount of (chccks subject to
clearance) $ 1.000.00
(b) Additional escrow deposit to be made to Escrow Agent within
N/A days after Effective Date (see Paragraph 1II) in the
amount of $ 0
(c) Financing (see Paragraph IV) in the amount of $
(d) Other: N/A $ 0
(e) Balance to close by cash, wire transfer or LOCALLY
DRAWN cashier's or official bank check(s), subject to
adjustments or prorations $ 184,000.00
III. TIME FOR ACCEPTANCE OF OFFER AND COUNTEROFFERS; EFFECTIVE DATE:
(a) If this offer is not executed by and delivered to all parties OR FACT OF EXECUTION
communicated in writing between the parties on or before ~, the deposit(s)
will, at Buyer's option, be returned and this offer withdrawn. UNLESS OTHERWISE STATED,
THE TIME FOR ACCEPTANCE OF ANY COUNTEROFFERS SHALL BE 2 DAYS FROM
THE DATE THE COUNTEROFFER IS DELIVERED.
(b) The date of Contract ("Effective Date") will be the date when the last one of the Buyer and
Seller has signed or initialed this offer or the final counteroffer. If such date is not otherwise set
fOlih in this Contract, then the "Effective Date" shall be the date determined above for acceptance
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of this offer or, if applicable, the final counteroffer.
IV. FINANCING:
(a) This is a cash transaction with no contingencies for financing;
l (b) This Contract is contingent on Buyer obtaining approval of a loan ("Loan Approval")
within 12 days (if blank, then 30 days) after Effective Date ("Loan Approval Date") for (CHECK
ONL Y ONE): _ a fixed; _ an adjustable; or l a fixed or adjustable rate loan, in the principal
amount of$ , at an initial interest rate not to exceed %,
discount and origination fees not to exceed % of principal amount, and for a term
of years. Buyer will make application withinl days (ifblank, then 5 days) after
Effcctive Date. Buyer shall use reasonable diligence to: obtain Loan Approval and notify Seller
in writing of Loan Approval by Loan Approval Date; satisfy terms and conditions of the Loan
Approval; and close the loan. Loan Approval which requires a condition related to the sale of other
property shall not be deemed Loan Approval for purposes ofthis subparagraph. Buyer shail pay all
loan expenses. If Buyer does not deliver written notice to Scller by Loan Approval Date stating
Buyer has either obtained Loan Approval or waived this financing contingency, then either party
may cancel this Contract by delivering written notice ("Cancellation Notice") to the other, not later
than seven (7) days prior to Closing. Seller's Cancellation Notice must state that Buyer has three (3)
days to deliver to Seller written notice waiving this financing contingency. If Buyer has used due
diligence and has not obtained Loan Approval before cancellation provided above, Buyer shall be
refunded the deposit(s). Unless this financing contingency has been waived, this Contract shall
remain subject to the satisfaction, by Closing, ofthose conditions of Loan Approval related to the
Property;
(c) Assumption of existing mortgage (see rider for temls); or
(d) Purchase money note and mortgage to Seller (see Standard Band K and riders; addenda;
or special clauses for terms).
V. TITLE EVIDENCE: At least 5 days (if blank, then 5 days) before Closing a title insurance
commitment with legible copies of instruments listed as exceptions attached thereto ("Title Commitment")
and, after Closing, an owner's policy of title insurance (see Standard A for terms) shall be obtained by:
(CHECK ONLY ONE): _ (1) Seller, at Seller's expensc and delivered to Buyer or
Buyer's attorney; or
l (2) Buyer at Buyer's expense.
(CHECK HERE): If an abstract of title is to be furnished instead of title insurance, and
attach rider for terms.
VI. CLOSING DATE: This transaction shall bc closed and the closing documents delivered on
("Closing"), unless modified by other provisions of this Contract.
If Buyer is unable to obtain Hazard, Wind, Flood, or Homeowners' insurance at a reasonable rate due
to extreme weather conditions, Buyer may delay Closing for up to 5 days after such coverage
becomes available.
VII. RESTRICTIONS; EASEMENTS; LIMITATIONS: Seller shall convey marketable title subject
to: comprehensive land use plans, zoning, restrictions, prohibitions and other requirements imposed
by governmental authority; restrictions and matters appearing on the plat or otherwise conunon to
the subdivision; outstanding oil, gas and mineral rights of record without right of entry; unplatted
2
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public utility easements of record (located contiguous to real property lines and not more than 10
feet in width as to the rear or front lincs and 7'12 feet in width as to the side lines); taxes for year of
Closing and subsequent years; and assumed mortgages and purchase money mortgages, if any (if
additional items, see addendum); provided, that there exists at Closing no violation of the foregoing
and none prevent use of the Property for Residential purpose(s).
VIII. OCCUPANCY: Seller shall deliver occupancy of Property to Buyer at time of Closing unless
otherwise stated herein. IfProperty is intended to be rented or occupied beyond Closing, the fact
and terms thereof and the tenant(s) or occupants shall be disclosed pursuant to Standard F. If
occupancy is to be delivered before Closing, Buyer assumes all risks of loss to Property from date
of occupancy, shall be responsible and liable for maintenance from that date, and shall be deemed
to have accepted Property in its existing condition as of time of taking occupancy.
IX. TYPEWRITTEN OR HANDWRITTEN PROVISIONS: Typewrittcn or handwritten provisions,
riders and addenda shall control all printed provisions of this Contract in conflict with them.
