Loading...
HomeMy WebLinkAbout02-0293 In Re: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DAVID L. HOCKENBERRY, : ORPHANS COURT DIVISION an Alleged Incapacitated Person ~ NO. 02- ~q }eivil Term PETITION FOR ADJUDICATIOK>F INCAPACITY AND ApPOINTMENT OF PLENARYGUARDIAK>F THE ESTATE AND PERSON IN ACCORDANCDVITH 20 PA. CONS. STA'f. ~ 5511 TO THE HONORABLE, THE JUDGES OF THE SAID COURT: 1. Petitioners are Myrl I. Hockenberry and Vada B. Hockenberry, husband and wife, adult individuals, the natural father and mother of David L. Hockenberry. 2. David L. Hockenberry was born on May 3, 1957, is 44 years of age and is unmarried. His legal domicile is at 1 Strawberry Drive, Carlisle, (South Middleton Township, Cumberland County), Pennsylvania. He currently resides and has been a resident of the Ebensburg Center, Ebensburg, Pennsylvania for the past 39 years. (If the alleged incapacitated person resides in a nursing home or other residential facility not located in the incapacitated person's county of domicile, advise the court how long he has resided there and also state the name of his county of domicile. Remember courts in both the county of domicile and the county of residence have jurisdiction to hear the matter). 3. The following persons are the alleged incapacitated person's only living next-of-kin: NAME ADDRESS RELATIONSIDP Myrl I. Hockenberry I Strawberry Dr., Carlisle, PA Father Vada B. Hockenberry 1 Strawberry Dr., Carlisle, PA Mother 4. To the extent known by petitioner, the assets of the alleged incapacitated person are valued at approximately $250.00, comprising the following: an account held by the Ebensburg Center used for personal incidental expenses. 5. Petitioner estimates the alleged incapacitated person's annual income to be $360.00, consisting of Supplemental Security Income Benefits of $30.00 monthly. 6. The alleged incapacitated person was not a member of the armed services of the United States and is not receiving benefits from the United States Veteran's Administration. 7. The alleged incapacitated person suffers from 8. Because of his mental condition, the alleged incapacitated person is totally unable to manage or even appreciate the significance of his financial affairs, property and business and to make and communicate any decisions relating thereto, including the ability to communicate his need for assistance in these areas. 9. Because of his impaired mental condition, the alleged incapacitated person lacks the capacity to make or communicate any responsible decisions concerning his person and is unable to even attend to his personal hygiene or to keep himself properly nourished and hydrated or communicate to others his need for assistance in these areas. 10. Because of the severity of his mental impairment, the assistance of other persons or services would not enable the alleged incapacitated person to even participate in the making of any decisions concerning his estate or person. II. The severity of the alleged incapacitated person's mental condition mandates that a plenary guardian of his estate be appointed to manage and handle all aspects of the alleged incapacitated person's estate, specifically including, but not limited to: all issues relating to his cash, checks, and any bank or savings accounts held in his name, his stocks and bonds, his personal personal property, his real estate, any insurance of any kind, of which he is a beneficiary, any governmental and non-governmental benefit plans to which he is entitled, federal, state and local taxes, any claims made or to be made on behalf of him or against him, and the execution of documents, entry into contracts and payment of reasonable compensation or costs to provide services for him. 12. The severity of the alleged incapacitated person's mental condition mandates that a plenary guardian of his person be appointed to handle all issues relating to the person of the alleged incapacitated person, specifically including, but not limited to: his living arrangements, his medical and psychiatric care, the administration of medication to him, and the employment and discharge of physicians, psychiatrists, dentists, nurses, therapists and other professionals for his physical and mental care. 13. Petitioner is not aware that the alleged incapacitated person signed any powers of attorney or advance health care directives or in any other way designated anyone to serve as his agent over any of his personal or financial affairs or as his surrogate over his medical care, or that he designated in writing his wishes with regard to health care, including the use or refusal of life- sustaining treatment. 14. The proposed plenary guardians of the person and estate of the alleged incapacitated person are Myrl I. Hockenberry and Vada B. Hockenberry, father and mother of the alleged incapacitated person, who reside at I Strawberry Dr., Carlisle, Pennsylvania, whose consent to serve as plenary guardian of the person is attached hereto. 15. The occupation of the proposed guardians of the person is that of retired. 16. The proposed guardians have no interest adverse to the alleged incapacitated person. In fact, they have assumed many of the responsibilities of guardians of the person and estate for many years. 17. No other court has ever assumed jurisdiction in any proceeding to determine the capacity of the alleged incapacitated person. 18. No other guardian has been appointed for the estate or person of the alleged incapacitated person. WHEREFORE, petitioner respectfully requests that this court award a citation directed to David L. Hockenberry, the alleged incapacitated person, with notice thereof to be given to the alleged incapacitated person in conformity with 20 Pa. Cons. Stat. ~ 5511, and to such other persons as this court may direct, to show cause why should not be adjudged a totally incapacitated person, and Myrl I. Hockenberry and Vada B. Hockenberry appointed plenary guardians of his person and of his estate. Respectfully submitted, Frey & Tiley, Attorneys for Petitioner By: ~-~. Robert G. Frey, Esquire Supreme Court Number 46397 5 South Hanover Street Carlisle, Pennsylvania 17013 (717) 243-5838 I verify that the statements made herein are true and correct and understand that false statements herein are made subject to the penalties of 18 Pa. C. S. A. ~ 4904 relating to unsworn falsification to authorities. Dated: January 29, 2002 rnu~~ ~ y ockenberry ! t~M~da-~ Vada B. Hockenberry CONSENT OF GUARDIAN OF THE ESTATE AND PERSON I, Vada B. Hockenberry, hereby consent to act as the Guardian of the Estate and Person of David L. Hockenberry I reside at 1 Strawberry Drive, Carlisle (South Middleton Township, Pennsylvania 17013, and am retired. I am a citizen of the United States of America and can speak, read and write the English language. I have no interest adverse to David L. Hockenberry, the alleged incapacitated person. UdJ~~ Vada B. Hockenberry CONSENT OF GUARDIAN OF THE ESTATE AND PERSON I, Myrl I. Hockenberry, hereby consent to act as the Guardian of the Estate and Person of David L. Hockenberry I reside at 1 Strawberry Drive, Carlisle (South Middleton Township, Pennsylvania 17013, and am retired. I am a citizen of the United States of America and can speak, read and write the English language. I have no interest adverse to David L. Hockenberry, the alleged incapacitated person. rur :l/j~()w, I I. Hockenberry \ R."- I ~\0;.,.. p . . ',ii) ~J7 -~',. r 02 1,;,,\ ~,- '. ~ , " z ~ c OQ~ C ~ ~zz ~ ~ ~<< ~ ~ m ~ o ~ > = "Cl S: Q) C') 1.0 U~~ ~ Z ~~~~M -....... ~ ~ W...J 0"", r~, ~ i""'" .. ~.... 0 ....J t-!- .... "" C\l - 00. I ~ .......... _ <( Q) ~ o ZN ~ U ~ ~ r-chi:i<(r::' E-t~Z~ ~ 0 Q, ~ ~>-c:a.:r::: ~u~~ = ~ a E:: ~~~ai""" ~~~~ ~ ~ c ~ W~~~~ OO~ .i :; ~ a:~:;~,g Ur~E-t ~ ~ ~~~O~ ~~- ~ Q) ~<~ "t:S ~ 1.0 Qj ::tl ~ ~ .~ = F E-t~O ~ < z~u ~ c ~ ~ < ~ In Re: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID L. HOCKENBERRY, ORPHANS COURT DIVISION an Alleged Incapacitated Person NO. 21 - 02- 9sQ?rcivil Term PRELIMINARY DECREE ;/1f- ';;ttiuft/ ,2002, upon consideration of the annexed petition, it AND NOW, this. 5 day of is hereby ORDERED and DECREED that a citation is awarded directly to David L. Hockenberry, to show cause why he should not be adjudged a totally incapacitated person and a plenary guardian of his person and estate appointed; the hearing therein to be held in Court Room No. J , Cumberland Countr Courthouse, 1 Courthouse Square, Carlisle, Pennsylvania, on ,/J-~ ~d- ,2002 at C; ,'3J o'clock ~ '.M. At least twenty days' notice of the hearing shall be given to David L. Hockenberry, the alleged incapacitated person, by personal service of the citation, a copy of the petition and written notice in conformity with 20 Pa. Cons. Stat. ~ 5511 and by service of notice upon any persons not a party to the Petition who would be the alleged incapacitated person's intestate heirs and to the Director of the Ebensburg Center, Ebensburg, Pennsylvania, where the alleged incapacitated person resides, personally or by registered mail. . J. ~ 3 ". ':)., -0 ;;) - IN RE: DAVID L HOCKENBERRY : IN THE COURT OF COMMON PLEAS OF AN ALLEGED INCAPACITATED PERSON : CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-02-293 IMPORT ANT NOTICE CITATION WITH NOTICE A petition has been filed with the Court to have you declared an Incapacitated Person. Ifthe Court finds you to be an Incapacitated Person, your rights will be affected, including our right to manage money and property and to make decisions. A copy of the petition which has been filed by MYRL I HOCKENBERRY AND V ADA B HOCKENBERRY is attached. You are hereby ordered to appear at a hearing to be held in Court Room No. }, Cumberland County Courthouse, Carlisle, Pennsylvania, on APRIL 22 , 2002, at 9:30 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 gift of your money to other property. If the court finds that you are partially incapacitated, your legal rights will also be limited as directed by the Court. If you do not appear at the hearing (either in person or by an attorney representing you) the court will still hold the hearing in your absence and may appoint the Guardian requested. By: /' :.u_.J ~~;/I Cl ,0 urt Division Cumberland County, Carlisle, P A My Commission Expires I st Monday, January, 2006 ,.._._.~ .~ " - ~~- __~_o.=,.~->,_._...._..~..,,,,",_~~ . ~ ~ ...,." In Re: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DA VID L. HOCKENBERRY, ORPHANS COURT DIVISION an Alleged Incapacitated Person NO. 21 - 02-293 Civil Term AND NOW, tltisvJ!:~:::::~O:i::::e -exed ~tition, it is hereby ORDERED and DECREED that a citation is awarded directly to David L. Hockenberry, to show cause why he should not be adjudged a totally incapacitated person and a plenary guardian of his person and estate appointed; the hearing therein to be held in Court Room No.2, Cumberland County Courthouse, 1 Courthouse Square, Carlisle, Pennsylvania, on June 10,2002 at 1:30 o'clock P.M. At least twenty days' notice of the hearing shall be given to David L. Hockenberry, the alleged incapacitated person, by personal service of the citation, a copy of the petition and written notice in conformity with 20 Pa. Cons. Stat. ~ 5511 and by service of notice upon any persons not a party to the Petition who would be the alleged incapacitated person's intestate heirs and to the Director of the Ebensburg Center, Ebensburg, Pennsylvania, where the alleged incapacitated person resides, personally or by registered mail. (V") IF,'! P.J. .-- ,. _....;~ ("'.J N :;;:= ~ ~ ) .' "':!'''' -~ n - i ~.-."-' --,..--_.._...._._..-......-..-~ ~." < . -, '. .' .~~ , , In Re: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DA VID L. HOCKENBERRY, ORPHANS COURT DIVISION an Alleged Incapacitated Person NO. 21 - 02-293 Civil Term AND NOW, iliSvJ!:~:::~:~O:i:~ti:::e mmexed ~tition, it is hereby ORDERED and DECREED that a citation is awarded directly to David L. Hockenberry, to show cause why he should not be adjudged a totally incapacitated person and a plenary guardian of his person and estate appointed; the hearing therein to be held in Court Room No.2, Cumberland County Courthouse, 1 Courthouse Square, Carlisle, Pennsylvania, on June 10,2002 at 1:30 o'clock P.M. At least twenty days' notice of the hearing shall be given to David L. Hockenberry, the alleged incapacitated person, by personal service of the citation, a copy of the petition and written notice in conformity with 20 Pa. Cons. Stat. ~ 5511 and by service of notice upon any persons not a party to the Petition who would be the alleged incapacitated person's intestate heirs and to the Director of the Ebensburg Center, Ebensburg, Pennsylvania, where the alleged incapacitated person resides, personally or by registered mail. (V') Lf-'! K_.__ . P.J. - -. ("-,J N ~= r' er- N p J ~' ...: I' '- -' --...- z ~ I o~~ ~ ~ ~ ~<< ~. U m ~ ~> · ~ Q)C')I.O UO~~l") .-, ~ ~~~~M ~ ~ ~ ~ W...J 0"", r~, ~ N .. ~. "'-' ....J t-!- .... "" C\l .... 00, ~~,."., ~ _<(Q)~ o ZN ~ ~~ ~ r-chi:i<(r::' I:......~Zc:r ~ ~Z ~ ~>-c:a.:r::: I:""" r~' ~ "-... ~ ......... W III _...... ~U6:N = iI"""'"~ ~ '7. ~~J:"*Q) ~~. ~ ~ ~ ~ W 0 ~ = c: 00"'0 ~ ~ a:1-'5....0 Uoo.~Z ~U 1l ~ ~~~8g. ~<Z 0'; ~ 1.0 ~ ~~5 == < ~ z~u ; ~ ~ I I I I I - IN RE: DAVID L. HOCKENBERRY : IN THE COURT OF COMMON PLEAS OF AN ALLEGED INCAPACITATED PERSON : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : NO. 21-2002-0293 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 our right to manage money and property and to make decisions. A copy of the petition which has been filed by MYRL I. HOCKENBERRY AND V ADA B. HOCKENBERRY is attached. You are hereby ordered to appear at a hearing to be held in Court Room No. ~, Cumberland County Courthouse, Carlisle, Pennsylvania, on JUNE 10 , 2002, at 1 :30 .eM. 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 ajury 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 gift of your money to other property. If the court finds that you are partially incapacitated, your legal rights will also be limited as directed by the Court. If you do not appear at the hearing (either in person or by an attorney representing you) the court will still hold the hearing in your absence and may appoint the Guardian requested. By: ~tr Cler , 0 hans' Court DiVIsion Cumberland County, Carlisle, P A My Commission Expires 1 st Monday, January, 2006 In Re: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DA VID L. HOCKENBERRY, ORPHANS COURT DIVISION an Alleged Incapacitated Person NO. 21 - 02-293 Civil Term ~ELIMINARY DECREE AND NOW, this '>l day O~OO2' upon consideration of the aonexed petition, it is hereby ORDERED and DECREED that a c n is awarded directly to David L. Hockenberry, to show cause why he should not be adjudged a totally incapacitated person and a plenary guardian of his person and estate appointed; the hearing therein to be held in Court Room No.2, Cumberland County Courthouse, I Courthouse Square, Carlisle, Pennsylvania, on July 3, 2002 at 3:30 o'clock P.M. At least twenty days' notice of the hearing shall be given to David L. Hockenberry, the alleged incapacitated person, by personal service of the citation, a copy of the petition and written notice in conformity with 20 Pa. Cons. Stat. ~ 5511 and by service of notice upon any persons not a party to the Petition who would be the alleged incapacitated person's intestate heirs and to the Director of the Ebensburg Center, Ebensburg, Pennsylvania, where the alleged incapacitated person resides, personally or by registered mail. P.l. i"'___ ..-.... '-J C'\ ,.'] I ..:3 'J .~'.J '... P -- ~ r . '~ IN RE: DAVID L. HOCKENBERRY IN THE COURT OF COMMON PLEAS OF AN ALLEGED INCAPACITATED PERSON : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : NO. 21-2002-0293 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 our right to manage money and property and to make decisions. A copy of the petition which has been filed by MYRL 1. HOCKENBERRY AND V ADA B. HOCKENBERRY is attached. You are hereby ordered to appear at a hearing to be held in Court Room No. ,2, Cumberland County Courthouse, Carlisle, Pennsylvania, on JULY 3 ,2002, at 3:30 E.M. 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 gift of your money to other property. If the court finds that you are partially incapacitated, your legal rights will also be limited as directed by the Court. If you do not appear at the hearing (either in person or by an attorney representing you) the court will still hold the hearing in your absence and may appoint the Guardian requested. By: (I tv-- Clerk, 0 hans' Court DivIsion Cumberland County, Carlisle, P A My Commission Expires 15t Monday, January, 2006 - ~ - In Re: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID L. HOCKENBERRY, ORPHANS COURT DIVISION aC(2) an Alleged Incapacitated Person NO. 21 - 02- Gi.lzil Term ANNUAL REPORT OF GUARDIAN OFTIIE PERSON Myrl1. Hockenberry and Vada B. Hockenberry, Plenary Guardian of the person of David L. Hockenberry by virtue of a Decree dated July 3,2002, does hereby file its annual report as follows: I. Present age of the incapacitated person: ~ 1years. Date of Birth: May 3, 1957. 2. Living arrangements. a. Current address of the incapacitated person: Ebensburg Center Ebensburg, P A 19030 b. The incapacitated person's residence is: _ own home/apartment c ,- nursing home I',' - ~ _ boarding home/personal care home , .~- _ guardian's home/apartment X hospital or medical facility - relative's home: (name and relationship) - other: (describe) c. The incapacitated person has been in the present residence since 1962. If the incapacitated person has moved within the past year, state change and reason(s) for change: N/A Page 1 of3 ~~ . . . $79.34 (2) The principal is currently invested as follows: An account for David's personal needs at Ebensburg Center where he resides. (3) Have there been any expenditures from principal during the Report Period? NO If you answered Yes, was there court approval for all expenditures from principal? NO (4) Did you receive any principal assets during the Report Period, which were not included on the Petition, or a prior Report filed for the estate? NO If you answered YES: (a) Did you receive court approval prior to receiving additional principal? NO (b) State the sources and amounts of the additional principal you received: $-a- to- B. Income: (I) The sources and amounts of income received during the Report Period are as follows: S8I $360.00 $ $ Total Income Received During Report Period $360.00 Page 2 of3 ." (2) Income is currently invested as follows: All income is currently spent on David's medical and personal care. C. Payments were made for the care and maintenance of the incapacitated person as follows: Blue Cross/Blue Shield and SSI Medical care at institution where David resides. D. Payments not included in Paragraph "C" above were made as follows: N/A I verify that the foregoing information is correct to the best of my knowledge, information and belief; and that verification is subject to the penalties of 18 Pa. Cons. Stat ~ 4904 relative to unsworn falsification to authorities. Date: ~j?;01 t- / (Sign \Y\ ~ 9-(1',7 (Name of Guardian) ~e or print) I :;~t:<. UJ KJ ..12- tr Cr- Y 1/) ,- (Sffeet Atdrj} / (JaJ-, t $. ~.~ leA...., / 7 tf( '5 (City, state, zip c!ode) r " ~, ~-~.-- Yc?Q7 (Telephone number) Page 3 of 3 ~ ( loRe: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID L. HOCKENBERRY, ORPHANS COURT DIVISION an Alleged Incapacitated Person NO. 21 - 02- 2- fs Civil Term ~ FINAL DECREE AND NOW, thiS' day of July, 2002, upon consideration of the annexed petition and after hearing held following due notice, it is hereby ORDERED and DECREED that, based upon a finding that DAVID L. HOCKENBERRY suffers from profound mental retardation and as a result is so severely mentally impaired that he is unable to make, communicate or even participate in any decision relating to his estate or person, DAVID L. HOCKENBERRY is adjudged totally incapacitated. Myrll. Hockenberry and Vada B. Hockenberry are appointed joint plenary guardians of the person of DAVID L. HOCKENBERRY. Myrll. Hockenberry and Vada B. Hockenberry are appointed joint plenary guardians of the estate of DAVID L. HOCKENBERRY. The respective guardians shall file with this court a report within 12 months from the date of this decree and at least annually thereafter which (a) in the case of the guardian of the estate attests to: (i) current principal and how it is invested; (ii) current income; (iii) expenditures of principal and income since the last report; and (iv) the needs of DAVID L. HOCKENBERRY, the incapacitated person, for which the guardian has provided since the last report, andFor (b) in the case of the guardian of the person attests to: (i) current address and type of placement of DAVID L. HOCKENBERRY, the incapacitated person; (ii) major medical or mental problems of DAVID L. HOC~NBERRY, the incapacitated person; (iii) a brief description of the living arrangements of DAVID L. HOCKENBERRY, the incapacitated person, and the social, medical, psychological and other support services he is receiving; (iv) the opinion of Guardians of the Person as to whether the guardianship should continue or be terminated or modified, and the reasons therefore; and (v) the number and length of times the Guardians of the person visited the incapacitated person in the past year. p.J. -~ P, '! '1'\ ~ Z Z ~c OQ~O ~~ ~Z~~ -. ~j~~ ~~ Ou~~~ ~~ ~ - ~ ~"-'~~.... ~ Q) to ~~i"""'E-tN uS N ~S:~C')~ O~OO~~ O~ 0 w:500~~ E-t~~~~::tl~ ~ =~~~C\l ~U~O~,jg. ~ r-chi:i<(r::' ~~~UO ~ ~ ~~~~r::: OO~~Z S~ < ~~~~; Uoo.E-tZ >~ ~ wo~~c: ~~~~~! ~ ~~~~! E-t~0~ u< 1.0 Q) ~~U~ ~= ~ Z= ~ [ In Re: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DA VID L. HOCKENBERRY, ORPHANS COURT DIVISION an Alleged Incapacitated Person NO. 21 - 02- Civil Term AFFIDA VIT OF SERVICE AND NOW, this July 3, 2002, I, Robert G. Frey, Attorney for Myrl I. Hockenberry and V Ada B. Hockenberry, Petitioners in the above-captioned matter, hereby swear that I have served a true certified copy of the Petition, with Citation, in the above-captioned matter upon the Ebensburg Center,by depositing same in the United States Mail on April 3, 2002, postage prepaid, to P. O. Box 600, Ebensburg, PA 15931 ~--d ,.. R bert G. Frey Attorney for Petitioners 5 South Hanover Street Carlisle, Pennsylvania 17013 (717) 243-5838 Sworn and subscribed to before me this ~ A.cI~ .. NOTARIAL SEAL TRlSHA A. UESS, NOTARY PUBLIC BOROUGH OF CARLISLE, CUMBERLAND CO., PA MY COMMISSION EXPIRES MAY 20. 2006 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA ORPHANS' COURT DIVISION In Re: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID L. HOCKENBERRY, ORPHANS COURT DIVISION ~C3 an Alleged Incapacitated Person NO. 21 - 02- 1~ Civil Term Myrl I. Hockenberry and Vada B. Hockenberry, plenary Guardian of the Estate of David L. Hockenberry by virtue of a Decree dated July 3,2002, does hereby file its annual report as follows: I. SUMMARY A. Value of principal assets at the beginning of the Report Period: $79.34 B. Total amount of income (55I) during the Report Period: $360.00 C. Total amount of all expenditures made for care and maintenance of the incapacitated person during the Report Period: $360.00 (I) From principal $-0- (2) From income $360.00 D. Total amount spent for all other purposes during the Report Period: $-0- E. Total amounts remaining at the end of the Report Period: (I) Principal $79.34 (2) Income $-0- (3) Total (1&2) $79.34 II. ADDmONALINFORMATION A. Principal: (I) Total amount remaining at the end of the Report Period: Page 1 of3 $79.34 (2) The principal is currently invested as follows: An account for David's personal needs at Ebensburg Cenrer where he resides. (3) Have there been any expenditures from principal during the Report Period? NO If you answered Yes, was there court approval for all expenditures from principal? NO (4) Did you receive any principal assets during the Report Period, which were not included on the Petition, or a prior Report filed for the estate? NO If you answered YES: (a) Did you receive court approval prior to receiving additional principal? NO (b) State the sources and amounts of the additional principal you received: $-0- $-0- B. Income: (I) The sources and amounts of income received during the Report Period are as follows: SSI $360.00 $ $ Total Income Received During Report Period $360.00 Page 2 of 3 , '"" (2) Income is currently invested as follows: All inoome is currently spent on David's medical and personal care. C. Payments were made for the care and maintenance of the incapacitated person as follows: Blue Cros.cv'Blue Shield and SSI Medical care at institution where David resides. D. Payments not included in Paragraph "C" above were made as follows: N/A I verifY that the foregoing information is correct to the best of my knowledge, information and belief; and that verification is subject to the penalties of 18 Pa. Cons. Stat ~ 4904 relative to unsworn falsification to authorities. ~ f.!~ ~ Date: ~/Og d (Si nature) L+ (N me of Guardian) (~S;rint) ~ /-RAWBE/f/?Y ~ (Street Address) f}r (/14#LIsLL /70/.:3 (City, state, zip code) a 7//? Q.;,l3 ~d~ (Telephone number) Page 3 of 3 -11 '. t"...., \ t Z ~c = o ~ ~ C ~ .$ . co ~Z- "'" "Cl +" C') ~. ~ ~ ~ Q) co < < .rn ~ ~ ~ ~ S: ~ C') ~ O~>~ ="Cl = w:5ooo~ U~~~ ""\~ rlol ....J~....""C\l ~~I -~ ~ -<eQ)~ ~~CJ'.)N .. ~;t::;.,. r-chi:i<er::' O~-~ ~ UCJ 0 , ~>-c:a..r::: ~IE'-<~ t. O~ , WCl:l_~ E-t~ZN - Q, ~ ~ZI~Q) ~U~. = =e 0 w~-S~2i ;;;J rT, ~ ~ ~ c ~ a: I- :J Co ~ O 01""'1 "IE'-< · ~ ~ ~ ~ 0 0 ~ ~ ., "Cl ".; 00 Q) Uoo.E-t ~ ~ 106?I 1.0 Q) ~<Z "t:S ~ 'i F = ~ ~ .~ = = E-t~0 ~< = ~~U Q ~ ~ I ~ . In Re: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID L. HOCKENBERRY, ORPHANS COURT DIVISION an Alleged Incapacitated Person NO. 21 - 02- ~ ('r3 Civil Term ANNUAL REPORT OF GUARDIAN OF THE PERSON Myrl 1. Hockenberry and Vada B. Hockenberry, Plenary Guardian of the person of David L. Hockenberry by virtue of a Decree dated July 3,2002, does hereby file its annual report as follows: I. Present age of the incapacitated person: 46 years. Date of Birth: May 3, 1957. 2. Living arrangements. a. Current address of the incapacitated person: Ebensburg Center Ebensburg, P A 19D30 b. The incapacitated person's residence is: - own home/apartment - nursing home _ boarding home/personal care home _ guardian's home/apartment X hospital or medical facility - relative's home: (name and relationship) - other: (describe) c. The incapacitated person has been in the present residence since 1962. If the incapacitated person has moved within the past year, state change and reason(s) for change: N/A Page 1 of3 , d. Name and address of the incapacitated person's primary caregiver: 3. The major medical or mental problems of the incapacitated person are as follows: Severely retarded 4. Specify what, if any, social, medical, psychological and support services the incapacitated person is receiving: SSI. 5. It is my opinion as guardian of the person that the guardianship should: X continue, be modified, be terminated. (Briefly explain your response) We are his parents. 6. During the past year, I have visited the incapacitated person 47 times, with the average visit lasting 3 hours. 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. Cons. Stat ~ 4904 relative to unsworn falsification to authorities. Date: 7/2/t! '3 MirJ( )~OU~~ , 1~!-1L~ HI/?1. of-' V f'I j) 11 !loa /(1E/'Ii3g-~ ~ Y (Name of Guardian) (type or print) / Srl?#IAJB~IfI?V J)/? . (Street Address) (!ARI-ISLE ~ /70/<3 (City, State & Zip) / (;1/7)~ 'i .3 - ~ ~<;?V (Telephone Number) Page 2 of 3 '- <, ~ ::> . > ~el (""l>tlZ = >~ s O~~ =.... ~ !. ~~ ~> - '" CI> W ~ a.t"" ~(Jl(""l -0 (') 0 ~ "TI z~OO ~~C-l::D ~ .... ~ ~==:fOm ~= o>tl"'lc: (I)~ :D..( = C1>:I:Z Q . l'i(""l::d ,.-... ~ (U m ., ~o tl~c:~ ::i"'O='-<~ .... "1 .:::!.;:t>~t{1-, c ~r'l ~ b1JJ~g ......(Il:t>:- ..., ~'" .. l\)-...I..,;-lr N><o:I tows;m (;i a~ ' l'i &t~~:E-< 1=< ... = ~t"'?:8 '" CI> ~ c.C'" .,..s:.< c.> S. ., ~~ v-,~ ~ ~ '" Q. < ... .., "1 ~ g~ >(:lO z i '- {". * luRe: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DA VID L. HOCKENBERRY, : ORPHANS COURT DIVISION an Alleged Incapacitated Person : NO. 21-02- 293 Petition for Appointmentof Additional Plenary Guardian of the Estate and Person in Accordance with 20 Pa. Cons. Stat. ~ 5511 TO THE HONORABLE, THE JUDGES OF THE SAID COURT: , r~,) 1. ^",) ,~3 ~~::; =? Petitioners are Myrl 1. Hockenberry and Vada B. Hockenberry, hu~d and-wife, ::::'1 f':';' adult individuals, the natural father and mother of David L. Hockenberry. en t,) 2. David L. Hockenberry was born on May 3, 1957, is 44 years of age and is unmanied. His legal domicile is at 1 Strawberry Drive, Carlisle, (South Middleton Township, Cumberland County), Pennsylvania. He currently resides and has been a resident of the Ebensburg Center, Ebensburg, Pennsylvania for the past 41 years, 3. The following persons are the alleged incapacitated person's only living next-of-kin: NAME ADDRRESS RELATIONSHIP Myrl 1. Hockenberry 1 Strawberry Dr., Carlisle, PA Father Vada B, Hockenberry 1 Strawberry Dr., Carlisle, PA Mother 4. To the extent known by petitioner, the assets of the alleged incapacitated person are valued at approximately $250.00, comprising the following: an account held by the Ebensburg Center used for personal incidental expenses. 5. Petitioner estimates the alleged incapacitated person's annual income to be $360.00, consisting of Supplemental Security Income Benefits of $30,00 monthly. 6. The alleged incapacitated person was not a member of the armed services of the United States and is not receiving benefits from the United States Veteran's Administration. 7. The alleged incapacitated person was determined by the Court to be totally incapacitated and the within Petitioners were appointed plenary guardians of his person and estate by Order of Court dated July 3, 2002. 8. Because of his mental condition, the alleged incapacitated person is totally unable to manage or even appreciate the significance of his financial affairs, property and business and to make and communicate any decisions relating thereto, including the ability to communicate his need for assistance in these areas. 9. Petitioners desire to make provision for the continuation of guardianship of David L. Hockenberry with a minimum of disruption in the event of their death. incapacity or infirmity, by the appointment of an additional co-guardian of the person and estate of David L. Hockenberry. 10. Petitioners believe that Bonnie Prevost would be an appropriate co-guardian for the reason that she has assisted them with his care, has known David L. Hockenberry for several years, visits with David L. Hockenberry on a regular basis, and has assisted petitioners in advocating for the care of David L. Hockenberry, 11. Petitioners know of no interests that Bonnie Prevost has that are in conflict with that of David L. Hockenberry. 12. Section 5514 of the Probate. Estates and Fiduciaries Code, 20 Pa.C.S.A. \}5514, authorizes the appointment of a co-guardian of an incapacitated person without a requirement of a hearing after notice to such parties in interest as the Court may direct. 13. Petitioners submit that as the parents and guardians of David L. Hockenberry and as his sole heirs at law, there are no parties in interest other than themselves who should be given notice. WHEREFORE, petitioners respectfully requests that this Honorable Court enter an Order appointing Bonnie Prevost as a co-guardian of the estate and person of David L. Hockenberry to serve co-guardian with Myrl 1. Hockenberry and Vada B, Hockenberry who were previously appointed plenary guardians of his person and of his estate. ~~13 -L3. /? Robert G. Frey Attorney for Petitioners 5 South Hanover Street Carlisle, Pennsylvania 17013 (717) 243-5838 CONSENT OF GUARDIAN OF THE ESTATE AND PERSON I, Bonnie Prevost, hereby consent to act as the Co-Guardian of the Estate and Person of David L. Hockenberry. I reside at P.O. Box 692, Ebensburg, Pennsylvania 15931, and am his teacher. r am a citizen of the United States of America and can speak, read and write the English language. I have no interest adverse to David L. Hockenberry, the alleged incapacitated person. ~ //) . '/. / ......-:: (, '1 , ... //?u:C c:;:!POiD r /" Bonnie Prevost We verify that the statements made in this Affidavit are true and correct to the best of my personal knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. ~4904 relating to unsworn falsification to authorities. ~!{;J~~ My . Hockenberry 1 /)illa g 1/""';""'7 Vada B. Hockenberry FEB 0 3 2005 {'I 'd ~ InRe: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DAVID L. HOCKENBERRY, : ORPHANS COURT DIVISION an Alleged Incapacitated Person : NO. 21-02- 293 ",ORDER {~ ..;..-.... AND NOW, this \.ld,.- day of~y, 200 . upon consideration of the annexed petition, it is hereby ORDERED and DECREED that Bonnie A Prevost is appointed a co-guardian of the estate and person of David L. Hockenberry to serve co-guardian with Myrl 1. Hockenberry and Vada B. Hockenberry who were previously appomted plenary guardians of his person and of his -7 estate, '/ By the Court: / .." "'..:..~'~..,_/<A. \. ], \ r~ rY'e-LuL J4 04, r'r\ "i R L 1- '-4.- V i\1)A- Jc c. k)::::f.l &1z R'1 A~i') -F~'i ~1Il.E'i A n'i."> (. l:N If, ~~C\l1 \jED 0"1 Art"!, luRe: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID L. HOCKENBERRY, ORPHANS COURT DIVISION an Alleged Incapacitated Person NO. 21-02-~q3 CivilTerm ANNUAL REPORT OF GUARDIAN OF THE PERSON Myrl J. Hockenberry and Vada B. Hockenberry, Plenary Guardian of the person of David L. Hockenberry by virtue of a Decree datcd July 3,2002, does hereby file its annual report as follows: 1. Present age of the incapacitated person: Ljri years. Date of Birth: May3, I9fi7. 2. Living arrangements. a. Current address of the incapacitated person: Ebensburg Center Ebensburg, P A 19030 b. The incapacitated person's residence is: own home/apartment nursing home boarding home/personal care home , ,-..- guardian's home/apartment X hospital or medical facility relative's home: (name and reJadonshjp) other: (describe) c. The incapacitated person has been in the present residence since 1962. If the incapacitated person has moved within the past year, state change and reason(s) for change: N/A Page 1 of3 d. Name and address of the incapacitated person's primary caregiver: 3. The major medical or mental problems of the incapacitated person are as follows: Severely retarded + SpecifY what, if any, social, medical, psychological and support services the incapacitated person is receiving: S5!. 5. I t is my opinion as guardian of the person that the guardianship should: X continue, be modified, be terminated. (Briefly explain your response) We are his parents. 6. During the past year, I have visited the incapacitated person 47 times, with the average visit lasting 3 hours. Page 2 of 3 , (2) Income is currently invested as follows: All income is currently spent on David's medical and personal care. C. Payments were made tor the care and maintenance of the incapacitated person as follows: Blue Cross/Blue Shield and SSI Medical care at institution where David resides. D. Payments not included in Paragraph "C' above were made as follows: N/A I verifY that the foregoing information is correct to the best of my knowledge, information and belief, and that verification is subject to the penalties of IS Pa. Cons. Stat ~ 4904 relative to un&'Wom falsification to authorities. Date: to /?c/t; :) / ( (Name of Guardian) lY1,/rl ;-{(rcl\;~b~rr (type or print) VD-oItlJ/'''rc;;; to? (5treetAddress) b ! <S mUJ --,u. v '/ /j) r (City, sta;e, tjp coBe) / C-.<J. 1-(/5('< , (o... / 7t!!...;, (Telephone number) ) '-/)" YffV Page3 of 3 InRe: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DA VID L. HOCKENBERRY, ORPHANS COURT DIVISION an Alleged Incapacitated Person NO. 21 - 02- '.2Q'3 Civil Term ANNUAL REPORT OF GUARDIAN OFTIIE PERSON Myrl J. Hockenberry and Vada B. Hockenberry, Plenary Guardian of the person of David L. Hockenberry by virtue of a Decree dated July 3,2002, does hereby file its annual report as follows: 1. Present age of the incapacitated person: ~ '7 years. Date of Birth: May 3, 1957. 2. Living arrangements. a. Current address of the incapacitated person: Ebensburg Center Ebensburg, P A 19030 b. The incapacitated person's residence is: own home/apartment nursing home boarding home/personal care home guardian's home/apartment X hospital or medical facility relative's home: (name and relationship) other: (describe) c. The incapacitated person has been in the present residence since 1962. If the incapacitated person has moved within the past year, state change and reasones) for change: N/A Page 1 of3 ->.--.-,'-,. ") c:) i '....,1 ( __f"! ") , (..J') ) . d. Name and address of the incapacitated person's primary caregiver: 3- The major medical or mental problems of the incapacitated person are as follows: Severely retarded 4. Specify what, if any, social, medical, psychological and support services the incapacitated person is receiving: 881. 5. It is my opinion as guardian of the person that the guardianship should: X continue, be modified, be terminated. (Briefly explain your response) We are his parents. 6. During the past year, I have visited the incapacitated person 47 times, with the average visit lasting 3 hours. ''I Page 2 of3 . It (2) Income is currently invested as follows: All income is currently spent on David's medical and personal care. C. Payments were made for the care and maintenance of the incapacitated person as follows: Blue CrossJBlue Shield and 55I Medical care at institution where David resides. D. Payments not included in Paragraph "C" above were made as follows: N/A I verifY that the foregoing information is correct to the best of my knowledge, information and belief; and that verification is subject to the penalties of IS Pa. Cons. Stat ~ 4904 relative to unsworn falsification to authorities. Date: /0/2 5fO ,& 5. (Signa re), , f'Dl/-{ +- \J RdC\ 1-1 Or! /(t,,/ Etfl? y ( ame of Guardian) (typeorRrint) L / };'IV'tJ... LtJ !J Q r r 1 '] v , (Street Address) CcL V' / J S ( ~J (J ?c I 7 0 / ~ (City, state, zip ~ode) (j;-?) ~i3-t-(l9P (Telephone number Page 3 of 3 RECEIPT FOR PAYMENT ------------------- ------------------- GLENDA FARNER STRASBAUGH Cumberland County - Orphans Court One Courthouse Square Carlisle, PA 17013-3387 Receipt Date: Receipt Time: Receipt No. : 6/28/2006 14:58:32 1030628 HOCKENBERRY DAVID L 2002-00293 MRYL HOCKENBERRY MW ------------------------ Receipt Distribution ------------------------ Fee/Tax Description Payment Amount Payee Name File Number: Paid By Remarks: ANNUAL RPT GRD PER 15.00 ---------------- Cash $15.00 Total Received......... $15.00 CUMBERLAND COUNTY GENERAL FUN , .. In Re: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID L. HOCKENBERRY, ORPHANS COURT DIVISION NO. 21 - 02- d'13civil Term an Alleged Incapacitated Person o Co ~~o ~ ANNUALREPORTOFGUARDIANOFTHEPERSO~~~ N ZW7' Myrl J. Hockenberry and Vada B. Hockenberry, Plenary Guardian of the pe~~ ~ David L. Hockenberry by virtue of a Decree dated July 3, 2002, does hereby fi~iij, annum- report as follows: ,)> ~ 1. Present age of the incapacitated person: years. Date of Birth: May3, 1957. 2. Living arrangements. a. Current address of the incapacitated person: Ebensburg Center Ebensburg, P A 19030 b. The incapacitated person's residence is: own hom~apartment nursing home boarding home/personal care home guardian's home/apartment X hospital or medical facility relative's home: (name and relationship) other: (describe) c. The incapacitated person has been in the present residence since 1962. If the incapacitated person has moved Within the past year, state change and reason(s) for change: N/A Page J 013 r...:J (':) c:::> ..... r.-;-~-I G) u~ ~~~j .vJ6 1 . ~ d. Name and address of the incapacitated person's primary caregiver: 3. The major medical or mental problems of the incapacitated person are as follows: Sererely retarded 4. Specify what, if any, social, medical, psychological and support services the incapacitated person is receiving: SSI. 5. It is my opinion as guardian of the person that the guardianship should: X continue, be modified, be terminated. (Briefly explain your response) We are his parents. 