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Home My WebLink About04-0791L'V RE: : DA FID K. SMITH : ALLEGED INCAPACITA TED PERSON : AV THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSY£ I~ANIA ORPHAN'S COURT DIV1670N NO. _; ..w PETITION FOR ADJUDICATION OF INCAPACITY AND APPOINTMENT OF PLENARY GUARDIAN OF THE ESTATE AND PERSON IN ACCORDANCE WlTIt 20 PA. CONS. STAT. ANN. §5511 AND NOW COMES, Angela M. Smith, by and through her counsel, Smigel, Anderson & Sacks, LLP, who in support of thc within Petition for Adjudication of Incapacity and Appointment of Plenary Guardian of thc Estate and Person of David K. Smith avers as follows: 1 ) Thc Petitioner is Angela M. Smith, the wife of David K. Smith (the "AIIcged Incapacitated Person"). 2) The Alleged Incapacitated Person was bom on October 24, 1948, being fifty-five (55) years of age. The Alleged Incapacitated Person resides at 204 Locust Drive, New' Cumberland, Cumberland County, Pennsylvania. His social security number is 201-38-5830. He is an Information Technology Specialist at the Mechanicsburg Navy Depot. 3) The following persons arc, to the best of Petitioners knowledge, information and belief, the only living next of kin of thc Alleged Incapacitated Pcrson: (a) (b) Angela M. Smith, 204 Locust Drive, Nexv Cumberland, PA 17070 (wife); Shana L. Smith, 1240 Bedford Ave., Apt. 5A, Brooklyn, NY 11216 (daughter); (c) Marcella Smith, 6434 Highview Strect, South Part, PA 15129-9753 (mother); (d) Marleen Smith, 6434 Highview Street, South Part, PA 15129-9753 (sister); (e) Eileen Mink, 1111 Cochran Road, Pittsburgh, PA 15243 (sister); Marcia J. Martinez, 3109 Southern Drive, South Park, PA 15129-9402 (sister); and (g) Kathleen A. Herdman, 26 Lodge Avenue, Pittsburgh, PA 15227 (sister). 4) The Alleged Incapacitated Person is currently admitted to the Holy Spirit Hospital, 503 North 21st Street, Camp Hill, Cumberland County, Pennsylvania, and has been there since July 8, 2004. 5) Other service providers for the Alleged Incapacitated Person include: Patrick Ratnasamy, M.D., attending physician Peter M. Brier, MD Dominic Mirarchi, DO James A. Tyndall, MD Michael Demichele, M.D. Internists of Central Pa., Ltd. 108 Lowther Street P.O. Box 107 Lemoyne, PA 17043-0107 Ronald G. Barsanti, MD, FACS Michael J. Paige, MD Lisa K. Torp, MD, FACS Susquehanna Surgeons, Ltd. 532 North Front Street Wormleysburg, PA 17043 Timothy Walsh, MD John P. Zornosa, MD Moffitt Heart & Vascular Group 100 North Front Street Wormleysburg, PA 17043 John G. Calaitges, MD Vascular Associates, PC 800 Poplar Church Road Camp Hill, PA 17011 John P. McLaughlin, DO, FACG, FACP Kevin C. Westra, DO Harrisburg Gastroenterology, Ltd. 4760 Union Deposit Road, Suite 230 Harrisburg, PA 17111 Steven P. Siegelbaum, MD, FACG Siegelbaum, Gunder and Lacey Gastroenterology Associates Rose Garden Building 2626 N. Third St., Suite 3A Harhsburg, PA 17110-2034 Lisa S. Tkatch, MD Kantor and Tkatch Associates 111 South Front Street, 3rd Floor Harrisburg, PA 17101 Alfred R. Leal, MD Hematology & Oncology Consultants of Pennsylvania, PC 3 Walnut Street, Suite 204 Lemoyne, PA 17043 2 Richard G. Evans, DO, FACCP Safa P. Farzin, MD Franklin J. Myers, III, MD, FACCP Pulmonary and Critical Care Medicine Associates, PC 1631 North Front Street Harrisburg, PA 17102-2414 6) To the extent known by Petitioner, the assets of the Alleged incapacitated Person are valued at approximately Three Hundred Sixty Thousand Six Hundred Seventy Three and 94/100 ($360,673.94) Dollars, compromising the following: Members Is~ individual savings account Members 1st IRA Members l~t checking account Members l~t joint savings account (with wi re) Real property at 204 Locust Drive, New Cumberland, PA People's Life Insurance policy (death benefit) American General Life Insurance policy (death benefit) Insurance A&ninistration