X. ASSIGNABILITY: (CHECK ONLY ONE): Buyer _ may assign and thereby be released from
any further liability under this Contract; _ may assign but not be released from liability under this
Contract; or l may not assign this Contract.
XI. DISCLOSURES:
(a) _ CHECK HERE if the property is subject to a special assessment lien imposed by a
pub! ie body payable in installments which continue beyond Closing and, if so, specify who
shall pay amounts due after Closing: _ Seller _ Buyer _ Other (see addendum).
(b) Radon is a naturally occurring radioactive gas that when accumulated in a building in
sufficient quantities may present health risks to persons who are exposed to it over timc.
Levels of radon that exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon or radon testing may be obtained from your
County Public Health unit.
(c) Mold is naturally occurring and may cause health risks or damage to property. HBuyer is
concerned or desires additional information regarding mold, Buyer should contact an
appropriate professional.
(d) Buyer acknowledgcs receipt ofthe Florida Energy-Efficiency Rating Information Brochure
required by Section 553.996, F.S.
(e) If the real property includes pre-l978 residential housing then a lead-based paint rider IS
mandatory.
(f) If Seller is a "foreign person" as defined by the Foreign Investment in Real Property Tax
Act, the parties shall comply with that Act.
(g) BUYER SHOULD NOT EXECUTE THIS CONTRACT UNTIL BUYER HAS
RECEIVED AND READ THE HOMEOWNERS' ASSOCIA nON/COMMUNITY
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DISCLOSURE.
(h) PROPERTY TAX DISCLOSURE SUMMARY: BUYER SHOULD NOT RELY ON THE
SELLER'S CURRENT PROPERTY TAXES AS THE AMOUNT OF PROPERTYT AXES
THA TTHE BUYERMA Y BE OBLlGA TEDTO PA YIN THE YEAR SUBSEQUENT TO
PURCHASE. A CHANGE OF OWNERSHIP OR PROPERTY IMPROVEMENTS
TRIGGERS REASSESSMENTS OF THE PROPERTY THAT COULD RESULT IN
HIGHER PROPERTY TAXES. IF YOU HAVE ANY QUESTIONS CONCERNING
V ALUATION, CONTACT THE COUNTY PROPERTY APPRAISER'S OFFICE FOR
INFORMATION.
(i) IF THE DISCLOSURE SUMMARY REQUIRED BY SECTION 720.401, FLORIDA
STATUTES, HAS NOT BEEN PROVIDED TO THE PROSPECTIVE PURCHASER
BEFORE EXECUTING THIS CONTRACT FOR SALE, THIS CONTRACT IS
VOIDABLE BY BUYER BY DELIVERING TO SELLER OR SELLER'S AGENT OR
REPRESENTATIVE WRITTEN NOTICE OF THE BUYER'S INTENTION TO
CANCEL WITHIN 3 DAYS AFTER RECEIPT OF THE DISCLOSURE SUMMARY
OR PRIOR TO CLOSING, WHICHEVER OCCURS FIRST. ANY PURPORTED
WAIVER OF THIS VOIDABILlTY RIGHT HAS NO EFFECT. BUYER'S RIGHT
TO VOID THIS CONTRACT SHALL TERMINATE AT CLOSING.
(j) FLORIDA LAW CONTAINS IMPORTANT REQUIREMENTS YOU MUST
FOLLOW BEFORE YOU MAY FILE A LAWSUIT FOR DEFECTIVE
CONSTRUCTION AGAINST A CONTRACTOR, SUBCONTRACTOR, SUPPLIER,
OR DESIGN I'ROFESSIONAL FORAN ALLEGED CONSTRUCTION DEFECTlN
YOUR HOME. SIXTY DAYS BEFORE YOU FILE YOUR LA WSUlT, YOU MUST
DELIVER TO THE CONTRACTOR, SUBCONTRACTOR, SUPPLIER, OR DESIGN
PROFESSIONAL A WRITTEN NOTICE OF ANY CONSTRUCTION CONDITIONS
YOU ALLEGE ARE DEFECTIVE AND PROVIDE YOUR CONTRACTOR AND
ANY SUBCONTRACTORS, SUPPLIERS, OR DESIGN PROFESSIONALS THE
OPPORTUNITY TO INSPECT THE ALLEGED CONSTRUCTION DEFECTS AND
MAKE AN OFFER TO REPAIR OR PAY FOR THE ALLEGED CONSTRUCTION
DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER MADE BY
THE CONTRACTOR OR ANY SUBCONTRACTORS, SUPPLIERS, OR DESIGN
PROFESSIONALS. THERE ARE STRICT DEADLINES AND PROCEDURES
UNDER FLORIDA LAW.
XII. MAXIMUM REP AIR COSTS: Seller shall not be responsible for payment in excess of:
(a) $-0- for treatment and repair under Standard D (if blank, then 1.5% of the Purchase Price).
(b) $-0- for repair and replacement under Standard N not caused by Wood Destroying
Organisms (if blank, then 1.5% of the Purchase Price).
XIII. HOME WARRANTY: _ Seller _ Buyer X N/ A will pay for a home warranty plan issued by N/ A
at a cost not to exceed $N/ A.
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XIV. RIDERS; ADOENDA; SPECIAL CLAUSES:
CHECK those riders which are applicahle AND are attached to and made parI of this Contract:
CONDOMINIUM
V NFIIA
HOMEOWNERS' ASSOCIATION
LEAD-BASED PAINT
COASTAL CONSTRUCTION CONTROL LINE
INSULATION
X "AS IS"
Other ComprehenSIve Rider Provisions
Addenda
Special Clause(s): (a) All closing costs paid by Guyer.
