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HomeMy WebLinkAbout02-22-10r KEEFER WOOD ALLEN & RAHAL, LLP Elyse E. Rogers, Esquire Identification No. 41274 Todd F. Truntz, Esquire Identification No. 83302 635 N. 12"' Street, Suite 400 Lemoyne, Pa 17043 (717)-612-5807 C7 _O -+~'. O `v ` ~ N ~~j~7 fV CJ ~~ _ . ~ ~:i m ,. ~~ L; ;~ ~ .7 cc°~ _,F~ ~; ~7 ~-.., t_' :;-'r .,~ r ~. ~y .~ IN RE: HARRY W. PREIS, an Alleged Incapacitated Person ~ --- .._ a N t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION No. ~~'~Q" ~ w PETITION FOR APPOINTMENT OF A PLENARY GUARDIAN OF THE ESTATE OF AN ALLEGED INCAPACITATED PERSON PURSUANT TO 20 Pa. C.S.A. X5511 et. seq. and to MODIFY REVOCABLE TRUST PURSUANT TO 20 Pa. C.S.A. 5536 NOW COMES, Petitioner, Nancy Reist Preis (the "Petitioner"), by and through her attorneys, Keefer Wood Allen & Rahal, LLP, and files the within Petition for the Appointment of a Plenary Guardian of the Estate of an Alleged Incapacitated Person and to Modify Revocable Trust, and in support thereof, avers as follows: 1. Harry W. Preis (hereafter "Mr. Preis") is an alleged incapacitated person whose legal residence is 480 North 25th Street, Camp Hill, Cumberland County, Pennsylvania, 17011. 2. Mr. Preis is 87 years of age, his date of birth being February 4, 1923. 3. Mr. Preis is the husband of the Petitioner and has no children. 4. The sole intestate heir and next of kin of Mr. Preis is Petitioner, Nancy Reist Preis, having an address of 480 North 25th Street, Camp Hill, Cumberland County, Pennsylvania, 17011. 5. Mr. Preis is currently domiciled in a residential care facility known as The Bridges at Bent Creek located at 2100 Bent Creek Boulevard, Mechanicsburg, Cumberland County, Pennsylvania, 17050, and is dependent upon a variety of caregivers employed thereby. 6. The primary care physician who is currently responsible for the medical care of Mr. Preis is: Kenneth B. Conner, MD 207 House Avenue, Suite 101 Camp Hill, PA 17011 (717) 761-8331 7. Mr. Preis is not presently a member of the Armed Services of the United States. 8. Mr. Preis' assets are currently being managed in an adequate manner by Petitioner and Hershey Trust Company pursuant to the provisions of a Revocable Agreement of Trust dated January 31, 2003, which Revocable Agreement of Trust has been amended by Amendments dated February 13, 2003, November 25, 2003 and August 31, 2005 (the "Revocable Trust"). Petitioner and Hershey Trust Company are presently acting as co-trustees of that Trust. In addition, Petitioner is acting as primary agent for Mr. Preis under a Durable General Power of Attorney -2- ~ r ~ b. Management of health insurance coverage; and c. As more fully set forth below, to permit the execution of a Fourth Amendment to Mr. Preis' Revocable Trust. 13. Petitioner, as proposed guardian, has the following qualifications: a. Petitioner is the wife of Mr. Preis; b. Petitioner has continued to devote herself to the care and well- being of her husband; c. Petitioner loves and cares for her husband; and d. The Petitioner has no interests adverse to Mr. Preis. 14. On February 18, 2010, the written "Deposition of Individual Qualified to Render Opinion as to Incapacitation" of Kenneth B. Conner, M.D. (the "Deposition") was obtained, wherein he expressed the professional opinion that the appointment of a guardian was necessary for the estate of Mr. Preis. The "Deposition of Individual Qualified to Render Opinion as to Incapacitation" of Kenneth B. Conner, M.D. is attached hereto and incorporated herein as "Exhibit A." 15. It is the professional opinion of Kenneth B. Conner, M.D. that the requirement of physical attendance of Mr. Preis at a hearing to determine his capacity would harm Mr. Preis, and that his severe mental and physical disability preclude his presence in court. 