6. During the past year, I have visited the incapacitated person 47 times, with the average visit lasting 3 hours. - .., Page 2 of3 #- (2) Income is currently invested as follows: All income is currently spent on David's medical and personal. care. C. Payments were made for the care and maintenance of the incapacitated person as follows: Blue Cross/Blne Shield and SSI Medical care at instimtion where David resides. D. Payments not included in Paragraph "C" above were made as follows: N/A I verify that the foregoing information is correct to the best of my Imowledge,information and belief; and that verification is subject to the penalties of I8 Pa. Cons. Stat ~ 4904 relative to unsworn falsification to authorities. Date: 6/21/2007 9:tr;.fJ Q~ )J~~ '1t!gnature) l Myrl and Vada Hockenberry (Name of Guardian) (type or print) 1 strawberry Drive (Street Address) Carli~le p~ 17011 (City, srate; zip code) (717)243-4888 (Telephone number) Page 3 of 3 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYL VANIA IN RE: DAVID L. HOCKENBERRY: An Incapacitated Person ORPHANS COURT DIVISION No. 21-02-293 . .. :::.::) ..:. .;"T'I .lJ --; On the Petition of Myrl and Vada Hockenberry PETITION TO GRANT THE GUARDIANS AUTHORITY TO EXERCISE THE POWERS OF A HEALTH CARE AGENT ON BEHALF OF THE INCAPACITATED AND NOW, comes Myrl and Vada Hockenberry (Petitioners), by and through their attorney, Christopher S. Lucas, and petitions the court for an expedited hearing in the matter of David L. Hockenberry, an incapacitated person. 1. Myrl and Vada Hockenberry (the Hockenberrys) are the parents of David L. Hockenberry (David). 2. David is adult person residing at the Ebensburg State Center. 3. David has suffered from profound mental retardation since he was born. 4. On July 3,2002, the Cumberland County Orphan's Court appointed the Hockenberrys as guardians of their son, David. Order Attached. () r--.:> = e,.:..:.:> <= <..- ~~;9I I ~- -0 f"",) w 5. On or about December 21,2007, David became ill after he apparently swallowed a hair pin. This led David to. vomit and to aspirate some vomit. 6. Subsequently, David became seriously ill with aspiration pneumonia and was admitted to Memorial Hospital in Johnstown. 7. Because David is unable to breathe independently, Memorial Hospital placed David on a mechanical ventilator. 8. However, while David mayor may not be able to breath without the assistance of a mechanical ventilator, David is neither permanently unconscious nor terminally ill. 9. Nevertheless, the Hockenberrys, in conjunction with David's treating physician at thehospital, Dr. Jack DePriest, M.D., determined that it is in David's best interest to decline to continue to use mechanical ventilation. 10.While the facts of this matter are not in dispute, the Department of Public Welfare (the Department), through its Office of Legal Counsel, . has raised purely legal concerns with Memorial Hospital about the decision reached by the Hockenberrys and Dr. DePriest. 11. Upon information and belief, the Department's legal concerns are grounded in Act 169 of 2006. 20 Pa. C.S. ~ 5421, et seq., or the "Act. " 12. The Act codified the Supreme Court's decision In Re Fiori. Opinion Attached. The intent of the Act was to strengthen the ability of patients to exercise their health care wishes through "health care agents," e.g. through the use of what has been called a "health care power of attorney." 20 Pa. C.S. ~ 5423. The Act expressly notes that it does not "affect or supersede the holdings of In Re Fiori." Id. 13. Upon information and belief, the essence of the Department's concern is its legal conclusion that Act 169 of 200,6 somehow requires Memorial Hospital to continue to provide extraordinary measures since David has never had the capacity to nominate his parents as "health care agents." 14.1t is the Hockenberrys position that: 1) the Department of Public Welfare lacks standing to be heard in this matter, and 2) Act 169 does nothing more than codify the Supreme Court's rule that parents may exercise exactly the kind of judgment that the Hockenberrys seek to exercise here, and 3) Act 169 expressly provides authority for the Hockenberrys to exercise their judgment under section four. See 20 Pa. C.S. S 5461. l5.In any event, Memorial Hospital's concern over the Department's position has led it to request that the Hockenberrys seek the court's guidance before executing their instructions. 1 6. Accordingly, the Hockenberrys seek authority to act as a health care "agent" as that term is used in Act 169, in order that they may exercise, as David's surrogate, the prerogatives outlined in In Re Fiori and Act 169. l7.Because of David's suffering, and the Hockenberrys' anguish, they respectfully request that the court schedule an expedited hearing to consider this Petition. l8.Because of the circumstances, the Hockenberrys also request an order authorizing service upon the David, Memorial Hospital and the Department, by facsimile. 19.In order that Dr. DePriest may continue to monitor David, and that the Hockenberrys may remain by David's bed side, it is also requested that the court permit them to testify by telephone. WHEREFORE, the Hockenberrys respectfully requests that the court schedule an expedited hearing in this matter, with service to be made by facsimile and during which Dr. DePriest and the Hockenberrys may testify by telephone to determine whether the Hockenberrys may act as David's health care agent. Respectfully submitted, Date:~ CQ Christopher S. Lucas Pa. J.D. No. 77903 Attorney for Petitioners Law Offices of Christopher S. Lucas LLC 220 Cumberland Parkway, Suite 4 Mechanicsburg, P A 17055 Voice: 717.691.0203 Facsimile: 717.691.3130 Email: cslucas@lucashealthlaw.com 01/03/2008 THU 16:57 FAX 814 534 3487 .-....., V.J,.fI ...."'uv Vu,.l.Q rnA IJ.I..':I:i)(&,If:., ROSE 6-CCU .t\l;l;UlINTING D1Wl' I4l 001 @002 ',-,~. """"'-' .~' In Re: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTy, PENNSYLVANIA ORPHANS COURT DMSION NO. 21 - 02- 2 1.3 Civil Term DAVID L. HOCKENBERRY, an Alleged Incapacitated Person FINAL DECREE f<,D AND NOW, this~ day of July, 2002, upon consideration of the annexed petition and after hearing held following due notice, it is hereby ORDERED and DECREED tha4 bas~.d upon a finding iliat DAVID L HOCKENBERRY suffers from profound mental retardation and as a result is so severely mentally impaired that he is unable (0 make, communicat~ or even participate in any decision relating to his esrate or person, DAVID L. HOCKENBERRY is adjudged totally incapacitated. Myrl1. Hockenberry and Vada B. Hockenberry are appointed joint plenary guardians of the person of DAVID L. HOCKENBERRY. Myrl I. Hockenberry and Vada B. Hockenberry are appointed joint plenary guardians of the estate of DAVID L. HOCKENBERRY. The respective guardians shall file with this court a report within 12 months from the date of this decree and at least annually thereafter which (a) in the case of the guardian of tIle estate attests to: (i) current principal and how it is invested; (ii) current income; (ui) expenditures of principal and income since the last rltport; and (iv) the needs of DAVID L. HOCKENBERRY, the incapacitated person. for which the guardian has provided since the last report. andFor (b) in the case of the guardian of the person attests to: (i) current address and type of placement of DAVID L HOCKENBERRY, the incapacitated person; Cii) major medical or mental problems of DAVID L. HOCKENBERRY, the incapacitated person; (ill) a brief description of the living arrangements of DAVID L. HOCKENBERRY, the incapacitated person, and the social, medical, psychological and other support services he is receiving; (iv) the opinion of Guardians of the Person as to whether the guardianship should continue or be tenninated or modified, and the reasons therefore; and . (v) the number and length of times the Guardians of the person visited the incapacitated peI;$On in the past year. A TRUE COPY FROM RECORD In Testimony wherof, I hereunto set my haf'\d and tI'1e seal of ~d Court at Cartisle, PAO~ IN.. ~_ ~ . .A.4.A II 1Yl ~- oOrp ""COurt f\~__ . Cumberland County ~ ([ By the Court: ~ Jiu;Jcy-E ~ P.1. 01/0~/2008 THU 16:57 FAX 814 534 3487 ROSE 6-CCU Dee 312007 17:15 HP LASERJET FA~ 8144720528 ~002 F - 1 , ':_~> (f~~i ~.1 ','''~:~ \ .,' . \ ". InRe: DAVID L. HOCKENBERRY, an Alleged Incllpacitated Person .- FEB 032.005 . flJ' : IN TIlE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS COURT DIVISION : NO. 21-02- 293 ORDER AND NO~, this 4 ,H day of =1'I~. 2005, upon consideration of the annexed petition, it is hereby ORDERED and DECREED that Bonnie A Prevost is appointed a co-guardian of the estate and person..9J.P..ilyWL.~HockenberqL.1o.serve co-guardian with MyrJ.1. Hocke~eay.and.: VadB B. Hockenbeny who were previously appointed plenary guardians of bisperson and of his estate, o ,......;. <:.1. ,.' ,..., , \.' \~~:,:~' (~~~. .....j \', ~;,,:: ~- "-' . ;'~E\ ~~'_.;:: ~.:' ..-.' ",' e~' r~~\t) 2:..'.1 -.... ""',-- .,,:::.:. ':\I'I.,J,.. _:l' I t~~~~ tf~ \..'- \~r"'" c".:::;' c.:..~ c-......: ,'i' i By the Court: J. LexisNexis(TM) Basic Case Law & Statutes I Search - 1 Result- Service: Get by LEXSEE@ Citation: 543 Pa. 592 Page lof8 543 Pa. 592, *; 673 A.2d 905, **; 1996 Pa. LEXIS 551, *** IN RE: DANIEL JOSEPH FIORI, AN ADJUDGED INCOMPETENT; APPEAL OF: COMMONWEALTH OF PENNSYLVANIA, ATTORNEY GENERAL No.6 E.D. Appeal Docket 1995 SUPREME COURT OF PENNSYLVANIA 543 Pa. 592; 673 A.2d 905; 1996 Pa. LEXIS 551 April 25, 1995,ARGUED April 2, 1996, DECIDED PRIOR HISTORY: [***1] Appeal from the Judgment of the Superior Court Entered January 17, 1995, at No. 000737 Philadelphia 1993, Affirming the Judgment of the Court of Common Pleas of Bucks County, Orphans Court Division, Entered February 3, 1993, at No. 49355438 Pa. Super. 610. 652 A.2d 1350 (1995). JUDGES: MR. JUSTICE CAPPY. Mr. Justice Montemuro, who was sitting by designation, did not participate in this decision. Mr. Justice Zappala files a concurring opinion. OPINION BY: CAPPY OPINION [*597] [**908] OPINION OF THE COURT MR. JUSTICE CAPPY DECIDED: April 2, 1996 This is an appeal by allowance from the opinion and order of the Superior Court affirming the judgment entered by the Court of Common Pleas of Bucks County, Orphans Court Division. We granted allowance of appeal to decide whether a close relative, with the consent of two physicians but without court involvement, may remove life sustaining treatment from an adult relative who is in a persistent vegetative state where that adult has left no advance directives. For the following reasons, we affirm. As with all cases where this issue is presented, the facts here are tragic. Daniel Joseph Fiori, the nominal subject of this appeal, suffered severe head[***2] injuries in 1972 when he was approximately twenty years old. He regained consciousness after this injury, but his cognitive abilities were severely limited. In 1976, Fiori suffered a second head injury while being treated at a Veterans Administration hospital ("VA"). Fiori never regained consciousness after this second injury, and he was diagnosed as being in a persistent vegetative state ("PVS"). The term "vegetative state" describes: a body which is functioning entirely in terms of its internal controls. It maintains temperature. It maintains heart beat and pulmonary ventilation. It maintains digestive activity. It maintains reflex activity of muscles and nerves for low level conditioned responses. But there is no behavioral evidence of either self- awareness or awareness of the surroundings in a learned manner. Cruzan v. Director, Missouri Deot. of Health. 497 U.S. 261, 267. n. 1. 111 L. Ed. 2d 224, 110 S. Ct. 2841 https://www3 .lexisnexis.com/bc1s/auth?cacheKey=T37 485114&srv=ols_ LexseeRetrieve&form~ViewType... 1/3/2008 LexisN~xis(TM) Basic Case Law & Statutes I Search - I Result - Page 2 of 8 (19~Q) [*598] (citing In re Jobes. 108 N.J. 394, 403._529 A.2d 434, 438 (1987)). nl This state has been described as a "twilight zone of suspended animation where death commences while life, in some form, continues." Rasmussen by Mitchell v. Fleming. 154 Ariz. 207. 211. 741 P.2df***31 674, 678 (1987). - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1 A recent article published in The New England Journal of Medicine introduced a distinction between persistent and permanent vegetative states. The article stated that "[a] wakeful unconscious state that lasts longer than a few weeks is referred to as a persistent vegetative state. . . . A permanent vegetative state, on the other hand, means an irreversible state. . . ." Multi-Society Task Force on PVS, Medical Aspects of the Persistent Vegetative State (pts. 1 & 2), 330 New Eng. J. Med 1499, 1501 (1994) (emphasis supplied). Based on review of prior PVS cases, the article concluded that where a persistent vegetative state was brought on by traumatic injury, the state can be judged permanent twelve months after the occurrence of the injury; the article noted that recovery after twelve months is exceedingly rare. Id. at 1575. For a discussion of one such emergence from a permanent vegetative state, see Nancy L. Childs, M.D. & Walt N. Mercer, Brief Report; Late Improvement in Consciousness After Post-Traumatic Vegetative State, 334 New. Eng. J. Med. 24 (1996). The diagnosis of Fiori's condition predated this article, and thus the diagnosis of "permanent vegetative state" was not available to the attending physicians. We realize that Fiori, who had been in a vegetative state for approximately nineteen years prior to his death, would probably now be diagnosed as having been in a permanent vegetative state; be that as it may, we find that it would be highly improper for a court to "re-diagnose" Fiori. Thus, we will continue to refer to Fiori's condition as having been a persistent vegetative state. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***4] In this condition, all Fiori's cognitive brain functions were inoperative. He felt no pain or pleasure, and he was unable to communicate with others. Since Fiori had no capacity for voluntary muscular movements, his life functions were maintained by the provision of medications, fluids, and nutrition through a gastrostomy tube, a tube which is surgically inserted in the stomach. n2 There was no hope of Fiori ever recovering. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - 2 Artificial hydration and nutrition are viewed as treatment by the medical community and by courts of other jurisdictions. See, e.g., In re Conroy. 98 N.J. 321. 372-373. 486 A.2d 1209. 1236 (1985); In re Grant. lQ2__Wg~b~_?_c;!_54.5-L--5~9-: 56.)-l.-J_4LP. 2d ~A~ 452-454 (19871. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - After Fiori's second accident, his mother, Rosemarie Sherman, was appointed guardian of his person by court order [*599] entered in 1980. In February of 1992, Sherman requested that the Mayo Nursing Center, which was the nursing home caring for Fiori, remove his gastrostomy tube. The nursing home [**909] refused to comply[***5] with her request without a court order; n3 Sherman thus filed a petition in the Court of Common Pleas for Bucks County requesting an order directing the nursing home to terminate treatment. The Attorney General appeared in the proceedings and, pursuant to his request, an independent medical expert was appointed. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - 3 The nursing home did not oppose the discontinuation of life support for Fiori. It expressed no opinion as to the ultimate determination, but rather merely indicated a desire to obtain court approval of any action. See Mayo Nursing Center Letter, February 18, 1992. R. at 9a. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - The opinions of two neurologists, one retained by Sherman and the other the court appointed independent expert, were entered into evidence. Both agreed that within a reasonable degree of medical certainty, Fiori's condition would not improve and he would remain in a PVS as he had done for the last seventeen years. They also stated that existing medical technology could continue to support Fiori's life functions so https:llwww3.1exisnexis.comlbcls/auth?cacheKey=T3 7 485114&srv=ols_ LexseeRetrieve&form__ View Type. .. 1/312008 LexisN~xis(TM) Basic Case Law & Statutes I Search - 1 Result- that his[***6] life span could extend for another ten to twenty years. Page 3 of8 Sherman testified that her son had never spoken to her about his wishes should he ever lapse into a PVS. Nevertheless, based on her son's "love of life," Sherman was of the opinion that her son would wish the gastrostomy tube to be removed. The trial court granted Sherman's motion, and the Attorney General appealed. The Superior Court, sitting en bane, affirmed. The court determined that the decision to remove life sustaining treatment from an adult in a PVS who did not leave directions as to the maintenance of life support may be made by a close family member and two qualified physicians without court approval. The Attorney General filed a petition for allowance of appeal on January 23, 1995. Prior to the granting of allowance [*600] of appeal, Fiori died of pneumonia. n4 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -4 With the death of Fiori, this appeal is technically moot. Nonetheless, because this case raises an issue of important public interest, an issue which is capable of repetition yet is apt to elude review, we have decided to hear this appeal. See Jersey Shore School Dist. v. Jersey Shore Educ. Ass'n. 519 Pa. 398, 548 A.2d 1202 (1988). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***7] In this appeal, we must determine the procedures and guidelines for removal of life sustaining treatment from a PVS patient where the patient, prior to his incompetency, failed to express his desires on such treatment. Specifically, we must determine who may make the decision for the PVS patient, what standard the decision-maker should employ, and whether the court must approve that decision. The starting point for our analysis is an examination of the right we are to protect -- the right to self- determination in regard to the acceptance or rejection of life sustaining medical treatment. Although some courts have noted constitutional bases for such a right n5, we choose to follow the example set by the courts which have relied solely on the common-law basis for the right to self-determination, and have eschewed an analysis based upon constitutional principles. See, e.g., In re Estate of Longeway. 133 III. 2d 33. 44-45. 549 N.E.2d 292. 297. 139 III. Dec. 780 (1989); Mack v. Mack. 329 Md. 188. 618 A.2d 744 Ll9.3.2.}. We chose to follow this example as it allows us to adhere to the sound tenet of jurisprudence that courts should avoid constitutional issues when the issue at hand may be decided[***8] upon other grounds. Rescue Army v. Municipal Court. 331 U.S. 549. 568-569. 91 L. Ed. 1666. 67 S. Ct. 1409 (1947). n6 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -5 See, e.g., In re L.H.R., 253 Ga. 439. 321 S.E.2d 716 (1984) (basing right to self-determination on the federal right to privacy); Corbett v. D'Alessandro. 487 So. 2d 368 (Fla.App. 1986) (basing right to self- determination on state constitutional guarantees of privacy).6 - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - The right to refuse medical treatment has deep roots in our common law. More than a century ago, the United States Supreme Court recognized that "no right is held more [*601] sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person. . . ." Union Pacific Railway [**910] Co. v. Botsford. 141 U.S. 250, 251, 11 S. Ct. 1000. 1001. 35 L. Ed. 734 (1891).[***9] From this right to be free from bodily invasion developed the doctrine of informed consent. See Schloendorff v. Society of New York Hospital. 211 N.Y. 125. 129-130. 105 N.E. 92. 93 (1914) (Cardozo, J.) The doctrine of informed consent declares that absent an emergency situation, medical treatment may not be imposed without the patient's informed consent. Moure v. Raeuchle, 529 Pa. 394. 404. 604 A.2d 1003. 1008 (1992). A logical corollary to this doctrine is the patient's right, in general, "to refuse treatment and to withdraw consent to treatment once begun." Mack. 329 Md. at 210. 618 A.2d at 755. Courts have unanimously concluded that this right to self-determination does not cease upon the incapacitation of the https://www3.1exisnexis.comlbcls/auth?cacheKey=T3 7 485114&srv=01sLexseeRetrieve&form __ViewType... 1/312008 LexisNexis(TM) Basic Case Law & Statutes I Search - I Result- Page 4 of8 individual. See, e.g., In re Colyer, 99 Wash. 2d 114, 660 P.2d 736 (1983); Mac&..suj2rq; In re Quinlan-l-JO N.J. 10, 355 A.2d 647 (1976). This right, however, is not absolute. The right of the patient to abstain from medical treatment must be balanced against interests of the state. The four state interests most commonly recognized by the courts are: 1) protection of third parties; 2) prevention of suicide; 3) protection of the ethical[***10] integrity of the medical community; 4) and preservation of life. Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 740-741. 370 N.E.2d 417, 425 (19m; see also In re Conroy, 98 N.J. 321. 348-349,486 A.2d 1209, 1223 (1985). In examining the state's interest in protecting third parties, the primary focus is on whether the patient has dependents who would be left emotionally and financially bereft were the patient to refuse medical treatment. See, e.g., In re Farrell, 108 N.J. 335, 529 A.2d 404 (1987); Saikewicz, suora. In Fiori's situation, there was no need to protect third party interests as he did not have any dependents. Thus, this state interest is not applicable here. [*602] Furthermore, the prevention of suicide was not a consideration here. In removing life sustaining measures, the natural death process is allowed to continue; death would not have been the result of a self-inflicted injury, as is the case with suicide. See Conroy, 98 N.J. at 351. 486 A.2d at 1224. Also, the ethical integrity of the medical community would not have been compromised had Sherman's request been honored. As noted by the Superior Court below, [***11] amicus curiae, the Pennsylvania Medical Society, had stated that the withdrawal of life-support from Fiori would not compromise medical ethical principles. Amicus asserted that the medical community supports the withdrawal of life sustaining treatment, including the provision of nutrition and fluid, when there is no hope of recovery and where that decision is made by a surrogate decision maker who is attempting to effectuate the wishes of the patient. Brief of the Pennsylvania Medical Society to the Superior Court at p. 16. Lastly, we focus on the state's interest in preserving life. Of these four interests, this one is the most significant. Rasmussen, 154 Ariz. at 216, 741 P.2d at 683. It encompasses the separate, but related, concerns of preserving the life of the particular individual and also safeguarding the sanctity of all life. Con[Q~~~~t 34~ 486 A.2d at 1223. The state's interest in preserving life is certainly applicable in situations such as Fiori's. Yet, this interest does not outweigh the PVS patient's interest in self- determination. The state's interest in maintaining the PVS individual in an endless twilight state between life and death is so[***12] weak that it cannot overcome the individual's right to self-determination. Rasmussen, 154 Ariz. at 217, 741 P.2d at 683; see also Colyer, 99 Wash. 2d at 122, 660 P.2d at 743. We thus hold that the state's interest in preserving life does not outweigh the right of the PVS patient to refuse medical treatment. Having determined that a PVS patient's right to self-determination outweighs any interests the state may have in maintaining life sustaining treatment for the patient, we must examine how that right may be exercised. Where a PVS [*603] patient created advance written directives prior to incapacitation, we have statutory provisions which provide for the implementation of the patient's [**911] wishes. See Advance Directive for Health Care Act, 20 Pa.C.S. 9 5401 et seq. ("Act"). Yet, the Act does not address the situation where no advance directives were left as to treatment. n7 Where a statute does not exist on the subject, there are various legal theories on which authorization to terminate life support may be predicated. The approach taken by many of our sister states n8, and by the Superior Court below, is to allow a close family member to exercise "substituted judgment" on behalf[***13] of the patient. In exercising "substituted judgment," the surrogate decision maker: - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -78 See, e.g., Jobes, suora; Mack, supra. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - considers the patient's personal value system for guidance. The surrogate considers[***14] the patient's prior statements about and reactions to medical issues, all the facets of the patient's personality that the surrogate is familiar with - - with, of course, particular reference to his or her relevant philosophical, theological, and ethical values - - in order to extrapolate what course of medical treatment the patient https://www3.lexisnexis.com/bc1s/auth?cacheKey=T3 7 485114&srv=0Is _ LexseeRetrieve&fonnViewType... 1/3/2008 LexisN~xis(TM) Basic Case Law & Statutes I Search - 1 Result - Page 5 of8 would choose. lobes, 108 N.J. at 414-415. 529 A.2d at 444 (footnote omitted). The substituted judgment approach "is intended to ensure that the surrogate decision maker effectuates as much as possible the decision that the incompetent patient would make if he or she were competent." Id. at 414. 529 A.2d at 444. Even where the individual has not expressed thoughts concerning life-sustaining treatment, the patient's preferences can [*604] still be ascertained by referring to all of the aspects of his or her personality. See Estate of Longewav. 133 III. 2d at 49-50. 549 N.E.2d at 299-300. The minority of states requires that there be "clear and convincing" evidence of the patient's intent to withdraw life support. n9 This is the most stringent approach. This standard requires "nothing less than unequivocal proof" of the patient's express wishes[***15] as to the decision to terminate life support is at issue. In re Westchester County Medical Center (O'Connor). 72 N.Y.2d 517. 531 N.E.2d 607. 612. 534 N.Y.S.2d 886 (N.Y. 1988). See also Cruzan v. Harmon. 760 S.W.2d 408 (Mo. 1988), aff'd., Cruzan v. Director, MO. Health Dept., 497 U.S. 261. 111 L. Ed. 2d 224. 110 S. Ct. 2841 (1990) (court found that PVS patient's expressions to a roommate that she would not want to be maintained on life support if she were ever to become a "vegetable," and other similar observations, did not meet the clear and convincing evidence standard because the statements did not deal specifically with the withdrawal of artificial hydration and nutrition. insufficient to meet the clear and convincing evidence standard; the PVS patient was thus maintained on life-support.) - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -9 We note that the term "clear and convincing evidence" in this context refers to the requirement that the individual in question must have stated in an explicit fashion the exact treatment desired were the patient to lapse into various medical conditions. The term "clear and convincing evidence" is used more commonly, however, as a burden of proof. In that context, the standard refers to that quantum of evidence necessary for a party to establish a point. For further illumination on the distinction see generally Comment, The Right to Die, 96 Dick.L.Rev. 649, 651 and 665-669. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***16] The Attorney General argues that the clear and convincing evidence standard should be used. To support this argument, he notes that the guardianship statutes employ the clear and convincing evidence standard for the resolution of certain issues; nl0 thus, since this standard is applicable to [**912] some determinations via the guardianship statute, then it perforce applies to this decision. We disagree. The guardianship statutes simply do not address a situation such as we have before us, [*605] and thus we do not find that the clear and convincing evidence standard is mandated here. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -10 For example, clear and convincing evidence is required for determinations of incapacity and appointment of a guardian. 20 Pa.C.s. 99 5511 (a) and ill. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - Furthermore, we find the clear and convincing evidence test to be overly restrictive, one which would thwart the PVS patient's right to determine the medical care to be received. Were this test to be applied, all of those patients who did not have the prescience or the sophistication to express[***17] clearly and unmistakably their wishes on this precise matter would not be able to have life support removed. For those individuals, the choice concerning medical treatment would not be an extrapolation based upon their individual beliefs. Rather, the "choice" would be dependent simply upon how far the frontiers of medical science had advanced: if the life sustaining procedures were available, they would be automatically administered. This we cannot tolerate. Thus, we agree with the Superior Court below that the substituted judgment standard is the proper approach. We believe that where a PVS patient has not left instructions as to the maintenance of life sustaining treatment, the only practical way to prevent the destruction of the PVS patient's right to refuse medical treatment is to allow a substitute decision maker to determine what measures the PVS patient would have desired in light of the patient's prognosis. Accord Jobes. 108 N.J. at 414. 529 A.2d at 444. n11 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -11 https:/ /www3 .1exisnexis.comlbc1s/auth?cacheKey=T37485114&srv=01s~ LexseeRetrieve&fonn _ViewType... 1/3/2008 LexisNexis(TM) Basic Case Law & Statutes I Search - 1 Result- Page 6 of8 We also note that in addition to the substituted judgment and clear and convincing evidence standards, some courts have also adopted a standard known as the "best interests" analysis. See, e.g., Rasmussen, 154 Ariz. at 222, 741 P.2d 689. This analysis allows a decision maker to determine if withdrawal of life support would be in the best interests of the PVS patient. The analysis is an objective one, one which considers the patient's relief from suffering, the preservation or restoration of functioning, and the quality and extent of sustained life. The President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment, at 135 (1983) ("President's Commission Report"). As discussed herein, we decide today that a close family member of a once competent adult who is now in a permanent vegetative state may effectuate substituted judgment on the patient's behalf. We determine that where there is enough data for the decision maker to ascertain what the patient would have desired, the decision maker must effectuate substituted judgment. Where the patient's desires can be discerned via substituted judgment, it would be improper to employ instead the objective best interests standard to make that decision. Thus, in cases such as Fiori's, where a relative of a once competent adult, now in a permanent vegetative state, can effectuate a substituted judgment, a best interests analysis may not be employed. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***18] [*606] We also hold that a close family member is well-suited to the role of substitute decision maker. Accord see, e.g., Colyer, 94 Wash. 2d at 127, 660 P.2d at 745-746; Foody v. Manchester Memorial Hospital, 40 Conn. Supp. 127,482 A.2d 713 (Conn. Super. Ct. 1984); Jobes, 108 N.J. at 415-417, 529 A.2d at 445. Close family members are usually the most knowledgeable about the patient's preferences, goals, and values; they have an understanding of the nuances of our personality that set us apart as individuals. President's Commission at 128. See also Jobes, 108 N.J. at 416, 529 A.2d at 445. In addition to the greater knowledge of the PVS patient's personal views, close family members have a special bond with the PVS patient. "Our experience informs us that family members are generally most concerned with the welfare of a patient." Jobes, 108 N.J. at 416, 52~LA.2d_.Qt445. Furthermore, concomitant with the substitute decision maker's exercise of the PVS patient's right to refuse treatment, the surrogate must also obtain written statements of two doctors qualified to evaluate the patient's condition. These statements must certify that the patient has been diagnosed [**913] as being in a permanent[***19] vegetative state. n12 If the patient has an attending physician, that physician shall also prepare a statement. See also JQbes, supra. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -12 For the distinction between permanent and persistent vegetative state, see n. 1, supra. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - In the case at bar, the two neurologists whose opinions on Fiori were presented at the trial court concurred that Fiori's [*607] PVS was irreversible. Drawing on her knowledge of her son when he was competent, Sherman testified that based on her son's love of life and his personal ethics, her son would no longer wish to be kept alive in his present condition. The Superior Court held that the medical evidence and Sherman's testimony were sufficient to support her decision to terminate life sustaining measures for her son; we find no fault with the lower court's determination. The final question for our review is what role the judiciary will play when situations such as Fiori's arise. We believe that where the physicians and the close family member are in agreement, and there[***20) is no dispute between "interested parties," n13 there is no need for court involvement. Accord Colver, 99 Wash. 2d at 127, 660 P.2d at 746; Jobes, 108 N.J. at 423, 529 A.2d at 449; Rasmussen, 154 Ariz. at 224, 741 P.2d at 691. The court's involvement in "substantive decisions concerning medical treatment should be limited to resolving disputes. . . Where. . .all affected parties concur in the proposed plan of medical treatment, court approval of the proposed plan of medical treatment is neither necessary nor required." Rasmussen, 154 Ariz. at 224, 741 P.2d at 691. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -13 https://www3 .1exisnexis.com/bc1s/auth?cacheKey=T37 485114&srv=01s _ LexseeRetrieve&forrnViewType... 1/3/2008 " LexisN~xis(TM) Basic Case Law & Statutes I Search - 1 Result - Page 7 of 8 "Interested parties" may include, but is not limited to, close family members, the guardian of the incompetent, attending physicians, or the care facility in which the patient is located. See Rasmussen, 154 Ariz. at 223, 741 P.2d at 691. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - The Attorney General argues that approval of the decision to terminate life-support is a uniquely judicial function, and that we would be abandoning our role as a court. We disagree. As Judge[***21] Beck stated in her opinion below, the judiciary has no role to play: where there is a loving family, willing and able to assess what the patient would have decided as to his or her treatment, all necessary medical confirmations are in hand, and no one rightfully interested in the patient's treatment disputes the family decision. (Citations omitted.) Those who disagree with this view and who favor court intervention in every case often cite the need for the court to protect the patient. Underlying this rationale is the philosophy [*608] that only courts can provide the necessary safeguards to assure protection of life. This is a narrow and unhealthy view. It violates the essential and traditional respect for family. It is yet another expansion of the idea that courts in our society are the repository of wisdom and the only institution available to protect human life and dignity. Fiori, 438 Pa. Super. at 627, 652 A.2d at 1358. n14 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -14 The Attorney General also raised the issue that a guardian ad litem need be appointed in cases such as Fiori's, and that the trial court erred in failing to appoint one. As we hold that no legal proceedings are necessary in cases such as Fiori's, then clearly there would be no need for the appointment of a guardian ad litem. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***22] At the close of this opinion, we stress that the matter sub judice addresses only a very narrow issue: whether life-support may be terminated for a PVS patient who was once competent, but did not express desires as to medical treatment, and who may make that choice. It would be unwise for us to speak to alternate scenarios that are not now before us. Thus, we explicitly note that our holding today applies only to situations where the individual in question was once a competent adult, but is now in a permanent vegetative state, and while competent that individual left no advance directives pertaining to life sustaining measures. We think it wise that "in deciding a question of such magnitude and importance. . . it is the [better] part of wisdom not to attempt, by any general statement, to cover every possible phase of the subject." Cruzan, 497 U.S. at 277-278 (citations omitted). For the reasons stated herein, we affirm the decision of the Superior Court. [**914] Mr. Justice Montemuro, who was sitting by designation, did not participate in this decision. Mr. Justice Zappala files a concurring opinion. CONCUR BY: ZAPPALA CONCUR CONCURRING OPINION JUSTICE ZAPPALA [***23]DECIDED: April 2, 1996 I join in the majority opinion except insofar as it imposes a requirement that the consent of two physicians be obtained [*609] before a close relative may elect to remove life sustaining treatment from an adult. It is difficult to conceive of a situation in which a relative of an adult who is in a persistent vegetative state https:/ /www3 .lexisnexis.com/bcls/auth?cacheKey=T37485ll4&srv=ols_LexseeRetrieve&form _ ViewType... 1/3/2008 LexisN.exis(TM) Basic Case Law & Statutes I Search - 1 Result - Page 8 of 8 would not consider the attending physician's medical diagnosis or, if needed, consult with another physician before making such a weighty decision. Where the family member exercises his or her judgment and concludes that the advice or expertise of another physician is unnecessary, it is unduly burdensome to require two qualified physicians, in addition to the attending physician, to evaluate the patient's condition. The majority requires written statements of two physicians and of the attending physician certifying that the patient is in a persistent vegetative state. There is no statement of policy reasons or explanation given for the necessity of obtaining statements from three physicians. If the purpose is to ascertain whether the patient is in fact in a persistent vegetative state, that may be accomplished by the written[***24) statement of a single qualified physician. The written statements of additional physicians do nothing more than assuage a doubting conscience. They do not assure the infallibility of the diagnosis. If the family member needs such reassurance, he or she will seek it. I see no reason for the law to require it. I would hold that the written statement of a single physician is sufficient to establish the patient's condition where there is no dispute among the interested parties. We have defined "interested parties" to include close family members, a guardian of an incompetent, attending physicians, and the care facility in which the patient is located. I trust that those parties will voice their concerns or disagreement if dissatisfied with the diagnosis. In the absence of any compelling reason to require written statements of two additional physicians, I must depart from that portion of the majority's decision. Service: Get by LEXSEE@ Citation: 543 Pa, 592 View: Full DatefTime: Thursday, January 3, 2008 - 5:10:25 PM EST Products & Services I LexisNexis Bookstore I LexisNexis by Credit Card I Feedback I Sign Off I .tt~!.~ About LexisNexis I Terms and Conditions I Support Identifier CODvright @ 2004 LexisNexis, a division of Reed Elsevier, Inc. All rights reserved. https://www3.1exisnexis.comlbc1s/auth?cacheKey=T3 7 485114&srv=ols _ LexseeRetrieve&formViewType... 1/312008 In Re: David L. Hockenberry, An Incapacitated Person ORPHANS' COURT DIVISION COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 21-02-293 CERTIFICATE OF SERVICE OF ORDER ORDER DATE: 1/4/08 JUDGE'S INITIALS: EBB TIME STAMP DATE: 1/4/08 IN RE: HEARING ORDER "",'\'\'\'\,'\'\"""""""""",..,,"""""""""""""""""""""""""""""""""""""""""""" SERVICE TO: CHRISTOPHER LUCAS. A TTY METHOD OF MAILING: ENVELOPES PROVIDED BY: D USPS DRRR [8J HAND DELIVERED D OTHER_ D PETITIONER D JUDGE D CLERK OF ORPHANS COURT MAILED: 1/4/08 """"""""""""""""""""""""""""""""""""""""""",,""",..,""""'""""""""" SERVICE TO: DAVID L HOCKENBERRY JAMES MUNRO HOWARD ULAN METHOD OF MAILING: ENVELOPES PROVIDED BY: [8J USPS DRRR D HAND DELIVERED D OTHER_ [8J PETITIONER D JUDGE D CLERK OF ORPHANS COURT MAILED: 1/4/08 l111Mo-tU1f () (\/tth~~ Deputy '-0 - Clerk of Orphans' Court D ---- COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA IN RE: DAVID L. HOCKENBERRY: An Incapacitated Person ORPHANS COURT DIVISION No. 21-02-293 ORDER AND NOW, after consideration of the PETITION TO GRANT THE GUARDIANS AUTHORITY TO EXERCISE THE POWERS OF A HEALTH CARE AGENT ON BEHALF OF THE INCAPACITATED, an expedited hearing is scheduled for II ~ day of January, 2008, at CZ? L( S ~ Service may be made upon interested parties by facsimile. Dr. DePriest and the Hockenberrys may appear by telephone. A f=O \luW-"" ~W,,\~ ~ ~~cLL ~ J. o ~; CJ "'-~1;3 I ,: ='L~(} -... '.