(b) Elizabeth I'l\cilli owns a mobile home, well & septic tank, power pole and other
improvements which is part of this transaction.
XV. STANDARDS FOR REAL ESTATE TRANSACTIONS ("Standards"): Buyer and Seller
acknowledge receipt of a copy o[ Standards A through Yon the reverse side or attached, which are
incorporated as part of this Contract.
THIS IS INTENDED TO 8E A LEGALLY nINDlNG CONTRACT. IF NOT FULLY
UNDEHSTOOD, SEEK TilE ADVICE OF AN ATTORNEY I)RIOH TO SIGNING.
THIS FORM BAS BEEN APPROVED BY THE FLORIDA
ASSOCIATION OF REALTORS@ AND THE FLORIDA BAR.
Approval does not constitute an opinion that any of the lemlS and conditions in this Contract
should be accepted by the parties in a particular transaction. Terms and condilions
should he negotiated based upon the respective interests, objectives and bargaining positions
of all interested persons.
JO.W~
7~M,O.J
(Date)
SELLER:
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~lIen W. Sauter, Guardian of Leona C. (Date)
McCrary
BUYER:
Buyer's adllrcss for purposes of notice:
4840 OaksieJe Dr, Jacksonville, Florida 32244
Phone: (904) 829-6462 x 604
Seller's address for purposes of notice:
740 eR 13 A South, Lot E, Elkton, Florida FL
32033
Phone:
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Deposit under Paragraph lI(a) received (Checks are subject to clearance):
Escrow Agent
By:
BROKERS: The brokers (including cooperating brokers, if any) nalTIed below, including listing and
cooperating brokers, are thc only brokers entitled to cOlTIpensation in connection with this Contract:
Name:N/A ___ N/A
Cooperating Hmkers, if allY Listing Broker
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STANDARDS FOR REAL ESTATE TRANSACTIONS
A. TITLE INSURANCE: The Title Conunitment shall be issued by a Florida licensed title insurer
agreeing to issue Buyer, upon recording of the deed to Buyer, an owner's policy of title insurance in the
amount of the purchase price, insuring Buyer's marketable title to the Real Property, subject only to matters
contained in Paragraph VII and those to be discharged by Seller at or before Closing. Marketable title shall
be determined according to applicable Title Standards adopted by authority of The Florida Bar and in
accordance with law. Buyer shall have 5 days from date of receiving the Title Commitment to examine it,
and if title is found defective, notify Seller in writing specifying defect(s) which render title unmarketable.
Seller shall have 30 days from receipt of notice to remove the defects, failing which Buyer shall, within 5
days after expiration of the 30 day period, deliver written notice to Seller either: (1) extending the time for
a reasonable period not to exceed 120 days within which SeIler shall use diligent effort to remove the defects;
or (2) requesting a refund of deposit(s) paid which shall be returned to Buyer. If Buyer fails to so notify
Seller, Buyer shall be deemed to have accepted the title as it then is. Seller shall, if title is found
unmarketable, use diligent effort to correct defect(s) within the time provided. If, after diligent effort, Seller
is unable to timely correct the defects, Buyer shall either waive the defects, or receive a refund of deposit(s),
thereby releasing Buyer and Seller from all further obligations under this Contract. If Seller is to provide
the Title Commitment and it is delivered to Buyer less than 5 days prior to Closing, Buyer may extend
Closing so that Buycr shall have up to 5 days from date of receipt to examine same in accordance with this
Standard.
B. PURCHASE MONEY MORTGAGE; SECURITY AGREEMENT TO SELLER: A purchase
money mortgage and mortgage note to Seller shall provide for a 30 day grace period in the event of default
if a first mortgage and a 15 day grace period if a second or lesser mortgage; shall provide for right of
prepayment in whole or in part without penalty; shall permit acceleration in event of transfer of the Real
Propcrty; shall require all prior licns and encumbrances to be kept in good standing; shall forbid
modifications of, or future advances under, prior mortgage(s); shall require Buyer to maintain policies of
insurance containing a standard mortgagee clause covering all improvements located on the Real Property
against fire and all perils included within the term "extended coverage endorsements" and such other risks
and perils as Seller may reasonably require, in an amount equal to their highest insurable value; and the
mortgage, note and security agreement shall be otherwisc in form and content required by Scller, but Seller
may only require clauses and coverage customarily found in mortgages, mortgage notes and security
agreements generally utilized by savings and loan institutions or state or national banks located in the county
wherein the Real Property is located. All Pcrsonal Property and leases being conveyed or assigned will, at
Seller's option, be subject to the lien of a security agreement evidenced by recorded or filed financing
statements or certificates of title. If a balloon mortgage, the final payment will exceed the periodic payments
thereon.
C. SURVEY: Buyer, at Buyer's expense, within time allowed to deliver evidence of title and to
examine same, may have the Real Property surveyed and certified by a registered Florida surveyor. If the
survey discloses encroachments on the Real Property or that improvements located thereon encroach on
setback lines, easements, lands of others or violate any restrictions, Contract covenants or applicable
governmental regulations, the samc shall constitute a title dcfcct.