Services accidental death and dismemberment insurance (death benefit) Thrift Savings Plan 2002 Pontiac Montana 1985 Chevrolet Blazer 1983 Cadillac DeVille 1955 Chevrolet BelAir TOTAL $25.00 $10,318.84 $5,143.46 $4,920.00 $100,000.00 $102,000.00 $46,000.00 $3,000.00 $44,266.64 $18,000.00 $2,000.00 $5,000.0O $20,000.00 $360~673.94 7) Petitioner estimates the Alleged Incapacitated Person's net annuaI income to be approximately Forty One Thousand Four Hundred Fifty and 26/100 ($41,450.26) Dollars comprising the follo~ving: salary from the Mechanicsburg Navy Depot ($1,525.01 bi-weekly), and a military pension of approximately One Thousand Eight Hundred ($1,800.00) Dollars per year ($150.00 per month). 8) The Alleged Incapacitated Person was a member of the armed services of the United States and is receiving benefits from the United States Veterans Administration. 9) Thc Alleged Incapacitated Person suffers from adult respiratory distress syndrome, a collapsed lung, and Crohn's Disease. The Alleged Incapacitated Person has also suffered a blood clot to the brain, which has rendered him clinically brain dead. Thc only remaining part of his brain functioning that being which controls involuntary functions. Although the Alleged Incapacitated Person has been taken off the course of heavy sedation, he has not rcspondcd and continues to be in a coma-like statc of consciousness. 10) Because of his mcntaI and physical condition, the Alleged Incapacitated Person is totally unable to manage his financial afl'airs, property and business and to make and communicate responsible decisions relating thercto, including the ability to communicate his need lbr assistance in these areas. 11) Because of his impaired mental and physical condition, tile Alleged Incapacitated Person lacks the capacity to make or communicate responsible decisions concerning his pcrson and is unable to take care of himself or to exercise regular daily functions such as paying bills and feeding himself. 4 12) Thc following alternatives to the appointment ora guardian of the estate and person have been considered: Petitioner has scarchcd for a Power of Attorney; however, none has been located. It is bclieved that the Alleged Incapacitated Person never executed a Power of Attorney. Thc Allegcd Incapacitatcd Person cannot execute a Power of Attorney now because he is unconscious and unable to comprehend or understand the purpose of a Power of Attorney. 13) The severity of the Alleged Incapacitated Person's mental and physical condition and the lack of viable, less restrictive alternatives necessitate 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 property, his real estate, his life and other insurance of which he is a beneficiary, his entitlement to any governmental and non-governmental benefit and retirement plans, federal, state and local taxes, claims made or to be made on behal£of him or against him, the execution of documents, entry into contracts affecting him and the payment ofreasonable compensation or costs to provide services for him. 14) The severity of thc Alleged Incapacitated Person's mental and physical condition and the lack of viablc, less restrictive alternatives nccessitate 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 limitcd 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 treatment and care. 5 15) Petitioner is not aware that the Alleged Incapacitated Person signed any Powers of Attorncy or Advance Healthcare Directives or in any other way designated anyone to serve as his agent over any of his personal or financial affairs or as his smTogate over his mcdical care, or that he designated in xvriting his wishes with regard to healthcare, including the use or refusal of Ii fe sustaining treatment. 16) The proposed plenary guardian of thc Alleged lncapacitatcd Person is Angela M. Smith, the wife of the Allcged Incapacitated Person, who resides at 204 Locust Drive, New Cumberland, Cumberland County, Pennsylvania. 