-- ~ c..::";:') (',';:-,,) C:;;) L- ~o... 4""111''' I=~~~ ':-.~) c> David L. Hockenberry Christine Williams, RN, Patient Relations Coordinator Memorial Hospital Represented by James Munro, Esquire Department of Public We1.fare Represented by Howard Ulan, Esquire "", ~"" '. -' - 11 -0 (, -:; C"J _ L'l .n I ,l.- '- ) 'In . I '-.J ---j r r ._, _._ I_.~- "",' r' ') .r:- . I r ~ IN RE: DAVID L. HOCKENBERRY AN INCAPACITATED PERSON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 21-02-293 ORPHANS' COURT ORDER OF COURT AND NOW, this rk- day of January, 2008, Jane Adams, Esquire, is appointed to represent David L. Hockenberry, an incapacitated person. Jane Adams, Esquire For David L. Hockenberry Christopher S. Lucas, Esquire For Petitioners James Munro, Esquire For Memorial Hospital Howard Ulan, Esquire For Department of Public Welfare :sal / ,Q >:::0 i~ .:7:0 "2.> 1-- -~:7 f"/""1 -. -: -,...; (,,'J 5.~ c) C.) -~ --I :b. :.l~ - - . . ~ <::::> c:::;' 0:> '- .:n. :.;e I -.J r-'.. C'~) - -d ~.'- c) _ f'r-j C; ORPHANS' COURT DIVISION COURT OF COMMON PLEAS OF In Re: DAVID L HOCKENBERRY, AN INCAPACITATED PERSON CUMBERLAND COUNTY PENNSYLVANIA NO. 21-02-0293 CERTIFICATE OF SERVICE OF ORDER ORDER DATE: 1/7/08 JUDGE'S INITIALS: EBB TIME STAMP DATE: 1/7/08 IN RE: ORDER OF COURT ~ .. '\ .. .. .. '\ '\ '\ .. '\ '\ .. '\ .. .. '\ .. '\ '\ '\ .. .. .. .. .. '\ '\ '\ .. '\ .. .. .. '\ .. '\ '\ '\ '\ .. .. '\ .. .. '\ .. '\ '\ .. '\ '\ '\ .. '\ '\ '\ '\ '\ .. .. '\ .. .. .. .. .. .. '\ .... .. .. .. .. .. .. .. '\ '\ .. '\ '\ .. .. '\ .. '\ .. '\ .. '\ .. '\ '\ '\ .. '\ '\ '\ .. .. '\ '\ .. '\ '\ '\ '\ '\ .. .. .. .. '\ '\ '\ .... .. .. .. .. '\ SERVICE TO: JANE ADAMS CHRISTOPHER LUCAS JAMES MUNRO METHOD OF MAILING: ENVELOPES PROVIDED BY: ~ USPS DRRR o HAND DELIVERED o OTHER_ o PETITIONER ~ JUDGE o CLERK OF ORPHANS COURT MAILED: 1/7/08 """""""""""""""""""""""""""""""""""""""""""""""""""""""""""',"" SERVICE TO: HOWARD ULAN METHOD OF MAILING: ENVELOPES PROVIDED BY: ~ USPS DRRR o HAND DELIVERED o OTHER_ o PETITIONER ~ JUDGE o CLERK OF ORPHANS COURT MAILED: 1/7/08 I~hnl {J ~n~ Deputy Clerk of Orphans' Court C!d COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA IN RE: DAVID L. HOCKENBERRY: An Incapacitated Person ORPHANS COURT DIVISION No. 21-02-293 On the Petition of Myrl and Vada Hockenberry n f~~-~ J .,;,., , - C"") ,..., r-J '~,:1 ~.::; "-;"l;~ f ' : (-') { ": , , s-. CERTIFICATE OF SERVICE > ~J - ;..~-: I C'. ;-- - (~;:; ~ "-.- I, Chris A. Kimple, hereby certify that I have served a copy .or-the "'-' , 'I a v, ~ j PETITION TO GRANT THE GUARDIANS AUTHORITY TO EXERCISE THE POWERS OFA HEALTH CARE AGENT ON BEHALF OF THE INCAPACITATED, an ORDER filed January 4,2008, and proposed FINAL ORDER upon the following persons by facsimile: Name Facsimile Number Date David L. Hockenberry 814.534.9780 Christine Williams, RN, Patient Relations Coordinator Jan. 4, 2008 Memorial Hospital James Munro, Esquire 814.539.1423 Jan. 4, 2008 Department of Public Welfare 717.772.0717 Howard Ulan, Esquire Jan. 4, 2008 ~- Respectfully submitted, Date:-1.l11 ;;a)~ Ch~~~~ Legal Assistant Law Offices of Christopher S. Lucas LLC 220 Cumberland Parkway, Suite 4 Mechanicsburg, P A 17055 Voice: 717.691.0203 Facsimile: 717.691.3130 Email: cslucas@lucashealthlaw.com *************** -COMM. JOURNAL- ******************* DATE JAN-04-2008 ***** TIME 14:57 *** P.Ol MODE = MEMORY TRANSMISSION START=JAN-04 14:48 END=JAN-04 14:57 FILE NO.= 008 SiN COMM. NO. ONE- TOUCH/ STAT ION NAME/Et1A I L ADDRESS/TELEPHONE NO. ABBR. NO. PAGES DURATION 001 OK ~ 18145349780 02121/020 00: 08' 36" ************************************ - - ***** - - ********* I,QW Office,. Of CHRISTOPHER S. LUCAS LLC HEALTH CAllE LAW AND OOV1!IlNMENT RllATIONS www.lucaslulalthlaw.com Scott A. Lucas of Counsel Admitted in Pennsylvania and New York Christopher S. Lucas , ; Admitted in Pennsylvania and the District of Co/um~ti!l ,,' r,"'; J ~..~t ~" 220 Cumberland Parkway Suite 4 .';'~'I"'\,~\ Mechen/csburg, PA 17055 ,I':,;,;'> ..."'" """"' ~ ,H~~"V::;k . .f~ ;'.i!"''I. facsImile 717.691.3130 {~~ . .,;J 'f"'j ":.';..,~"J';" direc' dial 717 .691.0203'(.:t;;:(;,,;~i:d!-";".i",:,1.~Jr~~', (.'sll"",..(~)J..c"shelllth/" w. cum January 4,2008 Fax: Christine Williams, RN, Patient From: Christopher S, Lucas Relations Coordinator 814.534.9780 Pages: 20 includiJ:lg cover page 814.534.3158 Date: 1/4/2008 Daviq L. Hockenberry CC: To: Phone: Re: Ms. Williams, Following this cover page, please find the PETITION TO GRANT THE GUARDIANS AUTHORITY TO EXERCISE THE POWERS OF A HEALTH CARE AGENT ON BEHALF OF THE INCAPACITATED, an ORDER and proposed FINAL ORDER in the matter of David. L. Hockenberry. Thank you. Ck-A~~ 0P A~~ Chris A. Kimple Legal Assistant PRIVILEGED AND CONFIDENTIAL The information following this cover sheet and contained in this facsimile transmission Is confidential and covered by the attorney-client privilege. It is intended for the sole use of the person(s) to whom it is addressed. If the reader of this message is not the named addressee or an employee or agent responsible for delivering this message to the intended recipient(s), please do not read the accompanying information. Note that the dissemination, distribution or copying of this communication by anyone other than the addressee is strictly prohibited, Anyone receiving this messaOfl in error should notify us immediatelv bv teleohone and return the oriainal of the Law Offices Of CHRISTOPHER S. LUCAS LLC HEALTH CARE LAW AND GOVERNMENT RELATIONS www.lucash.ealthlaw.com Christopher S. Lucas Admitted in Pennsylvania and the District of Colum 220 Cumberland Parkway Suite 4 Mechanicsburg, PA 17055 Scott A. Lucas of Counsel Admitted in Pennsylvania and New York facsimile 717.691.3130 direct dial 717.691.0203 cslucas(q,?lucasheal thlaw. com January 4,2008 To: Christine Williams, RN, Patient Relations Coordinator From: Christopher S. Lucas Fax: 814.534.9780 Pages: 20 including cover page Re: David L. Hockenberry Date: 1/4/2008 CC: Phone: 814.534.3158 Ms. Williams, Following this cover page, please find the PETITION TO GRANT THE GUARDIANS AUTHORITY TO EXERCISE THE POWERS OF A HEALTH CARE AGENT ON BEHALF OF THE INCAPACITATED, an ORDER and proposed FINAL ORDER in the matter of David L. Hockenberry. Thank you. Ck-A~~ ~ A~iW1T Chris A. Kimple Legal Assistant PRIVILEGED AND CONFIDENTIAL The information following this cover sheet and contained in this facsimile transmission is confidential and covered by the attorney-client privilege. It is intended for the sole use of the person(s) to whom it is addressed. If the reader of this message is not the named addressee or an employee or agent responsible for delivering this message to the intended recipient(s), please, do not read the accompanying information. Note that the dissemination, distribution or copying of this communication by anyone other than the addressee is strictly prohibited. Anyone receiving this message in error should notify us immediately by telephone and return the original of the transmission to us at the above address by U.S. Mail. Thank you for your cooperation. *************** -COMM. JOURNRL- ******************* DRTE JRN-04-2008 ***** TIME 14:46 *** P.01 t'10DE = MEMORY TRRN5M I 55 J ON 5TRRT=JRN-04 14:38 END=JRN-04 14:46 FILE NO.= 006 5T"i COMM. NO. ONE-TOUCH/ 5TRTION NRME/EMRIL RDDRE55/TELEPHONE NO. RBBR. NO. PRGE5 DURRTION 001 OK s 18145391423 020/020 00:08'03 ************************************ - - ***** - ********* Law Office.' Of CHRISTOPHER S. LUCAS LLC Hc.AL TH C^RE L\.W AND GOVERNMENT Rm..\TlONS www.luclL.!li:ialthlaw.com ChristopherS. Lucas r',. Admitted in Pennsylvania and the District of Colum~t'>. . ..d";1:;'f~";o 220 Cumberland Parkway Suite 4 ,'fr;: 'It, ". ,.'It... fl::::::c;~7~:1:~3:7055 i.tt~~>!~~::':1~'5.;(1~;~}~ ,. 11 '''I'' 'i .....,. " direct dial 717 .69l.0203 i:;At,\o~&~,~.;1,i,,.;g1;b, C3 l'lca.r(tjllucasnealthla,v. com Scott A. Lucas of Counsel Admitted in Pennsylvania and New York January 4, 2008 To: Jal'l'les Munro, Esquire From: Christopher S. Lucas Fax: 814.539.1423 Phone: 814.536.0735 Pages: 20 including cover page Date: 1/4/2008 Re: David L. Hockenberry cc: Attorney Munro, Following this cover page, please find the PETITION TO GRANT THE GUARDIANS AUTHORITY TO EXERCISE THE POWERS OF A HEALTH CARE AGENT ON BEHALF OF THE INCAPACITATED, an ORDER and proposed FINAL ORDER in the matter of David L. Hockenberry. ThanK you. CJu..aA ~, ~J AsslM Chris A. Kimple Legal Assistant PRIVILEGED AND CONFIDENTIAL The information following this cover sheet and contained in this facsimile transmission is confidential and covered by the attorney-client privilege. It is intended for the sole use of the person(s} to whom It Is addressed. If the reader of this message Is not the named addressee or an employee or agent responsible for delivering this message to the Intended recipient(s), please do not read the accompanying information. Note that the dissemination, distribution or copying of this communication by anyone other than the addressee is strictly prohibited. Anyone receiving . ... __ _.. _ _I J _ _I.!L. . . __ ,_ _ _-11_'_1.. L... 4._I__i..___ __A .....+. ,.... ........ ......I....i'""~1 ,...,,1 tho Law Office.s Of CHRISTOPHER S. LUCAS LLC HEALTH CARE LAW AND GOVERNMENT RELATIONS www.lucash.ealthlaw.com ChristopherS. Lucas Admitted in Pennsylvania and the District of Colum 220 Cumberland Parkway Suite 4 Mechanicsburg, PA 17055 Scott A. Lucas of Counsel Admitted in Pennsylvania and New York faCSimile 717.691.3130 direct dial 717.691.0203 cs lucas@lucashealthlaw.com January 4,2008 To: James Munro, Esquire From: Christopher S. Lucas Fax: 814.539.1423 Pages: 20 including cover page Phone: 814.536.0735 Date: 1/4/2008 Re: David L. Hockenberry CC: Attorney Munro, Following this cover page, please find the PETITION TO GRANT THE GUARDIANS AUTHORITY TO EXERCISE THE POWERS OF A HEALTH CARE AGENT ON BEHALF OF THE INCAPACITATED, an ORDER and proposed FINAL ORDER in the matter of David L. Hockenberry. Thank you. ~-A ~ \ ~tJ f\$()lM Chris A. Kimple Legal Assistant PRIVILEGED AND CONFIDENTIAL The information following this cover sheet and contained in this facsimile transmission is confidential and covered by the attorney-client privilege. It is intended for the sole use of the person(s) to whom it is addressed. If the reader of this message is not the named addressee or an employee or agent responsible for delivering this message to the intended recipient(s), pleas~ do not read the accompanying information. Note that the dissemination, distribution or copying of this communication by anyone other than the addressee is strictly prohibited. Anyone receiving this message in error should notify us immediately by telephone and return the original of the transmission to us at the above address by U.S. Mail. Thank you for your cooperation. *************** -(OMM. JOURNAL- ******************* DATE JAN-04-2008 ***** TIME 14:38 *** P.Ol MODE = MEMORY TRANSMISSION START=JAN-04 14:29 END=JAN-04 14:38 FILE NO.= 005 ST"! COMM. NO. ONE-TOUCH/ STATION NAME/EMAIL ADDRESS/TELEPHONE NO. ABBR. NO. PAGES DURATION 001 OK & 7720717 020/020 00:08'28" ************************************ - - ***** - ********* Law Offices OJ' CHRISTOPHER S. LUCAS LLC HMI.T11 CAIl.E LAW AND CiOYIiRNMENT REL.~TrONS www.lucll8n..aILhl:l.w.com Christopher S. Lucas j"', Scott A. Lucas of Counsel AdmiNed in Pennsylvania and the District of ColumbIA;,' Admitted in Pennsylvania and New York :::::::=SWM 4i~~~:~i~~l~ ",{.5..,;j ,~-.\ ..1,_,;:, :tL:,'t\;~;jJ4~~;bbj:~-t,~.\':,~~~~ fa"..imlle 717,691.3\30 direcl dial 717.691.0203 ('sl,,,,,., @~I/Jcasl1en/rhl(/ w. "am January 4, 2008 To: Howard Ulan, Esquire From: Christopher S. Lucas Pages: 20 including cover page Fax: 717.n2.0717 Phone: 717.787.6398 Re: David L. Hockenberry Date: 1/4/2008 Cc: Attorney Ulan, Following this cover page. please find the PETITION TO GRANT THE GUARDIANS AUTHORITY TO EXERCISE THE POWERS OF A HEALTH CARE AGENT ON BEHALF OF THE INCAPACITATED. an ORDER and proposed FINAL ORDER in the matter of David L. Hockenberry. Thank you. ~~\~~~ Chris .A. Kimple Legal Assistant PRIVIL.EGED AND CONFIDENTIAL The Information following this cover sheet and contained in this facsimile transmission is confidential and covered by the attorney-client privilege. It is intended for the sole use of the person(s) to whom it is addressed. If the reader of this message is not the named addressee or an employee or agent responsible for delivering this message to the Intended recipient(s), please do not read the accompanying Information. Note that the dissemination. distribution or copying of this communication by anyone other than the addressee is strictly prohibited. Anyone receiving ..' . _l..._....... -......:~....... :__.......:...........I~. h\l t.aI.e.l"'\hl"'l....o -::I...n rptllrn thp nrioinAI of the Law Offices Of CHRISTOPHER S. LUCAS LLC HEALTH CARE LAW AND GOVERNMENT RELATIONS www.lucash.ealthlaw.com Christopher S. Lucas Admitted in Pennsylvania and the District of 220 Cumberland Parkway Suite 4 Mechanicsburg, PA 17055 Scott A. Lucas of Counsel Admitted in Pennsylvania and New York facsimile 717.691.3130 direct dial 717.691.0203 cs lllcas@lucashealthlaw.com January 4,2008 To: Howard Ulan, Esquire From: Christopher S. Lucas Fax: 717.772.0717 Pages: 20 including cover page Phone: 717.787.6398 Date: 1/4/2008 Re: David L. Hockenberry CC: Attorney Ulan, Following this cover page, please find the PETITION TO GRANT THE GUARDIANS AUTHORITY TO EXERCISE THE POWERS OF A HEALTH CARE AGENT ON BEHALF OF THE INCAPACITATED, an ORDER and proposed FINAL ORDER in the matter of David L. Hockenberry. Thank you. ~~\~k~ Chris A. Kimple Legal Assistant PRIVILEGED AND CONFIDENTIAL The information following this cover sheet and contained in this facsimile transmission is confidential and covered by the attorney-client privilege. It is intended for the sole use of the person(s) to whom it is addressed. If the reader of this message is not the named addressee or an employee or agent responsible for delivering this message to the intended recipient(s), pleas~ do not read the accompanying information. Note that the dissemination, distribution or copying of this communication by anyone other than the addressee is strictly prohibited. Anyone receiving this message in error should notify us immediately by telephone and return the original of the transmission to us at the above address by U.S. Mail. Thank you for your cooperation. JAN 0 42008~ COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA IN RE: DA VID L. HOCKENBERRY: An Incapacitated Person ORPHANS COURT DIVISION No. 21-02-293 FINAL ORDER AND NOW, this day of January, 2008, upon consideration of the PETITION TO GRANT THE GUARDIANS AUTHORITY TO EXERCISE THE POWERS OF A HEALTH CARE AGENT ON BEHALF OFTHE INCAPACITATED, it-is hereby ORDERED and DECREED that , Myr1 and Vada Hockenberry are appointed and authorized to exercise the powers as Health Care Agents on behalf of their son, David L. Hockenberry. J. David L. Hockenberry Christine Wpliams, RN, Patient Relations Coordinator Memorial Hospital Represented by James Munro, Esquire Department of Public Welfare Represented by Howard Ulan, Esquire .--= 0<>.<"'"'.. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA IN RE: DAVID L. HOCKENBERRY: An Incapacita,ted Person ORDER ORPHANS COURT DIVISION No. 21-02-293 AND NOW, after consideration of the PETITION TO GRANT THE GUARDIANS AUTHORITY TO EXERCISE THE POWERS OF A HEALTH CARE AGENT ON BEHALF OF THE INCAPACITATED, an expedited hearing is scheduled for [I ~ day of JanuaIY, 2008, at ~ II S ~ Service may be made upon interested parties by facsimile. Dr. DePriest and the Hockenberrys may appear by telephone. A f::o \WW- \J \I O~W\\\~a..d- ~ fV- ?~cLL ~ David L. Hockenberry Christine Williams, RN, Patient Relations Coordinator Memorial Hospital Represented by J ames Munro, Esquire Department qf Public Welfare Represented by Howard Ulan, Esquire o ~-,; C:) -.~ _: :..,r.J ,I .....-. j; i' ~...._::.! ....1,-j :::-] ......, , ~J --'1"-1 ----I J. l'--J Co':':) t~ ':j I~",::..) c_ 7:Wl11 , +- ~:-~:: ~:.) - 1_...-- I 1 ~ - - I; COURT OFCOMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA IN RE: DAVID L. HOCKENBERRY: An Incapacitated Person ORPHANS COURT DIVISION (1 No. 21-02-293 C) ;=;:: ~.A._) '-.^ .::::~;~ - - _~ 1 --j On the Petition of Myrl and V ~da Hockenberry PETITION TO GRANT THE GUARDIANS AUTHORITY TO EXERCISE THE POWERS OF A HEALTH CARE AGENT ON BEHALF OF THE !NCAP ACIT A TED AND NOW, comes Myrl and Vada Hockenberry (Petitioners), by and through their attorney, Christopher S. Lucas, and petitions the court for an expedited hearing in the matter of David L. Hockenberry, an incapacitated person. 1. Myrl and Vada Hockenberry (the Hockenberrys) are the parents of David L. Hockenberry (David). 2. David is adult person residing at the Ebensburg State Center. 3. David has suffered from profound mental retardation since he was born. 4. On July 3,2002, the Cumberland County Orphan's Court appointed the Hockenberrys as guardians of their son, David. Order Attached. .' ,...", = = -\;.::;0 c_ )~ :0 In (--) ;~ t.=J r-1'l (:='~J ..w:.- I ,J;"" 1) ~,~ (:::-~ . - ::J~ i .,- ~:,~'~ ;,':. c:.\ -r\ r'J w 5. On or about December 21,2007, David became ill after he apparently swallowed a hair pin. This led David to vomit and to aspirate some vomit. 6. Subsequently, David became seriously ill with aspiration pneumonia and was admitted to Memorial Hospital in Johnstown. 7. Because David is unable to breathe independently, Memorial Hospital placed David on a mechanical ventilator. 8. However, while David mayor may not be able to breath without the assistance of a mechanical ventilator, David is neither permanently unconscious nor terminally ill. 9. Nevertheless, the Hockenberrys, in conjunction with David'streating physician at the hospital, Dr. Jack DePriest, M.D., determined that it is in David's best interest to decline to continue to use mech~ical ventilation. lO.While the facts of this matter are not in dispute, the Department of Public Welfare (the Department), through its Office of Legal Counsel, has raised purely legal concerns with Memorial Hospital about the decision reached by the Hockenberrys and Dr. DePriest. 11. Upon information and belief, the Department's legal concerns are grounded in Act 169 of 2006. 20 Pa. C.S. ~ 5421, et seq., or the "Act. II 12. The Act codified the Supreme Court's decision In Re Fiori. Opinion Attached. The intent of the Act was to strengthen the ability of patients to exercise their health care wishes through "health care agents," e.g. through the use of what has been called a "health care power of attorney." 20 Pa. C.S. ~ 5423. The Act expressly notes that it does not "affect or supersede the holdings of In Re Fiori." Id. 13.Upo~ ihformation and belief, the essence of the Department's concern is its legal conclusion that Act 169 of 2006 somehow requires Memorial Hospital to continue to provide extraordinary measures since David has never had,the capacity to nominate his parents as "health care agents." 14.It is the Hockenberrys position that: 1) the Department of Public Welfare lacks standing to be heard in this matter, and 2) Act 169 does nothing more than codify the Supreme Court's rule that parents may exercise exactly the kind of judgment that the Hockenberrys seek to exercise here, and 3) Act 169 expressly provides authority for the Hockenberrys to exercise their judgment under section four. See 20 Pa. C.S. S 5461. 15.In any event, Memorial Hospital's concern over the Department's position has led it to request that the Hockenberrys seek the court's guidance before executing their instructions. 16.Accordingly, the Hockenberrys seek authority to act as a health care "agent" as that term is used in Act 169, in order that they may exercise, as David's surrogate, the prerogatives outlined in In Re Fiori and Act 169. 17~Because of David's suffering, and the Hockenberrys' anguish, they respectfully request that the court schedule an expedited hearing to consider this Petition. 18.Because of the circumstances, the Hockenberrys also request an order authorizing service upon the David, Memorial Hospital and the Department, by facsimile. 19.In order that Dr. DePriest may continue to monitor David, and that the Hockenberrys may remain by David's bed side, it is also requested that the court permit them to testify by telephone. WHEREFORE, the Hockenberrys respectfully requests that the court schedule an expedited hearing in this matter, with service to be made by facsimile and during which Dr. DePriest and the Hockenberrys may testify by telephone to determine whether the Hockenberrys may act as David's health care agent. Respectfully submitted, Date: 1 J 4 '09' f c~ . Christopher S. Lucas Pa. LD.No. 77903 Attorney for Petitioners Law Offices of Christopher S. Lucas LLC 220 Cumberland Parkway, Suite 4 Mechanicsburg, PA 17055 Voice: 717.691.0203 Facsimile: .717.691.3130 Email: cslucas@lucashealthlaw.com . . l/U31 ZUUll UiU lti: 0'( t<'AA 1.114 034 34/rt 9~r u.t _~vv VU,LQ r~A 'LI.4Df~qJ KUSE B-CCU ^l;I.;UUNT1NG Vt:P'l' 14I 001 )~002 ',,,-,,,, ""--,,, ''--'" ' an Alleged Incapacitated Person IN THE COURT OF C0M1v10N PLEAS OF CUMBERLAND COUNTy, PENNSYLVANIA ORPHANS COURT DMSION NO. 21 - 02- 2 '13 Civil Term In Re; DAVID L. HOCKENBERRY, FINAL DECREE i<D AND NOW. tbis~ day of July, 2002, upon consideration of the annexed petition and after hearing held following due notice, it is hereby ORDERED and DECREED tha4 bas~,d upon a fmding !:hat DAVID L. HOCKENBERRY suffers from profound mental retardation and as a result is 50 severely mentally impaired that he is unable to make, communicat~ or even participate in any decision relating to his esrare or person, DAVID L. HOCKENBERRY is adjudged totally incapacitated. Myrl1. Hockenberry and Va-da B. Hockenberry are appointed joint plenary guardians of the person of DAVID L., HOCKENBERRY. Myrl 1. Hockenberry and Vada B. Hockenberry aEe appointedjoint plenary guardians of the estate of DAVID L. HOCKENBERRY. The respective guardians shall file with this court a report within 12 months from the date of this decree and at least annually thereafter which (a) in the case of the guardian ofrhe estate attests to: (i) curre.nt principal and how it is invested~ (ii) current income~ (iii) ex.penditures of principal and income sinoe the last r!!.port; and Civ) the needs of DAVID L. HOCKENBERRY, the incapacitated person, for which the guardian has provided since the last report, andFor (b) in the case of the guardian of the person attests to: (i) current address and type of placement of DAVID L HOCKENBERR Y. the incapacitated person; (ii) major medical or mental problems of DAVID L. HOCKENBERRY, the incapacitated person; (ill) a brief description of the living arrangements of DAVID L. HOCKENBERRY, the incapacitated person, and the social, meclical, psychological and other support services he is receiving; (iv) the opinion of Guardians of the PerSon as to whethel' the guardianship should continue or be tenninated or modified, and the reasons therefore; and (v) the number and length of times the Guardians of the person visited the incapacitated pe(sonin the past year. By the Court: ~ /Lur1o/-E ~ P.J. --"} (I~; , ...-'..... \; (- ..- 01/03/2008 TBU 16:57 FAX 814 534 3487 KU~~ o-~~U ,Dee ,31 200? 1?:15 HP LASERJET FA~ 'if./VV"," 8144720528 F'. 1 "'-"""" "'~' FEB 0 3 2005 .tJ1 InRe: IN TIm COURT OF COMM:ON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS COURT DIVISION DAVIDL. HOCKENBERRY, an Alleged Incapacitated Person . : NO. 21-02- 293 ORDER AND Nb~, this 4 TH day of =.,~. 2005, upon consideration of the ann~x.ed petition, it is hereby ORDERED and DECREED that Bonnie A Prevost is appointed a co-guardian of the estate a~d person,..91...P.ily~tL.~HockenberqLio..serve ~o-gUardia'r1 with. ~yrJ-I. Hocbmer-:ry--and .: Varia B. Hockenbeny who were previously appointed pleriary guardians of bis person and of his estate, By the Court: l~ 4rlL~~. ,/ J. o (r"> q;:~. ~,~r \_.... li:}{}:\.' . ~.:: !'. --'= . - ~~\"~F;.' . () r[6;~) ~.-:-- ~ ~~:t ..v .....J I tfl \..'- 'if..;. ~~:~ .,'#:'1' ) Je~isNexis(TM) Basic Case Law & Statutes I Search - 1 Result- Service: Get by LEXSEE@ Citation: 543 Pa. 592 Page 1 of8 543 Pa. 592, *; 673 A.2d 905, **; 1996 Pa. LEXIS 551, *** IN RE: DANIEL JOSEPH FIORI, AN ADJUDGED INCOMPETENT; APPEAL OF: COMMONWEALTH OF PENNSYLVANIA, ATTORNEY GENERAL No.6 E.D. Appeal Docket 1995 SUPREME COURT OF PENNSYLVANIA 543 Pa. 592; 673 A.2d 905; 1996 Pa. LEXIS 551 April 25, 1995, ARGUED April 2, 1996, DECIDED PRIOR HISTORY: [***1] Appeal from the Judgment of the Superior Court Entered January 17, 1995, at No. 000737 Philadelphia 1993, Affirming the Judgment of the Court of Common Pleas of Bucks County, Orphans Court Division, Entered February 3, 1993, at No. 49355 438 Pa. Super. 610, 652 A.2d 1350 (1995). JUDGES: MR. JUSTICE CAPPY. Mr. Justice Montemuro, who was sitting by designation, did not participate in this decision. Mr. Justice Zappala files a concurring opinion. OPINION BY: CAPPY OPINION [*597] [**908] OPINION OF THE COURT MR. JUSTICE CAPPY DECIDED: April 2, 1996 This is an appeal by allowance from the opinion and order of the Superior Court affirming the judgment entered by the Court of Common Pleas of Bucks County, Orphans Court Division. We granted allowance of appeal to decide whether a close relative, with the consent of two physicians but without court involvement, may remove life sustaining treatment from an adult relative who is in a persistent vegetative state where that adult has left no advance directives. For the following reasons, we affirm. As with all cases where this issue is presented, the facts here are tragic. Daniel Joseph Fiori, the nominal subject of this appeal, suffered severe head[***2] injuries in 1972 when he was approximately twenty years old. He regained consciousness after this injury, but his cognitive abilities were severely limited. In 1976, Fiori suffered a second head injury while being treated at a Veterans Administration hospital ("VA"). Fiori never regained consciousness after this second injury, and he was diagnosed as being in a persistent vegetative state ("PVS"). The term "vegetative state" describes: a body which is functioning entirely in terms of its internal controls. It maintains temperature. It maintains heart beat and pulmonary ventilation. It maintains digestive activity. It maintains reflex activity.of muscles and nerves for low level conditioned responses. But there is no behavioral evidence of either self-' awareness or awareness of the surroundings in a learned manner. Cruzan v. Director, Missouri Dept. of Health. 497 U.S. 261. 267, n. 1. 111 L. Ed. 2d 224. 110 S. Ct. 2841 _e~isNe~is(TM) Basic Case Law & Statutes I Search - 1 Result - Page 2 of 8 (1990) [*598] (citing In re Jobes, 108 N.J. 394. 403, 529 A.2d 434. 438 (1987)). nl This state has been described as a "twilight zone of suspended animation where death commences while life, in some form, continues." Rasmussen bv Mitchell v. Fleming. 154 Ariz. 207. 211. 741 p.2dr***3] 674,678 (987). - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1 A recent article published in The New England Journal of Medicine introduced a distinction between persistent and permanent vegetative states. The article stated that "[a] wakeful unconscious state that lasts longer than a few weeks is referred to as a persistent vegetative state. . . . A permanent vegetative state, on the other hand, means an irreversible state. . . ." Multi-Society Task Force on PVS, Medical Aspects of the Persistent Vegetative State (pts. 1 & 2), 330 New Eng. J. Med 1499, 1501 (1994) (emphasis supplied). Based on review of prior PVS cases, the article concluded that where a persistent vegetative state was brought on by traumatic injury, the state can be judged permanent twelve months after the occurrence of the injury; the article noted that recovery after twelve months is exceedingly rare. Id. at 1575. For a discussion of one such emergence from a permanent vegetative state, see Nancy L. Childs, M.D. & Walt N. Mercer, Brief Report; Late Improvement in Consciousness After Post- Traumatic Vegetative State, 334 New. Eng. J. Med. 24 (1996). The diagnosis of Fiori's condition predated this article, and thus the diagnosis of "permanent vegetative state" was not available to the attending physicians. We realize that Fiori, who had been in a vegetative state for approximately nineteen years prior to his death, would probably now be diagnosed as having been in a permanent vegetative state; be that as it may, we find that it would be highly improper for a court to "re-diagnose" Fiori. Thus, we will continue to refer to Fiori's condition as having been a persistent vegetative state. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***4] In this condition, all Fiori's cognitive brain functions were inoperative. He felt no pain or pleasure, and he was unable to communicate with others. Since Fiori had no capacity for voluntary muscular movements, his life functions were maintained by the provision of medications, fluids, and nutrition through a gastrostomy tube, a tube which is surgically inserted in the stomach. n2 There was no hope of Fiori ever recovering. - - - - - - - - - - - - - - Footnotes - - - - - - ,.. - - - - - - - -2 Artificial hydration and nutrition are viewed as treatment by the medical community and by courts of other jurisdictions. See, e.g., In re Conrov, 98 N.J. 321. 372-373,486 A.2d 1209. 1236 (1985); In re Grant. 109 Wash. 2d 545, 559-562~47 P.2d 445, 452-454 (1987). - - - - - - - - - - - - End Footnotes- - - - - - - ,.. - - - - - - After Fiori's second accident, his mother, Rosemarie Sherman, was appointed guardian of his person by court order [*599] entered in 1980. In February of 1992, Sherman requested that the Mayo Nursing Center, which was the nursing home caring for Fiori, remove his gastrostomy tube. The nursing hom,e [**909] refused to comply[***5] with her request without a court order; n3 Sherman thus filed a petition in the Court of Common Pleas for Bucks County requesting an order directing the nursing home to terminate treatment. The Attorney General appeared in the proceedings and, pursuant to his request, an independent medical expert was appointed. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - 3 The nursing home did not oppose the discontinuation of life support for Fiori. It expressed no opinion as to the ultimate determination, but rather merely indicated a desire to obtain court approval of any action. See Mayo Nursing Center Letter, February 18, 1992. R. at 9a. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - The opinions of two neurologists, one retained by Sherman and the other the court appointed independent expert, were entered into evidence. Both agreed that within a reasonable degree of medical certainty, Fiori's condition would not improve and he would remain in a PVS as he had done for the last seventeen years. They also stated that existing medical technology could continue to support Fiori's life functions so -,e~isNexis(TM) Basic Case Law & Statutes I Search - 1 Result- that his[***6] life span could extend for another ten to twenty years. Page 3 of8 Sherman testified that her son had never spoken to her about his wishes should he ever lapse into a PVS. Nevertheless, based on her son's "love of life," Sherman was of the opinion that her son would wish the gastrostomy tube to be removed. The trial court granted Sherman's motion, and the Attorney General appealed. The Superior Court, sitting en banc, affirmed. The court determined that the decision to remove life sustaining treatment from an adult in a PVS who did not leave directions as to the maintenance of life support may be made by a close family member and two qualified physicians without court approval. The Attorney General filed a petition for allowance of appeal on January 23, 1995. Prior to the granting of allowance [*600] of appeal, Fiori died of pneumonia. n4 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -4 With the death of Fiori, this appeal is technically moot. Nonetheless, because this case raises an issue of important public interest, an issue which is capable of repetition yet is apt to elude review, we have decided to hear this appeal. See Jersey Shore School Dist. v. Jersey Shore Educ. Ass'n, 519 Pa. 398, 548 A.2d 1202 (1988). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***7] In this appeal, we must determine the procedures and guidelines for removal of life sustaining treatment from a PVS patient where the patient, prior to his incompetency, failed to express his desires on such treatment. Specifically, we must determine who may make the decision for the PVS patient, what standard the decision-maker should employ, and whether the court must approve that decision. The starting point for our analysis is an examination of the right we are to protect -- the right to self- determination in regard to the acceptance or rejection of life sustaining medical treatment. Although some courts have noted constitutional bases for such a right n5; we choose to follow the exampleset by the courts which have relied solely on the common-law basis for the right to self-determination, and have eschewed an analysis based upon constitutional principles. See, e.g., In reEstate of Longeway, i33 III. 2d 33,44-45,549 N.E.2d 292, 297, 139 III. Dec. 780 (1989); Mack v, Mack, 329 Md. 188,618 A.2d 744 {J._~92). We chose to follow this example as it allows us to adhere to the sound tenet of jurisprudence that courts should avoid constitutional issues when the issue at hand may be decided[***8] upon other grounds. Rescue Army v. MuniciDal Court, 331 U.S. 549, 568-569, 91 L. Ed. 1666, 67 S. Ct. 1409 (1947). n6 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - 5 See, e.g., In re L.H.R" 253 Ga. 439, 321 S.E.2d 716(1984) (basing right to self-determination on the federal right to privacy); Corbett v. D'Alessandro, 487 So. 2d 368 (Fla.App. 1986) (basing right to s<<;!lf- determination on state constitutional guarantees of privacy).6 - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - The right to refuse medical treatment has deep roots in our common law. More than a century ago, the United States Supreme Court recognized that "no right is held more [*601] sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person. . . ." Union Pacific Railway [**910] Co. v. Botsford, 141 U.S. 250, 251. 11 S. Ct. 1000, 1001. 35 L. Ed. 734 (1891).[***9] From this right to be free from bodily invasion developed the doctrine of informed consent. See Schloendorff v. Society of New York Hosoital, 211 N.Y. 125, 129-130, 105 N.E. 92, 93 (1914) (Cardozo, J.) The doctrine of informed consent declares that absent an emergency situation, medical treatme(lt may not be imposed without the patient's informed consent. Moure v. Raeuchle, 529 Pa. 394, 404, 604 A.2d 1003, 1008 (1992). A logical corollary to this doctrine is the patient's right, in general, "to refuse treatment and to withdraw consent to treatment once begun." Mack, 329 Md. at 210, 618 A.2d at 755. Courts have unanimously concluded that this right to self-determination does not cease upon the incapacitation of the JexisNexis(TM) Basic Case Law & Statutes I Search - 1 Result - Page 4 of 8 individual. See, e.g., In re Colver. 99 Wash. 2d 114.660 P.2d 738 (1983); Mack. suora; In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976). This right, however, is not absolute. The right of the patient to abstain from medical treatment must be balanced against interests of the state. The four state interests most commonly recognized by the courts are: 1) protection of third parties; 2) prevention of suicide; 3) protection of the ethical[***10] integrity of the medical community; 4) and preservation of life. Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 740-741, 370 N.E.2d 417, 425 (1977); see also In re Conroy, 98 N.J. 321. 348-349. 486 A.2d 1209. 1223 (1985). In examining the state's interest in protecting third parties, the primary focus is on whether the patient has dependents who would be left emotionally and financially bereft were the patient to refuse medical treatment. See, e.g., In re Farrell. 108 N.J. 335. 529 A.2d 404 (1987); Saikewicz. suora. In Fiori's situation, there was no need to protect third party interests as he did not have any dependents. Thus, this state interest is not applicable here. [*602] Furthermore, the prevention of suicide was not a consideration here. In removing life sustaining measures, the natural death process is allowed to continue; death would not have been the result of a self-inflicted injury, as is the case with suicide. See Conroy. 98 N.J. at 351. 486 A.2d at 1224. Also, the ethical integrity of the medical community would not have been compromised had Sherman's request been honored. As noted by the Superior Court below, [***11] amicus curiae, the Pennsylvania Medical Society, had stated that the withdrawal of life-support from Fiori would not compromise medical ethical principles. Amicus asserted that the medical community supports the withdrawal of life sustaining treatment, including the provision of nutrition and fluid, when there is no hope of recovery and where that decision is made by a surrogate decision maker who is attempting to effectuate the wishes of the patient. Brief of the Pennsylvania Medical Society to the Superior Court at p. 16. Lastly, we focus on the state's interest in preserving life. Of these four interests, this one is the most significant. Rasmussen. 154 Ariz. at 216. 741 P.2d at 683. It encompasses the separate, but related, concerns of preserving the life of the particular individual and also safeguarding the sanctity of all life. Conroy. 98 N.J. at 348. 486 A.2d at 1223. The state's interest in preserving life is certainly applicable in situations such as Fiori's. Yet, this interest does not outweigh the PVS patient's interest in self- determination. The state's interest in maintaining the PVS individual in an endless twilight state between life and death is so[***12] weak that it cannot overcome the individual's right to self-determination. Rasmussen, 154 Ariz. at 217, 741 P.2d at 683; see also Colyer, 99 Wash. 2d at 122. 660 P.2d at 743. We thus hold that the state's interest in preserving life does not outweigh the right of the PVS patient to refuse medical treatment. Having determined that a PVS patient's right to self-determination outweighs any interests the state may have in maintaining life sustairiing treatment for the patient, we must examine how that right may be exercised. Where a PVS [*603] patient created advance written directives prior to incapacitation, we have statutory provisions which provide for the implementation of the patient's [**911] wishes. See Advance Directive for Health Care Act, 20 Pa.C.S. lj 5401 et seq. ("Act"). Yet, the Act does not address the situation where no advance directives were left as to treatment. n7 Where a statute does not exist on the subject, there are various legal theories on which authorization to terminate life support may be predicated. The approach taken by many of our sister states n8, and by the Superior Court below, is to allow a close family member to exercise "substituted judgment" on behalf[*** 13] of the patient. In exercising "substituted judgment," the surrogate decision maker: - - - - - - ~ - - - - - - - Footnotes - - - - - - - - - - - - - - -78 See, e.g., Jobes, supra; Mack. supra. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -- considers the patient's personal value system for guidance. The surrogate considers[ * * * 14] the' patient's prior statements about and reactions to medical issues, all the facets of the patient's personality that the surrogate is familiar with - - with, of course, particular reference to his or her relevant philosophical, theological, and ethical values - - in order to extrapolate what course of medical treatment the patient rT""'......_ ..t""\~'lI "1 .. n ~ J ,.'_ _ 0 ("_ ...n ""{ T~ ____r"T"____ _ 1 '''' 11"\f\f'\O Je{(isNexis(TM) Basic Case Law & Statutes I Search - 1 Result - Page 5 of 8 would choose. Jobes. 108 N.J. at 414-415. 529 A.2d at 444 (footnote omitted). The substituted judgment approach "is intended to ensure that the surrogate decision maker effectuates as much as possible the decision that the incompetent patient would make if he or she were competent." Id. at 414. 529 A.2d at 444. Even where the individual has not expressed thoughts concerning life-sustaining treatment, the patient's preferences can [*604] still be ascertained by referring to all of the aspects of his or her personality. See Estate of Lonaeway. 133 III. 2d at 49-50. 