D. WOOD DESTROYING ORGANISMS: "Wood Destroying Organisms" (WDO) shall bc deemcd
to include all wood destroying organisms required to be reported under the Florida Structural Pest Control
Act, as amended. Buyer, at Buyer's expense, may have the Property inspected by a Florida Certified Pest
7
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Control Operator ("Operator") within 20 days after the Effective Date to determine if there is any visible
active WDO infcstation or visible damage from WDO infestation, excluding fences. If either or both are
found, Buyer may within said 20 days (I) have cost of treatment of active infestation estimated by the
Operator; (2) have all damage inspected and cost or repair estimated hy an appropriately licensed contractor;
and (3) report such cost(s) to Seller in writing. Seller shall cause the treatment and repair of all WDO
damage to be madc and pay the costs thereof up to the amount provided in Paragraph XII(a). If estimated
costs exceed that amount, Buyer shall have the option of canceling this Contract by giving written notice to
SeIler within 20 days after the Effective Date, or Buyer may elect to proceed with the transaction and receive
a credit at Closing equal to the amount provided in Paragraph XII(a). If Buyer's lender requires an updated
WDO report, then Buyer shall, at Buyer's expense, have the opportunity to have the Property re-inspected
for WDO infestation and have the cost of active infestation or new damage estimated and reported to Seller
in writing at least 10 days prior to Closing, and thereafter, Seller shall cause such trcatmcnt and repair to be
made and pay the cost thereof; provided, Seller's total obligation for treatment and repair costs required under
both the first and second inspection shall not exceed the amount provided in Paragraph XII(a).
E. INGRESS AND EGRESS: Seller wanants ami represents that there is ingress and cgress to the
Real Property sufficient for its intended use as descrihed in Paragraph VII hereof and titlc to the Real
Property is insurable in accordance with Standard A without exccption for lack of legal right of access.
F. LEASES: Seller shall, at least 10 days before Closing, furnish to Buyer copies of all written lcases
and estoppel letters from each tenant specifying the nature and duration of the tenant's occupancy, rental
rates, advanccd rent and security deposits paid by tenant. If Seller is unable to obtain such letter from each
tenant, the same information shall be furnished by Seller to Buyer within that time period in the foml of a
Seller's affidavit, and Buyer may thereafter contact tenant to confirm such information. If the terms of the
leases differ materially from Seller's representations, Buyer may terminate this Contract by dcliveringwritten
notice to Seller at least 5 days prior to Closing. Seller shall, at Closing, deliver and assign all original leases
to Buyer.
G. LIENS: Seller shall furnish to Buyer at time of Closing an affidavit attesting to the absence, unless
otherwise provided for herein, of any financing statement, claims oflien or potential lienors known to Seller
and further attesting that there have been no improvements or repairs to the Real Property for 90 days
immediately preceding date of Closing. If the Real Property has been improved orrepaired within that time,
Seller shall deliver releases or waivers of construction liens executed by all general contractors,
subcontractors, suppliers and materialmen in addition to Seller's lien affidavit setting forth the names ofall
such general contractors, subcontractors, suppliers and materialmen, further affirming that all charges for
improvements or repairs which could serve as a basis for a construction lien or a claim for damages have
been paid or will be paid at Closing of this Contract.
H. PLACE OF CLOSING: Closing shall be held in the county wherein the Real Property is located
at the office of the attorney or other closing agent ("Closing Agent") designated by the party paying for the
title insurance, or, ifno title insurance, designated by Seller.
I. TIME: In computing time periods ofless than six (6) days, Saturdays, Sundays and state or national
legal holidays shall be excluded. Any time periods provided herein which shall end on a Saturday, Sunday,
or a legal holiday shall extend to 5:00 p.m. of the next business day. Time is of the essence ill this
Contract.
8
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.J. CLOSING DOCUMENTS: Seller shall furnish the deed, bill of sale, certificate of title,
construction lien affidavit, owner's possession affidavit, assignments of/eases, tenant and mortgagee estoppel
letters and corrective instruments. Buyer shall furnish mortgage, mortgage note, security agreement and
financing statements.
K. EXPENSES: Buyer to pay all closing costs.
L. PRORATIONS; CREDITS: Taxes, assessments, rent, interest, insurance and other expenses of
the Property shall be prorated through the day before Closing. Buyer shall have the option of taking over
existing policies of insurance, if assumable, in which event premiums shall be prorated. Cash at Closing
shall be increased or decreased as may be required by prorations to be made through day prior to Closing,
or occupancy, if occupancy occurs before Closing. Advance rent and security deposits will be credited to
Buyer. Escrow deposits held by mortgagee will be credited to Seller. Taxes shall be prorated based on the
current year's tax with due allowance made for maximum allowable discount, homestead and other
exemptions. If Closing occurs at a date when the current year's millage is not fixed and current year's
assessment is available, taxes will be prorated based upon such assessment and prior year's millage. If
current year's assessment is not available, then taxes will be prorated on the prior year's tax. Ifthere arc
completed improvements on the Real Property by Januat)' 1 st of year of Closing, which improvements were
not in existence on January I st of prior year, then taxes shall be prorated based upon prior year's millage and
at an equitable assessment to be agreed upon between the patties; failing which, request shall be made to the
County Property Appraiser for an informal assessment taking into account available exemptions. A tax
proration based on an estimate shall, at request of either party, be readjusted upon receipt of current year's
tax bill.
M. SPECIAL ASSESSMENT LIENS: Except as set forth in Paragraph XI(a), certified, confirmed
and ratified special assessment liens imposed by public bodies as of Closing are to be paid by Seller.
Pending liens as of Closing shall be assumed by Buyer. Ifthe improvement has been substantially completed
as of Effective Date, any pending lien shall be considered certified, confirmed or ratified and Seller shall,
at Closing, be charged an amount equal to the last estimate or assessment for the improvement by the public
body.