16. The gross value of Mr. Preis's Estate is in excess of $3,000,000. -4- ~, 17. The current income of Mr. Preis is more than sufficient to provide for all of his current and foreseeable future needs. 18. In the event that the Petitioner survives Mr. Preis, Article III of the Revocable Trust provides that any remaining principal be distributed to two trusts, "Trust A" and "Trust B." 19. Trust A is designed to shelter from federal estate tax the maximum amount possible by virtue of Mr. Preis' applicable credit amount. Upon Mr. Preis' death, Trust A is to be administered for the benefit of Petitioner. Upon the death of the survivor of Mr. Preis and Petitioner, Trust A is to continue to be administered for certain beneficiaries, with an ultimate distribution to specified charitable organizations. 23. Effective January 1, 2010, the Federal Estate Tax was repealed for the current year, and as a result, the Trust A funding formula provided in Article III(b) of the Revocable Trust will require all of the principal to be allocated to Trust B, with no principal distributions made to Trust A. As a result, Trust A will not be funded. All of Mr. Preis' assets would be allocated to Trust B. 24. A failure to distribute a portion of the principal of the Revocable Trust to Trust A would be contrary to Mr. Preis's estate planning objectives inasmuch as Trust A would remain unfunded. Upon the death of the survivor of Mr. Preis and -5- Petitioner, nothing would pass to the other specified remainder beneficiaries of Trust A. 25. Pursuant to Section 5536(b) of the Pennsylvania Estate and Fiduciaries Code (the "PEF Code"), 20 Pa.C.S.A. 5536(b), for good cause shown, the Court has the power to substitute its judgment for that of the incapacitated person with regard to his estate or affairs for the benefit of the incapacitated person, his family, members of his household, his friends and charities in which he is interested. 26. The power vested in the Court includes, but is not limited to, the power to "Modify, by means of codicil or trust amendment, as the case may be, the terms of the incapacitated person's will or of any revocable trust created by the incapacitated person, as the court may deem advisable in light of changes in applicable tax laws" (20 Pa.C.S.A. § 5536(b)(11)). 27. To ensure Mr. Preis's testamentary intent, Petitioner, as the proposed legal guardian of Mr. Preis, desires to amend the Revocable Trust by way of a Fourth Amendment to Revocable Agreement of Trust that would include a revised Article III that incorporates language for the funding of Trust A in the event that there is no Federal Estate Tax applicable to Mr. Preis's estate. A true and correct copy of the proposed Fourth Amendment to Revocable Agreement of Trust is attached hereto and incorporated herein as Exhibit "B." -6- VERIFICATION The undersigned, Nancy Reist Preis, hereby verifies and states that the facts set forth in the foregoing Peition are true and correct to the best of her knowledge, information and belief. Furthermore, the undersigned understands that false statements are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn verification to authorities. Dated: , 2010 ~C~-r~ ~~+~~1~ ~ S Nancy Reist Preis FFA-19-701(1 FRi (11:71 PM Cnnnar Rich AsGnciaf,as 0Z-12-2010 17:OT ~ ,FROI~FI4:EFER~N'UUD~ALLEN~RANAL FAX N0. 7177815037 1170125806 T-7EZ ~ P.004,. F-111 DEPOSITION OF TNT)TV[T)UAL QUALIFIED TO KENDER OPINION AS TO INCAPACITATION This written,, deposition of Kenta,oth B. Conner, MD, a witness in this matter, is taken on th.e l~r day of ~~S kn~~ a u[~~ at Ci/~.M/I /~-._/l ,Pennsylvania. 1. Please state your name and your professional'adclress. Kenneth B. Conner,ltdD X07 House Avenue, Suite 101 Camp Ilill, PA ],7011 (717) 761-831 2. Please dPGrnrihe your education, training' and background a-ith particular emphaeie oa your oxpcrCise in evaluation of individuals with incapa~•rtips OR attach to this written deposition/your a/urrieudum vitae. - i a i _ -T-.