549 N.E.2d at 299-300. The minority of states requires that there be "clear and convincing" evidence of the patient's intent to withdraw life support. n9 This is the most stringent approach. This standard requires "nothing less than unequivocal proof" of the patient's express wishes[***15] as to the decision to terminate life support is at issue. In re Westchester County Medical Center (O'Connor). 72 N.Y.2d 517. 531 N.E.2d 607. 612. 534 N.Y.s.2d 886 (N.Y. 1988). See also Cruzan v. Harmon. 760 S. W.2d 408 (Mo. 1988), affd., Cruzan v. Director. MO. Health Dept.. 497 U.S. 261. 111 L. Ed. 2d 224. 110 S. Ct. 2841 (1990) (court found that PVS patient's expressions to a roommate that she would not want to be maintained on life support if she were ever to become a "vegetable," and other similar observations, did not meet the clear and convincing evidence standard because the statements did not deal specifically with the withdrawal of artificial hydration and nutrition. insufficient to meet the clear and convincing evidence standard; the PVS patient was thus maintained on life-support.) - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -9 We note that the term "clear and convincing evidence" in this context refers to the requirement that the individual in question must have stated in an explicit fashion the exact treatment desired were the patient to lapse into various medical conditions. The term "clear and convincing evidence" is used more commonly, however, as a burden of proof. In that context, the standard refers to that quantum of evidence necessary for a party to establish a point. For further illumination on the distinction see generally Comment, The Right to Die, 96 Dick.L.Rev. 649, 651 and 665-669. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***16] The Attorney General argues that the clear and convincing evidence standard should be used. To support this argument, he notes that the guardianship statutes employ the clear and convincing evidence standard for the resolution of certain issues; nl0 thus, since this standard is applicable to [**912] some determinations via the guardianship statute, then it perforce applies to this decision. We disagree. The guardianship statutes simply do not address a situation such as we have before us, [*605] and thus we do not find that the clear and convincing evidence standard is mandated here. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -10 For example, clear and convincing evidence is required for determinations of incapacity and appointment of a guardian. 20 Pa.C.S. 9& 5511 (a) and ill. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - Furthermore, we find the clear and convincing evidence test to be overly restrictive, one which would thwart the PVS patient's right to determine the medical care to be received. Were this test to be applied, all of those patients who did not have the prescience or the sophistication to express[***17] clearly and unmistakably their wishes on this precise matter would not be able to have life support removed. For those individuals, the choice concerning medical treatment would not be an extrapolation based upon their individual beliefs. Rath~r, the "choice" would be dependent simply upon how far the frontiers of medical science had advanced: if the life sustaining procedures were available, they would be automatically administered. This we cannot tolerate. Thus, we agree with the Superior Court below that the substituted judgment standard is the proper approach. We believe that where a PVS patient has not left instructions as to the maintenance of life sustaining treatment, the only practical way to. prevent the destruction of the PVS patient's right to refuse medical treatment is to allow a substitute decision maker to determine what measures the PVS patient would have desired in light of the patient's prognosis. Accord Jobes. 108 N.J. at 414. 529 A.2d at444. n11 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -11 .... , . n 1'. ,. r" __ur"T'__u _ 1 ,...., If"\AAO ,e~isN exis(TM) Basic Case Law & Statutes I Search - 1 Result - Page 6 of8 We also note that in addition to the substituted judgment and clear and convincing evidence standards, some courts have also adopted a standard known as the "best interests" analysis. See, e.g., Rasmussen, 154 Ariz. at 222, 741 P.2d 689. This analysis allows a decision maker to determine if withdrawal of life support would be in the best interests of the PVS patient. The analysis is an objective one, one which considers the patient's relief from suffering, the preservation or restoration of functioning, and the quality and extent of sustained life. The President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment, at 135 (1983) ("President's Commission Report"). As discussed herein, we decide today that a close family member of a once competent adult who is now in a permanent vegetative state may effectuate substituted judgment on the patient's behalf. We determine that where there is enough data for the decision maker to ascertain what the patient would have desired, the decision maker must effectuate substituted judgment. Where the patient's desires can be discerned via substituted judgment, it would be improper to employ instead the objective best interests standard to make that decision. Thus, in cases such as Fiori's, where a relative of a once competent adult, now in a permanent vegetative state, can effectuate a substituted judgment, a best interests analysis may not be employed. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***18] [*606] We also hold that a close family member is well-suited to the role of substitute decision maker. Accord see, e.g., Colyer, 94 Wash. 2d at 127, 660 P.2d at 745-746; Foody v. Manchester Memorial Hospital. 40 Conn. Supp. 127,482 A.2d 713 (Conn. Super. Ct. 1984); Jobes, 108 N.J. at 415-417,529 A.2d at 445. Close family members are usually the most knowledgeable about the patient's preferences, goals, and values; they have an understanding of the nuances of our personality that set us apart as individuals. President's Commission at 128. See also Jobes, 108 N.J. at 416, 529 A.2d at 445. In addition to the greater knowledge of the PVS patient's personal views, close family members have a special bond with the PVS patient. "Our experience informs us that family members are generally most concerned with the welfare of a patient." Jobes, 108 N.J. at 416. 529 A.2d at 445. Furthermore, concomitant with the substitute decision maker's exercise of the PVS patient's right to refuse treatment, the surrogate must also obtain written statements of two doctors qualified to evaluate the patient's condition. These statements must certify that the patient has been diagnosed [**913] as being in a permanent[***19] vegetative state. n12 If the patient has an attending physician, that physician shall also prepare a statement. See also Jobes, sup-Fa. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -12 For the distinction between permanent and persistent vegetative state, see n. 1, supra. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - In the case at bar, the two neurologists whose opinions on Fiori were presented at the trial court concurred that Fiori's [*607] PVS was irreversible. Drawing on her knowledge of her son when he was competent, Sherman testified that based on her son's love of life and his personal ethics, her son would no longer wish to be kept alive in his present condition. The Superior Court held that the medical evidence and Sherman's testimony were sufficient to support her decision to terminate life sustaining measures for her son; we find no fault with the lower court's determination. The final question for our review is what role the judiciary will play when situations such as Fiori's arise. We believe that where the physicians and the close family member are in agreement, and there[***20] is no dispute between "interested parties," n13 there is no need for court involvement. Accord Colver, 99 Wash. 2d at 127, 660 P.2d at 746; Jobes, 108 N.J. at 423, 529 A.2d at 449; Rasmussen, 154 Ariz. at 224, 741 P.2dat 691. The court's involvement in "substantive decisions concerning medical treatment should be limited to resolving disputes. . . Where. . .all affected parties concur in the proposed plan of medical treatment, court approval of the proposed plan of medical treatment is neither necessary nor required." Rasmussen, 154 Ariz. at 224, 741 P.2d at 691. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -13 .. TO ____'T'___ _ 1 1':1/'"1(\(\0 .Je"asNexis(TM) Basic Case Law & Statutes I Search - 1 Result - Page 7 of 8 "Interested parties" may include, but is not limited to, close family members, the guardian of the incompetent, attending physicians, or the care facility in which the patient is located. See Rasmussen. 154 Ariz. at 223, 741 P.2d at 691. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - The Attorney General argues that approval of the decision to terminate life-support is a uniquely judicial function, and that we would be abandoning our role as a court. We disagree. As Judge[***21] Beck stated in her opinion below, the judiciary has no role to play: where there is a loving family, willing and able to assess what the patient would have decided as to his or her treatment, all necessary medical confirmations are in hand, and no one rightfully interested in the patient's treatment disputes the family decision. (Citations omitted.) Those who disagree with this view and who favor court intervention in every case often cite the need for the court to protect the patient. Underlying this rationale is the philosophy [*608] that only courts can provide the necessary safeguards to assure protection of life. This is a narrow and unhealthy view. It violates the essential and traditional respect for family. It is yet another expansion of the idea that courts in our society are the repository of wisdom and the only institution available to protect human life and dignity. Fiori, 438 Pa. Super. at 627, 652 A.2d at 1358. n14 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -14 The Attorney General also raised the issue that a guardian ad litem need be appointed in cases such as Fiori's, and that the trial court erred in failing to appoint one. As we hold that no legal proceedings are necessary in cases such as Fiori's, then clearly there would be no need for the appointment of a guardian ad litem. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***22] At the close of this opinion, we stress that the matter sub judice addresses only a very narrow issue: whether life-support may be terminated for a PVS patient who was once competent, but did not express desires as to medical treatment, and who may make that choice. It would be unwise for us to speak to alternate scenarios that are not now before us. Thus, we explicitly note that our holding today applies only to situations where the individual in question was once a competent adult, but is now in a permanent vegetative state, and while competent that individual left no advance directives pertaining to life sustaining measures. We think it wise that "in deciding a question of such magnitude and importance. . . it is the [better] part of wisdom not to attempt, by any general statement, to cover every pOSSible phase of the subject." Cruzan, 497 U.S. at 277-278 (citations omitted). For the reasons stated herein, we affirm the decision of the Superior Court. [**914] Mr. Justice Montemuro, who was sitting by designation, did not participate in this decision. Mr. Justice Zappala files a concurring opinion. CONCUR BY: ZAPPALA CONCUR CONCURRING OPINION JUSTICE ZAPPALA [***23]DECIDED:April~1996 I join in the majority opinion except insofar as it imposes a requirement that the consent of two physicians be obtained [*609] before a close relative may elect to remove life sustaining treatment from an adult. It is difficult to conceive of a situation in which a relative of an adult who is in a persistent vegetative state 1 ,""\ 'I"\"An Je:l}isNe*is{TM) Basic Case Law & Statutes I Search - 1 Result - Page 8 of 8 would not consider the attending physician's medical diagnosis or, if needed, consult with another physician before making such a weighty decision. Where the family member exercises his or her judgment and concludes that the advice or expertise of another physician is unnecessary, it is unduly burdensome to require two qualified physicians, in addition to the attending physician, to evaluate the patient's condition. The majority requires written statements of two physicians and of the attending physician certifying that the patient is in a persistent vegetative state. There is no statement of policy reasons or explanation given for the necessity of obtaining statements from three physicians. If the purpose is to ascertain whether the patient is in fact in a persistent vegetative state, that may be accomplished by the written[***24] statement of a single qualified physician. The written statements of additional physicians do nothing more than assuage a doubting conscience. They do not assure the infallibility of the diagnosis. If the family member needs such reassurance, he or she will seek it. I see no reason for the law to require it. I would hold that the written statement of a single physician is sufficient to establish the patient's condition where there is no dispute among the interested parties. We have defined "interested parties" to include close family members, a guardian of an incompetent, attending physicians, and the care facility in which the patient is located. I trust that those parties will voice their concerns or disagreement if dissatisfied with the diagnosis. In the absence of any compelling reason to require written statements of two additional physicians, I must depart from that portion of the majority's decision. Service: Get byLEXSEE@ Citation: 543 Pa. 592 View: Full DatefTime: Thursday, January 3, 2008 - 5:10:25 PM EST Products & Services I LexisNexis Bookstore I LexisNexis by Credit Card I Feedbacls.l Sign Qff I Help About LexisNexis I Terms and Conditions I Support Identifier Copyright@ 2004 LexisNexis, a division of Reed Elsevier, Inc. All rights reserved. n ,... '( T~ ____'T'__~__ 1 I'") ''"I (\(\ 0 Christopher S. Lucas Admitted in Pennsylvania and the District of Colum Law Offices Of CHRISTOPHER S. LUCAS LLC HEALTH CARE LAW AND GOVERNMENT RELATIONS www.lucas~althlaw.com 220 Cumberland Parkway Suite 4 Mechanicsburg, PA 17055 Scott A. Lucas of Counsel Admitted in Pennsylvania and New York facsimile 717.691.3130 direct dial 717.691.0203 csl/lcas@lucashealthlaw.com January 7,2008 Cumberland County Register of Wills Cumberland County Courthouse 1 Courthouse Square Carlisle, P A 17013 (") <;;0 :<'.- ::0 '):420 -:~,d :t ~ ~_.,.: -rJ c.r'J 5::- ")S(~~ ~-:::: ~",.....J --! ~':J ~... r"--:l = = = <- :;p.. z I co \::J ::x N o 0" Re: David L. Hockenberry Docket No. 21-02-293 Dear Sir or Madam: Please find enclosed one original and one copy of the CER TIFICA TE OF SERVICE regarding the above referenced matter. Please file the original and time-stamp and return the copy in the envelope provided. If you have any questions, please do not hesitate to contact me. Respectfully, Christopher S. Lucas CSL/cak Enclosures Copy: Christine Williams, RN, Patient Relations Coordinator (w/encl.) James Munro, Esquire (w/encl.) Howard Ulan, Esquire (w/encl.) Karen Loeffler, Risk Manager (w/encl.) In Re: David L. Hockenberry, An Incapacitated Person ORPHANS' COURT DIVISION COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 21-02-293 CERTIFICATE OF SERVICE OF ORDER ORDER DATE: 1/4/08 JUDGE'S INITIALS: EBB TIME STAMP DATE: 1/4/08 IN RE: HEARING ORDER SERVICE TO: CHRISTOPHER LUCAS, A TTY METHOD OF MAILING: ENVELOPES PROVIDED BY: D USPS DRRR [8J HAND DELIVERED D OTHER_ D PETITIONER D JUDGE D CLERK OF ORPHANS COURT MAILED: 1/4/08 """"""""""""""''''''''''''''''''''''''''''"""""""""""""""""""""""",..""""""""",.. SERVICE TO: DAVID L HOCKENBERRY JAMES MUNRO HOWARD ULAN METHOD OF MAILING: ENVELOPES PROVIDED BY: [8J USPS DRRR D HAND DELIVERED D OTHER_ [8J PETITIONER D JUDGE D CLERK OF ORPHANS COURT MAILED: 1/4/08 l-Lfl;\hO-tLm () !lflhf1l)0J Deputy ? Clerk of Orphans' Court COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYL VANIA IN RE: DAVID L HOCKENBERRY ORPHANS COURT DIVISION An Incapacitated Person NO. 21-02-293 EBENSBURG CENTER'S ANSWER TO PETITION TO GRANT GUARDIANS AUTHORITY TO EXERCISSE THE POWERS OF A HEALTH CARE AGENT ON BEHALF QF THE ~ Co => INCAPACITATED !~~;;g;: '~~ 1 (~=~~ c-) ) (-) -T1 ;g It is admitted that the guardians believe that it is in David~:~ w .~ J.> 1-8. Admitted. 9. w Hockenberry's best interests to discontinue use of a mechanical ventilator. oir' information and belief, it is denied that Dr. DePriest's view is independent of the guardian's view, but rather represents simply a legal or policy judgment that the guardian's view is controlling. 10-14. Conclusions of law. 15. Ebensburg Center is without sufficient information to respond. 16 . No response is required. 17. It is denied that David Hockenberry is "suffering" to an extent that his interests are best served by his death. His current medical problems regarding breathing may be transitory, and even if they are permanent, can be treated without causing suffering. 18. Ebensburg Center has no objection to this request. 19. Ebensburg Center joins in the guardians' request to permit telephone testimony. Respectfully Submitted, \ \ o,\O.r L ~W -- Date Howard Ulan Senior Assistant Counsel Attorney ID# 25058 Office of General Counsel Department of Public Welfare 3rd Floor West, Health & Welfare Bldg. Harrisburg, PAl 7120 (717) 783-2800 (phone) (717) 772-0717 (fax) 2 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYL VANIA IN RE: DAVID L HOCKENBERRY : ORPHANS COURT DIVISION An Incapacitated Person NO. 21-02-293 CERTIFICATE OF SERVICE I hereby certify that on this date I served a copy of the foregoing document upon the person below in the manner indicated. By fax and First Class Mail addressed as follows: Christopher S. Lucas, Esquire 220 Cumberland Parkway Suite 4 Mechanicsburg, P A 17055 (fax) 717-691-3130 Jane Adams, Esquire 64 S. Pitt Street Carlisle, PAl 70 13 (fax) 717-243-9200 James Munro, Esquire P.O. Box 280 Johnstown, PA 15907 (fax) 814-539-1423 Date: I )~ 08' L--J 0LL- Howard Ulan Senior Assistant Counsel Attorney ID# 25058 Office of General Counsel Department of Public Welfare 3rd Floor West, Health & Welfare Bldg. Harrisburg, PA 17120 (717) 783-2800 (phone) (717) 772-0717 (fax) IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION 21-02-293 ORPHANS' COURT DAVID L. HOCKENBERRY AN INCAPACITATED PERSON IN RE: PETITION FOR APPOINTMENT AS HEALTH CARE AGENT ORDER OF COURT AND NOW, this ~It L.etay of January, 2008, the petition of Myrll. Hockenberry and Vada B. Hockenberry to be appointed as Health Care Agents for David L. Hockenberry, IS DENIED. Christopher S. Lucas, Esquire 220 Cumberland Parkway, Suite 4 Mechanicsburg, PA 17055 For Petitioners Howard Ulan, Esquire Office of General Counsel Department of Public Welfare Third Floor West Health and Welfare Building Harrisburg, PA 17120 For Ebensburg Center o So >.::r.J _I t__" .:",-[:0 ',~~~ ) C'") I~"-) g"'1 'Xi -j ~ --,- t-' = .:::::::; 0;;;0 <- ~ -",.~ .,;;.-~ N ~ ;po 3 .r:- c:r> Jane E. Adams, Esquire Court-appointed for David Hockenberry :sal IN RE: IN THE COURT Of COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION 21-02-293 ORPHANS' COURT DAVID L. HOCKENBERRY AN INCAPACITATED PERSON IN RE: PETITION FOR APPOINTMENT AS HEALTH CARE AGENT OPINION AND ORDER OF COURT Bayley, J., January 24, 2008:-- Myrll. Hockenberry and Vada B. Hockenberry are the parents of David L. Hockenberry, age 50, born May 3, 1957. On July 3, 2002, this court, based on a finding that David suffered "from profound mental retardation and as a result is so severely mentally impaired that he is unable to make, communicate or even participate in any decision relating to his estate or person, appointed Myrl Hockenberry and Vada Hockenberry as the plenary guardians of the person of David Hockenberry and plenary guardians of his estate.1 On January 4, 2008, the Hockenberrys filed this petition to be appointed and authorized to exercise the powers of Health Care Agents for David. On December 21, 2007, David became ill with aspiration pneumonia after apparently swallowing a hairpin. He was transferred from the Ebensburg Center, where he has been a resident for forty- five years, to Memorial Hospital in Johnstown, where he was placed on a mechanical ventilator. Although averring that David is neither permanently unconscious nor terminally ill, the Hockenberrys aver, that in conjunction with David's physician at Memorial Hospital, they believe that it is in David's best interest to discontinue the use 1 David has suffered from mental retardation since birth. 21-02-293 ORPHANS' COURT of mechanical ventilation.2 "Because of David's suffering, and [their] anguish," they seek appointment as Health Care Agents for David. Counsel was appointed for David and a hearing was conducted on January 11, 2008. Since the petition was filed, the mechanical ventilation of David has been removed as part of his continuing medical care. The Hockenberrys still seek appointment as David's Heath Care Agents. Although the circumstances that led to the filing of the petition appear to have passed, the petition of the Hockenberrys to be appointed as Health Care Agents for David is still before us. The Ebensburg Center maintains that the Hockenberrys cannot be legally appointed by this court as Health Care Agents for their son.3 This is an issue of law. Initially, the Hockenberrys challenge the standing of the Ebensburg Center. We are satisfied that there is standing. Under the Mental Health and Mental Retardation Act of 1966, an Ebensburg Center physician is in charge of all of David Hockenberry's medical diagnosis, care and treatment. 50 P.S. S 4417(a). Where an agency has been statutorily invested with certain functions, such an agency has implicit power to be a litigant in matters touching upon its concern. In re T.J., 739 A.2d 478 (Pa. 1999). 2 The Ebensburg Center filed an answer to the petition and denies that the physician's "view is independent of the guardian's view, but rather represents simply a legal or policy judgment that the guardian's view is controlling." 3 While the Ebensburg Center acknowledges that the Hockenberrys are loving and caring parents, it maintains that because they cannot be David's Health Care Agents, and David is neither permanently unconscious nor in an end-stage medical condition, they cannot make a decision to remove life support for him based on their being his parents and the plenary guardians of his person. -2- 21-02-293 ORPHANS' COURT The Health Care Agents and Representatives Act, 20 Pa.C.S. Section 5451 - 5471, provides in Section 5462(c)(1): Healthcare necessary to preserve life shall be provided to an individual who has neither an end-stage medical condition nor is permanently unconscious, except if the individual is competent and objects to such care or a health care agent objects on behalf of the principal if authorized to do so by the health care power of attorney or living will. . .. (Emphasis added.) The Ebensburg Center maintains that because David Hockenberry is not competent to make medical decisions for himself, nor is he competent to execute a power of attorney or living will, a Health Care Agent cannot be designated or appointed by this court. The Center argues in its brief: For the medical circumstances present here, the General Assembly adopted, in Act 169, a per se rule, 20 Pa. C.S. S5462(c)(1), that simply removes the life or death decision from guardians, relatives, or health care representatives (who are not - unlike health care agents - chosen by the principal). According to the General Assembly, in these particular medical circumstances, life is to be chosen over death. In their petition, the Hockenberrys maintain that they "seek authority to act as a health care 'Agent' as that term is used in Act 169, in order that they may exercise, as David's surrogate, the prerogatives outlined in In re Fiori [673 A.2d 905 (Pa. 1996)], and in Act 169." They note that in Act 169 it expressly states that it does not "affect or supersede the holding of In re Fiori." The facts in Fiori were that in 1972, Daniel Joseph Fiori, who was approximately twenty years old, suffered severe head injuries which severely limited his cognitive abilities. In 1976, while being treated at a Veterans Administration hospital, Fiori suffered a second head injury. Following this second -3- 21-02-293 ORPHANS' COURT injury, he was diagnosed as being in a persistent vegetative state (PVS) and never regained consciousness; there was no hope of his ever recovering. Because Fiori had no ability to voluntarily contract his muscles, "his life functions were maintained by the provision of medications, fluids, and nutrition through a gastrostomy tube, a tube which is surgically inserted in the stomach." In 1980, Rose-marie Sherman, Fiori's mother, was appointed guardian of his person. In 1992, she requested that the Mayo Nursing Center remove his gastrostomy tube. In the absence of a court order, they refused. Sherman subsequently filed a petition in the Court of Common of Pleas of Bucks County. The trial court, after hearing testimony from two neurologists who agreed that Fiori's condition would not improve, granted Sherman's motion and issued an order directing the nursing home to terminate treatment. The Attorney General appealed. After the Superior Court affirmed, the Attorney General appealed to the Supreme Court. Fiori died of pneumonia prior to the granting of allowance of appeal. Notwithstanding, the Supreme Court held that: [w]e believe that where a PVS patient has not left instruction as to the maintenance of life sustaining treatment, the only practical way to prevent the destruction of the PVS patient's right to refuse medical treatment is to allow a substitute decision maker to determine what measures the PVS patient would have desired in light of the patient's prognosis. The Court stated that "a close family member is well-suited to the role of substitute decision maker." Once a substitute decision maker has been named, they must, in order to have treatment terminated, provide statements from two qualified doctors -4- 21-02-293 ORPHANS' COURT certifying that the patient is in a permanent vegetative state and a statement from the attending physician, if there is one. The authority provided a close family member in Fiori is limited to a situation in which the relative is permanently unconscious. For an incapacitated person who "has neither an end-stage medical condition nor is permanently unconscious," Section 5462(c)(1) in Act 169 allows for the cessation of healthcare necessary to preserve life only if "the individual is competent and objects to such care or a health care agent objects on behalf of the principal if authorized to do so by the health care power of attorney or living will." The Health Care Agents and Representatives Act sets forth in Section 5452(a): Who may make.-An individual of sound mind may make a health care power of attorney if the individual: (1) is 18 years of age or older; (2) has graduated from high school; (3) has married; or (4) is an emancipated minor. (Emphasis added.) Subsection (b)(1) provides that a health care power of attorney must be dated and signed by the principal. Section 5455(a) provides that the principal may appoint a health care agent who, among others, is related to the principal by blood. Section 5456(a) provides: Extent of authority.-Except as expressly provided otherwise in a health care power of attorney and subject to subsection (b) and section 5460 (relating to relation of health care agent to court-appointed guardian and other agents), a health care agent shall have the authority to make any health care decision and to exercise any right and power regarding the principal's care, custody and health care treatment that the principal could have made and exercised. . . . -5- 21-02-293 ORPHANS' COURT Subsection (b) provides: Life-sustaining treatment decisions.-A life-sustaining treatment decision made by a health care agent is subject to this section and sections 5429 (relating to pregnancy), 5454 (relating to when health care power of attorney operative) and 5462(a) (relating to duties of attending physician and health care provider). Subsection (c) set forth a health care agent's authority regarding life-sustaining treatment decisions and health care decisions regarding end of life of a patient with an end-stage medical condition. The Ebensburg Center argues in its brief: The relief the guardians specifically seek - to transform guardianship into health care agent - imputes to this Court a power the legislature has withheld from it, i.e., the power to create health care agency (see "health care agent," 20 Pa.C.S. 95422) when none has previously existed. Under Act 169, guardians can "revoke or amend" an existing health care agency if the principal becomes incompetent, 20 Pa. C.S. 95460(a), but they cannot create one where none ever existed, which is the case here.4 4 Section 5460(a), provides: (a) Accountability of health care agent.-If a principal who has executed a health care power of attorney is later adjudicated an incapacitated person and a guardian of the person to make health care decisions is appointed by a court, the health care agent is accountable to the guardian as well as to the principal. The guardian shall have the same power to revoke or amend the appointment of a health care agent that the principal would have if the principal were not incapacitated but may not revoke or amend other instructions in an advance health directive absent judicial authorization. (b) Nomination of guardian of person.-In a health care power of attorney, a principal may nominate a guardian of the person for the principal for consideration by a court if incapacity proceedings for the principal's person are thereafter commenced. If a court determines that the appointment of a guardian is necessary, the court shall appoint a guardian in accordance with the principal's most recent nomination except for good cause or disqualification. -6- 21-02-293 ORPHANS' COURT The Probate, Estates and Fiduciaries Code sets forth at 20 Pa.C.S. S 5521 (a): Duty of guardian of the person.-It shall be the duty of the guardian of the person to assert the rights and best interests of the incapacitated person. Expressed wishes and preferences of the incapacitated person shall be respected to the greatest possible extent. Where appropriate, the guardian shall assure and participate in the development of a plan of supportive services to meet the person's needs which explains how services will be obtained. The guardian shall also encourage the incapacitated person to participate to the maximum extent of his abilities in all decisions which affect him, to act on his own behalf whenever he is able to do so and to develop or regain, to the maximum extent possible, his capacity to manage his personal affairs. Section 5521 (f) provides: Powers and duties not granted to guardian.- The court may not grant to a guardian powers controlled by other statute, including, but not limited to the power: (1) To admit the incapacitated person to an inpatient psychiatric facility or State center for the mentally retarded. (2) To consent, on behalf of the incapacitated person, to the relinquishment of the person's parental rights. (Emphasis added.) The power to appoint a Health Care Agent who may make life-sustaining treatment decisions is controlled by the Health Care Agents and Representatives Act. Therefore, the Hockenberrys do not have such power either by virtue of their being David's parents or by their appointment as guardians of his person. Under the Health Care Agents and Representatives Act, only an individual who is "of sound mind" may appoint a Health Care Agent. David Hockenberry has never been able to or will he be able to appoint a Health Care Agent. This court has no authority to make such an appointment. Therefore, the following order is entered. -7- 21-02-293 ORPHANS' COURT ORDER OF COURT AND NOW, this ~ day of January, 2008, the petition of Myrll. Hockenberry and Vada B. Hockenberry to be appointed as Health Care Agents for David L. Hockenberry, IS DENIED. Christopher S. Lucas, Esquire 220 Cumberland Parkway, Suite 4 Mechanicsburg, PA 17055 For Petitioners Howard Ulan, Esquire Office of General Counsel Department of Public Welfare Third Floor West Health and Welfare Building Harrisburg, PA 17120 For Ebensburg Center Jane E. Adams, Esquire Court-appointed for David Hockenberry :sal -8- In Re: DAVID L. HOCKENBERRY, INCAPACITATED ORPHANS' COURT DIVISION COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 121-02-0293 CERTIFICATE OF SERVICE OF ORDER ORDER DATE: 1/24/08 JUDGE'S INITIALS: EBB TIME STAMP DATE: 1/24/08 IN RE: OPINION AND ORDER OF COURT ",......,.................. ,...................................................., ".......... ,.., .................."....................,..............................,...................................."........................ SERVICE TO: JANE E ADAMS CHRISTOPHER S LUCAS HOWARD ULAN METHOD OF MAILING: ENVELOPES PROVIDED BY: [gI USPS DRRR D HAND DELIVERED D OTHER_ D PETITIONER [gI JUDGE D CLERK OF ORPHANS COURT MAILED: 1/24/08 ......,........................,..............................,......,.................................."",......"",............"....""""""",......"....,""""",..""",......" SERVICE TO: METHOD OF MAILING: ENVELOPES PROVIDED BY: D USPS DRRR D HAND DELIVERED D OTHER_ D PETITIONER D JUDGE D CLERK OF ORPHANS COURT MAILED: vCh1~i2 hru {)I/JIJI7JJV Deputy ; Clerk of Orphans' Court o COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA IN RE: DAVID L. HOCKENBERRY: An Incapacitated Person ORPHANS COURT DIVISION No. 21-02-293 NOTICE OF APPEAL UNDER Pa. R.A.P. 341(b)(l) Notice is hereby given that Myrl 1. and Vada B. Hockenberry, parents and plenary guardians of David L. Hockenberry, an incapacitated person, hereby appeals to the Superior Court of Pennsylvania from the order denying their petition to exercise the powers of health care agent for their son, entered in this matter on the 24th day of January, 2008. This order has been entered in the docket as evidenced by the attached copy of the docket entry. Date:~ Christopher . Pa. J.D. 77903 Attorney for Appellants Law Offices of Christopher S. Lucas LLC 220 Cumberland Parkway, Suite 4 Mechanicsburg, P A 17055 Voice: 717.691.0203 Facsimile: 717.691.3130 Email: cslucas@lucashealthlaw.com ; .... I .) ~ ; r .~; ;;: .... .~^ CERTIFICATE OF SERVICE I, Chris A. Kimple, hereby certify that I have served a copy of the NOTICE OF APPEAL upon the following persons which service satisfies the requirements of Pa. R.A.P. 121 (c) as follows: Service in person as follows: The Honorable Edgar B. Bayley, Jr., (717) 240-6294 President Judge c/o Sharon Lacy Secretary to Judge Edgar B. Bayley, Jr. Cumberland County Courthouse 1 Courthouse Square Carlisle, P A 17013 Presiding Judge Service to everyone listed below by U.S. first class mail addressed as follows: James C. Munro, II, Esquire, (814) 536-0735 Spence, Custer, Saylor, Wolfe & Rose, LLC P.O. Box 280 Johnstown, PA 15907-0280 Counsel for Memorial Hospital Howard Ulan, Esquire, (717) 787-6398 Office of General Counsel Department of Public Welfare Third Floor West Health and Welfare Building Harrisburg, PAl 7120 Counsel for Ebensburg Center Jane E. Adams, Esquire, (717) 245-8508 Law Office of Jane Adams 64 S. Pitt Street Carlisle, PAl 70 13 Court Appointed Counsel for David L. Hockenberry David L. Hockenberry, (814) 472-7350 Ebensburg Center 4501 Admiral Peary Highway P.O. Box 600 Ebensburg, P A 15931-0600 Respectfully submitted, Date: d-J .;t>l XlcE CJw~~ Chris A. Kimple Legal Assistant Law Offices of Christopher S. Lucas LLC 220 Cumberland Parkway, Suite 4 Mechanicsburg, P A 17055 Voice: 717.691.1203 Facsimile: 717.691.3130 Email: cakimple@lucashealthlaw.com r." TRUE Copy FROM RECORD in Testimony wherof. I hereunto set my hand and the seal of said Court at Carlisle. PA This day of fltb(Ur1l1/20 6'8 1 ,\L0'-.. -- CIeri< tne hans Court Cumberland County - Orphans Court Cumb~a~a~~n~ 1 2/20/2008 15541802202008 ORC621 Case No 2002-00293 Case Name: Filed 3/22/02 3/27/02 4/22/02 6/03/02 7/03/02 7/03/02 8/06/03 6/21/04 2/02/05 2/04/0=, 7/01/0:) 6/28/06 6/21/07 1/04/08 HOCKENBERRY DAVID L Age 44 Docket Entries 1 PETITION TO ADJUDICATE INCAPACITATED AND APPOINT GUARDIAN Relatives/Regular/Plenary/Both 2 PRELIMINARY DECREE - GEORGE E. HOFFER, P.J. CITATION 3 PRELIMINARY DECREE - GEORGE E. HOFFER, P.J. CITATION 4 PRELIMINARY DECREE - GEORGE E. HOFFER, P.J. CITATION 5 AFFIDAVIT OF SERVICE 6 FINAL DECREE ADJUDICATING INCAPACITY Relatives/Regular/Plenary/Both 7 ANNUAL REPORT OF GUARDIAN OF ESTATE ANNUAL REPORT OF GUARDIAN OF PERSON 8 ANNUAL REPORT OF GUARDIAN OF PERSON 9 PETITION FOR APPOINTMENT OF ADDITIONAL PLENARY GUARDIAN OF THE ESTATE AND PERSON IN ACCORDANCE WITH 20 PA CONS STAT 5511 10 ORDER - DATED: 2-4-05 IN RE: PETITION FOR APPOINTMENT OF ADDITIONAL PLENARY GUARDIAN OF THE ESTATE AND PERSON. IT IS HEREBY ORDERED AND DECREED THAT BONNIE A PREVOST IS APPOINTED A CO-GUARDIAN OF THE ESTATE & PERSON OF DAVID L HOCKENBERRY TO SERVCE CO-GUARDIAN WITH MYRL I HOCKENBERRY & VADA B HOCKENBERRY WHO WERE PEVIOUSLY APPOINTED PLENARY GUARDIANS OF HIS PERSON AND ESTATE. BY THE COURT - EDGAR B BAYLEY JUDGE 11 ANNUAL REPORT OF GUARDIAN OF PERSON 12 ANNUAL REPORT OF GUARDIAN OF PERSON 13 ANNUAL REPORT OF GUARDIAN OF PERSON WSZ 14 PETITION TO GRANT THE GUARDIANS AUTHORITY TO EXERCISE THE POWERS OF A HEALTH CARE AGENT ON BEHALF OF THE INCAPACITATED 15541802202008 ORC621 Case No 2002-00293 CAJ 1/04/08 1/07/08 1/08/08 1/09/08 1/24/08 1/24/08 Cumberland County - Orphans Court Page 2 2/20/2008 15 ORDER DATED 1/4/08 AND NOW AFTER CONSIDERATION OF THE PETITION TO GRANT THE GUARDIANS AUTHORITY TO EXERCISE THE POWERS OF A HEALTH CARE AGENT ON BEHALF OF THE INCAPACITATED AND EXPEDITED HEARING IS SCHEDULED FOR 1/11/08 SERVICE MAY BE MADE UPON INTERESTED PARTIES BY FACSIMILE DR DEPRIEST AND THE HOCKENBERRYS MAY APPEAR BY TELEPHONE A FOLLOW UP ORDER WILL APPOINT COUNSEL FOR DAVID L HOCKENBERRY BY THE COURT EDGAR B BAYLEY PJ SERVICE OF ORDER MAILED VIA USPS 1/4/08 CAJ 16 ORDER OF COURT DATED 1/7/08 JANE ADAMS ESQUIRE IS APPOINTED TO REPRESENT DAVID L HOCKENBERRY AN INCAPACITATED PERSON - BY THE COURT PJ CERTIFICATE OF SERVICE MAILED VIA USPS 1/7/08 CAJ 17 CERTIFICATE OF SERVICE AJW 18 EBENSBURG CENTER'S ANSWER TO PETITION TO GRANT GUARDIANS AUTHORITY TO EXERCISE THE POWERS OF THE HEATLH CARE AGENT ON BEHALF OF THE INCAPACITATED AJW 19 OPINION AND ORDER OF COURT DATED 01/24/08 IN RE PETITION FOR APPOINTMENT AS HEALTH CARE AGENT -BY THE COURT EDGAR B BAYLEY PJ CERTIFICATE OF SERVICE MAILED VIA USPS 1/24/08 CAJ 20 ORDER OF COURT DATED 1/24/08 IN RE PETITION FOR APPOINTMENT AS HEALTH CARE AGENT THE PETITION OF MYRL I HOCKENBERRY AND VADA B HOCKENBERRY TO BE APPOINTED AS HEALTH CARE AGENTS FOR DAVID L HOCKENBERRY IS DENIED -BY THE COURT EDGAR B BAYLEY PJ CERTIFICATE OF SERVICE MAILED VIA USPS 1/24/08 CAJ o COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA IN RE: DA VID L. HOCKENBERRY: An Incapacitated Person ORPHANS COURT DIVISION No. 21-02-293 REQUEST FOR TRANSCRIPT A Notice of Appeal having been filed in this matter, the official court reporter is hereby ordered to produce, certify and file the transcript in this matter in conformity with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. Date: 2( '2-0 I o~ Christopher S. Lucas Pa. LD. 77903 Attorney for Appellants Law Offices of Christopher S. Lucas LLC 220 Cumberland Parkway, Suite 4 Mechanicsburg, PA 17055 Voice: 717.691.0203 Facsimile: 717.691.3130 Emai1: cslucas@lucasheaIthlaw.com ..:. .. J ; II ,,_ L J', CERTIFICATE OF SERVICE I, Chris A. Kimple, hereby certify that I have served a copy of the REQUEST FOR TRANSCRIPT upon the following persons which service satisfies the requirements ofPa. R.A.P. 121(c) as follows: Service in person to everyone listed below as follows: The Honorable Edgar B. Bayley, Jr., (717) 240-6294 President Judge c/o Sharon Lacy Secretary to Judge Edgar B. Bayley, Jr. Cumberland County Courthouse 1 Courthouse Square Carlisle, P A 17013 Presiding Judge Pamela Sheaffer, (717) 240-6206 Court Reporter Cumberland County Courthouse 1 Courthouse Square Carlisle, P A 17013 Glenda Farner Strasbaugh, (717) 240-6345 Clerk of Orphan's Court Cumberland County Courthouse 1 Courthouse Square Carlisle, P A 17013 Taryn N. Dixon, (717) 240-6200 Court Administrator Cumberland County Courthouse 1 Courthouse Square Carlisle, P A 17013 Service to everyone listed below by U.S. first class mail addressed as follows: James C. Munro, II, Esquire, (814) 536-0735 Spence, Custer, Saylor, Wolfe & Rose, LLC P.O. Box 280 Johnstown, PA 15907-0280 Counsel for Memorial Hospital Howard Ulan, Esquire, (717) 787-6398 Office of General Counsel Department of Public Welfare Third Floor West Health and Welfare Building Harrisburg, P A 1 7120 Counsel for Ebensburg Center Jane E. Adams, Esquire, (717) 245-8508 Law Office of Jane Adams 64 S. Pitt Street Carlisle, P A 17013 Court Appointed Counsel for David L. Hockenberry David L. Hockenberry, (814) 472-7350 Ebensburg Center 4501 Admiral Peary Highway P.O. Box 600 Ebensburg, P A 15931-0600 Respectfully submitted, Date: ~ ~\~ Ch .CA~K'1 ns . Imp e Legal Assistant ~cu1.ad- d rd lo~ UI C'-.J LLSPS Kirk S. Sohonage, Esquire Solicitor Marjorie A. Wevodau First Deputy Glenda Farner Strasbaugh Register of Wills & Clerk of the Orphans' Court Wanda S. Zeigler Second Deputy One Courthouse Square Carlisle, PA 17013 OFFICES OF (717) 240-6345 FAX (717) 240-7797 1-888-697-0371 x 6345 3&egister of Wills anb ([Ierk of tbe ~rpbans' ([ourt (l[ountp of (l[umberlanb February 21, 2008 Prothonotary Superior Court of Pennsylvania 100 Pine Street Suite 400 Harrisburg PAl 71 0 1 Dear Sir: Enclosed you will find a Notice of Appeal and Certificate of Service on the following case: Estate of David L. Hockenberry Docket No. 21-02-0293 This notice was filed with the Clerk of Orphans' Court on February 20,2008. Respectfully, Glenda Farner Strasbaugh Clerk of the Orphans' Court Enc: Notice of Appeal Certificate of Service Docket Entries Check No. 3962 for Docketing fee COMMONWEALTH OF PENNSYLVANIA Karen Reid Bramblett, Esq. Prothonotary James D. McCullough, Esq. Deputy Prothonotary Superior Court of Pennsylvania Middle District February 26, 2008 100 Pine Street. Suite 400 Harris burl'. 