N. INSPECTION AND REPAIR: Seller warrants that the ceiling, roof (including the fascia and
soffits) and exterior and interior walls, foundation, and dockage of the Property do not have any visible
evidence of leaks, water damage or structural damage and that the septic tank, pool, all appliances,
mechanical items, heating, cooling, electrical, plumbing systems and machinery are in Working Condition.
The foregoing warranty shall be limited to the items specified unless otherwise provided in an addendum.
Buyer may inspect, or, at Buyer's expense, have a firm or individual specializing in home inspections and
holding an occupationallieense for such purpose (ifrequired) or an appropriately licensed Florida contractor
make inspections of, those items within 20 days after the Effective Date. Buyer shall, prior to Buyer's
occupancy but not more than 20 days after Effective Date, report in writing to Seller such items that do not
meet the above standards as to defects. Unless Buyer timely reports such defects, Buyer shall be deemed to
have waived Seller's warranties as to defects not reported. If repairs or replacements are required to comply
with this Standard, Seller shall cause them to be made and shall pay up to the amount provided in Paragraph
XII (b). Seller is not required to make repairs or replacements of a Cosmetic Condition unless caused by
defect Seller is responsible to repair or replace. lrthe cost for such repair or replacement cxceeds the amount
provided in Paragraph XII (b), Buyer or Seller may elect to pay such excess, failing which either party may
cancel this Contract. If Seller is unable to con"ect the defects prior to Closing, the cost thereof shall be paid
9
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into escrow at Closing. For purposes of this Contract: (I ) "Working Condition" means operating in the
manner in which the item was designed to operate; (2) "Cosmetic Condition" means aesthetic imperfections
that do not affect the Working Condition of the item, including, but not limited to: pitted marcite or other
pool finishes; missing or tom screens; fogged windows; tears, worn spots, or discoloration offloor coverings,
wallpaper, or window treatments; nail holes, scratches, dents, scrapes, chips or caulking in ceilings, walls,
flooring, fixtures, or mirrors; and minor cracks in floors, tiles, windows, driveways, sidewalks, or pool decks;
and (3) cracked roof tiles, curling or worn shingles, or limited roof life shall not be considered defects Seller
must repair or replace, so long as there is no evidence of actual leaks or leakage or structural damage, but
missing tiles will be Seller's responsibility to replace or repair.
O. RISK OF LOSS: If the Property is damaged by fire or other casualty before Closing and cost of
restoration does not exceed 1.5% of the Purchase Price, cost of rest oration shall be an obligation ofthe Seller
and Closing shall proceed pursuant to the tern1S ofthis Contract with restoration costs escrowed at Closing.
If the cost of restoration exceeds 1.5% of the Purchase Price, Buyer shall either take the Property as is,
together with either the 1.5% or any insurance proceeds payable by virtue of such loss or damage, or receive
a refund of deposit(s), thereby releasing Buyer an~ Seller from all further obligations under this Contract.
I). CLOSING PROCEDURE: The deed shall be recorded upon clearance of funds. If the title agent
insures adverse matters pursuant to Section 627.7841, F.S., as amended, the escrow and closing procedure
required by this Standard shall be waived. Unless waived as set forth above the following closing procedures
shall apply: (1) all closing proceeds shall be held in escrow by the Closing Agent for a period of not more
than 5 days after Closing; (2) if Seller's title is rendered unmarketable, through no fault of Buyer, Buyer
shall, within the 5-day period, notify Seller in writing of the defect and Seller shall have 30 days from date
of receipt of such notification to cure the defect; (3) if Seller fails to timely cure the defect, all deposits and
closing funds shall, upon written demand by Buyer and within 5 days after demand, be returned to Buyer and,
simultaneously with such repayment, Buyer shall return the Personal Property, vacate the Real Property and
reconvey the Property to Seller by special warranty deed and bill of sale; and (4) if Buyer fails to make
timely demand for refund, Buyer shall take title as is, waiving all rights against Seller as to any intervening
defect except as may be available to Buyer by virtue of warranties contained in the deed or bill of sale.
Q. ESCROW: Any Closing Agent or escrow agent (collective]y "Agent") receiving funds or equivalent
is authorizcd and agrees by acceptance of them to deposit them promptly, hold same in escrow and, subject
to clearance, disburse them in accordance with terms and conditions of this Contract. Failure of funds to
clear shall not excuse Buyer's performance. If in doubt as to Agent's duties or liabilities under the provisions
of this Contract, Agent may, at Agent's option, continue to hold the subject matter of the escrow until the
parties hereto agree to its disbursement or until a judgment of a court of competent jurisdiction shall
determine the rights of the parties, or Agent may deposit same with the clerk of the circuit court having
jurisdiction of the dispute. An attorney who represents a party and also acts as Agent may represent such
party in such action. Upon notifying all parties concerned of such action, all liability on the part of Agent
shall fully terminate, except to the extent of accounting for any items previously delivered out of escrow.
If a licensed real estate broker, Agent will comply with provisions of Chapter 475, F.S., as amended. Any
suit between Buyer and Seller wherein Agent is made a party because of acting as Agent hereunder, or in any
suit wherein Agent interpleads the subject matter of the escrow, Agent shall recover reasonable attorney's
fees and costs incurred with these amounts to be paid from and out of the escrowed funds or equivalent and
charged and awarded as court costs in favor of the prevailing party. The Agent shall not be liable to any
party or person for misdelivery to Buyer or Seller of items subject to the escrow, unless such misdelivery is
due to willful breach of the provisions of this Contract or gross negligence of Agent.