-iL / ! -_ 3. Tn your professional capacity, have you. had the opportunity i.o meet ~cvitll, examine, speak witl- or otherurigP herxmo aequaiilted v-*i'tl'~ Harry VV. Preis? (Yes o (c_u•c1c3) If yes, please state the following: I first Uecame acquainted with Harry W. Preis oa ~~..,~ !~/A~./~. /9 3 when he was brought to my attention by I have since (visited, spoken with, examined or treated) him on ~. (circle applicable contracts) other occasions with an average $equency of 3-Y times per (da9/wee xnonth/year). P. 04 Pagelof8 FEB-19-2010 FRI 01 22 PM Conner Rich Associates FAX N0. 7177615032 02-12-2010 1707 'PROM-REEFER,WOOD,ALLBN_`_RAHAL 7176125805 T-722 P~OgS/011 F-111 4. Please evaluate the present condition of this patient with respect to inrapacitzes of the type alleged in the Petition for 1ldjudication of Incapacity. In p,~~z~ticular, please comment on the natu~:e and extent of the alleged inrapacities and disabilities and also, insofar as you are ablo, lxis/her m.cutal, emotional and physical condition, adaptive behavior, and social skills. Based upon my edueatioa, training and experience, as well as my acc~uaintanco with this patient, it is my opinioa, to a reasonable degree of medical certainty, that his incapacities are as follows: Mental condition: Emotional condition: 0 (Continued.) P. 05 Pale 2 of 8 FEB-19-2010 FRI 01;22 PM Conner Rich Associates OZ-1Z-2010 17;08 ~FR01~-KEEFER,WOOD,ALl6N.,~.RAH~L Adaptive behavior:,,~ ~ ~ FAX N0. 7177615032 TiTeltBeOB T-7tZ P.op¢/011 F-111 Social skills: ~ v 5, Based upon your education, training and e~-perio~-ee, and your contacts wit h this patient, do you have an opinion, to a reasonable de;xec of medical certainty, whether he is impaired in her ability to oi'!'octively receive and evaluate iri.~lrmation and to make and communicate decisions in any way? ~Na (circle) If yes, please explain your opinion. ^ •,~ (Continued.) Page 3 of 8 P. 06 FFR-19-x010 FRi 01;~~ PM 0onnar Rich Aseaciaf,as FAX N0. 7177R1503~ P, 07 02-1Z-2010 ,11:08 ~FROIA•NEEFER,WODD,ALLEN_LRAHAL T1151Z5805 T-182 , P.0071011 F-111 6, If you are of the opinion that he is impeired in his ability to effectively receive and evaluate i.>lformdtiau a.ud to make aid comniunicata decisions in any wa,y, does such impairment render hitri eiL'her pxrLially or totally unable to manage hialhor financial resources? eE/ o (circle) Tf yes, chec]~1~}}ether such impairment renders him: .~ p p unable to manage hi.s ow~a finances. _.._ Totally unable to trianage his awn fines~-~ please escplain your minion: 7. Tf you are o;f tLe opinion that lsa is impaired in his ability to effectively receive and Evaluate information and mzike and commuaiest~able to meet theWay does such impairment render him either partially or totally eseential requirements fox his physical health and sai0ty? YeslNo (circle) '" If yes, check ovhetber such impairment renders him Pdrti unable to meet essential requirements for hie physical and safety. ~_ Totally unable to meet essential requirements for his physical health at~d ae~oty. (Continued.) Forge 4 o f 8 FEB-19-2010 FRI 01;22 PM Conner Rich Associates FAX N0, 7177615032 P, 08 02-12-2010 17:08 FROM-IfBEFER~W00D~ALLEN~i_RAHAL 7176126806 T-72Z P,D08/011 `F^111 S. Please provide e.n assessm,ent of the severity of az'~y impairments of thi,~ patient: Impairment (Circle one) a) ~,~,,~ ~ mild moderate evore b) /J ._ / ~~~ _ _ mild moderate ever e) nxild moderate severe d) z~~ild moderate severe e) mild moderato severe fl g) h) n~.ild ynodexate severe mild moderate severe mild moderate severe g. Is the condition of this patient such that because of his condition, he would be susceptible to undue influence by unscxupvlous or designing persons? Jys~gVo (circle) (Coatinued.) Paee5af$ ~~~9 C6 e,mlain vM]r ot7lni.on. FEB-19-2010 FRI 01;22 PM Conner Rich Associates FAX N0, 7177615032 DZ-12-2010 17:09 FROtrI-I~EEFER~W0o0,ALLEN_f_RAHAL 717612fiB05 T-7T2 P.00~1D11 ~F-111 10, What servi.crs or assi,:3~.ance would you recommend as neeessax'y to meting the h~~ alth azld safety needs of this patient? 