17) The proposed plenary guardian of the person and estate is forty-three (43) years of age, and is employed as an Information Technology Specialist with the Mechanicsburg Navy Depot, having graduated with a high school diploma from Susquenita High School. 18) Thc proposed plenary guardian has no interest adverse to the Alleged Incapacitated Person. 19) The consent of the proposed plenary guardian is attached as Exhibit A. 20) No other court has evcr assumed.jurisdiction in any proceedings to determine the capacity of the Alleged Incapacitated Person. 2I ) No other guardian has been appointed for the estate or person of the Alleged Incapacitated Person. 6 WHEREFORE, Petitioner Angela M. Smith respectfully requests that this Court axvard a citation directed to David K. Smith, the Alleged Incapacitated Person, and to such other persons as this Court may direct, to show cause why he should not be adjudged a fully incapacitated person, and Angela M. Smith appointed plenary guardian of his person and plenary guardian of his estate. Respectfully submitted, SMIGEL, ANDERSON & SACKS, LLP ~eather D. Royer, ~ire A[ttorney I.D. No. 7W327 Susan M. Zeamcr, Esquire Attorney I.D. No. 82023 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Petitioner VERIFICATION I, Angela M. Smith, verif3, that the statemcnts contained in the foregoing Petition for Adjudication of Incapacity and Appointment of Plenary Guardian of the Estate and Person in Accordance with 20 Pa. Cons. Stat. Ann. §5511 are true and correct to the best of my knowledge, information and belief. I understand that falsc statements therein are made subject to the pcnalties of 18 Pa.C.S. §4904 relating to unsworu l~alsification to authorities. Angela ~. Smith 8 EXHIBIT A CONSENT OF GUARDIAN OF THE ESTATE AND PERSON 1, Angela M. Smith, hereby consent to act as the Guardian of the Person and Estate of David K. Smith. i reside at 204 Locust Drive, New Cumberland, Cumberland County, Pennsylvania and am an Information Technology Specialist with Mechanicsburg Navy Depot. I am a citizen of thc Unitcd States of America and can speak, read and write the English language. I have no interest adverse to David K. Smith, the alleged incapacitated person. Angela M.qdmith IN RE: DA VID K. SMITH, Alleged Incapacitated Person IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. AFFIDAVIT TO EXCUSE ALLEGED INCAPACITATED PERSON FROM COURT HEARING I, Michael Demichele, M.D., am a licensed physician. I have been licensed to practice in Pennsylvania since / 5; ? ~ . I do hereby swear or affirm within a reasonable degree of medical certainty that I believe the above referenced Alleged Incapacitated Person should not attend the court hearing in the Cumberland County Courthouse because in my professional opinion his physical or mental condition would be harmed by his transportation to the courtroom and by his attendance at the court hearing. I have based my opinion on a personal examination of the person (and/or an examination of medical records). My dia~g.nosis is as follows: fT? //~/p-/,/4 ,~o~-,/ 2~/0 / z-~4/,G ~:. My prognosis is as follows: Sworn to and subscribed before me this ~--~ ~Et/ day o~(~,/.X )~, 2~04. (Signature of physician-or p'sych'oto'gist) I tt t gl= I MICHELE MO Notarial Seal Tonya S Stoneroad. Notary Public Susquehanna 'P~p., Dauphin County My Commission Expires Nov 29, 2004 Member, Pennsylvania Association o~ Nolaries DA VID K. SMITH ALLEGED INCAPACITATED PERSON IN THE COURT OF COMMON PLEAS CUMBERLAND COUNIZ, PENNSYLVANIA ORPHAN'S COURT DMSION ORDER AND NOW thiso~'~day of ~.