10
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R. ATTORNEY'S FEES; COSTS: In any litigation, including breach, enforcement or interpretation,
arising out ofthis Contract, the prevailing party in such litigation, which, for purposes ofthis Standard, shall
include Seller, Buyer, and any brokers acting in agency or nonagency relationships authorized by Chapter
475, F.S., as amended, shall be entitled to recover from the non-prevailing party reasonable attorney's fees,
costs and expenses.
S. FAILURE OF PERFORMANCE: If Buyer fails to perfolln this Contract within the time
specified, including payment of all deposits, the deposit(s) paid by Buyer and deposit(s) agreed to be paid,
may be recovered and retained by and for the account of Seller as agreed upon liquidated damages,
consideration for the execution of this Contract and in full settlement of any claims; whereupon, Buyer and
Seller shall be relieved of all obligations under this Contract; or Scller, at Seller's option, may proceed in
equity to enforce Seller's rights under this Contract. If for any reason other than failure of Seller to make
Seller's title marketable after diligent effort, Seller fails, neglects or refuses to perform this Contract, Buyer
may seek specific performance or elect to receive the return of Buyer's deposit(s) without thereby waiving
any action for damages resulting from Seller's breach.
T. CONTRACT NOT RECORDABLE; PERSONS BOUND; NOTICE; FACSIMILE: Neither
this Contract nor any notice of it shall bc recorded in any public records. This Contract shall bind and inure
to thc benefit of the parties and their successors in interest. Whenever the context permits, singular shall
include plural and one gender shall include all. Notice and delivery given by or to the attorney or broker
representing any party shall be as effective as ifgiven by or to that party. All notices must be in writing and
may be made by mail, personal delivery or electronic media. A legible facsimile copy oUhis Contract and
any signatures hereon shall be considered for all purposes as an original.
u. CONVEYANCE: Seller shall convey marketable title to the Real Property by statutory warranty,
trustee's, personal representative's or guardian's deed, as appropriate to the status of Seller, subject only to
matters contained in Paragraph VII and those otherwise accepted by Buyer. Personal property shall, at the
request of Buyer, be transferred by an absolute bill of sale with warranty oftitle, subject only to such matters
as may be otherwise provided for herein.
V. OTHER AGREEMENTS: No prior or present agreements orrepresentations shall be binding upon
Buyer or Seller unless included in this Contract. No modification to or change in this Contract shall be valid
or binding upon the parties unless in writing and exccuted by the parties intended to be bound by it.
w. SELLER DISCLOSURE: There are no facts known to Seller materially affecting the value of the
Property which are not readily observable by Buyer or which have not been disclosed to Buyer.
x. PROPERTY MAINTENANCE; PROPERTY ACCESS; REPAIR STANDARDS;
ASSIGNMENT OF CONTRACTS AND WARRANTIES: Seller shall maintain the Property, including,
but not limited to lawn, shrubbery, and pool in the condition existing as of Effective Date, ordinary wear and
tear excepted. Seller shall, upon reasonable notice, provide utilities service and access to the Property for
appraisal and inspections, including a walk-through prior to Closing, to confirm that all items of Personal
Property are on the Real Property and, subject to the foregoing, that all required repairs and replacements
have been made, and that the Property has been maintained as required by this Standard. All repairs and
replacements shall be completed in a good and workmanlike manner, in accordance with all requirements
oflaw, and shall consist of materials or items of quality, value, capacity and performance comparable to, or
better than, that existing as of the Effective Date. Seller will assign all assignable repair and treatment
11
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contracts and warranties to Buyer at Closing.
Y. 1031 EXCHANGE: If either Seller or Buyer wish to enter into a like-kind exchange (either
simultaneous with Closing or deferred) with respect to the Property under Section 1031 of the Internal
Revenue Code ("Exchange"), the other party shall cooperate in all reasonable respects to effectuate the
Exchange, including the execution of documents; provided (1) the cooperating party shall incur no liability
or expense related to the Exchange and (2) the Closing shall not be contingent upon, nor extended or delayed
by, such Exchange.
12
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"AS IS"
Rider to contract dated between Ellen W. Sauter, Guardian of
Leona C. McCrary ("Seller") and Jo L. Boyett ("Buyer") concerning the property described as:
Pt of SE 1/4 of NE 1/4 of SE 1/4 of Lot 17, Lagassee Famrs, Unrec Plat) -
P A#l 0031 020-0170.
1. SELLER'S WARRANTIES AND REPRESENTATIONS: Obligations with Respect to
the Property; Limitations
(a) Paragraph XII and Standard D, Standard N and Standard X are deleted.
(b) This Rider does not relieve Seller's obligations under Standard W for facts known to
Seller. However, except as required in this Rider and in Standard W, Seller extends and intends no
warranty and makes no representation of any type, either express or implied, as to the physical
condition or histoI)' of the Property.
(c) Seller has received no written or verbal notice from any governmental entity or
agency as to a currently uncorrected building, enviromnental or safety code violation.
(d) Subject to the provisions and limitations of this Rider, Buyer waives any claims
against Seller and, to the extent permitted by law, against any licensee involved in the negotiation
of the Contract, for any defects or other damage that may exist at Closing of the Contract and be
subsequently discovered by the Buyer or anyone claiming by, through, under or against the Buyer.
2. INSPECTION PERIOD AND RIGHT TO CANCEL.
(a) Buyer shall have 15 days from Effective Date ("Inspection Period")
within which to have such inspections of the Property performed as Buyer shall desire and utilities
shall be made available by the Seller during the Inspection Period.