1'1\ 1710 1 717-772-1294 www.superior.court.state.pa.us Glenda Farner Strasbaugh Register of Wills Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: 336 MDA 2008 In Re: D.L.H., an incapacitated person Appeal of: M.I.H.& V.B.H, parents Dear Glenda Strasbaugh: Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Very truly yours, Karen Reid Bramblett, Esq. Prothonotary KRC ..'--, , C'-;:-j co i',) -...I --r""' r0 c........ - \ ,~ 11 :39 A.M. Appeal Docket Sheet Docket Number: 336 MDA 2008 Page 1 of 4 February 26, 2008 Superior Court of Pennsylvania ~ In Re: D.L.H., an incapacitated person Appeal of: M.I.H.& V.S.H, parents Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: February 25, 2008 Journal Number: Case Category: Orphans' Court Consolidated Docket Nos.: Awaiting Original Record CaseType: Related Docket Nos.: Next Event Type: Receive Docketing Statement Next Event Type: Original Record Received SCHEDULED EVENT Next Event Due Date: March 11, 2008 Next Event Due Date: April 21, 2008 2/26/2008 < ~-.) 3023 l' i '::.;;J f',) _J ;"...) C~ (Fj 11 :39 A.M. Appeal Docket Sheet Docket Number: 336 MDA 2008 Pa~e 20f4 February 26, 2008 Superior Court of Pennsylvania ~ Appellant Pro Se: IFP Status: Appellee Pro Se: IFP Status: Appellee Pro Se: IFP Status: Appellee Pro Se: IFP Status: 2/26/2008 COUNSEllNFORMA TION H., M.1. & V.B. parents Appoint Counsel Status: No Appellant Attorney Information: Attorney: Lucas, Christopher Steven Bar No.: 77903 Law Firm: Christopher S. Lucas & Associates Address: 220 Cumberland Pky Ste 4 Mechanicsburg, PA 17055 Phone No.: (717)691-0203 Fax No.: (717)691-3130 Receive Mail: Yes E-Mail Address:cslucas@lucashealthlaw.com Receive E-Mail: No Memorial Hospital Appoint Counsel Status: No Appellee Attorney Information: Attorney: Munro, James Clark Bar No.: 23445 Law Firm: Spence, Custer, Saylor, Wolfe & Rose Address: Box 280, 400 US Bank Bldg. Johnstown, PA 15907 Phone No.: (814)536-8776 Fax No.: (814)539-4123 Receive Mail: Yes E-Mail Address: Receive E-Mail: No Ebensburg Center Appoint Counsel Status: Appellee Attorney Information: Attorney: Ulan, Howard C, Bar No.: 25058 Law Firm: Address: Department of Public Welfare Health & Welfare Building, 3rd Floor Harrisburg, PA 17120 Phone No.: (717)772-0717 Fax No.: Receive Mail: Yes E-Mail Address: Receive E-Mail: No H., D. L. Appoint Counsel Status: Appellee Attorney Information: 3023 11 :39 A.M. Appeal Docket Sheet Docket Number: 336 MDA 2008 Page 3 of 4 February 26, 2008 Superior Court of Pennsylvania ~ Attorney: Bar No.: Address: Adams, Jane 79465 64 S Pitt Street Carlisle, PA 17013 Phone No.: (717)245-8508 Receive Mail: Yes E-Mail Address:esqadams@gmail.com Receive E-Mail: No Law Firm: Fax No.: (717)243-9200 FEE INFORMATION Fee Date 2/20/08 Fee Name Notice of Appeal Fee Amt 60.00 Paid Amount 60.00 Receipt Number 2008SPRMD000167 TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Date of Order Appealed From: Date Documents Received: February 25, 2008 Order Type: Judge: Division: Orphans' Court Judicial District: 9 Date Notice of Appeal Filed: OTN: Bayley, Edgar B. President Judge Lower Court Docket No.: 2002-00293 ORIGINAL RECORD CONTENTS Original Record Item Filed Date Content/Description Date of Remand of Record: BRIEFS Filed Date DOCKET ENTRIES Docket EntrylDocument Name Party Type Filed By February 25, 2008 Notice of Appeal Filed Appellant Appellee H., M.1. & V.B. parents Memorial Hospital February 26, 2008 Docketing Statement Exited (Civil) Middle District Filing Office 2/26/2008 3023 11 :39 A.M. Appeal Docket Sheet Docket Number: 336 MDA 2008 Pa~e 4 of 4 February 26, 2008 Superior Court of Pennsylvania ~ 2/26/2008 3023 ..--' Register of Wills of Cumberland County TO: Prothonotary Superior Court of Pennsylvania 100 Pine Street Suite 400 Harrisburg PA 17101 Date: February 21,2008 Estate of David L. Hockenberry Docket No. 21-02-0293 Please acknowledge receipt ofthe above Notice of Appeal by signing and returning this form. (J' R....1n Bu., Court ProthopPWY Superi6l:tt~rb~nsylvania MIDDLE Superior Court Docket Number Date Received ..,.", r~t'" ~"',) --.J i'') --.J COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA IN RE: DAVID L. HOCKENBERRY: An Incapacitated Person ORPHANS COURT DIVISION No. 21-02-293 CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL PURSUANT TO LOCAL RULE 1925 A. Nature of the incapacitated person's right to exercise medical decision making Does a person who has been completely incapacitated since birth. nevertheless have the inherent constitutional and/or legislatively conferred right to make medical decisions to refuse life sustaining procedures such as a feeding tube or mechanical ventilation. albeit through a surrogate of some kind? Suggested Answer: Yes. f.-~2 ~-, -~'Cl .... .., r:-.'":: c:::". L_O -q ~ --rj ~::.:) f',) c:> -0 N en ~ B. Nature of the plenary guardian of the person's power to make medical decisions Does a plenary guardian of a person have the power to make a surrogate decision to refuse life sustaining procedures such as a feeding tube or mechanical ventilation. for a person who has been completely incapacitated since birth. when the person is neither permanently unconscious nor terminally ill? Suggested Answer: Yes. c. Nature of the court's power to enumerate the power of the plenary guardian to make surrogate medical decisions Does the court of common pleas. sitting as an orphan's court. have the constitutional and/or legislatively conferred power to authorize a plenary guardian of a person to exercise surrogate medical decisions to refuse life sustaining procedures such as a feeding tube or mechanical ventilation. for a person who has been completely incapacitated since birth. when the person is neither permanently unconscious nor terminally ill? Suggested Answer: Yes. Respectfully submitted, Date: 2/?' '11 Dct " ) Christop er . ~ Pa. J.D. No. 77903 Attorney for Appellants - Law Offices of Christopher S. Lucas LLC 220 Cumberland Parkway, Suite 4 Mechanicsburg, P A 17055 Voice: 717.691.0203 Facsimile: 717.691.3130 Email: cslucas@lucashealthlaw.com COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA IN RE: DAVID L. HOCKENBERRY: An Incapacitated Person ORPHANS COURT DIVISION No. 21-02-293 CERTIFICATE OF SERVICE I, Christopher S. Lucas, Esquire, certify that this day, I served the foregoing document upon the persons and in the manner set forth below, such service satisfying the requirements ofPa. R.A.P. 121: Service by U.S. first class mail addressed as follows: The Honorable Edgar B. Bayley, Jr., (717) 240-6294 President Judge Cumberland County Courthouse 1 Courthouse Square Carlisle, P A 17013 Presiding Judge James C. Munro, II, Esquire, (814) 536-0735 Spence, Custer, Saylor, Wolfe & Rose, LLC P.O. Box 280 Johnstown, PA 15907-0280 Counsel for Memorial Hospital Howard Ulan, Esquire, (717) 787-6398 Office of General Counsel Department of Public Welfare Third Floor West Health and Welfare Building Harrisburg, PAl 7120 Counsel for Ebensburg Center . .. Jane E. Adams, Esquire, (717) 245-8508 Law Office of Jane Adams 64 S. Pitt Street Carlisle, P A 17013 Court Appointed Counsel for David L. Hockenberry David L. Hockenberry, (814) 472-7350 Ebensburg Center 4501 Admiral Peary Highway P.O. Box 600 Ebensburg, P A 15931-0600 Respectfully submitted, Date: 2. ~ oc:.j Christopher S. Lucas Pa. J.D. No. 77903 Attorney for Appellants Law Offices of Christopher S. Lucas LLC 220 Cumberland Parkway, Suite 4 Mechanicsburg, P A 17055 Voice: 717.691.1203 Facsimile: 717.691.3130 Emai1: cs1ucas@lucashealth1aw.com 1 2 3 4 5 6 7 January 11, 2008, 8:50 a.m. Carlisle, Pennsylvania (Whereupon, the following proceedings were held:) THE COURT: You are ready to proceed? MR. LUCAS: Yes, Your Honor. MR. ULAN: Yes, Your Honor. 8 THE COURT: I noticed counsel also received a 9 communication from an attorney representing Memorial 10 Hospital saying they were taking no position on this. 11 MR. ULAN: Yes. 12 THE COURT: Go ahead. 13 MR. LUCAS: Your Honor, my name is 14 Christopher Lucas, and may it please the Court, I represent 15 the Hockenberrys in this matter. This matter presents, I 16 think, a pure issue of law; and I'm not sure that it's 17 necessary to make a record, particularly in light of the 18 fact that this case has an existing docket number. The 19 Court has already taken testimony in this case. 20 THE COURT: And appointed a guardian. 21 MR. LUCAS: A plenary guardian for the 22 person. 23 THE COURT: For the person and estate? 24 MR. LUCAS: Yes, Your Honor. 25 THE COURT: Of a child who is severely 2 1 disabled when I reviewed the record. 2 MR. LUCAS: Yes, Your Honor, that's correct. 3 Pursuant to that plenary guardianship order, the parents 4 attempted to decline to accept certain medical treatments 5 which included a ventilator for the child. 6 THE COURT: After the child was involved in 7 some type of an accident, or whatever, swallowed something. 8 MR. LUCAS: That's correct. 9 THE COURT: And was put in the hospital. 10 MR. LUCAS: That is correct. 11 THE COURT: And we are talking about a 12 hospital, right? 13 MR. LUCAS: Yes, Your Honor, that's correct. 14 And just to more fully flesh out the facts, the child had 15 the accident, was admitted to the hospital and was placed on 16 a ventilator. The child was taken off of the ventilator, 17 developed breathing problems and was put back on the 18 ventilator. The parents attempted to decline to continue 19 using the ventilator, and this dispute arose. 20 THE COURT: And so I am sure, sir, you are 21 representing? Counsel, you are representing? 22 MR. ULAN: Yes, Your Honor. I represent 23 Ebensburg Center where he has lived for 45 years. 24 THE COURT: I'm sorry. Who are you 25 representing? 3 1 MR. ULAN: Ebensburg Center, a facility In 2 which he has lived. 3 THE COURT: I understand. He lives at 4 Ebensburg Center, and he has been transferred for the moment 5 to Memorial Hospital? 6 MR. ULAN: That's correct, Your Honor. 7 THE COURT: I understand now. And I know I 8 appointed Ms. Adams to represent the child. Go ahead. I 9 think I have got the scenario. 10 MR. LUCAS: And I am informed that perhaps 11 yesterday or late on Wednesday the child became very 12 agitated, and he was taken off the ventilator again, 13 notwithstanding the pendency of this petition, and that he 14 is doing -- he's surviving for the time being without that 15 ventilator, although he's receiving supplemental oxygen. 16 In any case, I don't think this -- at least 17 in the posture that we have the case right now, I don't 18 think this presents a sort of a right to die case, for lack 19 of a better word. However, I think this lS a very straight 20 case that presents itself under the PEF Code under 20 21 Pa.C.S.A. Section 5512.1, which provides that the Court may 22 appoint a plenary guardian of the person, which the Court 23 has done. 24 I was surprised in doing some research on 25 Lexis to find that apparently we do not have a single 4 1 Appellate case in the State of Pennsylvania that 2 specifically fleshes out what it means to be a plenary 3 guardian, and not having a case like that I just went to 4 Black's Law Dictionary and looked up plenary. It means 5 complete or total. 6 If, indeed, David's complete right to 7 contrast or to refuse medical care devolves to this guardian 8 the Court has appointed, then it seems logical and very 9 practical to me that his power to appoint a healthcare 10 guardian or to make healthcare decisions would also devolve 11 to these plenary guardians of the person. 12 THE COURT: In that at least, as I see it, 13 from the framing of the petition there being a request by 14 the guardian to remove him from the ventilator was not 15 honored by the hospital on the basis of the guardianship 16 alone, is that right? 17 MR. LUCAS: Actually, it's on the basis of 18 the Department of Public Welfare's objection, which is why 19 the Department is here. At first I felt that the Department 20 had no standing, but upon looking at Section 5511 of the PEF 21 Code, I see that the standing requirements in a guardianship 22 matter are fairly flexible; and that perhaps so far as the 23 Department has provided care and services for 45 years, 24 perhaps by virtue of that they do have standing. Perhaps 25 they may have standing by virtue of the statutory section 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that's in my colleague's brief. THE COURT: I am going to let him have standing here. MR. LUCAS: But in any event, I think the issue is whether or not it is proper for the guardian to exerClse this kind of power. That's the issue the Department's raised, and I think the answer to that is yes. THE COURT: So in order to be able to do so in the context of what has happened, you seek simply an order to appoint the already appointed guardians -- tell me exactly what you are seeking. MR. LUCAS: The draft order says to grant the guardians authority to exercise the powers of a healthcare agent, which is the new statutory term for one who may sort of decide as a proxy or a surrogate who may make these types of decisions on behalf of the person who is ill. THE COURT: What is the position of counsel for the child? MS. ADAMS: I guess after reviewing the facts I mean, I realize a guardian is a I was somewhat concerned. complete guardian, but I think that the guardian has to also address or exercise these powers in the party's best interest and do what's best for them. When I had gone through -- or when I was presented with some of the status, which has since changed, 6 1 which I think is admitted in the pleadings, David 2 Hockenberry was neither in a vegetative state or an end 3 stage medical condition. The doctors were recommending the 4 ventilator because it was a recommended treatment, and if he 5 followed through with the recommended treatment, he could 6 very well live a normal life. If he did not, there was a 7 risk that he might not live a normal life, that he might 8 deteriorate and eventually there was a risk of death. 9 So while I support the guardians' decision 10 making, I think that they should make those decisions in 11 alignment with the medical recommendations, especially where 12 there's not an end stage medical condition or the personfs 13 not in a vegetative state. 14 THE COURT: So having said that, are you 15 opposed to my expanding the guardians' authority as 16 currently set forth in a prior order to include their right 17 to exercise the powers of healthcare agents? Are you 18 opposed or objecting? 19 MS. ADAMS: Well, I think I would be a little 20 bit concerned about that because Mr. Hockenberry is not able 21 to really state his preferences. He's not able to appoint 22 someone. So I would be a little concerned about that. I 23 wouldn't want them to be able to make decisions in 24 contradiction to what a medical doctor would recommend, 25 especially if that -- especially if he's not in an end stage 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 condition or in a vegetative state, which he is not. THE COURT: So you are opposed? MS. ADAMS: I believe I would be opposed, Your Honor, I mean, just because I don't want to see them making decisions that might contradict his ongoing medical treatment. THE COURT: Okay. MS. ADAMS: I don't know if you can specify that. If there were suffering or if he was definitely in an end stage condition, then I think those decisions might be appropriate. But my concern is that they might not follow recommendations which would lead him back into daily life, that that would grant them the power to deny treatment which might improve his condition. THE COURT: Mr. Ulan. MR. ULAN: Thank you, Your Honor. There's one sentence in which I think Mr. Lucas or the guardians and I agree is that the Court can decide this matter as a question of law without taking testimony, but of course we have opposing views as to what the law is. My view, as set forth in the memorandum of law which I filed on Wednesday, explains that Act 169 of 2006 sharply limits the power of guardians and that under the present stipulated medical facts, that is to say Mr. Hockenberry is not in an end stage condition or being 8 1 permanently unconscious, the statute still provides that 2 necessary care to preserve life shall be provided; and 3 indeed we believe that the Court can simply endorse the 4 statutory provisions without taking testimony. 5 If, however, the Court believes that a 6 determination of the quality of Mr. Hockenberry's life lS 7 relevant to this determination, we are prepared to put on 8 testimony about his daily life at Ebensburg Center, 9 including his daily activities both on grounds and off. 10 He's taken to movies. He goes to restaurants. He interacts 11 with staff and other residents and so on. We are prepared 12 to put testimony on to that effect. 13 However, it is our position that by applying 14 Act 169 of 2006, the statutory provision I've cited in the 15 memorandum, that that itself resolves the question here on 16 the stipulated medical facts. There is a question at the 17 present time 18 THE COURT: Are you suggesting that the 19 Act -- well, I have read the 2006 opinion of the Supreme 20 Court. 21 MR. ULAN: Fiori, Your Honor? 22 THE COURT: Fiori. Are you suggesting the 23 Act in some way limits what was pronounced in that case or 24 there is a distinction between the facts of that case and 25 this one? 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ULAN: It's the factual distinction. The legal status of Fiori is not changed at all by Act 169. In fact, as I pointed out in my memorandum, Act 169 endorses Fiori and adopts Fiori; but Fiori itself lS applicable, as the Supreme Court of Pennsylvania made very clear, to persons who are permanently unconscious. There is no question at all in this case, no question at all, and it's been stipulated by Mr. Lucas, that Mr. Hockenberry is not permanently unconscious. There is a radical difference, Your Honor, and I must emphasize this, a radical difference, between being profoundly retarded and being permanently unconscious. THE COURT: I understand that. MR. ULAN: And that is the distinction here. Fiori is still good law for persons who are permanently unconscious, but Mr. Hockenberry is not in that situation. THE COURT: Do you oppose the request they make? MR. ULAN: Yes. Because we believe that under applicable law of Act 169 the law itself requires life preserving treatment under these medical facts, number one. Number two, if the per se rule of Act 169 is not sufficient to resolve this matter we believe it is -- but if the Court believes it is not sufficient and if the Court must inquire into quality of life issues, then we believe the 10 1 Court, if it took testimony on the matter, would find that 2 Mr. Hockenberry's quality of life -- which at the present 3 time I understand he is recovering from his medical 4 condition, and he is not on a ventilator now -- would likely 5 return to its state prior to the recent medical problem, and 6 he could resume the life he has had for the many decades he 7 has lived at Ebensburg Center. 8 THE COURT: Am I correct from reading these 9 pleadings that what prompted the filing of this petition was 10 at a prior point a desire of the petitioners to authorize 11 the removal of the ventilator? 12 MR. LUCAS: That lS correct, Your Honor. 13 THE COURT: So the situation has changed now. 14 He lS not on a ventilator. 15 MR. LUCAS: That's true. But being as two 16 weeks ago he had been taken off and then had to be put back 17 on, I think this is a pretty fluid situation, and I 18 certainly don't want to come back with another petition. 19 But I would suggest that the facts have changed sufficiently 20 that the Department of Public Welfare's objections are 21 mooted. This is not an Act 169 case. 22 We will stipulate that David's quality of 23 life at the Ebensburg Center is excellent and that we would 24 want to foster that. If he can get better and be there, we 25 want that to happen. There certainly is no -- there's no -- 11 lour position is not that his quality of life there is poor 2 or that that has any relevance whatsoever. We simply want 3 somebody to be able to make decisions for this fellow. 4 These are the plenary guardians. We want them to be able to 5 make decisions. 6 I think the facts at this time present the 7 Court with a bald sort of petition to sort of specify this 8 power. We don't know how it will be exercised in the 9 future. We do know that adults in our society who have 10 capacity can make these decisions. We want this family to 11 also be able to make those decisions. 12 THE COURT: I certainly do not think, given 13 the stipulation and the statement of the facts that 14 everybody agrees to, that we need to take any testimony. 15 What is the Purdons cite, Act 169? 16 MR. ULAN: The entire Act is at 20 Pa.C.S., 17 Chapter 56. The specific sections on which Evansburg relil3s 18 are of course cited in my memorandum of law. 19 THE COURT: I have it. I have not read it. 20 It came in and it was put in the file. I think I understand 21 the issues. I will take it under advisement, and I will 22 proceed. Thank you very much, gentlemen. 23 MR. LUCAS: Thank you, Your Honor. 24 MR. ULAN: Thank you. 25 (The proceedings concluded at 9:08 a.m.) 12 2 3 4 5 7 8 9 10 1 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. 6 ...~~2 Pamela R. Sheaffer Official Court Reporter The foregoing record of the proceedings on 11 the hearing of the within matter is hereby approved and 12 directed to be filed. 13 14 15 16 17 18 19 20 21 22 23 24 25 13 AUTHORITY TO PAY COURT APPOINTED COUNSEL 1. COURT o District Justice lB Common Pleas o o Other 9. 11. PERSON REPRESENTED 1 0 Delendant - Adult 2 0 Delendant - Juvenile J 0 Appellant 4 0 Appellee 5 0 Habeas Pelitioner 6 0 Matenal Witness 7 0 Parolee Charged With Violation 8 0 PrObatooner Charged With Violation g II, Othe~ ~11-e..1R...J.. \Y) ~u~kd ~ :L;~ hWJi1 10 PERSON REPRESENTED (Full Name) DG\V\d ~~ HO(jl-~rbUr "" "" w 16. NAME OF ATTOR EY/PAYEE AND MAILING ADDRESS \~ MAR 1 92008 2. VN~HER 12 6 6 7 5. BUDGET CODE 12. CIVIL DOCKET NO. 13. CRIMINAL DOCKET NO ~ 01-2fJ 14. APPEALS DOCKET NO. ,;21 - tJd2- o/f.1 E Jane Adams, Esq. 17 W. South St. Carlisle, PA 1701S 19. SERVICE I- a: ::l o U z a. Arraignment and/or Plea b. Preliminary Hearing c. Motions and Requests d. Bail Hearings e. Sentence Hearings t. Tnal g. Revocation Hearings h. Juventle Hearings I. Appeals Court j. Other (Specify on additional sheets) TOTAL HOURS =a X $55 PER HOUR 20. a. Interviews and conferences b. Obtaining and reviewing records l:> ~ c. Legal research and brief writing I-::l 5 8 d. Investigative and other work (Specify on additional sheets) TOTAL HOURS = X $45 PER HOUR 21. ITEMIZATION OF REIMBURSABLE EXPENSES AMT. PER ITEM Milage $.44 per mile x a: w I I- o 22. CERTIFICATION OF ATTORNEY/PAYEE Has compensation and/or reimbursement for work In this caae previously been spplled for? 0 YES . NO II yes. were you paid? 0 YES ~O If by whom were you paid? How much? Has the person represented paid any mone to u. or to your knowle e anyone else, In connection 'th the aller for whiCh you were appointed to provide repre ntat S f yes. give details on a tional heets I swear or affirm lhe trulh or correctness 01 the above statements 26.Al'P;~~il [) Stgnature of nAn.AE./'H Judge J Copy 1 - Mail to Court Administrator at ompletion of service AMOtiH-TS CLAIMED .- ~Iiply ratew hour times total .:,,~rs to obt~ "In Court" com- ':~~n. Eri!in> tolal below. '~S; ~ (r) 7< --:::>- \.~J 19A TOTAL IN COURT COMPo =$ Multiply rate per hour times total hours. Enter tolal "Out 01 Court" compensation below. 20A. TOTAL OUT OF COURT COMPo =$ 21A. TOTAL ITEMIZED EXP. -$ 23. GRAND TOTAL CLAIMED =$ 24. DEDUCT. PRIOR PYMTS. =s 25:NET AMOllNT co AI.'-:D =s JANE ADAMS ATTORNEY AT LAW 64 South Pitt Street Carlisle, Pa. 17013 (717) 245-8508 BILL for: RE: Dates: HOCKENBERRY David L. Hockenberry 7 January 2008 to j25f.~a/n;..~ry 2008 Aft. \ l)(} ~ D. '- I - 6 L -- Lel3 BILLING INFORMATION: Hourly Rate: ~O J..j $ . tro DATE DESCRIPTION 7 Jan 08 Call from Howard Ulan regarding David L. Hockenberry. 8 Jan 08 Reviewed exhibits and caselaw. 8 Jan 08 Telephone conference with Attorney for Department of Public Welfare and doctor of David Hockenberry. 9 Jan 08 Call from Chris Lucas. 9 Jan 08 Returned call of attorney for David Hockenberry's hospital. 10 Jan 08 Call from Howard Ulan regarding hearing. 10 Jan 08 Call from Attorney Monro's office, reviewed letter from Attorney Monro. 11 Jan 08 Attended hearing regarding David Hockenberry. Totals for this Period: Amount of Disbursements: Current Balance: Balance Forwarded from previous bill: Amount Due Now: HOURS 0.10 0.20 0.40 0.10 0.10 0.10 0.10 0.50 1. 60 X I./S ;::;.. $ 0.00 $ 88.00 $ 0.00 $ -80.00.... 1f)..(H) I i 2 1 DEPOSITION 2 OF 3 KISHOR pATEL, M. D., taken on behalf 4 of the Petitioners herein, Myrl I 5 and Vada B. Hockenberry, pursuant to 6 the Rules of Civil Procedure, taken 7 before me, the undersigned, 8 Jacqueline R. Fetchko, a Court 9 Reporter and Notary Public in and for 10 the Commdnwealth of Pennsylvania, at 11 The Ebensburg Center, Administration 12 B u i 1 din g, Arm s t r 0 n g A v e n u e , 13 E b ens bur g, Pen n s y 1 van i a, 0 n 14 Wed n e s day, May 2 9, 2 0 0 2, beg inn i n gat 15 1 : 3 0 p. m . 16 17 18 19 20 21 22 23 24 25 Sargent's Court Reporting Service, Inc. (814) 536-8908 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 A P PEA RAN C E S 2 3 ROBERT G. FREY, ESQUIRE 4 Frey & Tiley 5 5 South Hanover Street 6 Carlisle, PA 17013 7 COUNSEL FOR PETITIONERS 8 9 Sargent's Court Reporting Service, Inc. (814) 536-8908 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 1 I N 0 E X 2 3 WITNESS: KISHOR PATEL, M.D. 4 EXAMINATION 5 by Attorney Frey 7 1 5 6 CERTIFICATE 1 6 7 8 9 Sargent's Court Reporting Service, Inc. (814) 536-8908 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 1 EXHIBIT PAGE 2 3 PAGE 4 NUMBER DESCRIPTION IDENTIFIED 5 6 NONE OFFERED 7 8 9 Sargent's Court Reporting Service, Inc. (814) 536-8908 6 1 2 3 ATTORNEY 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 OBJECTION PAGE PAGE NONE MADE Sargent's Court Reporting Service, Inc. (814) 536-8908 7 1 PRO C E E DIN G S 2 ------------------------------------- 3 KISHOR PATEL, M.D., HAVING FIRST BEEN 4 DULY SWORN, TESTIFIED AS FOLLOWS: 5 ------------------------------------- 6 EXAMINATION 7 BY ATTORNEY PATEL: 8 Q. Dr. Patel, just for the 9 record, I'm going to ask you a number 10 of questions. If I'm unclear in any 11 0 f the que s t ion s 0 r I' ve not s tat e d 12 it correctly or you do not know how 13 t 0 a n s w e r, p 1 e a sea s k met 0 r e pea t 14 and clarify the question. I would 15 ask you to use any documents, notes 16 or records which you have, which you 17 feel would be helpful in responding 18 to any questions Are you ready to 19 pro c e e d ? 20 A. Yes I understand that. 21 Q. Could you state your name and 22 business address, please? 23 A. Kisor D. Patel, Ebensburg 24 C e n t e r, E b ens bur g, Pen n s y 1 van i a . 25 Q. What is your educational Sargent's Court Reporting Service, Inc. (814) 536-8908 10 11 8 1 background? 2 I'm an M.D., Board Certified A. 3 in pediatrics 4 Okay. And are you licensed to Q. 5 practice in Pennsylvania? 6 Yes. A. 7 How long have you been Q. 8 practicing? 9 Ten years A. Q. We are here in regard to David 12 examined David Hockenberry in the L. Hockenberry. Have you treated or 13 pas t ? 14 15 16 Yes. A. Q. How long have you treated him? A. One year. 17 And as part of your treatment Q. 18 of him, do you have access to his 19 medical records and his medical 20 his tor y ? 21 Yes, I do. A. 22 Do you recall how long he has Q. 23 been a resident at the Ebensburg 24 C e n t e r ? 25 I may need to read the chart A. Sargent's Court Reporting Service, Inc. (814) 536-8908 9 1 because the exact date I do not know. 2 Q. And an approximate time period 3 will be fine. 4 A. He has been here since' 63. 5 Q. 1963? 6 A. Yeah. 7 Q. Okay. And do you have access 8 to the records for that time period 9 or a considerable portion of that 10 t i m e per i 0 d ? 11 A. Yes, we do. Yes. 12 Q. Do you recall when you last 13 saw Mr. Hoc ken be r r y ? 14 A. A few days ago. Maybe two 15 day sag 0 . 16 Q. How would you describe David 17 Hockenberry's mental and physical 18 con d i t ion? 19 A. He's diagnosed as profound 20 mental retardation, and he has also 21 seizure disorder and epilepsy. He's 22 diagnosed with OCD, 23 obsessive-compulsive disorder, with 24 aggression and diagnosed with 25 autistic disorder, impulse control Sargent's Court Reporting Service, Inc. (814) 536-8908 10 1 disorder, osteoporosis and arthritis 2 of hands. 3 Q. With that medical condition 4 and those diagnoses, what are his 5 physical and mental limitations and 6 impairments? 7 A. Significant impairment of his 8 physical and mental capacity. 9 Q. Would he be able to make 10 reasonable and responsible decisions 11 concerning medical or surgical 12 t rea t men t ? 13 A. No, he cannot 14 Q. Is he able to prepare meals 15 for himself and attend to personal 16 car e ? 17 A. No, he is not. 18 Q. Would he be able to be 19 responsible for taking any medication 20 that would be necessary for his 21 h e a 1 t h ? 22 A. No, he won't be able to take 23 him s elf. 24 Q. Would he be able to make 25 decisions concerning payment of Sargent's Court Reporting Service, Inc. (814) 536-8908 11 1 expenses and other financial 2 decisions? 3 No, he cannot. A. 4 Would he be able to Q. 5 communicate any thoughts or decisions 6 to others to help him? 7 No. A. 8 In your treatment of David Q. 9 Hockenberry, have you been in contact 10 with any family members on a regular 11 basis concerning his care? 12 A. Yes. 13 BRIEF INTERRUPTION (Doctor Beeped) 14 B Y A T TOR N E Y F R E Y : 15 What family members are they Q. 16 that you've been in contact with? 17 A. Mother, that's what I know. Q. Okay. And how frequently would you say she' s been in contact with you? A. Not exactly with me, but they 18 19 20 21 22 call to the unit and talk to the 23 nursing staff. They talk to the 24 social worker, case management 25 people. They stay in touch. I do Sargent's Court Reporting Service, Inc. (814) 536-8908 12 1 not know exactly how often, but it's 2 probably once or twice a month that 3 they call. 4 Q. And as far as you are aware, 5 are those the contacts for whenever 6 any decisions or authorizations are 7 needed for David Hockenberry's care? 8 A. Yeah. 9 Q. Are you aware of any problems 10 in consulting with Mrs. Hockenberry 11 for 0 a v i d' s car e ? 12 A. No, we've never had any 13 pro b 1 ems . 14 Q. Okay. Do you know of any 15 reason why Mrs. Hockenberry or her 16 husband would not be able to act as 17 guardians and work with you in the 18 Center or any reasons why they should 19 not beg u a r d i a n s ? 20 A. I do not see any reason why 21 they cannot. 22 Q. Do you have any reason to 23 believe that they would disagree with 24 your recommendations for the care of 25 David Hockenberry? Sargent's Court Reporting Service, Inc. (814) 536-8908 13 1 A. No, I don't think so. 2 Q. And you haven't had any 3 problems in the past? 4 A. No, we did not 5 Q. Okay. And just for satisfying 6 the requirements concerning a 7 guardian of David's estate with 8 regard to his finances, what effect 9 do the physical or mental impairments 10 or his condition have on his ability 11 to manage his finances? 12 A. He does not have that ability 13 tom a nag e his fin a n c e s . 14 Q. And if unscrupulous or 15 designing persons would be able to 16 obtain access to his finances, would 17 David Hockenberry be able to protect 18 his resources from them? 19 A. I do not believe that he would 20 be a b 1 e to. 21 Q. There will be a public hearing 22 concerning David Hockenberry's 23 physical condition. Would his 24 presence at that court hearing be 25 helpful in him expressing his desires Sargent's Court Reporting Service, Inc. (814) 536-8908 10 14 1 or his feelings concerning the need 2 for guardianship? 3 He would not be able to make A. 4 that kind of decisions or be able to 5 express that. 6 If he were at the hearing, do Q. 7 you believe he would understand what 8 was happening? 9 No, I don't think so. A. Q. Okay. Would he be able to 11 transport himself to the hearing? 12 13 A. No. Q. Would he be able to be 14 transported by his parents or someone 15 else, or would special transportation 16 be n e c e s s a r y ? 17 He is able to walk, but how 18 far a distance I cannot tell that. A. 19 They go to physical therapy and make 20 them exercise and walking, but he 21 cannot walk probably like a distance 22 0 ran y t h i n g . 23 Would there be a possibility Q. 24 that requiring him to attend the 25 hearing would be detrimental for his Sargent's Court Reporting Service, Inc. (814) 536-8908 15 1 health or not be in his best 2 interests? 3 Probably not for his best A. 4 interest. 5 Okay. Is there anything else Q . 6 you wanted to say concerning his 7 condition? B No. They are diagnosed with A. 9 profound mental retardation, so they 10 have very, very limited capacity to 11 12 of that, they have seizure problems function independently. And on top 13 14 and behavior problems. They stay on 15 have very, very limited capacity to quite a bit medications And so they 16 function independently or make any 17 kind of decisions. 18 ATTORNEY FREY: 19 Okay. Thank you very 20 much. 21 * * * * * * * * 22 DEPOSITION CONCLUDED AT 1 50 P.M. 23 * * * * * * * * 24 25 Sargent's Court Reporting Service, Inc. (814) 536-8908 10 11 12 13 COMMONWEALTH OF PENNSYLVANIA 2 COUNTY OF CAMBRIA 3 C E R T I F I CAT E 4 I, Jacqueline R. Fetchko, a Notary Public in and 5 for the Commonwealth of Pennsylvania, do hereby 6 certify: 7 That the witness was first duly sworn to testify 8 to the truth, the whole truth, and nothing but the 9 truth; that the foregoing deposition was taken at the time and place stated herein; and that the said deposition was taken stenographically by me and reduced to typewriting, and constitutes a true and correct record of the testimony given by the witness. 14 I further certify that the reading and signing 15 of said depositions were (n~~) waived by counsel for the respective parties and by the witness. 16 17 I further certify that I am not a relative, 18 employee or attorney of any of the parties, nor a 19 relative or employee of counsel, and that I am in no 20 way interested directly or indirectly in this action. 21 IN WITNESS WHEREOF, I have hereunto set my hand 22 and stamp this 2.b*- day of J V(\t) ~ 'Z-- 23 24 25 . PITTSBURGH, PA . CLEARFIELD, PA . STATE COLLEGE, PA .lIOLLlDA YSBURG, PA SARGENT'S COURT REPORTING SERVICE, INC. . INDIANA, PA .GREENSBURG, PA . PHILADELPHIA, PA . SOMERSET, PA . WILKES BARRE, PA . ERlE, PA . OIL CITY, PA .lIARRISBURG, PA 210 Main Street Johnstown, PA 15901 (Ql/'\ .:;:2h. o("\no .CHARI FSTClN WI\! - Page Line PITTSBURGH, PA HARRISBURG, PA GREENS BURG , P A ERIE, PA >J:rjDIANA, PA HQ~~If)AYSBl'RG, PA STATE COLLEGE, PA ~ LAWYER'S NOTES SARGENT'S COURT REPORTING SERVICE, INC. 210 MAIN STREET JOHNSTOWN, PA 1590 I (814) 536-8908 PHILADELPHIA, PA WILKES-HARRE, PA OIL CITY, PA SOMERSET, PA CLEARFIELD, PA *CHARLESTON, WV* CERTIFICATE AND TRANSMITTAL OF RECORD PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931(C) To the Prothonotary ofthe appellate court to which the within matter has been appealed: THE UNDERSIGNED, Glenda Farner Strasbaugh ofthe Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by P A.R.A.P. 1925, the original papers and exhibits, if any, on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Cumberland County CLERK OF ORPHANS' COURT File No. 21-2002-0293 Superior Court No. 336 MDA 2008 in compliance with Pa.R.A.P. 1931 (c). The documents comprising the record have been numbered from No.1 to No. 28 and Exhibits, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document. The date of which the record has been transmitted to the appellate court is May 16. 2008. (Seal of Court) An additional copy of this certificate is enclosed. Please shw and date copy, thereby acknowledl!im!: receipt of this record. Date c-....."'''' S;lWatllr.~& Title n,_ I "'1.l:U IN ~uI"I:RIOR COURT MAY 1 9 2008 \;f. ':~. '. . :\.:11 . r'\ ~_ _ ',.'~t . ,0 Ii i""U..,'.... \;".iij--/UQ 101 I ,J " 'j r "..AJ jO )'tj3TJ MIDDLE ZS :2 Wd 12 AVW BOUl I,""' j <J In Re: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID L. HOCKENBERRY, ORPHANS COURT DIVISION an Alleged Incapacitated Person NO. 21 - 02- 1,~~,q 3 Civil Term ANNUAL REPORT OF GUARDIAN OF THE PERSON iVlyrl J. Hockenberry and Vada B. Hockenberry, Plenary Guardian of the person of David L. Hockenberry by virtue of a Decree dated July 3, ~ 002, does hereby file its annual report as follows: z. Present age of the incapacitated person: ~~ years. Date of Birth: MaY3,1957• 2. Living arrangements. a. Current address of the incapacitated person: Ebensburg Center Ebensburg, PA r9o3o b. The incapacitated person's residence is: _ own home/apartment nursing home _ boarding home/personal care home guardian's home/apartment X hospital or medical facility relative's home: (name and relar2onship) _ other: (describe) c~ ~' ,-- ~. ~~ ~ ~ ~ a - - --~ rn -- .~. = `~0 n ~ _ ~~~ -, ~ ~:, _ - . ~ ~ ~ w c. The incapacitated person has been in the present residence since 1962. If the incapacitated person has moved within the past year, state change and reasons} for change: N/A Pctge 1 of 3 In Re: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID L. HOCKENBERRY, ORPHANS COURT DIVISION an Alleged Incapacitated Person NO. 21 - 02- Civil Term Myrl I. Hockenberry and Vada B. Hockenberry, plenary Guardian of the Estate of David L. Hockenberry by virtue of a Decree dated July 3, zoo2, does hereby file its annual report as follows: r. SU)yZMARY A. Value of principal assets at the beginning of the Report Period: B. Total amount of income (SSI) during the Report Period: $360.00 SPN $150.00 C. Total amount of all expenditures made for care and maintenance of the incapacitated person during the Report Period: $,515.0 0 (z) From principal (a) From income $,51 5 ,1~ ~ D. Total amount spent for all other purposes during the Report Period: $ -o- E. Total amounts remaining at the end of the Report Period: (r) Principal (z) Income $-0- (3) Tota1(i&2) II. ADDITIONAL INFORMATION A. Principal: (r) Total amount remaining at the end of the Report Period: Page 1 of 3 $7934 (z) The principal is currently invested as follows: An account for David's personal needs at Ebensburg Center where he resides. (3) Have there been any expenditures from principal during the Report Period? NO If you answered Yes, was there court approval for all expenditures from principal? NO (4) Did you receive any principal assets during the Report Period, which were not included on the Petition, or a prior Report filed for the estate? NO If you answered YES: (a) Did you receive court approval prior to receiving additional principal? NO (b) State the sources and amounts of the additional principal you received: B. Income: $-o- $-o- (r) The sources and amounts of income received during the Report Period are as follows: SSI $360.00 suplement-personel needs ~~Il'~.o Total Income Received During Report Period $ 51 5.0 0 Page 2 of 3 d. Name and address of the incapacitated person's primary caregiver: 3. The major medical or mental problems of the incapacitated person are as follows: Severely retarded q.. Specify what, if any, social, medical, psychological and support services the incapacitated person is receiving: SSI. 5. It is my opinion as guardian of the person that the guardianship should: X continue, be modified, be terminated. (Briefly explain your response) We are his parents. 