~./~/~x[~ , 2004, upon consideration of the Petition for Adjudication of Incompetency and Appointment of Guardian it is hereby ORDERED AND DECREED that a citation be issued to Shana Smith to show cause, if any there be, why David K. Smith should not be adjudged an incompetent and Angie Smith appointed as guardian of his person and estate. Notice of said citation shall be provided to the next o£kin by certified mail. A hearing on the Petition shall be held on the~q~day of ~/~~_s.A.Y ,2004, in Courtroom No. ~ of the Cumberland County Courthouse, Carlisle, Pennsylvania~ By the Court: Jo -1- iN RE: David K SMith Alleged incapacitated person : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : : NO. 21-2004-791 IMPORTANT NOTICE CITATION WITIt NOTICE A petition has been filed with the Court to have you declared an Incapacitated Person. If the Court finds you to be an Incapacitated Person, your rights will be affected, including your right to manage money and property and to make decisions. A copy of the petition which has been filed by Susan Zeamer, Esq. is attached. You are hereby ordered to appear at a hearing to be held in Court Room No. 4, Cumberland County Courthouse, Carlisle, Pennsylvania, on September 24 __, 2004, at 11:00 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 fight 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 fight to request that the Court order that an independent evaluation as to your alleged incapacity. If the Court decides that you are an Incapacitated person, the Court may appoint a Guardian for you, based on the nature of any condition or disability and your capacity to make and communicate decisions. The Guardian will be of your person and/or your money and other property and will have either limited of full powers to act for you. If the court finds you are totally incapacitated, your legal rights will be affected and you will not be able to make a contract or girl of your money to other property. If the court finds that you am 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. Date:08-30-2004 BY.'J~ Cie~r, 6rphans- Court-Dix;ision Cumberland County, Carlisle, PA My Commission Expires 1st Monday, January, 2006 INRE: DAVID K. SMITH ALLEGED INCAPACITATED PERSON IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHAN'S COURT DMSION : NO. 21-2004-791 PRAECIPE TO DISCONTINUE TO THE REGISTER OF WILLS: Please mark the above-captioned action discontinued as the Alleged Incapacitated Person died on Tuesday, August 31, 2004. Please cancel the hearing scheduled in this matter by this Honorable Court for September 24, 2004 at 11:00 AM in Court Room No. 4. Date: SMIGEL, ANDERSON & SACKS, L.L.P. I~eather D. Royer, ~ A[tomey I.D. No. 7( S6san M. Zeamer, aire Attorney I.D. No. 8202 4431 North Front Street Harrisburg, PA i7110 (717) 234-2401 Attorneys for Petitioner DC.- DAVID K. SMITH : : ALLEGED INCAPACITATED PERSON : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHAN'S COURT DIVISION NO. 21-2004-791 ORDER ANDNOWthis /Y'dayof -~z~J'7.~-~ ,2004, upon consideration ofthe Petitioner's Praecipe to Discontinue the above-captioned matter and cancel the hearing scheduled for September 24, 2004 at 11:00 AM in Court Room No. 4 due to the death of the Alleged Incapacitated Person, it is hereby ORDERED AND DECREED that the matter is hereby DISCONTINUED and the hearing scheduled for September 24, 2004 is CANCELLED. By the Court: Cc> -1- INRE: DAVID K. SMITH ALLEGED INCAPACITATED PERSON : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHAN'S COURT DMSION : : NO. 21-2004-791 PRAECIPE TO DISCONTINUE TO THE REGISTER OF WILLS: Please mark the above-captioned action discontinued as the Alleged Incapacitated Person died on Tuesday, August 31, 2004. Please cancel the hearing scheduled in this matter by this Honorable Court for September 24, 2004 at 11:00 AM in Court Room No. 4. Date: SMIGEL, ANDERSON & SACKS, L.L.P. ~omey I.D. No. 7W/e S6san M. Zeamer, E~uire Attorney I.D. No. 82023 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Petitioner