11. Are the services or assistance recommended the least restrictive alternatives? Does the patient need the seiwices of the guardian to make decisions regarding the patient's healthcare, safety and financial xesovtrces? Xn other words, coL~ld the patielat evaluate, communicate and make decisions regarding his health tres.tment, safety and financial resources in important matters without th.e guy ~rdian? Yes/ o (circle) If not, pleaso explain why less resttdctive alternatives are inappropriate: P, 09 I~c~,~e 6 of 8 If so, what services or assistance would you recommend as ndcessary to ap~~ropriate management of this patient's finances? FEB-19-2010 FRI 01;22 PM Conner Rich Associates FAX N0. 7177615032 P. 10 02-12-2010 1T~0E ,FRD~I-KEEFER,WOOD,ALLEM_.i_RAHAL T1T6126605 T-T21 P•014~011 F'lll 12. Based upon your education, training, e;zperience and familiarity with this patient, what is youz opinion as to the likelihood that the degree of incapaeication will. significantly change? .. 13. Would the physical m~ mrtltal condition of this patient be haa-u ~d by hislher presence in open court? NOTE: Pennsylvania law, 20 Pa.C.S. §5511(a)(1), requires that the alleged incapacitated person be present at the hearing unless a physician or licensed psychologist provides by deposition, testimony or sworn `" ptatement, an opinion that hislher physical ar mental condition would be harmed by hislher presence in Court. Y'es/ o (circlo) Ir yes, please explain: ~ ~ , ~ Pa~e7of8 02-12-2010 17:08 FROIA-REEFER,WOOD,ALLEN_~RAHAL ~ r 7176125805 T-721 P.011/011 F-111 .. r VERIFICATION I, Kenneth B. Conner, MD, verify that the statements made in the foregoing deposition are true and correct to the best of my knowledge, information and belief. I understand that the statements herein are subject to the penalties of 18 Pa.C.S. §4f~04 relating to unsworn falsification to authorities. Signature of Deponent Dated: ~ -~~--!© • Page 8 of S FEB-19-2010 FRI 01;22 PM Conner Rich Associates FAX N0, 7177615032 P, 12 . - .. ar ~ . $~8e 1f0~iol dO1P, I.{.P ~~~~ _ ~~~~ C'rlplfi~PA 17DL1 lhlmI17-7611431 • ~'IIII~I ~. ~eT~ ~D. ~ ~ :.:~-~- ,: .:.r.::~y.:::::i~~. 6Yfi~hill - ~~ ~ ; •;;, 1960 -1964 i]N~oi Co1Me6e f7dieg~llq PA 1964--1968 AAlrm~a~e~cal Coiie~e PA .,,~ ~~•~---:••: ~ 1961-1973 ib~pild 1~gPA Yt:tdlite~idne ,~~~ Piss~cle~inlth 19'f3-Pint Adige ~mt6.PA AolySpaitHoprul 1973-Pmt Adl+rt CympHrA,PA 11eta1L6orIh'l~dtlon 1999-Prat Aire 1~feritdcd~PA pis:-''1 i•~!(. ..Yrk:!~.:,i 54~-~. A~l~~~i~ 1973 • 1~T1dOlti 8at1d dstediwl ~ 1969 }Y~. 1 } 4` ,,;.: ,~*~~'s~.,~`"~-a> 1973-Piae~t ~ ~~ PA `; ~`~,• 4 : ~;,.'`";4*~...,,•`~ Auetic~nlde~CRlA~ooirflou ,ti : :;: /y~ J FEB-19_2010 FRI 01;22 PM Conner Rich Associates FAX N0. 7.177615032 P. 13 -- Name: Date of $ath: Address: eu~xrcviuM vrr~ >~ Connor, M.D. March 13, 1942 ; U.S. aiti~en Z071vlouae Avenue Camp IyII, PA 170ll .. Phoue: ('117) 761-8331 O>lioe Fax: 761-5032 428 Caadlewyck Road 1'bone: {717) 737-5480 Camp I4'ill,1'A 17011 spouse: $uaaa 7. Coaxer Chi1drea: 9 Education: Ursimts College, Collogevilley PA B.S. Chan 1964 r3aht~enoson Medical e Pla7addphia, PA M.D.1968 ' Post Graduate Jatsrnal Medcme Tntmiag•. Harrisburg HospMl, I~g., PA It~erasWp -L468-69; R~~sideacy 1971-T3 Hospital AtEtiiatians: Hsrri~bwg Hospltel, Y3bg., PA ~ Spiriit Aoapital, Camp I~iq PA AealdiSa~th , Mecbasrabmg PA Assoc. Prof. of Mal, College ofMedicina Pam State's 1N.S. Herstxy Mod. Center, H~erslmy, PA CatiScatiou: Nat Boszd of Mediad Examitaxs - July 1969 American Board of Internal Modicum - June 1973 Y.icensure: State of Permsylvaaia ~ June 1964 AIp6a Omega Alpha; National Society; Amcxicm Modicall Aasodation; Da~tphia Coumy Medical Society Board Member, Delegate Pennsylvania State Meal 5nciety for Dauphin county 1996 to preamt ; American Collese