6. During the past year, I have visited the incapacitated person q.~ times, with the average visit lasting 3 hours. I verify that the foregoing information is correct to the best of my Imowledge, information and belief; and that this verification is subject to the penalties of 18 Pa. Cons. 5tat § 4904 relative to unsworn falsification to authorities. Date: (Signa e) (Name of Guardian) (type or print) (SfreetAddress) (City, State &Zip) ~~ ~( s/-1p ~ ~~' l 7 fir' 3 (Telephone Number) Page 2 of 3 Karen Redd Hramblett, La'q. Prothonotary w Superior Court of Pennsylvania Middle District April 16, 2009 RE: In Re: D.L.H., an incapacitated person No. 336 MDA 2008 Trial Court Docket Number: 2002-00293 Dear 100 Pine Street Suite 400 Harrisbure. PA 17101 717-772-1294 u~ww.superior.courtstate.pa.us Enclosed please find a certified copy of an order dated April 16, 2009 entered in the above-captioned matter. truly ur , Karen Reid Bramblett, Esq. Prothonotary KRC cc: Jane Adams, Esq. James Clark Munro, Esq. c N~ Howard C. Ulan, Esq. ; ~ ~ ~" The Honorable Edgar B. Bayley '~~~-~~~ - r--, ' ~' President Judge rte ~ -z~ .~~,~, =, ...,j Glenda Farner Strasbaugh ~~ _ ~~ Register of Wills ~ a -+ i¢ r tr West No.: 336 MDA 2008 Carbon Copy Recipient List Addressed To: Christopher Steven Lucas, Esq. Christopher S. Lucas & Associates 220 Cumberland Pky Ste 4 Mechanicsburg, PA 17055 Carbon Copied: West 610 Opperman Drive P.O. Box 64526 St. Paul, MN 55164-0526 Jane Adams, Esq. Jane Adams Attorney At Law 17 West South Street Carlisle, PA 17013 James Clark Munro, Esq. Spence, Custer, Saylor, Wolfe & Rose P.O. Box 280 Johnstown, PA 15907-0280 Glenda Farner Strasbaugh Register of Wills Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Howard C. Ulan, Esq. Department of Public Welfare Health & Welfare Building, 3rd Floor Harrisburg, PA 17120 The Honorable Edgar B. Bayley President Judge Court of Common Pleas of Cumberland County Cumberland County Courthouse, One Courthouse Sq Carlisle, PA 17013 1013 -10!99 10/1/99 J. A35032/08 IN RE: D.L.H., AN INCAPACITATED PERSON . APPEAL OF: M.I.H. & V.B.H., PARENTS IN THE SUPERIOR COURT OF PENNSYLVANIA No. 336 MDA 2008 ORDER OF COURT The Court hereby DENIES the application filed February 23, 2009, requesting reargument or reconsideration of the decision dated February 10, 2009. PER CURIAM DATE: April 16, 2009 ~a T.I.~~ v0~'`~' FR®l~ RED® ~~~~~~: _ R 1 2 9 ~~~uxy ~~;. _~ _ ~~~y Glenda Farner Strasbaugh Register of Wills Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 C 1013 - 10!99 1011 /99 In Re: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID L. HOCKENBERRY, ORPHANS COURT DIVISION an Alleged Incapacitated Person NO. 21 - 02- ~~3 Civil Term ANNUAL REPORT OF GUARDIAN OF THE PERSON Myrl J. Hockenberry and Vada B. Hockenberry, Plenary Guardian of the person of David L. Hockenberry by virtue of a Decree dated July 3, Zoo2, does hereby file its annual report as follows: r. Present age of the incapacitated person:!] years. Date of B firth: May 3, i9~r~J. z. Living arrangements. a. Current address of the incapacitated person: Ebensburg Center Ebensburg, PA rgo3o b. The incapacitated person's residence is: own home/apartment _ nursing home ~-, .p~ n boarding home/personal care home ~o c_- _ guardian's home/apartment ,r - ~ - ' C,] J - '1 _,~, <.., _. ~t7 X hospital or medical facility ~ ~'~~' ~ ,~ -, _~, .. -,~ w relative's home: (name and relationship) ~ _ other: ~ (describe) c. The incapacitated person has been in the present residence since 1g6z. If the incapacitated person has moved within the past year, state change and reason(s) for change: N/A Page 1 of 3 d• Name and address of the incapacitated person's primary caregiver: 3• The major medical or mental problems of the incapacitated person are as follows: Severely retarded 4• Specify what, if any, social, medical, psychological and support services the incapacitated person is receiving: SSI. ~• It is my opinion as guardian of the person that the guardianship should: X continue, be modif ed, explain yourresponse) -be terminated. (Briefly We are his parents. ~• During the past year, I have visited the Inca acitated erson the average visit lasting h p p 47 times, with b 3 ours. Page 2 of 3 (z) Income is currently invested as follows: C. D All income is currently spent on David's medical and personal care. Payments were made for the care and maintenance of the incapacitated person as follows: Blue Cross/Blue Shield and SSI Medical. care at institution where David resides. Payments not included in Paragraph "C° above were made as follows: N/A I verify that the foregoing information is correct to the best of my lmowledge, information and belief; and that verification is subject to the penalties of i8 Pa. Cons. Stat § 49oq. relative to unsworn falsification to authorities. Date: ~ ~` .a ~~ (S! afore) (Name ofGuardian) (npe or prin t) (StreetAddress) _~~tsL ~ ' ~ 1'7Q1~3 (City, state, zip code) ~i'7'- ~~-3 lf-g~8 (Telephone number) Page 3 of 3 ~_ IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT IN RE: DAVID L. HOCKENBERRY, AN INCAPACITATED PERSON PETITION OF: MYRL I. AND VADA B HOCKENBERRY (GUARDIANS) PER CURIAM No. 327 MAL 2009 Petition for Allowance of Appeal from Order of the Superior Court ORDER AND NOW, this 1St day of December, 2009, the Petition for Allowance of Appeal is GRANTED. The issue, refrained for clarity, is: Whether plenary guardians have the authority to decline potentially lifie- sustaining treatment for a lifelong incapacitated person who is not suffering from an end-stage medical illness or is in a permanent vegetative state. TRUE & CORRECT COPY ATTEST: December 1, 2009 9 liz eth . Zisk, ief Clerk ~ /~~ _ O ~"a 1 ~~ ~ ~ y ~ !' t7 n ~ ~ r C7 r; ) rs 1 rn I Irene M. 8izzoso, E.. ~u~rerrte court of ~enn~p[bania 9 Deputy Prothonotary Middle District Elizabeth E. Zisk ChieF Clerk December 1, 2009 Glenda Farner Strasbaugh Register of Wills Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: In Re: David L. Hockenberry, an incapacitated person Petition of: Myrl I. and Vada B. Hockenberry, (Guardians) No. 98 MAP 2009 Trial Court Docket No: 2002-00293 Superior Docket Number: 336 MDA 2008 Appeal Docket No: Date Petition for Allowance of Appeal Filed: December 1, 2009 Disposition: Disposition Date: Reargument/Reconsideration Disposition: Reargument/Reconsideration Disposition Date: /hms 601 Commonwealth Avenue, Suite 4500 P.O. Box 62575 Harrisburg, PA 17106 (717) 787-6181 www.pacourts.us O -":3 - C C7 ~ A. .. ~ n y _ ..~ ~ ~ rV rj r -' ='~3: L~C7 - r_~~ ~: } ~ -r7 ~ ~ - Oti Karen Reid Bramblett, Esq. Prothonotary Milan K. Mrkobrad, Esq. Deputy Prothonotary Middle District Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www. superior.court. state. pa. us CERTIFICATE OF REMITTAVREMAND OF RECORD TO: Mr. Johns RE: In Re: D.L.H., an incapacitated person 336 M DA 2008 Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 2002-00293 Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description Part with 1 transcript attached May 19, 2008 Remand/Remittal Date: 12/02/2009 ORIGINAL RECIPIENT ONLY -Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Res ectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /krc Enclosure ,~,, cc: Jane Adams, Esq. ~ CJ ~, ~~ The Honorable Edgar B. Bayley, President Judge ~ ~ ,~ ~~ r ~:;;~ ~ Christopher Steven Lucas, Esq. ~ ~ ~~ ? y~ James Clark Munro, Es q. .~c~; ~ ~ ~ , , ~~~ ;: Glenda Farner Strasbaugh, Register of ~Ils • ~ ' ~ ~ `4 ~ Howard C. Ulan, Esq. ~! ~ ,,`, ~ ~= ~ tr>E ; . tia-:t ~;-n 1~ Glenda Farner Strasbaugh Register of Wills Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 ------------------------------------------------------------------------------ PACMS 1021 b Rev.12/02/2009 ~~,-s(~~ ~-1- ~ -z - z=~~ 3 ~~- SAY ~ 3 2010 AUTHORITY TO PAY COURT APPOINTED COUNSEL 1. COURT h 2. VOUCHER N~ 13 ~ 4 5 er ^ District Justice •Q Common Pleas ^ Appellate ^ Ot 3. F R (D J., C.P., APPELLATE) 4. T (CITY/STATE) 5. BUDGET CODE 6. HE CASE F 7. CHARGE/OFFEN E (PURDON CITATION) 8. ^ PETTY OFFENSE it ~, {~ ~~ ^ FELONY ^ MISDEMEANOR 9. PROCEEDINGS (Describe briefly) t t. PERSON REPRESENTED 12. CIVIL DOCKET NO. P`~/~ ^ ~ ~ ~~~ t ^ 2 O ~~V L'~ 1~•/,1J~ ~ k Defendant-Adult Defendant-Juvenile ~~ n_(lf0 '~-1~~~ `V `,l~l V ~ ~] `r~` ,p,~ ('~ ~, ~ 3 O V 4 ^ ~ t r Appellant AOOellee j 13. CRIMINAL DOCKET NO '. 1- ` t~l~ ' \„'~ G., i~ $ ^ Habeas Petitioner ~ ~ ~~i 6 ^ ' ~ !Y7Jy~A/ J / ) ~ ~ ~ Matenat Witness !( Y ~( ~ - - • v 1 ' ~ ~~~~~ ~'~" ` 7 ^ 10. PERSON REPRESENTED (Full ame) 8 ^ Parolee Charged W~tn Viola GOn Probationer Charged WiU Violation 14. APPEALS DOCKET NO. ~ 9 k~ r 1C~i ~~ ~~~.,~'N~~ i `+~ ~G~!~ Otner C ~%~ ~, c~r fz~k~~(' ~-~~~fJ i , I6. NAME OF ATT RNEY/PAYEE ANO ~ 1 ~3 ~ / I ~~~ .. MAILING ADDRESS Aao! Dare - ,~ / \~ `~ ~~1~ _.~~ ~~ NA E OF COMM N P.~EA DGE SSIGNED TO CASE 17. TELEP ON o. . e. soc~A~ sECUAITV ~D oa Fir, N CLAIM FOR S ERVICES OR EXPENSES ig SERVICE HOURS DATES AMOUNTS CLAIMED a. Arraignment and/or Plea Multiply rate per hour times total hours to obtain "In Court" com- b. Prehminery Hearing pensation. Enter total below. c Motions and Requests ~ N r- d Bad Hearings ~,:; n ~ e. Sentence Hearinga ~" ~ ~` _ ~ f U Z f. Trial ..' -p T.m . i= ~ -_ _,P ~ - _ g. Revocation Hearings t ~ ~ . h. Juvenile Hearings ~ - .! -~' ~'~~ "` ~~`Ti(ifT#f,L IN.GpURTCO1blP. i. Appeals Court ~ j. Othe! (Specify on additional sheets) ',-~t ~-~ - ' _. ' _-. _ ~ ~ i _ I TOTAL HOURS = X $55 PER HOUR ~ ~g ~ -' ' ~ -' 20. a- Interviews and conferences Multiply rate per hour times total Enter total "Out of Court" hours b- Obtaining and reviewing records . compensation below. tL r ~ ¢ c. Legal research and brief writing ~ O d. Investigative and other work (Specify on additional sheets) 20A TOTAL OUT OF COURT COMP O U . TOTAL HOURS = X $45 PER HOUR = $ 2t. ITEMIZATION OF REIMBURSABLE EXPENSES AMT. PER ITEM Milage $.- per mile x ft = 21 A. TOTAL ITEMIZED EXP. O =S 22. CERTIFICATION OF ATTORNEY/PAYEE 23. GRAND TOTAL CLAIMED Has compensation and/or reimbursement for work In this case previouay been applied for'T ^ YES ^ NO = S Q . G U It yes, were you paid? ^ YES ^ NO If yea, byw era you paidT How much? Has the person represented paid any money to yo or toy knowledge anyone else, in connection ith the after for 24. DEDUCT. PRIOR PYMTS. S _ 9 ^ Y f t t give details On i i al e}ts~ es n a which you were appointed to provide represen , l( T LAIMED 1 swear or affirm the truth or correctness re Attorney yee Date Sf 25: NET AMOUN C = s /( gna of the above statements ° 26.-~r'o'ttwE r' S,gnature of ~ / ~ ~ Dale: ~ / ~3 ~ O 27. AMT. APPROVED = ~ / ~ 0 , n~rrNErrr Judge Copy 1 - ail to Court Administrator at completion of service \.~ JANE ADP.MS ATTGRNEY AT LAW 17 W. South St, Carlisle, Pa. 17013 (717) 245-8508 BILL for: HOCKENBERRY RE: David L. Hockerberry Dates: 4 March 2010 to 12 May 2010 BILLING ~NFOR_MATION: Hourly Rate: 55.00 DATE DESCRIPTION NOL~RS 5 Mar 10 P.eviewed case law and brief; signed. and submitted 0.50 brief to Supreme Court. 10 May 10 Reviewed briefs, including several amid briefs. `i.00 11 May 10 Attended argument before Supreme Court. 2.50 Totals for this Period: x:.00 X~5 Amount of Disbursements: 0.Ot) Curre n Balance: s 22 .~0 Balance Forwarded from previous bill: O.CO Amount Due Now: > 220r~0 ~~ ~~. ~ ~. In Re: IN THE COURT OP COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID L. HOCKENBERRY, ORPHANS COURT DIVISION an Alleged Incapacitated Person : NO. 21 - 02- p~ /u Civil Term ANNUAL REPORT OF GUARDIAN OF THE PERSON Myrl J. Hockenberry and Vada B. Hockenberry, Plenary Guardian of the person of David L. Hockenberry by virtue of a Decree dated July 3, zooa, does hereby file its annual report as follows: i. Present age of the incapacitated person:5,~jyeaas. Date of Birth: MaY3, i9~. z. Living arrangements. a. Current address of the incapacitated person: Ebensburg Center - Ebensburg, PA 19~O3o b. The incapacitated person's residence is: c ~~ ~ c , ,~ ... ~ ~, .- ' } _ own home,/ artment ~ ~~~ ~ ~ ~ ~ ~ ~•. ~~ C0 ~,ri~ {'J? ~ _ nursing home b ,. 2 _ boarding home/personal care home .a cw _ . ,. ~ ' n' w~ _ guardian's home/apartment X hospital or medical facility relative's home: (name and relationship) other: iiescribe) c. The incapacitated person has been in the present residence since i96z. If the incapacitated person has moved within the past year, state change and reason(s) for change: N/A Page 1 of 3 d. Name and address of the incapacitated person's primary caregiver: A .~ a3/ 3. The major medical or mental problems of the Inca. itated person areas follows: Severely retrarded 4. Specify what, if any, social, medical, psychological and support services the incapacitated person is receiving: SSI. 5. It is my opinion as guardian of the person that the guardianship should: X continue, be modified, be terminated. (Briefly explain your response) We are his patents. 6. During the past year, I have visited the incapacitated person 47 tunes, with the average visit lasting 3 hours. .y Page 2 of 3 (a) Income is currently invested as follows: All income is currently spent on Davids medical and personal care. C. Payments were made for the care and maintenance of the '"., incapacitated person as follows: ` Blue Cross/Blue Shield and SSI Medical c~u+e at instiitution where David resides D. Payments not included in Paragraph "C"above were made as follows: N/A I verify that the foregoing information is correct to the best of my Imowledge, information and belief; and that verification is subject to the penalties of t8 Pa. Cons. Stat § 49oq. relative to unsworn falsification to authorities. Date: ~ 8 /o ,c (Si tune) ' ~ ~1C~. •f- VRa~ ~ GjKEN~EpR~! (Name ofGuardian) (type or Tint) w E~~y ~R (StreetAddress) ' ~ARL r sC E ~ 1 %D13 (City state, zi code) ~~~~ (Telephone number) Page 3 of 3 1 ~u~reu~e ~1Court of ~euu~prb~ui~ Irene M. Bizzoso, Esq. 601 Commonwealth Avenue, Suite 4500 Middle District Acting Prothonotary P.U. Box 62575 Elizabeth E. "Lisk Harrisburg, F'A 17106 Chief Clerk (717) 787-6181 October 21, 2010 www.pacourts.us CERTIFICATE OF REMITTAUREMAND OF RECORD TO: Glenda Farner Strasbaugh Register of Wills RE: Re: D.L.H. Appeal of: M.I.H. & V.B.H. (Guardians) 98 MAP 2009 Intermediate Court Docket No: 336 MDA 2008 Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 2002-00293 Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description Parts December 3, 2009 contains 1 part & 1 transcript combined Remand/Remittal Date: 10/21/2010 ORIGINAL RECIPIENT ONLY -Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Very truly yours, Office of the Prothonotary ~ ~ ~=;~~ _- Enclosure r, , r~ti~ cc: Milan K. Mrkobrad, Esq., Deputy Prothonotary ~- - -, ,_=+ •• - ~,~ ct. .~ ~ ~ ~ ~ i •"'ti ~ytiiy • • i •~iyi ~ ~ ~ x 0 ~ ~ O x ~ Z ~ ''~ : ~:: '~ ~ ~.. o m o ~ n 'D • ••i O • ~ • •• ~ V ~ O ~r! • ••A" •'•i~ O ~ N x b x ~ C7 ~ < z ~ ~ ~ ~ ~...' o ~ O `~ ~ ~ N ~ d ~ rO C ~`~ to •~ ~acz~ ~ ~ .~ A ~ b ~~ o ~ T h V~ / , W - I~ ~ ''C D N V ~ ~ ~ ~ 'z ~ o ~ N I--~ ,~ ~ ~ ~ •o w ~ „ ~, w o o a w ~ ~ ti N O -_ w O - O i ~o j a~~d iaQ~7 ~uauzdtus :~utddius ~auza~uI Sdrl Irene Nl. Bizzoso, Es9. ~u~1relYYe Court of ~er~1~~pYb~I11~ 601 Commonwealth Avenue, Suite 4500 Deputy Prothonotary Middle District P.U. Box 62575 Elizabeth E. Zik Harrisburg, PA 17106 Chief Clerk (717) 787-6181 www. pacourts. us ORIGINAL RECORD REQUEST TO: Milan K. Mrkobrad, Esq. FROM: Office of the Prothonotary DATE: December 1, 2009 RE: In Re: David L. Hockenberry, an incapacitated person Petition of: Myrl I. and Vada B. Hockenberry, (Guardians) 98 MAP 2009 Allocatur Docket No: 327 MAL 2009 Intermediate Court Docket No: 336 MDA 2008 Trial Court Docket No: 2002-00293 Please forward the Original Record to the Supreme Court at the address shown above as soon as possible. Karen Reid Bramblett, Esy Prothonotary Milan K. Mrkobrad, Escl. Deputy Prothonotary Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealt}~ Avenue, Suite 1600 Harrisburg, PA 17106-2435 (71'T- 772-1294 www.superior.court.State.pa.us CERTIFICATE OF REMITTAUREMAND OF RECORD TO: Mr. Johns Prothonotary RE: In Re: D.L.H., an incapacitated person 336 M DA 2008 Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 2002-00293 Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description Part with 1 transcript attached May 19, 2008 1 Remand/Remittal Date: 12/02/2009 ORIGINAL RECIPIENT ONLY -Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Re ectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /krc Enclosure ~__~ ~. ~_~-~ cc: Jane Adams, Esq. ~ .:,T,, ;-~-. The Honorable Edgar B. Bayley, President Judge ' - ~' Christopher Steven Lucas, Esq. ~ ~-a ~~~; James Clark Munro, Esq. -- Glenda Farner Strasbaugh, Register of Wills - ' ~``J' ~.~. Howard C. Ulan, Esq. =_.~; ~~~:~ ,-.,-- ~~ J. A35032-08 2009 PA Super 25 IN RE: D.L.H., an incapacitated person IN THE SUPERIOR COURT OF PENNSYLVANIA No. 336 MDA 2008 Appeal from the Order Entered January 24, 2008, ,.__~ Court of Common Pleas, Cumberland County, 7_ ~~J Orphan's Division, at No. 21-02-293 ~~ ~-` -_ ~-_-. ~ .~ ., ~ . ~ ~-, ; :_ - L , ~, , :... BEFORE: LALLY-GREEN, GANTMAN and ALLEN, JJ. cJG --~=~ -~ . , . ~_ c- ~- _ _~, _'- ; OPINION BY ALLEN, J.: FILED: February 10, 2009 =;r_ 4...J, ¶ 1 In a matter of first impression, this Court, inter alia, is asked to determine whether, under the facts of this case, the legal guardians of a life- long incompetent person can refuse life sustaining medical treattment on behalf of the incompetent. Additionally, this Court must decide if the incompetent's common law right to refuse medical treatment, as vicariously asserted by the guardians, was infringed based upon the circumstances at bar. ¶ 2 Appellants, the parents and plenary guardians of D.L.H., appeal from the trial court's order denying their petition to decline life preserving medical treatment on behalf of D.L.H., an incapacitated person. Appellants essentially contend that although D.L.H. was neither permanently unconscious nor terminally ill, their status as the plenary guardians of D.L.H. vested them with the legal authority to make surrogate medical decisions for J. A35032-08 D.L.H., including the power to refuse potentially life sustaining medical procedures. The trial court, relying principally on the Health Caire Agents and Representatives Act (the "Act"),1 found that Appellants failed to meet the statutory requirements necessary to become D.L.H.'s "hE~ath care agent," and thus, could not refuse life sustaining medical treatmE~nt on his behalf. We find no error in the trial court's ultimate disposition; accordingly, we affirm the trial court's order, albeit through different reasoning. ¶ 3 The underlying facts of this case are not in dispute and can be summarized as follows. D.L.H. is a fifty year old male who has suffered from profound mental retardation since birth. In his lifetime, D.L.H. never executed a legal instrument expressing his desires in regard to potential life sustaining medical treatment. On July 3, 2002, the trial court <~ppointed Appellants as the plenary guardians of D.L.H., finding that D.L.H.. was "so severely mentally impaired that he [was] unable to make, communicate or even participate in any decision relating to his estate or person[.]" Order, 7/03/02. ¶ 4 On December 21, 2007, D.L.H. became ill with aspiration pneumonia2 after he swallowed a hairpin and vomited. D.L.H. was transferred from the 1 20 Pa.C.S. §§ 5451-5471 (effective January 29, 2007). Z "Aspiration pneumonia is inflammation of the lungs and bronchial tubes due to breathing in a foreign material." MedlinePlus Medical Encyclopedia, available at http://www.nlm.nih.gov/medlineplus/ency/article/000121.htm. "Aspiration pneumonia is caused by inhaling foreign material (usually food, liquids, vomit, or secretions from the mouth) into the lungs. This may lead to an inflammatory reaction, a lung infection (pneumonia), or a collection of pus in the lungs (lung abscess)." 1d. -2- J. A35032-08 Ebensburg Center, where he resided for forty-five years, to Memorial Hospital in Johnstown. The physicians at Memorial Hospital determined that D.L.H.'s medical condition required that he be placed on a rriechanical ventilator to assist him in breathing. Appellants, as the plenary guardians of D.L.H., attempted to decline medical treatment on behalf of D.L.t-I., stating that mechanical ventilation was not in his best interest. The hospital, nonetheless, proceeded to place D.L.H. on a mechanical ventilator. Over Appellants' objection, D.L.H. remained on a mechanical ventilator for approximately three weeks, at which time his aspiration pneumonia subsided to the point where he no longer required ventilation treatment. ¶ 5 On January 4, 2008, Appellants filed a 'Petition to Grant the Guardians Authority to Exercise the Powers of a Health Care Agent on Behalf of the Incapacitated" in the trial court. The Department of Public Welfare ("DPW") objected to Appellants' petition on the ground that D.L.H. was neither terminally ill nor permanently unconscious and never appointed a health care agent under the Act to refuse healthcare necessary to the preservation of his life. Although D.L.H. was still hospitalized at the time of thE: January il, 2008 hearing, D.L.H.'s condition improved and he was removed from the mechanical ventilator. However, because D.L.H. or similarly situated individuals may at sometime in the future sustain a life threatening medical condition, the parties requested that the trial court rule on the merits of the petition. Despite the technical mootness of the issues raised in Appellants' -3- J. A35032-08 petition, the trial court decided to hear the matter, ostensibly on the view that the issues were capable of repetition, yet likely to evade appellate review. ¶ 6 At the hearing, Appellants did not submit any evidence that tended to demonstrate that declining mechanical ventilation was, or would be, in D.L.H.'s best interest. Following hearing, the trial court, on January 24, 2008, entered an order denying Appellants' petition. The trial court perceived the issues raised in the petition as presenting pure quE~stions of law, and concluded that since D.L.H. was not in a permanent vegetative state (~~PVS"), the right of close family members to decline medical treatment of another, as enunciated in In re Fiori, 673 A.2d 905 (Pa. 1996), was inapplicable. Trial Court Opinion, 1/24/08, at 4-5. The trial court further concluded that the designation of a health care agent sunder the Act was the exclusive vehicle by which to refuse life sustaininc medical treatment in situations where the patient was not suffering from an end- stage medical condition or in a PVS. Id, at 3, 6. Ultimately, the trial court concluded that under the Act, D.L.H. was not competent to refuse medical treatment and did not appoint a statutory health care agent. Id, at 7. On this basis, the trial court rejected Appellants' argument that their legal status as plenary guardians of D.L.H. encompassed the power to refuse life sustaining medical treatment on his behalf. Id, at 7. -4- J. A35032-08 ¶ 7 Appellants now appeal to this Court, raising the following issues for review: A. Whether a person who has been incapacitated since birth, nevertheless, retains the inherent right to make medlical decisions, including the right to refuse potentially life sustaining procedures? B. Whether a plenary guardian of the person has the power to make surrogate medical decisions, including the poweir to refuse potentially life sustaining procedures, when the incapacitated person is neither permanently unconscious nor terminally ill? C. Whether the orphans' court has the power to authorize a plenary guardian of the person to make surrogate medlical decisions, including the power to refuse potentially life sustaining procedures, when the incapacitated person is neither permanently unconscious nor terminally ill? Brief for Appellants at 6. ¶ 8 Before addressing the merits of Appellants' issues, we first determine whether the issues are moot and incapable of appellate review. Fzegarding the mootness doctrine, this Court has previously stated: Generally, an actual claim or controversy must be present at: all stages of the judicial process for the case to be actionable or reviewable. If events occur to eliminate the claim or controversy at any stage in the process, the case becomes moot. Even if a claim becomes moot, we may still reach its merits if the issues raised in the case are capable of repetition, yet likely to continually evade appellate review. Therefore, if the issues raised by an appeal are `substantial questions' or `questions of public importance,' and are capable of repetition, yet likely to evade appellate review, then we will reach the merits of the appeal despite its technical mootness. 1n re Duran, 769 A.2d 497, 502 (Pa. Super. 2001) (internal citations omitted). -5- J. A35032-08 ¶ 9 Here, D.L.H.'s improving health and the medical physician's decision to remove the mechanical ventilator rendered the issues raised in this appeal technically moot. Appellants' issues on appeal, however, are capable of repetition due to D.L.H.'s uncertain future medical status and the class of persons in this Commonwealth who are incapacitated and under tree care of a guardianship. It is reasonably likely that at least some of these similarly situated individuals will either develop a medical condition or be involved in an accident that requires life sustaining medical treatment and the guardian will assert the authority to make such a decision on behalf of the incapacitated person. Moreover, the issues raised in this case are capable of evading appellate review if the general rule of mootness is applied, because declining mechanical ventilation in a life-or-death situation, pursuant to a court order, will likely result in death before the appellate process can be completed. Finally, at the core of Appellants' issues lie an individual's time- honored common law right to bodily integrity and right to refusE~ medical treatment, which "does not cease upon the incapacitation of the individual." In re Fiori, 673 A.2d at 910. The Act apparently represents our legislature's attempt to delineate the circumstances in which a perrson may exercise these rights. Hence, the issues in the case concern mai:ters that are of great public importance. For these reasons, we conclude that while the issues raised by Appellants are technically moot, they are nonetheless reviewable because they present questions of public importance that are -6- J. A35032-08 capable of repetition and evading appellate review. See In re ~iori, 673 A.2d at 909 n. 4 (finding issue involving the decision to remove life sustaining treatment from an adult patient in a PVS technically moot as a result of the patient's death, but reaching the merits as the matter concerned a question of public importance and was capable of repetition and evading appellate review). Accordingly, we proceed to the merits of this appeal. ¶ 10 In their brief, Appellants raise three separate issues but present a conglomeration of interrelated arguments, reasoning and legal thec>ries. For ease of disposition, we will address Appellants' contentions as one single issue. ¶ 1l Citing In re Fiori, 673 A.2d at 910, Appellants begin with the premise that although D.L.H. `lacked capacity from the day of his birth, he . retains the same fundamental right to decline medical procedurE~s that is enjoyed by other citizens." Brief for Appellants at 12. Appellants contend that D.L.H.'s right to decline medical treatment extends to them by virtue of the trial court's July 3, 2002 order granting them the status of 'plenary guardians" and 20 Pa.C.S. § 5521(x), the statute governing the powers and duties of a guardianship in this Commonwealth. Id, at 14-16. According to Appellants, "[t]he Act should not be read to restrict the powE~r of the orphans' court to make an appointment of plenary guardians, nor tc- limit the authority of plenary guardians to assert the rights of the incapacital:ed." Id. -7- J. A35032-08 Ultimately, Appellants propose that there is no substantive distinction between the authority of a plenary guardian under 20 Pa.C.S. § 5521(a) and the authority of a health care agent under the Act. Id. at 18-19. Appellants therefore deduce that their status as plenary guardians, in and of itself, vests them with sufficient authority to decline life sustaining medical treatment on D.L.H.'s behalf. Id. at 15-16. Alternatively, Appellants recommend that in order to preserve D.L.H.'s common law right Ito decline medical treatment, the trial court could have specially granted them the right to exercise the power to decline life preserving treatment under the facts of this case. Id, at 16-19. Upon review, we find no merit in Appellants' assignments of error. ¶ 12 In order to resolve Appellants' arguments on appeal, this Court is required to construe and interpret a variety of statues. "Issues involving statutory interpretation present questions of law for which our standard of review is de novo and our scope of review is plenary." In re 1ac~obs, 936 A.2d 1156, 1163 (Pa. Super. 2007). In resolving issues of statutory interpretation, Our task is guided by the sound and settled principles set forth in the Statutory Construction Act, including the primary ma:~cim that the object of statutory construction is to ascertain <~nd effectuate legislative intent. In pursuing that end, we are mindful that `when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.' 1 Pa.C.S. § 1921(b). Indeed, ass a general rule, the best indication of legislative intent is the pllain language of a statute. In reading the plain language, `words and phrases shall be construed according to rules of grammar and -g- J. A35032-08 according to their common and approved usage,' while any words or phrases that have acquired a peculiar and appropriate meaning' must be construed according to that meaning. 1 Pa.C.S. § 1903(a). However, when interpreting non-explicit statutory text, legislative intent may be gleaned from a variety of factors, including, inter a/ia: the occasion and necessity for the statute; the mischief to be remedied; the object to be attained; the consequences of a particular interpretation; and the contemporaneous legislative history. 1 Pa.C.S. § 1921(c).. . Notwithstanding the primacy of the plain meaning doctrines as best representative of legislative intent, the rules of construction offer several important qualifying precepts. For instance, the Statutory Construction Act also states that, in ascertaining legislative intent, courts may apply, inter alia, the follov~ring presumptions: that the legislature does not intend a result i:hat is absurd, impossible of execution, or unreasonable; and that the legislature intends the entire statute to be effective and certain. 1 Pa.C.S. § 1922(1), (2). Most importantly, the General Assembly has made clear that the rules of construction are not to be applied where they would result in a construction inconsistent with the manifest intent of the General Assembly. 1 Pa.C.S. § 1901. In the Interest of C.A., 2008 PA Super 263, at ¶ 5 (filed November 3, 2008). ¶ 13 By way of background, on November 29, 2006, our governor signed the Act into law. In 20 Pa.C.S. § 5423, our legislature stated its intent and findings in passing the Act. This provision provides, in relevant part:: § 5423. Legislative findings and intent (a) INTENT.-- This chapter provides a statutory means for competent adults to control their health care throiugh instructions written in advance or by health care agents or health care representatives and requested orders. Nothing in this chapter is intended to: (1) affect or supersede the holdings of In re Fiori, 673 A.2d !a05 (Pa. 1996). -9- J. A35032-08 (2) condone, authorize or approve mercy killing, euthanasia or aided suicide; or (3) permit any affirmative or deliberate act or omission to end life other than as defined in this chapter. (c) FINDINGS IN GENERAL.-- The General Assembly finds that: (1) Individuals have a qualified right to make decisions relating to their own health care. (2) This right is subject to certain interests of society, sucri as the maintenance of ethical standards in the medical profession and the preservation and protection of human life. 20 Pa.C.S. § 5423(a)(1)-(3), (c)(1)-(2). ~ 14 We first address Appellants' assertion that the trial court's July 3, 2002 order granting them the power of "plenary guardians," in and of itself, vested them with the inherent authority to decline life sustaininca medical treatment on D.L.H.'s behalf. Appellants claim that their authority as plenary guardians, standing alone, is akin to the power of a "health care agent" under the Act. After reviewing the Act and the guardianship statute, as well as the common law governing the guardianship anti agency relationships, we find that Appellants' argument is unavailing. ¶ 15 The statutory provision governing the duties and powers of a guardian is contained in 20 Pa.C.S. § 5521. In pertinent part, this proviso states: § 5521. Provisions concerning powers, duties and liabilities -10- J. A35032-08 (a) DUTY OF GUARDIAN OF THE PERSON.-- It shall be the duty of the guardian of the person to assert the rights and best interests of the incapacitated person. Expressed wishes and preferences of the incapacitated person shall be respected to the greatest possible extent. Where appropriate, the guardian shall assure and participate in the development of a plan of supportive services to meet the person's needs which explains how services will be obtained. The guardian shall also encourage the incapacitated person to participate to the maximum extent of his abilities in all decisions which affect him, to act on his own behalf whenever he is able to do so anti to develop or regain, to the maximum extent possible, his capacity to manage his personal affairs. (d) POWERS AND DUTIES ONLY GRANTED BY COURT.-- Unless specifically included in the guardianship order after specific findings of fact or otherwise ordered after a subsequent hearing with specific findings of fact, a guardian or emergency guardian shall not have the power and duty to: (1) Consent on behalf of the incapacitated person to an abortiion, sterilization, psychosurgery, electroconvulsive therapy or removal of healthy body organ. (2) Prohibit the marriage or consent to the divorce of the incapacitated person. (3) Consent on behalf of the incapacitated person to the performance of any experimental biomedical or behavioral medical procedure or participation in any biomedical or behavioral experiment. (f) POWERS AND DUTIES NOT GRANTED TO GUARDIAN.-- "fhe court may not grant to a guardian powers controlled by other statute, including, but not limited to, the power: (1) To admit the incapacitated person to an inpatient psychiatric facility or State center for the mentally retarded. -11- J. A35032-08 (2) To consent, on behalf of the incapacitated person, to the relinquishment of the person's parental rights. 20 Pa.C.S. § 5521(a), (d) and (f)(1)-(2) (emphasis added). ¶ 16 Although this Court has not yet expressly defined the contours of a "plenary" guardian's power regarding the ward's person, 20 Pa.C.S. § 5521(b) states that unless otherwise provided by statute, nothing shall be construed to limit the inherent powers and duties of a guardian concerning the ward's estate. 20 Pa.C.S. § 3332 (made applicable through 20 Pa.C.S. § 5521(b) (Duty of Guardian of the Estate)). ¶ 17 On the other hand, under 20 Pa.C.S. § 5422, a "Health care agent" is defined as "An individual designated by a principal in an advance hE~alth care directive." 20 Pa.C.S. § 5422. An "Advance health care directive" is coined by statute as a "A health care power of attorney, living will or a written combination of a health care power of attorney and living will." 1d. ¶ 18 In contrast to a guardian's statutory power, the authority of a health care agent is defined in 20 Pa.C.S. § 5456. In relevant part, this section provides: § 5456. Authority of health care agent (a) EXTENT OF AUTHORITY.-- Except as expressly provided otherwise in a health care power of attorney and subject to subsection (b) and section 5460 (relating to relation of health care agent to court-appointed guardian and other agents), a health care agent shall have the authority to make any health care decision and to exercise any right and power regarding the principal's care, custody and health care treatment that the principal could have made and exercised. The health care agent's authority may extend -12- J. A35032-08 beyond the principal's death to make anatomical gifts, dispose of the remains and consent to autopsies. (c) Health care decisions. (4) After consultation with health care providers and consideration of the information obtained in accordance with paragraphs (1), (2) and (3), the health care agent shall make health care decisions in accordance with the health care agent's understanding and interpretation of the instructions given by the principal, at a time when the principal had the capacity to understand, make and communicate health care decisions. Instructions includes an advance health care directive made by the principal and any clear written or verbal directions that cover the situaition presented. 20 Pa.C.S. § 5456(a), (c)(4) (emphasis added). ¶ 19 A health care agent is also granted the specific authority espoused in 20 Pa.C.S. § 5462(c)(1). This proviso states: § 5462. Duties of attending physician and health care provider (c) COMPLIANCE WITH DECISIONS OF HEALTH CARE AGENT AND HEALTH CARE REPRESENTATIVE.- (1) Health care necessary to preserve life shall be provided to an individual who has neither an end-stage medical condition nor is permanently unconscious, except if the individual is competent and objects to such care or a health care agent objects on behalf of the principal if authorized to do so by the health care power of attorney or living will. In every - 13- J. A35032-08 other case, subject to any limitation specified in the health care power of attorney, an attending physician or health care provlider shall comply with a health care decision made by a health care agent or health care representative to the same extent as if the decision had been made by the principal. 20 Pa.C.S. § 5462(c)(1) (emphasis added).3 Significantly, pursuant to 20 Pa.C.S. § 5454(e), a health care agent's decision concerning life preserving medical treatment is effective without prior court approval. 2() Pa.C.S. § 5454(e). ¶ 20 Before proceeding further in our analysis, we find it necessary to discuss the distinction recognized in the common law between the roles and powers of a guardian and those of an agent in relationship to the 3 20 Pa.C.S. § 5422 defines end-stage medical condition and permanently unconscious as follows: "Permanently unconscious." A medical condition that has been diagnosed in accordance with currently accepted medical standards and with rE~asonable medical certainty as total and irreversible loss of consciousness anti capacity for interaction with the environment. The term includes, without limitation, an irreversible vegetative state or irreversible coma. "End-stage medical condition." An incurable and irreversible medical condition in an advanced state caused by injury, disease or physical illness that will, in the opinion of the attending physician to a reasonable degree of medical certainty, result in death, despite the introduction or continuation of medical treatment. Except as specifically set forth in an advance hE:alth care directive, the term is not intended to preclude treatment of a disease, illness or physical, mental, cognitive or intellectual condition, even if incurrable and irreversible and regardless of severity, if both of the following apply: (1) The patient would benefit from the medical treatment, including palliative care. (2) Such treatment would not merely prolong the process of dying. Id. - 14- J. A35032-08 incapacitated and/or principal. A guardian "is simply the court's bailiff or agent in protecting [the incompetent] and his estate." Nonnenman v, E/smmy, 615 A.2d 799, 601 (Pa. Super. 1992) (internal quotation marks and citations omitted). "Although acourt-appointed 'guardian' is vested with the care and management of the person ..under legal disability, the appointee, being an officer of the court, is always under the court's control and is subject to its directions as to the person of the ward." Id. (internal quotation marks and citations omitted). On the other hand, an agency is "the relationship which results from (1) the manifestation of consent of one person to another that (2) the other shall act on his behalf and subject to his control, and (3) consent by the other so to act." Sma/ich v, Westfa//, 269 A.2d 476, 480 (Pa. 1970). Under Pennsylvania law, an agency rellationship arises whenever a person authorizes another expressly or by implication to act as his agent. Garbish v. Malvern Fed. Sav, & Loan Assoc,, 517 A.2d 547, 553 (Pa. Super. 