(b) Buyer shall be responsible for prompt payment for such inspections and repair of
damage to and restoration of the Property resulting from such inspections. This provision shall
survive tennination of the Contract.
(c) If Buyer detenl1ines, in Buyer's sole discretion, that the condition ofthe Property is
not acceptable to Buyer, Buyer may cancel the Contract by delivering facsimile or written notice of
such election to Seller on or before expiration of the Inspection Period. If Buyer timely cancels the
Contract, the deposit(s) paid shall be immediately returned to Buyer; thereupon, Buyer and Seller
shall be released of all further obligations under the Contract, except as provided in Subparagraph
2(b), above.
3. PROPERTY MAINTENANCE; PROPERTY ACCESS; ASSIGNMENT OF
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CONTRACTS AND WARRANTIES.
Seller shall maintain the Property, including, but not limited to, the lawn, shrubbery and pool, in their
respective conditions, existing as of Effective Date, ordinary wear and tear excepted. Seller shall,
upon reasonable notice, provide utilities service and access to the Property for appraisal and
inspections, including a walk-through prior to Closing, to confirm that all items of Personal Property
are on the Real Property and that the Property has been maintained as required by this Paragraph 3.
Seller will assign all assignable repair and treatment contracts and warranties to Buyer at Closing.
BUYER:
SELLER:
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Ellen W. Sauter, Gmiioian of
Leona C. McCrary
(Date)
Tax ill. No.51 :s~&-O ~3rC('2-
Tax ill. No.: 5'"1;.,J/ .,;Ii!JJ:.
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RECEIVED AUG 15 Z005
V
HAROLD S. IRWIN, III, ESQUIRE
ATTORNEY ID NO. 29920
64 SOUTH PITT STREET
CARLISLE PA 17013
(717) 243-6090
ATTORNEY FOR PLAINTIFF
IN RE:
LEONA C. McCRARY,
an alleged incapacitated
person
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
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: NO. 21 - 04 - 0464
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ORDER OF COURT
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NOW, this l ~ of August, 2005, on petition of the guardian of Leona C. McCrary,
Ellen Pitts Wilson Sauter, on motion of her attorney, Harold S. Irwin, III, Esquire, and in
accordance with the provisions of Florida Statute 744.441 (12), it is hereby ordered and
decreed that the entry into a transaction and final settlement for the sale of certain real
estate located in S1. Johns County, Florida, having a street address of 740 CR 13 A
South, Lot E, Elkton, Florida 32033, is hereby approved. Said sale shall be
substantially in accordance with a certain Contract for Sale and Purchase thereof
entered into between the guardian and Jo L. Boyett, dated July 20, 2005, a copy of
which is attached to the petition.
. -----y/
By the C9Urt,' . ~//
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Edgar B. B yley, J. ~ ;1
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Marjorie A. Wevodau
First Deputy
One Courthouse Square
Carlisle, Pa. 17013
Glenda Farner Strasbaugh
Register of Wills &
Clerk of the Orphans' Court
(717) 240-6345
FAX (717) 240-7797
Kirk S. Sohonage, Esquire
Solicitor
OFFICES OF
~egister of Wills anb ([Jerk of tije (!&rpijans' ([ourt
<!Countp of <!Cumberlanb
December 1, 2005
Ellen Pitts Wilson Sauder
20932 South Winema
Tua1atin OR 97062
IN RE: Estate of Leona C. McCrary, an incapacitated person
File No. 21-04-0464
Dear Sir/Madam:
It has come to my attention that you have not filed the guardian reports required
by 20 Pa.C.S.A. S5521(c) in the above captioned guardianship. Enclosed you will find
the suggested formes).
Please mail those reports, along with a check for the filing fee which is $15 for
each report filed, payable to the Clerk of Orphans' Court, to the following address within
(30) days:
Clerk of Orphans' Court
One Courthouse Square
Carlisle, P A 17013
If you have any questions, please contact your attorney.
Respectfully,
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Glenda Farner Strasbaugh .. i'
Clerk of the Orphans' Court
CC: David P. Perkins, Esquire
Clerk of Orphans' Court of Cumberland County
INRE:
Docket No.
21-04- b9:k*
ANNUAL REPORT OF GUARDIAN OF THE ESTATE
T, E l ~ V~ t+s WU (~ S'c.u..cJ--rr , was /were -
appointed plenary guardian(s) of the estate of , rn t.C ~
by Decree of the Honorable JUdge~. Dated 30 A,~t ~~~ . ThIs-is my annual
report for the period fromq {tit to I ~-q~s , ("The Report Period").
11-\-0
I SUMMARY A-ee.E)Llf\YI~ +r0A\",;)~(" to Gueurd:~ b~
A. Value of principal assets at the beginning ofthe Report Period?
Fa.tY\il'1 c'n-hib..J,~~; 22.'f.Ob
B. Total amount of income earned during the report period!
~~4-~~ ~ '71, :)/3. ~of.f.\\"'<.mw rn~:. 3D/oo"Z.-_
Total amount of all expenditures made for care and maintenance ofthe
C. incapacitated person during the Report Period?
1. From principal
$~
1-
$ [0'1/ '1 ~7
2. From income
~M ~ TtJ low-vL~ $ 39 ~~~ 2-
. ~W1:~iLt>I"tf' ~L(.J~:;6tD'f.ft $ '7.( ~<i>O
D. Total amount spent for all other purposes during the Report Period?
E, Total amounts remaining at th.:: end of the Report Period?