of Physicians; American xeart Asaodation; Rotary Club_ Military service: captain, U.S. Anuy Medical corps ;, tlev. 2 /97 ~~®~2~1~][eIE A~~sIE~]E]El~l[1E1~'][° ®]F ']["lE$~7~'][` HARRY W. PREIS REVOCABLE TRUST FOURTH AMENDMENT made this day of 20 , by NANCY REIST PREIS, Guardian of the Estate of HARRY W. PREIS, as Grantor, and NANCY REIST PREIS, Individually as Trustee and Guardian of the Estate of HARRY W. PREIS, to Revocable Agreement of Trust of Harry W. Preis dated January 31, 2003. WITNESSETH: WHEREAS, Grantor established a Revocable Agreement of Trust ("Trust Agreement") dated January 31, 2003; and WHEREAS, ARTICLE XV of the Trust Agreement reserves the right to Grantor to amend the Trust Agreement; and WHEREAS, Grantor made an Amendment to Revocable Agreement of Trust by Amendment dated February 13, 2003; and WHEREAS, Grantor made a second Amendment to Revocable Agreement of Trust by Second Amendment dated November 25, 2003; and WHEREAS, Grantor made a third Amendment to Revocable Agreement of Trust by Third Amendment dated August 31, 2005; and WHEREAS, NANCY REIST PREIS as Guardian of the Estate of HARRY W. PREIS desires to amend the Trust Agreement. ~ ~ ~ 4 ~~ NOW, THEREFORE, intending to be legally bound hereby, Grantor amends the Trust Agreement as follows: 1. ARTICLE III (b): (b) Trustee thereafter shall, if Grantor predeceases Grantor's wife, NANCY REIST PREIS, divide the remaining Trust Property, proceeds from or on account of insurance policies, and any other assets payable to Trustee (collectively the "principal") into two (2) parts, each of which shall be held in trust and constitute a separate Trust Fund, to be known as "Trust A" and "Trust B": "Trust A": There shall be placed in "Trust A" that fraction of the total principal of which the numerator shall be a sum equal to the largest amount that can pass free of Federal estate tax by reason of the applicable credit amount and the state death tax credit (provided that the use of this credit does not require an increase in state death taxes) allowable to Grantor's estate but no other credit and after taking account of property passing outside of this Agreement of Trust which does not qualify for the marital or charitable deduction and after taking account of charges to principal that are not allowed as deductions in computing Grantor's Federal estate tax, and of which the denominator shall be the value of the total principal. For purposes of establishing this fraction, the values finally fixed in the Federal estate tax proceeding relating to Grantor's estate shall be used. Grantor recognizes that the numerator of the fraction may be zero (0), in which case no property shall pass to "Trust A" and that the numerator may be affected by the action of the Executor of Grantor's estate in exercising certain tax elections. If at the time of Grantor's death, the Federal Estate Tax does not exist or does not apply to Grantor's estate, 2 .. the language in this Agreement shall be interpreted as if Grantor had died in 2009. "Trust B": The balance of the principal not placed in "Trust A" shall be placed in "Trust B". 2. In all other respects, Grantor and Trustee hereby confirm and ratify the Harry W. Preis Revocable Agreement of Trust, as previously amended by Grantor. IN WITNESS WHEREOF, Grantor and Trustees have set their hands and seals this day of , 20 GRANTOR: Witness Witness (SEAL) NANCY REIST PREIS, Guardian Estate of HARRY W. PREIS TRUSTEES: (SEAL) NANCY REIST PREIS, Guardian Estate of HARRY W. PREIS Witness NANCY REIST PREIS (SEAL) 3 • a ~ COMMONWEALTH OF PENNSYLVANIA COUNTY OF SS: . ~ .• ~ On this, the day of , 20 ,before me, a Notary Public, the undersigned officer, personally appeared NANCY REIST PREIS, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that she executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my notarial seal. Notary Public My Commission Expires: (SEAL)