1986). "An agent has a duty to comply with all lawful instructions received from the principal and persons designated by the principal concerning the agent's actions on behalf of the principal." Restatement (Third) Agency, § 809(2) (2006). ¶ 21 Therefore, a fundamental distinction exists in the comimon law between an agent and a guardian. An agent is subjected to the power of the principal and has a duty to carry out the principal's expressed wishes. By contrast, a guardian, acting as an officer of the court, takes actic-n that is -15- J. A35032-08 theoretically in the best interest of the incapacitated person and through judicial review, is subjected to the court's control regarding the ward. Under the Act, a health care agent is created by an express directive from the principal, and the agent must always act in accordance with the principal's stated instructions. On the other hand, although a guardian is supposed to consider the incompetent's expressed wishes, those wishes need not always be honored, and a guardian has latitude to take action on behalf of an incompetent that he/she personally considers is in the incompetE~nt's best interests. Balancing these two legal capacities, the authority grainted to a health care agent in § 5456 is much more consistent with the creal~ion of an agency relationship and the duty of the agent ~~to comply with all lawful instructions received from the principal[.]" Restatement (Third) Agency, § 809(2) (2006). See 20 Pa.C.S. § 5456 (c)(4)-(5). ¶ 22 Against the backdrop of this common law distinction, a plain and natural reading of 20 Pa.C.S. § 5521(a) and the relevant portions of § 5456 leads us to conclude that a health care agent, as provided for in they Act, and not a plenary guardian, possesses the specific authority to make certain health care decisions on behalf of a principal. Considering § 5456 in light of § 5461(c), we conclude that a health care agent has the express statutory authority to object to life sustaining medical procedures on belhalf of a principal, where a principal has neither an end-stage medical condition nor is permanently unconscious. Because under 20 Pa.C.S. §§ 5456(a) and - 16- J. A35032-08 5461(c), the authority to make these health care decisions on behalf of a principal are specifically designated to a health care agent, Appellants' status of plenary guardians, standing alone, does not confer them with the blanket authority to exercise the power of a health care agent. Cf. In re Estate of Dorone, 534 A.2d 452, 455 (Pa. 1987) ("When evidence of [medical necessity] is measured against third party speculation as to what an unconscious patient would want there can be no doubt that; medical intervention is required."). Were we to hold otherwise, our decision would discount the unique grant of authority that our legislature chose to vest in a health care agent created pursuant to the dictates of the Act.4 ¶ 23 Our reading of the Act, the guardianship statute and Appellants' status as "plenary guardians" is further compelled by practical considerations. In In re Estate of Rosengarten, 871 A.2d 1249, 1254 (Pa. Super. 2005), this Court stated that the incompetency statute is capable of providing the guardian with a tremendous amount of authority and noted that "[t]his great power creates the opportunity for great abuse." The circumstances of this case represent an occasion where a guardian could potentially abuse its 4 We note that the Act is inapplicable to D.L.H. because he is a life-long incompetent and cannot comply with its terms for declining life-preserving medical treatment or appointing a health care agent to make the dE~cision on his behalf. 20 Pa.C.S. § 5423(a)(stating that the Act "provides a statutory means for competent adults to control their health care through instructions written in advance or by health care agents or health care representatives and requested orders[.]"). Nonetheless, the Act and the authority of a health care agent informs our understanding of the extent to which a guardian possesses "plenary" power. - 17- J. A35032-08 authority to an unparalleled magnitude. For instance, if Appellants - by virtue of their role as plenary guardians under 20 Pa.C.S. § 5521(x) -were vested with the unconditional power of a health care agent, then any subsequent judicial review of their decision to refuse life preserving treatment could be rendered meaningless because the incompetent may already be deceased. See 20 Pa.C.S. § 5454(e) ("A health care decision made by a health care agent fora principal is effective without court approval."). As such, were we to adopt Appellants' proposed statutory interpretation, Appellants, in merely asserting their title as plenary guardians, would effectively have a free license to decline life preserving medical treatment on behalf of D.L.H. based solely upon what they perceive is in his best interests. ¶ 24 In light of the foregoing statutory sections, as well as the distinctions in the common law between an agency and guardianship, we conclude that Appellants' status as plenary guardians did not vest them with the blanket authority to decline life preserving medical treatment on behalf of D.L.H., where D.L.H. had neither an end-stage illness nor was is in a PVS;. We do not believe that our legislature intended this Court to interpret the guardianship statute and Appellants' grant of authority as "plenary guardians" in a manner that would vest Appellants the unprecedented power to unilaterally end life. See In re J.A.S., 939 A.2d 403, 406 (Pa. Super. 2007) ("[I]t is presumed that the legislature did not intend an absurd or - 18- J. A35032-08 unreasonable result. In this regard, we [] are permitted to examine the practical consequences of a particular interpretation.") (citation and internal quotation marks omitted). Such a statutory construction would lead to an unreasonable outcome in that a guardian, under the guise of claiming the incompetent's best interest, could terminate the life of the incompetent whenever he/she deems fit and without first seeking judicial approval. Therefore, Appellants' status as plenary guardians, in and of itself, does not confer them with the unfettered discretion and authority to dE:cline life preserving medical treatment on D.L.H.'s behalf. ¶ 25 We now address Appellants' alternative argument that under the facts of this case, the trial court could have specially granted them the authority to decline life preserving medical treatment on behalf of an incompetent. For purposes of this appeal, we assume, without deciding, that in Exercising its inherent authority as parens patriae, an orphan's court could specially grant a guardian the power to decline medical treatment for an incompetent who does not have an end-stage medical illness nor is in a PVS. fee In re Terwi//iger, 450 A.2d 1376, 1380-81 (Pa. Super. 1982) ("[T]he Commonwealth, acting in its role as parens patriae, has the right: and the duty to act to protect its weaker members.... This doctrine of inherent parens patriae jurisdiction over incompetents has been extE~nded to decisions involving irrevocable consequences for the incompetent individual."); 20 Pa.C.S. § 5521(d). Even if this were the case, the situation -19- J. A35032-08 presented here exemplifies one of those exceptional circumstances where a guardian would first have to petition the court for such power, and then prove by clear and convincing evidence that refusing medical treatment would be in the best interest of the incompetent, before exercising that power. See 20 Pa.C.S. § 5521(d)(1)-(3); cf. generally to re Edna M.F., 563 N.W.2d 485, 490 (Wis. 1997) (concluding that if an incompetent is not in a PVS, then, as a matter of law, "it is not in the best interests of the ward to withdraw life-sustaining treatment ...unless the ward has executed an advance directive or other statement clearly indicating his or her desires."). Since Appellants did not adduce any evidence to establish that: refusing mechanical ventilation would further D.L.H.'s best interest, the trial court did not err in failing to grant Appellants the authority to decline life preserving medical treatment on his behalf. ¶ 26 "[P]rior judicial approval is required before a guardian may consent to administering or withholding of proposed extraordinary medical trE~atment." Terwilliger, 450 A.2d at 1380 (quoting In re Matter of Moe, 432 N.E. 2d 712, 716-717 (Mass. 1982)). Under 20 Pa.C.S. § 5521(d), there exists specific, delineated circumstances where a guardian, prior to implernenting a power, must first petition the court for an order expressly granting it that power. For example, a guardian must petition a court for an order granting it the authority to consent, on behalf of an incompetent, to "sterilization, psychosurgery, electroconvulsive therapy or removal of a heall:hy body -20- J. A35032-08 organ." Id. at § 5521(d)(1). A guardian must also petition the court for the authority to consent on behalf of the incapacitated person "to the performance of or participation in any experimental biomedical or r-ehavioral medical procedure." Id. at § 5521(d)(1). ~ 27 In Terwi//iger, this Court concluded that a guardian could seek special permission from a trial court to have an incompetent sterilized by tuba) ligation. Recognizing the "extraordinary" nature of they medical procedure and its potential effect on the incompetent's fundamental rights, this Court stated We caution that because sterilization necessarily results in the permanent termination of the intensely personal right of procreation, the trial judge must take the greatest care to ensure that the incompetent's rights are jealously guarded. Preliminarily, we note that in making the decision of whetheir to authorize sterilization, a court should consider on/y the k~est interest of the incompetent person, not the interests or convenience of the individual's parents, the guardian or of society. 450 A.2d at 1382 (citation omitted, emphasis in original). Because the decision to sterilize an incompetent impinges on that person's rights of privacy and to procreate, this Court required proof by clear and convincing evidence that sterilization would be in the incompetent's best interest. As we pronounced: [I]t is to be noted that we will demand from the advocates of the proposed operation proof by clear and convincing evidence that sterilization is in the best interest of the incompetent. We believe that such a standard of proof is necessary in a case such as this one, where a fundamental right is concerned. In -21- J. A35032-08 Pennsylvania, we require the clear and convincing evidence standard for involuntary civil commitment. Thus, because of our overriding concern to prevent any abuse of judicial authority, we are prompted to establish no less of a standard in cases which require the determination of whether sterilization is in the k~est interest of an incompetent person. Id, at 1382 (citations omitted). ¶ 28 Albeit in another context implicating fundamental rights, this i~ourt has held that the clear and convincing evidence standard was applicak~le to the termination of parental rights. In re A.L.D., 797 A.2d 326, 336 (Pa. Super. 2002) ("In a proceeding to involuntarily terminate parental ri~ahts, the burden of proof is upon the party seeking termination to establish by 'clear and convincing evidence' the existence of grounds for doing so.") (citation omitted). Notably, ~~[t]he standard of clear and convincing' evidence is defined as testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesiitance, of the truth of the precise facts in issue." Id. (citation omitted). ¶ 29 Without question, a guardian's decision to decline life preserving medical treatment on behalf of an incompetent is manifest and the consequences grave. Even more compelling than the situation in Terwi//iger, the authority sought by Appellants in this case involved an 'extraordinary" medical decision that threatened D.L.H.'s fundamental rights to privacy and life. Hence, we conclude that before a trial court could ever grant a guardian the authority to decline life preserving medical treatment on behalf of an incompetent, the guardian must first petition the court for _22_ J. A35032-08 the authority to do so, and then prove by clear and convincing evidence that death is in the incompetent's best interest. ¶ 30 After review, we conclude that the task of proving, by clear and convincing evidence, that death is in the best interest of a life-long incompetent is an extraordinary burden to carry. Preliminarily, in determining whether death would be in the incompetent's best interest, a court, as stated in Terwi//iger, should only consider the best interest of the incompetent -not the interest or convenience of the parents, guardians or society in general. Terwi//iger, 450 A.2d at 1382; see VI/oods v. Commonwealth, 142 S.W.3d 24, 34 (Ky. 2004) (stating that the best interest standard 'pis not based on the surrogate's view of quality of life [or] the value that others find in the continuation of the patient`s life" but rather, "the value that the continuation of life has for the patient"). ¶ 31 Additionally, in order to establish that death is in the incompetent's best interest, a guardian, at a minimum, must provide reliable medical expert testimony documenting the incompetent's severe, permanent medical condition (or severe, permanent medical condition with progressive features) and current state of physical/psychological deterioration and pain. See Rasmussen v. F/erring, 741 P.2d 674, 689 ("Under the best interests standard, the surrogate decisionmaker assesses what medical treatment would be in the patient's best interests as determined by such objective criteria as relief from suffering, preservation or restoration of functioning, -23- J. A35032-08 and quality and extent of sustained life."). To substantiate its position, it would be wise (although not absolutely necessary depending on the severity of the medical condition) for a guardian to adduce additional evidence of the incompetent's expressions, either through demeanor or conduct, which could reasonably be interpreted as evincing the incompetent's wants, needs, and/or feelings during the course of medical treatment. See Eric Miller, Listening to the Disabled: End-of--life Medical Decision Making and .the Never Competent, 74 FORDHAM L. REV. 2889, 2902-09 (2006) ("Ex:pressions commonly asserted by incompetent patients include pushing against restraints, noncooperation with treatment, verbalization, and actively trying to remove nutrition/hydration tubes."). ¶ 32 In the absence of any evidence of an incompetent`s expressions during or prior to treatment, the quality of the medical evidence should be of such a character that a court is definitively convinced that the benefits of prolonging life, as a result of medical treatment, is markedly outweighed by the incurable nature of the incompetent's medical condition and the consistent, recurring degree of pain. That is, based upon the medical facts, diagnosis and prognosis of the particular case, a court should be able to conclude, without hesitation, that extending life would amount to an inhumane act that runs so contrary to basic notations of fundamental decency that death furthers the best interest of the incompetent. See 1n re Conroy, 486 A.2d 1209, 1232 (N.J. 1985) ("Under [the pure-objective test], the net burdens of -24- J. A35032-08 the patient's life with the treatment should clearly and markedly outweigh the benefits that the patient derives from life. Further, the irecurring, unavoidable and severe pain of the patient's life with the treatment should be such that the effect of administering life-sustaining treatment would be inhumane."). ¶ 33 Otherwise, in assessing the benefits of a prolonged life, a court should not place any emphasis on the fact that alife-long incompetent, prior to receiving medical treatment, suffers from a mental disability or other cognitive deficiency, because this is the incompetent's natural state of being. See id. at 1233 ("The mere fact that a patient's functioning is limiited or his prognosis dim does not mean that he is not enjoying what remains of his life or that it is in his best interests to die."). A court may, however, consider the incompetent's cognitive abilities as a starting point to analyzes whether the current medical condition or proposed medical treatment has resulted, or would result, in a reduction in those abilities. ¶ 34 For purposes of this appeal, we need not postulate the extreme circumstances in which this test could be met because it is a fact-based inquiry grounded in the severity of the incompetent's specific medical condition(s) and the incompetent's expressions, if any. Here, it suffices for our disposition to state that Appellants offered absolutely no medical proof that D.L.H.'s aspiration pneumonia was a severe, permanent medical condition. While D.L.H. presumably experienced temporary discomfort due -25- J. A35032-08 to the insertion and operation of the mechanical ventilator, there is no medical testimony to demonstrate that D.L.H. suffered from a remarkable amount of pain. Moreover, there is no evidence that D.L.H. made any expression during the course of his treatment that could reasonably be viewed as a personal objection to mechanical ventilation. In his lifetime, D.L.H., although incompetent, did not express his intent to decline life preserving medical treatment either through a written instrument or a clear oral declaration. After approximately three weeks of treatment, D.L.H. fu11y recovered from aspiration pneumonia and he no longer required rr~echanical ventilation. On this record, we conclude that the evidence was clearly inadequate to establish, through clear and convincing proof, that: refusing mechanical ventilation was (or could be) in D.L.H.'s best interest. l"herefore, assuming, arguendo, that the trial court could have specially granted Appellants the power to decline life preserving medical treatment on behalf of D.L.H., Appellants have failed to establish their entitlement to receive this authority. Appellants' arguments to the contrary lack merit. ¶ 35 In reaching our disposition, we recognize Appellants' related but separate argument that because D.L.H. was incapacitated since birth, he cannot comply with the Act, and thus, his common law right to decline medical treatment was violated. Upon review, we conclude that our decision denying Appellants the authority to decline mechanical ventilation on behalf -26- J. A35032-08 of D.L.H., under the facts of the case, does not contravene D.L.H.'s qualified, personal right to refuse medical treatment. ¶ 36 "More than a century ago, the United States Supreme Court recognized that no right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person[.]" In re Fiori, 673 A.2d at 909 (citation omitted). The right to refuse medical treatment is deeply-rooted in the common law of Pennsylvania and does not cease upon the incapacitation of the individual. td. at 909-10. Nonetheless, like so many other rights, the personal right of self-determination is not absolute. 1d. at 910. Rather, the right must be balanced against the interests of the state, which include, among other things, the preservation of life and the protection of the ethical integrity of the medical community. 1d. ¶ 37 Our Supreme Court has held that the state's concern in presE~rving life is the most significant of the state's interests and is intertwined with protecting the ethical integrity of the medical profession. See iid. "The preservation of life is not only a laudable goal for ...the physicians and for the health care facilities to aspire to, it is a compelling one." St. Mary's Hospital v. Ramsey, 465 So. 2d 666, 668 (Fla. App. 1985). A state's interest in preserving life, however, decreases proportionality vvhen the quality of life diminishes as a result of physical deterioration. Polk County _27_ J. A35032-08 Sheriff v. Iowa Dist. Court, 594 N . W . 2d 421, 426 (Iowa 1999) . As one court elucidated: The interest of the State in prolonging a life must be reconciled with the interest of an individual to reject the traumatic cost of that prolongation. There is a substantial distinction in the State's insistence that human life be saved where the affliction is curable, as opposed to the State interest where, as here, the issue is not whether but when, for how long, and at what cost to the individual that life may be briefly extended. Id. (citing Superintendent of Be/chertown v. Saikewicz, 37'0 N.E.2d 417, 4154-26 (Mass. 1977)). ¶ 38 In this case, D.L.H. was a life-long incompetent who developed aspiration pneumonia. The parties concede that D.L.H. was not suffering from an end-stage medical illness and was not in a PVS. Instead, D.L.H.'s aspiration pneumonia was a curable medical condition that required temporary mechanical ventilation. The record fails to establish that D.L.H., during his medical treatment, experienced any significant amount: of pain. In the context of this case, where an incompetent person suffers a medical condition, and recovery appears imminent and the pain is minimal, the ethical integrity of the medical community certainly mandates treatmment and the state's interest in preserving life is considerable. See In re Hughes, 611 A.2d 1148, 1151 (N.J. Super. Ct. Ch. Div. 1992) (collecting cases) ("Our Supreme Court has repeatedly addressed the right to decline medical treatment in situations where the patient is opposed to prolonging an otherwise irreversible condition. The distinguishing factor in this case is that _Zg_ J. A35032-08 the transfusion can preserve a healthy young woman's life, not prolong a painful and imminent death."). In light of the situation presented r~erein, we conclude that the state's interests in preserving life and maintaining the ethical integrity of the medical profession are substantial. ¶ 39 On balance, D.L.H.'s personal right to refuse medical treatment, as maintained through Appellants, carries little weight because Appellants failed to establish that death was (or would be) in D.L.H.'s best interest. Accordingly, we conclude that based upon the facts of this case, the state's interest outweigh D.L.H.'s common law right to refuse medical treatment. ¶ 40 Finally, we note that the Supreme Court's decision in In re Mori does not alter our above conclusions. In that case, the Court considered whether a PVS patient's right to refuse medical treatment extended to the situation where the patient was once competent and did not leave any instructions regarding the maintenance of life sustaining treatment. The Court held that in this situation, "the only practical way to prevent the destruction of the PVS patient's right to refuse medical treatment is to allow a substitute decision maker [i.e., a close family member] to determine what measures the PVS patient would have desired in light of the patient's prognosis." 673 A.2d at 912. For a substitute decision maker to exercise a PVS patient's right to refuse medical treatment, the Court required the written statements of two qualified doctors (and if a patient had an attending physician, a statement by him/her) certifying that the patient has been diagnosed as _29_ J. A35032-08 being in a PVS. The Court further held that where the physicians, close family members and other "interested parties" agree in the outcome, judicial approval and/or intervention is not necessary. The Court, however, cautioned that its holding was strictly limited to the facts of that case: [W]e stress that the matter sub judice addresses only a ~rery narrow issue: whether life-support may be terminated for a PVS patient who was once competent, but did not express desires as to medical treatment, and who may make that choice. It would be unwise for us to speak to alternate scenarios that are not now before us. Thus, we explicitly note that our holding today applies only to situations where the individual in question was once a competent adult, but is now in a permanent vegetative state, and while competent that individual left no advance directives pertaining to life sustaining measures. Id, at 913. ¶ 41 Here, as mentioned above, the parties concede that D.L.H. was incompetent throughout his lifetime and was not in a PVS when hey received medical treatment. Following the express directives of In re Fiori, we conclude that its doctrine is inapplicable to the instant case. In thE~ absence of binding decisional law to the contrary, we refuse to extend the holding in In re Fiori to the situation where alife-long incompetent patient is not in a medically-certified PVS. ¶ 42 In summation, we stress the narrow factual predicate of this case and emphasize that our decision is circumscribed to these facts. Particularly, D.L.H. was alife-long incompetent adult who never expressed his desires regarding life preserving medical treatment in an advanced health care directive or an oral declaration. D.L.H. suffered from a medical condition, -30- ]. A35032-08 aspiration pneumonia, which the parties agree cannot be classified as an end-stage medical illness and did not place D.L.H. in a PVS. Appellants, as plenary guardians, petitioned the trial court for the authority to decline life preserving treatment on behalf of D.L.H. Accordingly, our holding is limited to the following: where alife-long incompetent adult has neither an end- stage medical illness nor is in a PVS, and a plenary guardian seeks to decline life preserving medical treatment on behalf of the incompetent, if the plenary guardian fails to establish that death is in the incompetent`s best interests, by clear and convincing proof, then the guardian does not have the legal authority to decline life preserving medical treatment on behalf of the incompetent. ¶ 43 For the above-stated reasons, we affirm the trial court`s order. ¶ 44 Order AFFIRMED. Judgment Entered: G ~~~ e uty Prothonotary February 10, 2009 Date: -31- [J-33-2010] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. IN RE: D.L.H., AN INCAPACITATED No. 98 MAP 2009 PERSON Appeal from the Order of the Superior APPEAL OF: M.I.H. AND V.B.H., Court at No. 336 MDA 2008 dated 2/10/09 (GUARDIANS) reargument denied 4/16/09 affiirming the order of the Cumberland County Court of Common Pleas, Orphans' Division, at No. 21-02-293 dated 1 /24/08 ARGUED: May 11, 2010 -~ ._....~ r.. ~, i 1 1 '_' 1 f..,.._.~ ~ ~ 44.E-~., 1'~ [ __ r .~ OPINION -~ ,, ~__~ ,_ ; , _. MR. JUSTICE SAYLOR DECIDED: August="t T, 2010'~w'; ' In this appeal, we consider whether plenary guardians can refuse life-preserving medical treatment on behalf of a person who lacks -- and has always larked -- the capacity to make personal healthcare decisions, where the person is neithE;r suffering from an end-stage medical condition nor permanently unconscious. D.L.H. ("David"), age 53, has suffered from profound mental retardation since birth and has resided at the Ebensburg Center, a Department of Public Welfare ("DPW") facility, for nearly his entire life. He is an incapacitated person under the guardianship provisions of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. §§5501-;5555. See id. §5501 (delineating the meaning of "incapacitated person"). In 2002, Appellants, ~~ David's parents, were duly appointed his plenary guardians under such aul:hority. See id. §5512.1(c). In 2007, David became ill with aspiration pneumonia and was transferred from the Ebensburg Center to a local hospital. There, treating physicians determined that his condition required that he be placed on a mechanical ventilator. Appellants attempted to decline that treatment on his behalf, asserting that mechanical ventilation was not in his best interest. See generally id. §5521(a) ("It shall be the duty of the guardian of the person to assert the rights and best interests of the incapacitated person."). The hospital denied that request, however, and David remained on a ventilator for several weeks. Subsequently, his condition improved to the point where he no longer required this treatment. In light of the dispute over David's medical care, Appellants petitioned the orphans' court to be appointed his "health care agents" for purposes of the I-health Care Agents and Representatives Act.' The Act is part of a larger statutory scheme recognizing a qualified right of individuals to make decisions related to their own health care, see id. §5423(c)(1), and establishing a framework for substitute health care decision-making for persons who are "incompetent" to do so.2 The mechanics include the use of "advance health care directives," such as "health care powers of attorney," as 'Act of Nov. 29, 2006, P.L. 1484, No. 169 §4 (as amended 20 Pa.C.S. §§5451-5471) ("the Act"). The Act is reposed in a subchapter of Chapter 54 of the Probal:e, Estates and Fiduciaries Code, entitled "Health Care," and the Chapter 54 definitions, see id. §5422, and legislative findings and intent, see id. §5423, pertain. 2 The Chapter 54 definition of "incompetent," see 20 Pa.C.S. §5422, overlaps substantially with the guardianship scheme's definition of "incapacitated," see id. §5501. If there is a difference, it is not material to the resolution of this appeal, and it is undisputed that David is both an incompetent and incapacitated person for purposes of the respective enactments. [J-33-2010] - 2 well the potential involvement of "health care representatives," where no previous agency relationship has been established. Id. §§5422, 5456, 5461. A "health care agent," designated by an advance health care directive, normally has the same authority as a competent principal to make health care decisions concerning the principal's care with no requirement of court approval. See id. §5456(a), 5454(e).3 Additionally, and of central relevance to the present appeal, Section 5462(c)(1) of the Act imposes an affirmative duty of care on attending physicians and health care providers, as follows: Health care necessary to preserve life shall be provided to an individual who has neither an end-stage medical condition nor is permanently unconscious, except if the individual is competent and objects to such care or a health care agent objects on behalf of the principal if authorized to do so by the health care power of attorney or living will. 20 Pa.C.S. §5462(c)(1). In their petition seeking the status of health care agents, Appellants took the position that the Act "does nothing more than codify the Supreme Court's rude [derived from In re Fiori, 543 Pa. 592, 673 A.2d 905 (1996)] that parents may exercise exactly the kind of judgment that [Appellants] seek to exercise here." Petition at 3 ¶14. See generally 20 Pa.C.S. §5423(a) ("Nothing in this chapter is intended to .affect or supersede the holdings of In re Fiori[.]"). Furthermore, they relied on their broad powers as plenary guardians for David. 3 According to an amicus, "health care representatives," who may be family members or other individuals who know the incompetent person, see 20 Pa.C.S. §5461(d), act as surrogate decision-makers of last resort. In any event, the concept is not directly relevant here, since a "health care representative," as understood through they Act, may make a health care decision only where a guardian with the general power to make such decisions has not been appointed. See id. §5461(a)(3). [J-33-2010] - 3 DPW opposed the petition, and the orphans' court appointed counsel for David. Despite the technical mootness of the issues raised in Appellants' petition, the court decided to resolve the matter, evidently reasoning that the case fell within an exception to the mootness doctrine. A hearing was scheduled; however, the facts as related above were agreed, and the parties merely advanced their legal positions. Appellants maintained the position that, although David had been incapacitated since birth, he retained the inherent right to make medical decisions under Fiori -- including the right to refuse life-preserving treatment -- and such right extended to them as his plenary guardians. In response, David's counsel expressed concern that a guardian's decision-making should be consistent with the medical recommendations where the life of the incapacitated person is at stake. DPW offered a more concrete legal position, namely, that Section 5462(c)(1) of the Act requires caregivers to take medical measures necessary to preserve life on behalf of an incompetent person, where such a person does not suffer from an end- stage condition or permanent unconsciousness. According to DPW, Section 5462(c}(1) allows for a single exception, entailing displacement of the caregivers' obgigation to provide treatment by the decision of a health care agent, i.e., "[a]n individual designated by a principal in an advance health care directive." 20 Pa.C.S. §5422; see also id. §5452 (governing the execution of health care powers of attorney). Since C)avid was never competent to so provide, this procedure was unavailable on the governing terms of the statute. DPW acknowledged that this Court's Fiori decision, as invoked by Appellants, does in fact vindicate the right of incompetent persons -- in some situations - - to make medical decisions via a surrogate. However, DPW highlighted that the decision was closely and carefully limited by the Court to circumstances in which the incompetent person is in a permanent vegetative state. See Fiori, 543 Pa. at 608, 673 [J-33-2010] - 4 A.2d at 913 ("[W)e stress that the matter sub 'u~ dice addresses only a very narrow issue Upon its review, the orphans' court denied Appellants' petition, essentially adopting DPW's position that For the medical circumstances present here, the General Assembly adopted, in [the Act), a per se rule, 20 Pa.C.S. §5462(c)(1), that simply removes the life or death decision from guardians, relatives, or health care representatives (who are not -- unlike health care agents -- chosen by the principal). According to the General Assembly, in these particular medical circumstances, life is to be chosen over death. The relief the guardians specifically seek -- to transform guardianship into health care agen[cy] -- imputes to this Court a power the legislature has withheld from it, i.e., the power to create health care agency (see "health care agent," 20 Pa.C.S. §5422) when none has previously existed. Under [the Act], guardians can "revoke or amend" an existing health care agency if the principal becomes incompetent, 20 Pa.C.S. §5460(a), but they cannot create one where none ever existed, which is the case here. In re D.L.H., No. 21-02-293, sly off. at 3, 6 (C.P. Cumberland, Jan. 24, 2008;1 (per Hon. Edgar B. Bayley) (quoting DPW's brief) (emphasis in original and footnote omitted). The court also credited DPW's position that the authority provided a close family member in Fiori is limited to a situation in which the incompetent person is permanently unconscious. See id. at 5. Appellants appealed to the Superior Court, which affirmed in a published opinion, albeit on different grounds. See In re D.L.H., 967 A.2d 971 (Pa. Super. 2009;1. Initially, as to the mootness doctrine, the court invoked the great-public-importance anti capable- [J-33-2010] - 5 of-repetition-yet-evading-review exceptions. See Fiori, 543 Pa. at 600 n.4, 673 A.2d at 909 n.4. On the merits, the intermediate court indicated that the Act was inapplicable to David, since, on account of his lifelong incapacity, he could not comply with its terms for refusing life-preserving treatment or appointing a healthcare agent. See D.L.H., 967 A.2d at 981 n.4 (quoting 20 Pa.C.S. §5423(a) (evincing the legislative intent that "[t]his chapter provides a statutory means for competent adults to control their health care through instructions written in advance or by health care agents or health care representatives and requested orders.")). Moreover, the court agreed with DPW that Fiori was inapplicable, given that David's life-threatening medical condition was temporary. See id. at 986-87. In spite of these conclusions, the Superior Court did not accept D-PW's core position that the Act's Section 5462(c)(1) imposes a der se requirement on health care providers to provide treatment in the absence of an end-stage condition, permanent unconsciousness, or a decision by a health care agent relieving providers of their obligation. Rather, the court envisioned a residual power in plenary guardians to supersede that duty, subject to court approval. See id. at 981 n.4 (explaining that the Act and the authority of a health care agent "informs our understanding of the extent to which a guardian possesses `plenary' power."); see also id. at 982-87. In terms of the role of the orphans' court, the intermediate appellate court also expressed a concern that abuses could occur on implementation of a more liberal approach to the role of a plenary guardian in the administration of life-preserving care. See id. at 981-•82 ("Such a statutory construction would lead to an unreasonable outcome in that a guardian, under the guise of claiming the incompetent's best interest, could terminate the fife of the incompetent whenever he/she deems fit and without first seeking judicial [J-33-2010] - 6 approval.").4 The Superior Court also invoked the concept of ap rens patriae to justify court involvement and drew support from In re Terwilliger, 304 Pa. Super. 5~i3, 560, 450 A.2d 1376, 1380 (1982) ("[P]rior judicial approval is required before a guardian may consent to administering or withholding of proposed extraordinary medical treatment.") (quoting In re Moe, 432 N.E.2d 712, 716 (Mass. 1982)). Additionally, the court expressed a concern with protecting the ethical integrity of the medical community. See D.L.H., 967 A.2d at 986. The Superior Court concluded that, before an orphans' court could empower a guardian to decline life-preserving treatment for an incapacitated person, tf ie guardian would first have to petition the court for the right to do so, and then prove -- by clear and convincing evidence -- that death is in the incompetent's best interest. See id. at 983. When applying this standard to the present case, the court concluded that the evidence was inadequate to establish, clearly and convincingly, that refusing mechanical ventilation was in David's best interest, particularly since Appellants offered ino medical proof that his aspiration pneumonia was a severe, permanent medical condition. See id. at 984-85. We accepted discretionary review on Appellant's petition, framing the question presented as follows: Whether plenary guardians have the authority to decline potentially life-sustaining treatment for a lifelong incapacitated person who is not suffering from an end-stage medical illness or is in a permanent vegetative state. 4 The Superior Court also determined that this interpretation was consistent with the common law distinction between an agent and a guardian, and that its conclusion was compelled by practical considerations. See D.L.H., 967 A.2d at 981-82. [J-33-2010] - 7 In re D.L.H., 603 Pa. 431, 984 A.2d 935 (2009) (per curiam). The parties have pointed out that there is some imprecision in this framing of the issue, given that the Act contains a particular definition for "life-sustaining treatment," centered on end-stage and permanent unconsciousness scenarios. See 20 Pa.C.S. §5422. Thus, we take this opportunity to conform the question presented to our statement above ("[VW]e consider whether plenary guardians can refuse life-preserving medical treatment on behalf of a person who lacks -- and has always lacked -- the capacity to make personal healthcare decisions, where the person is neither suffering from an end-stage medical condition nor permanently unconscious."). Presently, Appellants open their argument with a strong focus on the guardianship provisions of the Probate, Estates and Fiduciaries Code, emphasizing that they are invested with the duty to assert David's rights and best interests. See id. §5521(a}. Further, they observe that the guardianship statute contains a specific list of excluded medical decisions, which does not include mechanical ventilation. In this regard, Appellants refer to certain powers and duties reserved expressly for the orphans' court, see id. §5521(d), and other specific limitations on a guardian's powers, as follows: (f) Powers and duties not granted to guardian.--The court may not grant to a guardian powers controlled by other statute, including, but not limited to, the power: (1) To admit the incapacitated person to an inpatient psychiatric facility or State center for the mentally retarded. (2) To consent, on behalf of the incapacitated person, to the relinquishment of the person's parental rights. 