1. Principal
2. Ll1come
~v~~+-<.d
c..d.-~
Total Income and Principal
*- ~.d.'"-~ -=S~~r~ -::. 0<\(t.\tV'\~~d e.^'t)vn ~t'-~ 0 ~
~ck~ tor ~llrc\.
$
-e,-
$
5"0. OCJ-C:O.
$ '~.~~3,_
$ ~i.~'i'3.
( U1rd ~
Vf';-, q +2- .,1
~
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II. ADDITIONAL INFORMATION
A.
Principal:
.Av.v ;,,.W'~~-c.-d:
1. Total amOlmt remaining at the end of the Report Period? $ 5t), 00 0
2. How is principal currently invested?
G~&de,~ fl">J~~
3. Have there been any expenditures from pfincipa1 during th0 Repon
Period? tv[i-t- .....JJt..v.J L(1ve~~
If you answered YES, was there Court approval for all expenditures
from principal?
D Yes~No
DYesDNo
4. DId you receive any principal assets during the reVurl period which
were not included on the inventory or a prior report filed for the estate? DYes D No ^-;ft4-
tJo rpr\of i.,ii..ctovj 0'<" Y""'t...px--t ~~d.
If you answered YES, did you receive Court approval prior to receiving
additional principal? )t Yes D No
~ ~'<- ?"'~.J.- St-olU'1 ll..~ In~ ~ ~a.r<-f.
5. State the sources and amounts of the additional principal you received: ~
~ *-+
?r-\)?-. t ~o-rY) ~ 5a-~~
$
$
B. Income:
1. State sources and amounts of income received during the Report Period (i.e., social
security, pension, rents, etc.):
Sl'ia.\ ~~ $ I ~I 14.k:
7~ $ I .fl ;l5' 3_
rp~,~ $ d.., (p 0 -z... .
Total Income received during Report Period $ 30 100 ~
2. How is income currently invested? (Please specify, restricted bank accounts, client care
account, etc.)
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3. Specify what payments were made for the care and maintenance of the incapacitated
person (i.e., clothing, nursing home, medicine, support, etc.).
Ad
4. Specify what other payments were made during the Report Period.
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I verify that the foregoing information is correct to the best of my knowledge, information and
belief; and that this verification is subject to the penalties of 18 Pa. C.S.A. ~4904 relative to
unsworn falsification to authorities.
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~ture of Gu~dian
* FILING FEE $15 MUST ACCOMPANY TillS FILING.
Clerk of Orphans' Court of Cumberland County
INRE:
Lt
Docket No.
)-t -Ot./-Ot-/-{,1
ANNUAL REPORT OF GUARDIAN OF THE PERSON
I, l:? JI'trl. ?; ~ kJi I~ ~~ tGr" , was /were appointed
plenary guardian(s) of the person of Lt..IH1..t1I. f, /lit t t~j by Decree of the
Honorable Jndge ~. dated 30 ~ I 2coi:. T. hiS. is my annnal report fO. r
~he period from q -1- 0 4- to I ~~- /) S___ , ("The Report Period").
1.
Present age of the incapacitated person:
'16
Yrs.
2. Current address of the incapacitated person
2..o93a. SIAl 'All ~4 ~r
T lA. o..12o..J-. t1
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3. The incapacitated person's residence is:
D own home/apartment
D nursing home
D boarding home/personal care home
)( guardian's home/apartment
D hospital or medical facility
D relative's home
D other:
(Name and relationship)
(describe)
4.
The incapacitated person has been in the present residence since t..1 ~ ~ I 200'5'. If
the incapacitated person has moved within the past year, state change and reason(s) for
RK
change:
5.
h.,,^-, j M&vt Ious. 1&.2t'ce ~k \0 ~; ~ (,."';"'J.
_~r ~(,~ ~n. h.~ 0\.0"1\..., ~ 0 S'h<- no'-\.? ltV{s UJIK
cku- (~J'(l'J.fdj~) 0Jd ht5 ~ + hwx n\.VSi flj fun... ~..,
\ne-rnt Of- ~~~ C~\.ULrd;~,)
Name and address of the incapacitated perf(()n's primary care giver:
-BtU-i iL ~ a:Vlr ,CNtJ.: ( -I i ~.... ',,, V)~ \ ew-~ i \/Y ')
j(.oq?;\ SyJ \'<'oh~ ~r
T~
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6. The major medical or mental problems of the incapacitated person are as follows:
--A1:z..h<..~ ~'iX 1:!bv\.-uJi;<>-
~rQl~ 1~V1~ a\A<{ -to -h~c-
7.
Specify what, if any, social, medical, psychological and support services the incapacitated
8.
person IS recelvmg:
~.Ja.r?~"",W ~~'"" 10\-\t. ~~o~~
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l>N~ ~ ~ ~ c\a....01._h..rCj~~~l<.M-<d ~,
It is our opinion as guardian of the person that the guardianship should: (check one) ~
Acontinue, 0 be modified, 0 be terminated. (Briefly explain your response)
9.
av"erage visit lasting
During the past year, I have visited the incapacitated person
times with the
EVt
- ~<- l \" V{.S to y\
~.-
rs/minutes, etc)
I
..
The repOli of a social service organization employed by the guardian to oversee and coordinate
the care of the incapacitated person for the period covered by this report may be attached to
supplement this report.
1 verify that the foregoing information is correct to the best of my knowledge, information and
belief; and that this verification is subject to the penalties of 18 Pa. C.S.A. g4904 relative to
unsworn falsification to authorities.
_l2.- 1'~5
Date
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Si ure of~uardian
* FILING FEE $15 MUST ACCOMPANY THIS FILING.