20 Pa.C.S. §5521(f). Thus, Appellants argue that, as David's plenary guardians, they are the appropriate legal surrogates empowered to vindicate his right to decline medical [J-33-2010] - 8 intervention, even where such treatment would be necessary to preserve David's life. See Brief for Appellants at 9 ("[A]II other powers not reserved for the Orphans Court under sections 5521(d) and (f) should be presumed to be granted under section 5521 {a)."). Appellants further contend that the Superior Court erred in adopting Terwilliger's "extraordinary medical treatment" standard, as it was derived from dicta, and, in any event, was superseded by the noted provisions of the guardianship statute.5 Appellants apparently maintain that, to the extent that the Terwilliger standard remains extant, this Court should reject it, as it is unworkable.s Appellants finally maintain that, when reading the guardianship statute in materia with the Act, it is apparent that the Legislature intended for the ~>ower of a guardian to be superior to that of a health care agent. In this regard, Appellants rely on a provision of the Act providing for the accountability of a health care agent to a guardian, and empowering guardians to amend or revoke the agency. See 20 Pa.C.S. §5460(a). Therefore, Appellants assert that Section 5462(c)(1 } must be read to mandate "life [preserving) treatments in cases where an appropriate surrogai:e has not 5 See Brief for Appellants at 9 ("[T]he Legislature, in essence, specifically and expressly defined `extraordinary medical treatments' in sections 5521(d) and (f). Because the Legislature did not include the discretion to control ...mechanical ventilation in the list of excluded duties of guardians, [Appellants] were within their authority to exercise this control on David's behalf."). s See, e.g_., Brief for Appellants at 8 ("Without a clear definition of [the] phrase ["extraordinary medical treatment",) the health care system will establish a `safety zone' that will contribute to the erosion of the rights of incapacitated persons who wial now be forced to submit to a range of procedures that, even arguably, might be `extraordinary."'); id. at 10 {"[T)he Superior Court's ap rents [sic] ap triae analysis goes against the modern trend and is a step backward because that procedure precludes the kind of on-the-spot decision making that cases like this call for."). [J-33-2010] - 9 been designated in accordance with the terms of [the Act] or other law," such as the guardianship statute. Brief for Appellants at 12 (emphasis removed). Appellants argue that a contrary interpretation would thwart that provision's purpose, which is to permit surrogate decision-making when an individual lacks capacity. According to Appellants, By reading section 5462(c)(1) without considering other provisions of the law, such as sections 5460, 5511 and 5521 of the guardianship statute, DPW successfully urged the Orphans Court to apply section 5462(c)(1) in a way that causes David to forfeit any right to ever control when, where, how and how many times he is forced to submit to a wide range of medical treatments, because of his life-long lack of capacity. This erroneous construction raises profound questions regarding the right of incapacitated individuals to exercise the same right to decline medical procedures that is enjoyed by other citizens. Id. at 13 (citing Fiori, 543 Pa. at 601, 673 A.2d at 910). David and DPW, acting through the Ebensburg Center, (collectively, "Appellees") filed a joint brief relying on DPW's core position as developed above. l"hey seek affirmance of the Superior Court's order, but preferably under the protective, ~~er se rule of Section 5462(c)(1) as interpreted in the orphans' court's decision. Specifically, Appellees maintain that, where an incompetent person who has no health care agent suffers from alife-threatening but treatable medical condition, life-preserving medical care must be provided. It is Appellees' position that, under Section 5462(c)(1), no consent from any third party is required, and no objection by a guardian or hE;alth care representative can be honored. See, e~_,, Brief for Appellees at 10 ("By identifying only competent patients or health care agents as empowered to object to life-preserving treatment in the specified circumstances, §5462(c)(1)'s exclusion of guardians cannot be doubted."). Appellees also draw support from related provisions of Chapter 54. See, e.,g_, 20 Pa.C.S. §5423(a)(3) ("Nothing in this chapter is intended to ...permit. any .. . [J-33-2010] - 10 omission to end life other than as defined in this chapter."), (c)(1) (couching the right of individuals to make decisions relating to their own health care as a "qualified" one). Appellees challenge Appellants' contention that the guardianship statute provides authority, in and of itself, for plenary guardians to decline life-preserving treatment on behalf of an incompetent. Appellees explain that the powers withheld from a guardian are not limited to those specifically enumerated in Sections 5521(d) and (f), as Appellants assert. Rather, Section 5521(f) expressly provides that "(t]he court may not grant to a guardian powers controlled by other statute, including, but not limited to," those specifically identified in the statute and portrayed by Appellants as thE; exclusive restrictions. {d. §5521(f) (emphasis added). Appellees also observe that, because the Act was implemented fourteen years after the guardianship statute, the latter obviously could not have accounted for the former. Therefore, Appellees maintain, a court cannot convert a guardian into a health care agent. Moreover, Appellees refute any contention that the Legislature overlooked guardianship interests in drafting Section 5462(c)(1), in view of the Act's multiple references to guardians and explicit delineation of the relationship between health care agents and guardians, see id. §5460(a) (prc-viding for the accountability of a health care agent to a guardian). As concerns the Superior Court's decision, Appellees specifically take issue with its holding that the Act simply does not apply to persons who have always lacked competence. In this regard, Appellees argue that the Superior Court incorrectNy treated a stated purpose of Chapter 54 -- to provide a means for competent adults to control their health care through advance health care directives or health care represE~ntatives, see id. §5423(a) -- as the chapter's only aim. Appellees explain that the Act also explicitly provides for default surrogates not chosen by the principal, namely, health care representatives, without differentiating between persons who have always lacked [J-33-2010] - 11 competence and those who have lost their previous capacity to make medical decisions. See id. §5461; supra note 3. Moreover, Appellees highlight that no explanation has been offered "why the General Assembly would value the life of a once- competent person over that of anever-competent person." Brief for Appellees at 6 n.4. Appellees posit that, in light of the plain language of Section 5462(c)(1), it is unnecessary to speculate as to the General Assembly's underlying intent. Nevertheless, they offer that the Legislature may have been focused on the specific involvement of the principal in creating and shaping the relationship in the agency situation, as contrasted with a guardianship scenario, in which the principal has no such opportunity. Additionally, Appellees believe, as do a number of their amic;i, that the statute reflects the concern that guardians do not always act in the best interest of incapacitated persons, despite their charge to do so. See, e,g_, Clark v. Cohen, 613 F. Supp. 684, 699 (E.D. Pa. 1985), aff'd, 794 F.2d 79 (3d Cir. 1986). See genE;rally Brief for Appellees at 16 ("[T]he legislature concluded that case-by-case determinations based on `quality of life' considerations -- whether made by guardians or by courts of common pleas -- would too often be wrongly decided, decided against life."). ,According to Appellees, any doubt as to whether a major goal of Section 5462(c)(1) was to protect disabled persons from such discrimination is eliminated by Section 5462(c)(2), which references the Americans with Disabilities Act, 42 U.S.C. §12101, et seq. See 20 Pa.C.S. §5462(c)(2).7 Finally, citing Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841 (1990), Appellees develop that a state may properly assert an Appellees also argue that, even assuming the Act is inapplicable to those who have never been competent to make personal medical decisions, the same result is reached under the common law rule. See In re Estate of Dorone, 517 Pa. 3, 9, 534 A,.2d 452, 455 (1987). [J-33-2010] - 12 unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual. See id. at 282, 110 S. Ct. at 2853. Although Appellees highlight that no constitutional issues have been raised here, they believe that aspects of the Cruzan decision are illuminating. The issue before us is one of statutory interpretation; it is therefore a question of law subject to plenary review by this Gourt to be conducted de novo. As neither party challenges the Superior Court's determination that the appeal falls within e~c:ceptions to the mootness doctrine, we decline to exercise our discretion to review that finding and proceed on that premise. Cf. Rendell v. Pa. State Ethics Comm'n, 603 Pa. 292, 309, 983 A.2d 708, 718 (2009). In statutory interpretation, our task is to discern the intent of the Legislature, and the foremost indication of legislative intent is the plain language of the statute. See 1 Pa.C.S. §1921(a)-(b); see, e____c~_.., In re Erie Golf Course, Pa. , 992 A.2d 75, 85 (2010). Here, as Appellees amply develop, and as the orphans' court determined, Section 5462(c)(1) explicitly limits the category of persons empowered to refuse life- preserving medical treatment on behalf of an incompetent person who is not faced with an end-stage condition or permanent unconsciousness to health care agents. See 20 Pa.C.S. §5462(c)(1). Although the Act provides certain powers to guardians ,and health care representatives, see, e.g_, id. §§5460(b), 5461(c), it does not explicitly authorize either surrogate to object to life-preserving care under Section 5462(c)(1) in the noted $ Also aiding our review, amicus briefs have been submitted by: Disability Rights Network of Pennsylvania, the ARC of Pennsylvania, Achieva, Vision for Equality, Liberty Resources, Inc., Pennsylvania Developmental Disabilities Council, and Not Dead Yet; the Pennsylvania Medical Society and the Hospital and Healthsystem Association of Pennsylvania; and Dr. George Isajiw, Dr. John A. Flamini, Dr. John M. Travaline, Dr. Karl Benzio, and the Pennsylvania Family Institute. [J-33-2010] - 13 circumstances. Cf. 1 Pa.C.S. §1924 ("Exceptions expressed in a statute shall be construed to exclude all others."). Chapter 54 reflects a careful legislative effort to balance various rights and interests in the sensitive arena of personal medical care provided to one who is not competent to assert his or her own rights. On the one hand, the statute manifests respect for advance health care directives, as well as the decisions of close relatives and friends, where the incompetent person suffers from an end-stage c:ondition or permanent unconsciousness, and enables health care providers to comply with such decisions. See, e.~_., 20 Pa.C.S. §§5423(a)(1), 5423(c}(4), 5426, 5431, 5456, 5462(c). The enactment, on the other hand, more sharply regulates the situation in which the incompetent person suffers from alife-threatening but treatable condition, obviously reflecting the Legislature's assertion of a policy position of greater state involvement to preserve life in such circumstances. As Appellees develop, Section 5462{;c)(1) does allow for life-preserving medical treatment to be refused in such instances, but only by a health care agent (or the principal should he or she regain the capacity to make health care decisions). Moreover, since a health care agent can only be designated by a competent principal, see id. §5452(a) ("An individual of sound mind may ma~;e a health care power of attorney ..."), we also agree with Appellees and the orphans' court that such refusal is unavailable in the case of one who has never been competent to delegate the act of personal medical decision-making in the first instance. Also in line with Appellees' arguments and the orphans' court's decisic>n, and for the reasons they have advanced, we agree that the guardianship statute does not alter this regime. Section 5521(d) and (f) of the Probate, Estates and Fiduciaries Code, by their own terms, do not provide the exclusive list of unauthorized acts for guardians. [J-33-2010] - 14 Rather, the proscription expressly subsumes acts forbidden of guardians under other statutes, such as Section 5462(c}(1 }. See id. §5521(f). We also agree that the Superior Court adopted too limited a perspective concerning the Act's scope. While the Act clearly reflects the express policy of empowering competent adults to effectuate advance health care dirE~ctives, the provision for health care representation even in the absence of such directives, see id. §5461, clearly conveys that the statute advances other purposes as well. Accordingly, we are unable to disregard the limitations inherent in Section 5462(c)(1)'s clearly- worded exception to the general requirement for treatment for life-threatening but curable medical conditions.9 With regard to Appellants' argument that the accountability provision of the Act demonstrates a legislative intent to afford guardians powers at least coextE~nsive with the health care agent, since that section subordinates a health care agent's decision- making authority to that of a guardian, see id. §5460(a), we disagree. Section 5460(a) can readily be construed as providing an additional layer of protection to incompetent persons, as a health care agent may be deprived of the power to make life-ending decisions by a guardian. Moreover, although the statute expressly affords a guardian the ability to "revoke" or "amend" the appointment of a health care agent, see id., it does not confer the power to appoint such an agent in the first instance. This dovetails with s To the extent that Appellants argue that applying Section 5462(c)(1) to a lifelong incompetent implicates that person's common law right to refuse medical care, this Court has held that, "[w]here the Legislature expressly provides a comprehensive legislative scheme, these provisions supersede the prior common law principles." Sternlicht v. Sternlicht, 583 Pa. 149, 163, 876 A.2d 904, 912 (2005). Thus, by virtue of that provision, which requires that life-preserving treatment must be provided to an incompetent who is not suffering from end-stage medical condition or permanent unconsciousness and has not appointed a health care agent, the Legislature has supplanted the common law right to refuse medical treatment in these instancE;s. [J-33-2010] - 15 the plain-meaning interpretation of the overall enactment reflected in Appellees' arguments and the orphans' court's decision -- the Act simply does not a~,llow for the refusal of life-preserving care to one who has never had the ability to appoint a health care agent and does not suffer from an end-stage condition or permanent unconsciousness. We recognize Appellants' concern with the possibility that David may face additional medical interventions which they may quite reasonably regard as painful and intrusive. Further, we make no policy-oriented criticism of the position Appellants have taken, which we have no doubt reflects deeply held beliefs arising out of their personal experience with David's profound disability and ongoing medical needs. W'e find only that the salient policy decision has been made by the Legislature, in Section 5462(c)(1) of the Act, as is its prerogative as the policy-setting branch. See Program Admin. Servs., Inc. v. Dauphin County Gen. Auth., 593 Pa. 184, 192, 928 A.2d 1013, 1017-18 (2007). In the absence of meritorious arguments grounded in the Constitution, the courts are bound to enforce the statutory qualifications on David's right to control his treatment as exercised by his guardians. We hold that where, as here, life-preserving treatment is at issue for an incompetent person who is not suffering from an end-stage condition or permanent unconsciousness, and that person has no health care agent, the Act mandatf;s that the care must be provided.10 10 The Pennsylvania Medical Society and the Hospital and Healthcare Association of Pennsylvania, as amici, have submitted a brief centrally focused on their concern that the Superior Court's holding, broadly read, might unduly impinge on statutorily authorized surrogate decision-making in the end-of-life and pE;rmanent- unconsciousness scenarios. Nothing in this matter should be so read, as Appellants obviously favor broad decision-making powers on behalf of surrogates; Appellees have consistently expressly distinguished the "life-sustaining treatment" scenario as being (continued ... ) [J-33-2010] - 16 ~ K The order of the Superior Court is affirmed, albeit we have disapproved a portion of its reasoning. Jurisdiction is relinquished. Mr. Chief Justice Castille, Messrs. Justice Eakin and Baer, Madame Justice Todd, Mr. Justice McCaffery and Madame Justice Orie Melvin join the opinion. JUDGMENT ENTERED August 17, 2010 ,,, .-- Elizabeth Zisk, Ghi~f Clerk (...continued) "radically different" from that involving alife-threatening but curable condition; and thus, a "fife-sustaining treatment" situation has never been before the courts in this case. See generally Commonwealth v. McCann, 503 Pa. 190, 195, 469 A.2d 126, 128 (1983) (reflecting the axiom that the holding of an opinion is to be read against the facts that are before the court). [J-33-2010] - 17 [J-33-2010] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT IN RE: D.L.H. APPEAL OF: M.I.H. & V.B.H. (GUARDIANS) PER CURIAM: No. 98 MAP 2009 Application for Reargument ORDER AND NOW, this 18th day of October, 2010, Appellant's Application for Reargument is hereby DENIED. e..~- c~ .~ e --~ ~._, ~-, ~11 .. - -1_~. fY, i a, ._-, 1 _. _~.... .. .... .~ Sy,... r ~.,. TRUE & CORRECT COPY ATTEST: October 19, 2010 EI ine Hellen, Assistant Chief Clerk V ~~ Sealed Case supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 98 MAP 2009 Page 1 of 8 October 21, 2010 CAPTION In Re: D.L.H., an Incapacitated Person Appeal of: M.I.H. and V.B.H., (Guardians) CASE lNFpRMAT10N Initiating Document: Order Granting Petition for Allowance of Appeal Case Status: Closed Journal Number: J-33-2010 May 11, 2010 Case Category: Civil Case Type(s): Other CC)NSOL#DATED CASES RELATED CASES COUNSEL INFORMATION Attorney: Christopher Steven Lucas, Esq. Address: 2917 Glenwood Rd. Camp Hill, PA 17011 Phone No: (717) 737-4155 Representing: M.I.H. & V.B.H. Guardians, Appellant Pro Se: No IFP Status: Attorney: Jane Adams, Esq. ..._z -~ -~ ~ _ `~y~ Jane Adams Attorney At Law "~ Address: _ 17 West South St ~ ~ .3 R Carlisle, PA 17013 _ - ~: > `' Phone No: (717) 245-8508 ~ ~ ,,~ 1 Representing: D.L.H. & Ebensburg Center, Appellee ~ ~ `~''~ Pro Se: No ~ ; r .._ _ - - IFP Status: - - ---- - . = 't - - - -:.7 - - t. Attorney: -~~~- ... ,; James Clark Munro, Esq. ~=-=~ ` ~' `= ' Spence, Custer, Saylor, Wolfe & Rose Address: P.O. Box 280 Johnstown, PA 15907--0280 Phone No: (814) 536-0735 Representing: Memorial Hospital, Appellee Pro Se: No IFP Status: Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on the docket sheets. :~1 ,. 1:48 PTl1A. Sealed Case Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 98 MAP 2009 ~ ~~ ' , ''' Page 2 of 8 October 21, 2010 Ct3UN5EL INFORMATION Attorney: Shari Ann Mamas, Esq. Disability Rights Network of PA Address: 429 4th Ave Law & Fin Bldg Pittsburgh, PA 15219 Phone No: (412) 391-5225 x:2122 Representing: Disability Rights Network of PA, Appellee Amicus Curiae Pro Se: No IFP Status: Attorney: Mark J. Murphy, Esq. Disability Rights Network of PA Address: 1315 Walnut St Ste 400 Philadelphia, PA 19107--4798 Phone No: (215) 238-8070 Representing: Disability Rights Network of PA, Appellee Amicus Curiae Pro Se: No IFP Status: Attorney: Robin Resnick, Esq. Disability Rights Network of PA Address: PA Disabilty Rights Network 1315 Walnut St Ste 400 Philadelphia, PA 19107--4798 Phone No: (215) 238-8070 Representing: Disability Rights Network of PA, Appellee Amicus Curiae Pro Se: No IFP Status: Attorney: Matthew S. Bowman, Esq. Address: Alliance Defense Fund 801 G Street NW Suite 509 Washington, DC 20001 Phone No: (202) 393-8690 Representing: Pa Family Institute, Amicus Curiae Pro Se: No IFP Status: Attorney: Lisa Whitcomb Clark, Esq. Duane Morris, L.L.P. Address: 30 S 17th St Philadelphia, PA 19103--4196 Phone No: (215) 979-1833 Representing: PA Medical Society & The Hospital and Healthsystem Assoc of PA, Aimicus Curiae Pro Se: No IFP Status: Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on the docket sheets. 1:48 P; M. Sealed Case Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 98 MAP 2009 Page 3 of 8 October 21, 2010 COUNSEL tN'FORMAT~ON Attorney: Robert B. Hoffman, Esq. Eckert Seamans Cherin & Mellott, LLC Address: 213 Market St 8th FI Harrisburg, PA 17101--2132 Phone No: (717) 237-7182 Representing: PA Medical Society & The Hospital and Healthsystem Assoc of PA, Aimicus Curiae Pro Se: No IFP Status: Attorney: David Edwin Loder, Esq. Duane Morris, L.L.P. Address: 30 S 17th St Philadelphia, PA 19103--4196 Phone No: (215) 979-1000 x:1834 Representing: PA Medical Society & The Hospital and Healthsystem Assoc of PA, Amicus Curiae Pro Se: No IFP Status: Attorney: H. Aden Steven, Esq. Address: Alliance Defense Fund 801 G. Street NW Suite 509 Washington, DC 20001 Phone No: (202) 393-8690 Representing: Pa Family Institute, Amicus Curiae Pro Se: No IFP Status: Attorney: Randall Luke Wenger, Esq. Address: Independence Law Center 23 N. Front St., 2nd Floor Harrisburg, PA 17101 Phone No: (717) 657-4990 Representing: Pa Family Institute, Amicus Curiae Pro Se: No IFP Status: Attorney: Howard C. Ulan, Esq. Address: Dept Of Public Welfare Health & Welfare Building, 3rd Floor Harrisburg, PA 17120 Phone No: (717) 787-6398 Representing: Department of Public Welfare, Participants Pro Se: No IFP Status: SUPf~EMf COURT INfORMATiON Appeal From: the Ord of Sup Ct at No336MDA2008 dated 02-10-2009, reargurrient denied 04-16-2009, affirming the ord of the Cumb Co CCP, Orphans' Div, at No. 21-02-293 dated 01-24-2008. Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on the docket sheets. 1:48 P.M. Sealed Case Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 98 MAP 2009 Page 4 of 8 October 21, 2010 SUPREME CE3URT iNF~RMATION Probable Jurisdiction Noted: Docketed Date: December 1, 2009 Allocatur Granted: December 1, 2009 Allocatur Docket No: 327 MAL 2009 Allocatur Grant Order: AND NOW, this 1 st day of December, 2009, the Petition for Allowance of Appeal is GRANTED. The issue, reframed for clarity, is: Whether plenary guardians have the authority to decline potentially life-sustaining treatment for a lifelong incapacitated person who is not suffering from an end-stage medical illness or is in a permanent vegetative state. FEE IfilFC~RMATtC~N Fee Dt Fee Name Fee Amt Receipt Dt Receipt No Receipt Amt 08/30/2010 Petition for Reargument 15.00 08/31/2010 2010-SUP-M-001007 15.00 iNTERAAEDIATE APPE#.LATE-COURT ~NF4RMATIt)N Court Name: Superior Docket Number: 336 MDA 2008 Date of Order: February 10, 2009 Rearg/Recon Disp Date: April 1 Ei, 2009 Rearg/Recon Disposition:Denied. Judge(s): Lally-Green, Maureen Gantman, Susan Peikes Allen, Cheryl Lynn Intermediate Appellate Court Action: Affirmed Referring Court: AGENCY/TRIAL COURT INFORAAATiON Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Cumberland County Orphans' Court Date of Agency/Trial Court Order: January 24, 2008 Order Type: Order OTN(s): Lower Ct Docket No(s):2002-00293 Lower Ct Judge(s): Bayley, Edgar B. President Judge ORIG#NAL RECOrRD CONTENT Original Record Item Filed Date Content/Description Parts Record Remittal: October 21, 2010 December 03, 2009 contains 1 part & 1 transcript combined BRIEfMtG SCHEi3ULE Amicus Curiae Appellee Pa Family Institute D.L.H. & Ebensburg Center Brief Brief Due: March 16, 2010 Filed: March 15, 2010 Due: March 16, 2010 Filed: March 15, 2010 Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on the docket sheets. 1:48 P.M. Sealed Case Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 98 MAP 2009 ,, ~~ Page 5 of 8 October 21, 2010 BR1EFfNG SCHEDULE Amicus Curiae Appellee PA Medical Society & The Hospital and Healthsystem Memorial Hospital Assoc of PA Brief Brief Due: March 16, 2010 Filed:. March 8, 2010 Due: February 11, 2010 Filed: February 11, 2010 Appellee Amicus Curiae Appellant Disability Rights Network of F'A M.I.H. & V.B.H. Guardians Brief Brief Due: March 16, 2010 Filed:: March 15, 2010 Due: February 11, 2010 Filed: February 11, 2010 Reply Brief Due: April 1, 2010 Filed: Reproduced Record Due: February 11, 2010 Filed: REARGUAAENT'l RECf1~DERATiON' ! RE~IIITTAL Filed Date: August 30, 2010 Disposition: Order Denying Application for Date: October '18, 2010 Reargument Reargument Order: AND NOW, this 18th day of October, 2010, Appellant's Application for' Reargument is hereby DENIED. Record Remittal: October 21, 2010 SESSi©N INFflRN1ATit3N Journal Number: J-33-2010 Listed/Submitted Date: May 11, 2010 Consideration Type: Oral Argument Supreme Ct. ~fSP4SITIElN INFORMATION Related Journal No: J-33-2010 Judgment Date: Category: Decided Disposition Author: Saylor, Thomas G. Disposition: Affirmed Disposition Date: August 1'7, 2010 Dispositional Filing: Majority Opinion Author: Saylor, Thomas G. Filed Date: August 17, 2010 Justice: Castille, Ronald D. Vote: Joins Justice: Eakin, J. Michael Vote: Joins Justice: Baer, Max Vote: Joins Justice: Todd, Debra Vote: Joins Justice: McCaffery, Seamus P. Vote: Joins Justice: Orie Melvin, Joan Vote: Joins Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on the docket sheets. 1:48 P.M. l ~ Supreme Court of Pennsylvania Sealed Case Appeal Docket Sheet Docket Number: 98 MAP 2009 Page 6 of 8 October 21, 2010 D~3C14ET ENTRY Filed Date Docket Entry /Representing Participant Type Filed Bey December 1, 2009 Allocatur Granted Comments: AND NOW, this 1 st day of December, 2009, the Petition for Allowance of Appeal is GRANTEC). The issue, reframed for clarity, is: Whether plenary guardians have the authority to decline potentially life-sustaining treatment for a lifelong incapacitated person who is not suffering from an end-stage medical illness or is in a permanent vegetative state. December 3, 2009 Superior Ct. Record Received Superior Court of Pennsylvania January 6, 2010 Application for Extension of Time to File Brief Appellant M.I.H. ~~ V.B.H. Guardians January 8, 2010 Order Granting Application for Extension of Time to File Appellant Brief Bizzoso, Irene M. Comments: "AND NOW, this 8th day of January, 2010, Petitioners'/Appellants' application for an extension of time is hereby granted. Appellants brief shall be filed on or before February 11, 2010." January 8, 2010 Order Exited Office of the Prothonotary February 11, 2010 Appellant's Brief & Reproduced Record Combined, Filed Appellant M.I.H. ~~ V.B.H. Guardians February 11, 2010 Amicus Curiae Brief Amicus Curiae PA Medical Society & The Hospital and Healthsystem Assoc of PA March 8, 2010 No Brief to be Filed by Appellee Appellee Memorial Hospital Comments: Will not participate in argument March 15, 2010 Joint Appellee's Brief Filed Appellee D.L.H. & Ebensburg Center March 15, 2010 Appellee Amicus Curiae's Brief Filed Appellee Amicus Curiae Disability Rights Network of PA Comments: Amicus Brief of: "Disability Rights Network of PA, The ARC of PA, Achieva, Vision for Equality, Liberty Resources, Inc., PA Developmental Disabilities Council, and Not Dead Yet" March 15, 2010 Amicus Curiae Brief Amicus Curiae Pa Family Institute Comments: Amici Curiae Brief of "Dr. George Isajiw, Dr. John A. Flamini, Dr. Johns M. Travaline, Dr. Karl Benzio, and the Pennsylvania Family Institute" Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on the docket sheets. 1:48 P.M. Sealed Case Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 98 MAP 2009 ~, Page 7 of 8 October 21, 2010 DOCKET EN'~IRY Filed Date Docket Entry /Representing Participant Type Filed By March 30, 2010 Acknowledgement of Argument Notice Appellee Ebensk~urg Center Comments: Atty. Howard Ulan April 1, 2010 Acknowledgement of Argument Notice Appellee H., D. L_. Comments: Atty. Jane Adams April 26, 2010 Acknowledgement of Argument Notice Appellant M.I.H. <~ V.B.H. Guardians Comments: Atty. Christopher Lucas May 11, 2010 Argued Supreme Court of Pennsylvania August 17, 2010 Affirmed Saylor, Thomas G. Comments: The order of the Superior Court is affirmed, albeit we have disapproved a portion of its reasoning. Jurisdiction is relinquished. Mr. Chief Justice Castille, Messrs. Justice Eakin and Baer, Madame Justice Todd, Mr. JusticE~ McCaffery and Madame Justice Orie Melvin join the opinion. August 17, 2010 Judgment Entered Office of the Prothonotary August 30, 2010 Application for Reargument Appellant M.I.H. <~ V.B.H. Guardians September 8, 2010 Answer to Application for Reargument Participants Departiment of Public Welfare September 10, 2010 No Answer Letter Appellee Memorial Hospital September 13, 2010 No Answer Letter Appellee H., D. L_. October 18, 2010 Order Denying Application for Reargument Per Curiam Comments: AND NOW, this 18th day of October, 2010, Appellant's Application for Reargument is hereby DENIED. October 19, 2010 Order Exited Office of the Prothonotary Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on the docket sheets. 1:48 P.M. Supreme Court of Pennsylvania DQCKET ENTRY Sealed Case Appeal Docket Sheet Docket Number: 98 MAP 2009 Page 8 of 8 October 21, 2010 Filed Date Docket Entry /Representing Participant Type Filed By October 21, 2010 Remitted Office of the Prothonotary Comments: Original record remitted to Cumberland Co. CCP, orphan's div. cc: Superior Court Ci2t?SS C~iJRT ACT#C~N Docket Number: 327 MAL 2009 Docket Number: 336 MDA 2008 Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on the docket sheets. In Re: DAVID L. HOCKENBERRY, an Alleged Incapacitated Person IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNS~~LVANIA ORPHANS COURT DIVISION NO. 21 - 02- Civil Term ANNUAL REPORT OF GUARDIAN OF THE PERSON Myri J. Hockenberry and Vada B. Hockenberry, Plenary Guardian of the person of David L. Hockenberry by virtue of a Decree dated July 3, zooz, does hereby file its annual report as follows: z. Present age of the incapacitated person: ~ ~ years. Date of Birth: MaY3, ig~. z. Living arrangements. a. Current address of the incapacitated person: Ebensburg Cenroer Ebensburg, PA ago3o b. The incapacitated person's residence is: _ own home/apartment -~, nursing home ~ - '~ boarding home/personal care home y= ;~ ~, .~, guardian's homeJapartment _ _ '-; X hospital or medical facility < -~~ ~` _ relative's home: (name and relationship) _ other: (describe) c. The incapacitated person has been in the present residence since rg6z. If the incapacitated person has moved within the past year, state change and reason(s) for change: N/A Page 1 of 3 l~~~ d. Name and address of the incapacitated person's primary care}; ver: ;. The major medical or mental problems of the incapacitated person are as follows: Severely retarded 4. Specify what, if any, social, medical, psychological and support services the incapacitated person is receiving: SSI. ~. It is my opinion as guardian of the person that the guardianship should: X continue, be modified, be terminated. (B~!~efly explain your response) We are his parents. S. During the past year, I have visited the incapacitated person q.7 tames, with the average visit lasting 3 hours. Page 2 of 3 (2) Income is currently invested as follows: All income is currently spent on Davids medical and personal care. C. Payments were made for the care and maintenance of the incapacitated person as follows: Blue Cross/Blue Shield and SSI Medical care at institution where David resides. D. Payments not included in Paragraph "C" above were made as follows: N/A I verify that the foregoing information is correct to the best of my irnowledge, information and belief; and that verification is subject to the penalties of r8 Pa. Cons. Stat ~ q.9o4 relative to unsworn falsification to authorities. Date: 7 ~ ~~ ~, .. ~1 . /f / ~ 1/.~ i~ (1 vame vF csuarwarl/ (type or tint) (Street~ddress) ~~ r- ~ s (e , Via, r 7G f (Ci , s e, zip code) ~r ~ z y ~- y~ ~~- (Telephone number) Page 3 of 3 In Re: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID L. HOCKENBERRY, ORPHANS COURT DIVISION an Alleged Incapacitated Person NO. 21 - 02- .i'-~j Civil Term ANNUAL REPORT OF GUARDIAN OF THE pERSON Myrl J. Hockenberry and Vada B. Hockenberry, Plenary Guardian of the person of David L. Hockenberry by virtue of a Decree dated July 3, 2002, does hereby file its annual report as follows: 1. Present age of the incapacitated person:.~~ yam, Date of Birth: MaY3,19~. 2• Living arrangements. a. Current address of the incapacitated person: Ebensburg Center Ebensburg, PA 19030 b• The incapacitated person's residence is: _ own home/apartment _ nursing home ~ ~; ~ ^' __ boarding home/personal care home '~~`v ~ ~~~ ~ ~ wv.. ~~ ~. ~ ~ 1 _ guardian's home/apartment r ~jc. O c. 'tJ r ;' C = ~ _ r-, X hospital or medical facility D ~ w ~=~ ,~,--; ~ ~~ ~ _ relative's home: ~ ~ _______(name and relationship) _. other: (describe) c. The incapacitated person has been in the present residence since 1962. If the incapacitated person has moved within the past year, state change and reasons} for change: N/A Page 1 of 3 ~~ d. Name and address of the incapacitated person's primary caregiver: T--- '~ c%yl~ l.G z ~ ~~~ ~~ 3. The major medical or mental problems of the incapacitated person are as follows: Severely retarded 4. Specify what, if any, social, medical, psychological and support services the incapacitated person is receiving: SSI. 5. It is my opinion as guardian of the person that the guardianship should: X continue, be modified, be terminated. (Brietfy explain your response) We are his parents. 6. During the past year, I have visited the incapacitated person 47 times, with the average visit lasting 3 hours. Page 2 of 3 Ail income is currently spent on Davids medical and personal care. C. Payments were made for the care and maintenance of the incapacitated person as follows: Blue Cross/Blue Shield and SSI Medical care at institution where David resides. D. Payments not included in Paragraph "C" above were made as follows: N/A I verify that the foregoing information is correct to the best of my laiowledge, information and belief; and that verification is subject to the penalties of r8 Pa. Cons. Slat § 49oq. relarive to unsworn falsification to authorities. Dare: ~ %~' i ~ l i ~ ~ ~ ~~ (Sign lure) // // / ~ ~i''~ a~- 1~G~CiCL' ~7l r ;~~nL E'i~' (Name ofGuardian) (type or print) (Str~tAddress) (City, state, zip code) ~~ ~ ~ ~3 ~:~~~ (Telephone number) Page 3 of 3 �� �R � ,��w.,�....�T.���,�. �...,.� �����.�.:.�-� . ._���- � _ ,,; ��.� ...s._�e..„,._, �k.,., �,�. � r i t In Re: : IN THE CUURT t�F COMMON PLEAS OF -.-i : CUMBERLAND COUNTY,PENNSYLVANiA DAVID L.HU�CKENBERRY, : t)RPHfAN� COURT DIVISIC?N f an Alleged Incapacitated Person : N4, 21 -42- �.�� Czvil Term , ANNUAL REPOR'T C}F GUA►RLI�►I.V(�F THE PFI�SON ._,� Myrl T. Hockenberry and�ada B.Hockenberry,Plenary Guardian ofthe get�son of Da.vid L.Hockenberry by virtue of a Decree dated 3uiy 3,�.ao�.,does hereby f le its annual report as foilaws: ._... :i z. Present e ofthe inca acitated persan: ears. � � � P Y ' Date of Birth:112aY3,zg�r7. 2. Living arrangements. ; a. Current address of the incapacitatecl perst�n:Ebensburg��;nt�r ; Ehe�,sburg,PA r9o�o ! ; b. The incapacitated person's residence is: ; ; � own home/apartment - !,� c� �.; � � � �'� .--> � a nursing home �= ° � -= �' c� - < :.:� rsz �; �= ._ n.; c"` N " W boarding home/personal care home � ',� �° -.� - " � � �- G„ ° �� ., � . �� _� _n, ;e — guardian's horn�laparnnent �.� ��:" �"! � ,� y:, � �� ;.,.� ; � X I14S�?It�C3I`TT2�IC�I��.CI�It� � �' � �" �=; „T reiative's home: (name andrelationship) ,__ +�ther: (de.scrzbe� c. The incapacirated�rson has been in the present residence since zg6z.. . Ifthe incapacitated person has moved within the pas�tye�-,state change and reasonfs}for change: N/A Page 1 crf 3 � . 3 e.z .��,���, �..�.�.. ���.��. �.���..s,�� �.�.,��,-..��,,.���, ., ����.�.��,�„�,�,.�rt�-�� µF x , �b�..�, , .-_ _ ,:. ,.- _ �, _ __ _ _ __ � r d. T�iame and address of the incapacitated persan's primary caregiver: �� �J�- �'h��� 6�� P ;. The major medical or mental prablems of rhe inca.pacitated person are as fal�ows: S�cterely ret��.ied q.. Specify what,if any,scrcial,medic�i,psyc�c�lagical�.nd suppc�rt services the ' incapacitated pez-son is receiving: ' SSI. �, It is my opinion as gvardian of the person that the wardianship shoutd: X cantinue, be modif�ed, be terminated. (Brie�y - e�plairz yaur respQnse) We are his parents. 6. During the past year, I have visited the incapacitated persc�n�.�t[mes, with the average visit lasting 3 hours. � i _ �ag����s �, . � - - - - -- - _ _ _. -... :r<:.,...,��::.,��.c,.__._.-<�.__._f .:-...sr�_`�_-rr�rr.������F �- ' -' _ ,.. �� �.,..,� __ � _�_rr x..i-. �d.o�. �. �f�.��. .._a� ,.. ,._ ., .. . . . .. . _._ ... _._., �_..�r_c.ts�.w � ' (a) Income is currently invested as foltows: i ' All inoome is currentiy spent on Davids medical.and personal c�.re. � C. Payments were made for the care and maintenartce of the ! " incapacitated person as follows: J1 1 ' Blue Cross/Blue Slueld and SSI ; ; Medical care at institution where David resides. ; ; D. Payments not included in Paragraph"C"above were made as fallows: N/A � � i I verify that the foregoing information is correct to the best of my j I�towtedge,information and belief; a.nd that verification is subject to the < � penalties of i8 Pa. Cons. Stat§q.goq.relative to unsworn falsification to j authorities. i f • s ; Date: � � � � ! �n� (Signa e) l , , �' G /�?'D C C'��� ���y (N e ofGuardian) (type or rint ' � r �cGJ�� r�( � ( r- ; (StreetAddre�s) n� �' ✓��C�,�s��� r� � �l� I `3 (G'Ity,s�te,zip code) � � � �� ; � (Telephone number) , Page 3 of 3 ,....-. c7 �:" �O �` -,-a-,-�'*-', ��i C.._ r��C 7 �'L, . C ;�`�� ANNUAL REPORT OF � : '� � � ��'^.., -' C t C't GUARDIAN OF THE PERSON ,.>"-; "' � ` ` c�c1: �'�' :. ��; _�. ��; D�:� � � � --, .. 4n� COURT OF COMMON PLEAS OF � �U (�'���R��1j COUNTY, PENNSYLVANIA ORPHANS' COURT DNISION Estate of ��U i � �-- ° ��U C I� L/U gL I�I� � , an Incapacitated Person No. �l-Cl�-�y,3 C��v� I I t�r►� I. INTRODUCTION �l,1 R l /\N� Uf�-DPr j�6G�C�/1� QL�R� , was appointed �Plenary�Limited Guardian of the Person by Decree of , J•, dated , 1r�� �bo A _ � A. This is the Annual Report for the period from JU,�v� �7 , n24�.� to JJt.-�/ �' _, �o/ (the "Report Period"); or 0 B. This is the Final Report for the period from , to , (the "Report Period"), and is filed for the following reason: 1. The death of the Incapacitated Person. Date of death: 2. The Guardianship was terminated by the Court by Decree of J., dated For a Final Report, omit Sections II through IV. Form G-03 rev. 10.13.06 Page 1 of 4 Estate of -��� � � L • �o�k L N��RR 1 , an Incapacitated Person II. PERSONAL DATA Age of the Incapacitated Person: �� Date of Birth: /�/f;J 3. �95� III. LIVING ARRANGEMENTS A. Current address of the Incapacitated Person: L�6��/VS'�vRG C�NTt:R L:��✓�s�J�ec� 7'� 19�3° B. The Incapacitated Person's residence is: ❑own home/apartment �nursing home �boarding home/personal care home �Guardian's home/apartment �hospital or medical facility 0 relative's home (name, relationship and address) ❑other: C. The Incapacitated Person has been in the present residence since /91v,� . If the Incapacitated Person has moved within the past year, state prior residence and reason(s) for move: �l/l/� Form G-03 rev. 10.13.06 Page 2 of 4 Estate of �R� � � �—' �OGk�'������% , an Incapacitated Person D. Name and address of the Incapacitated Person's primary caregiver: �a�Ns�'auRG= ���T�� �Q ���� ��R�� �,�4 IV. MEDICAL INFORMATION A. The major medical or mental problems of the Incapacitated Person are as follows: S�r��R�"1-� �L"i�+�K��.D B. Specify what, if any, social, medical, psychological and support services the Incapacitated Person is receiving: ss� V. GUARDIAN'S OPINION A. It is the opinion of the Guardian of the Person that the guardianship should: �continue �be modified ❑be terminated Form G-03 rev. 10.13.06 Page 3 of 4 Estate of ��1f 1 � �--' �UC-� L=�d ��d�1� Y , an Incapacitated Person The reasons for the foregoing opinion are: w� ��� �f�s ���N,.s- B. During the past year,the Guardian of the Person has visited the Incapacitated Person , 1 l times with the average visit lasting�_hours,�minutes. The report 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. 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. �,����`'� '� Date Signa re of Guardian of the Persott rn yR� �- v���- r����,�:���eRy Name of Guardian of the Person(type or print) / STR����Rie y .�R Address ��L/s'L L; l��' /�Tv/.� City,State,Zip ��! —� ������� Telephone Form G-03 rev. I0.l3.06 Page 4 of 4