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HomeMy WebLinkAbout03-0773IN THE COURT OF COMMON PLEAS OF Cb~IBERLA2CD COUNTY, PE~SYLVAN!A ORPHANS' COURT DIVISION NO. PRELIMINARY ORDER OF COURT IN THE MATTER OF FRANCES J. BREZINSKY 03- $ AND NOW, this at&t ~ 'day of [... ~' , 2003, upon consideration of the foregoing Petition, it is ordered that a citation be issued and directed to be served on the alleged incompetent to show cause why she should not be adjudicated an incapacitated person and a guardian of her estate and of her person appointed as requested therein. It is further ORDERED that at least twenty (20) days notice of said heating shall be given to the alleged incapacitated person by personal service of the within Petition and Citation. All other required notice shall be by certified mail. Returnable the ~.~/~ay of.~, 2003 at,~:,,~t~.M, in Orphans' Court Division, Court Room # ,~- at which time a heating will be held. 1~l~~ S :\DocumentLgiles\03 c 165\petition.wpd IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION IN THE MATTER OF NO. FRANCES J. BREZINSKY PETITION FOR THE APPOINTMENT OF A GUARDIAN FOR THE ESTATE AND THE PERSON OF AN INCAPACITATED PERSON The petition of Bernice T. Harmon respectfully represents: 1. Petitioner is Bernice T. Harmon of 28 Little Knoll Drive, Hanover, York County, Pennsylvania 17331 and is the daughter of the alleged incapacitated person. 2. The alleged incapacitated person is Frances J. Brezinsky, who resides at Chapel Pointe, 770 South Hanover Street, Carlisle, Pennsylvania 17013. She has resided there since June, 1998. Prior to that time she resided with the Petitioner and her husband, Layton O. Harmon, at 28 Little Knoll Dive, Hanover, Pennsylvania 17331. 3. The alleged incapacitated person is eighty-eight (88) years of age, having been born on April 14, 1915. 4. The alleged incapacitated person was not a member of the Armed Services. 5. The alleged incapacitated person is a widow. 6. Those persons who are the alleged incapacitated person's next of kin and the relationship to the same of which petitioner has knowledge are as follows: Bernice T. Harmon Daughter 28 Little Knoll Drive Hanover, PA 17331 7. The name and address of the institution providing residential services for the alleged incapacitated person is Chapel Pointe, of 770 South Hanover Street, Carlisle, Pennsylvania 17013. 8. No other court has ever assumed jurisdiction in the proceeding to determine the incapacity of the alleged incapacitated person. 9. The alleged incapacitated person has no guardian appointed of either her estate or her person. 10. To the extent known by Petitioner, the assets of the alleged incapacitated person are valued at approximately Six Hundred Twenty-Seven Thousand One Hundred Thirty-Five and 48/100 ($627,135.48) Dollars as of July 22, 2003 comprised of the following: Savings Accounts CD Accounts Annuity Money Markets Checking Accounts $218,163.87 257,427.49 95,397.96 42,535.87 13,610.29 11. The Petitioner estimates the alleged incapacitated persons annual income to be One Thousand Six Hundred Forty-Eight ($1,648.00) Dollars, plus interest income from the above assets, including current monthly Social Security benefits of Three Hundred Ninety (390.00) Dollars. 12. 13. The alleged incapacitated person suffers from dementia. Because of her mental and/or physical condition, the alleged incapacitated person is totally unable to manage her financial affairs, property and business and to make and communicate responsible decisions relating thereto, including the ability to communicate her need for assistance in these areas. 14. Because of her impaired mental and/or physical conditions, the alleged incapacitated person lacks the capacity to make or communicate responsible decisions concerning her person. 15. There are no reasonable alternatives to the appointment of a guardian. 16. A letter concerning incapacity of the alleged incapacitated person prepared by Herbert E. Myers, M.D. is attached hereto and marked Exhibit "A" and made a part hereof. 17. The severity of the alleged incapacitated person's mental and/or physical condition and the lack of viable, less restrictive alternatives necessitate that a plenary guardian of her estate be appointed to manage and handle all aspects of the alleged incapacitated persons' estate, specifically including, but not limited to: all issues relating to her cash, checks and any bank or savings accounts held in her name, her stocks and bonds, her personal property, her real estate, her life and other insurance of which she is a beneficiary, her entitlement to any governmental and non-governmental benefit plans, federal, state and local taxes, claims made or to be made on behalf of her or against her, the execution of documents, entry into contracts affecting her and the payment of reasonable compensation or costs to provide services for her. 18. The severity of the alleged incapacitated person's mental and/or physical condition and the lack of viable, less restrictive alternatives necessitate that a plenary guardian of her person be appointed to handle all issues relating to he person of the alleged incapacitated person, specifically including, but no limited to: her living arrangements, her medical and psychiatric care, the administrator of medication to her and the employment and discharge of physicians, psychiatrists, dentists, nurses, therapists and other professionals for her physical and mental treatment and care. 19. Petitioner is the attorney-in-fact for the alleged incapacitated person, a copy of which is attached hereto and marked Exhibit "B". Petitioner's daughter had formerly served as attorney-in-fact for the alleged incapacitated person. It is Petitioner's understanding that the alleged incapacitated person has signed an advance health care directive designating Petitioner's children as her surrogate concerning the use of life-sustaining treatment. 20. The proposed plenary guardian of the person and of the estate of the alleged incapacitated person is Bernice T. Harmon, daughter. 21. The proposed plenary guardian of the person and the estate of alleged incapacitated person, Bernice T. Harmon, is sixty (60) years of age and is a retired homemaker. 22. The proposed plenary guardian has no interest adverse to the alleged incapacitated person. 23. The consents of the proposed plenary guardians are attached as Exhibit "C". WHEREFORE, Petitioner respectfully requests the Court to issue a citation directed to Frances J. Brezinsky, the alleged incapacitated person, and to such other persons as the Court may direct, to show cause why she should not be adjudged a fully incapacitated person and Bernice T. Harmon appointed plenary guardian of her person and of her estate. GUTHRIE, NONEMAKER, YINGST & HART By: '~t~. Matthew L. Guthrie, Esquire Supreme ID #44266 40 York Street Hanover, PA 17331 (717) 632-5315 I verify that the statements made in this Petition are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Bernice T. Harmon Philhaven 283 South Butler Road P.O. Box 550 Mount Gretna, PA 17064 (717) 273-8871 (717) 270-2452 FAX September 9, 2003 Matthew L. Guthrie, Esquire 40 York Street Hanover, PA 17331 Dear Mr. Guthrie: I am writing at your request concerning Frances Brezinsky, a resident at Chapel Pointe in Carlisle. She has recently been moved from independent living to personal care due to dementia and resultant concerns about her safety. The dementia is most likely Alzheimers type. Her primary deficits are in immediate recall/memory and judgment. She has no insight into her impairment. She resents her family for placing her in a Protestant home as well as for being required to leave her independent living setting. She feels her family is taking things from her and possibly misusing them. She wants to be free to go shopping and keep house on her own. She has been unable to do this safely and satisfactorily. Despite her desires, she does not seem capable of managing her resources in her own best interest with her cognitive impairment. She receives information well but has difficulty retaining and evaluating it. She requires supervision to manage her resources and meet requirements for her health and safety. It would be advisable to have a guardian appointed for her. I do believe she would potentially be harmed by attending a hearing knowing how angry she gets when trying to discuss these matters with her. She is already very suspicious of her family as noted. If other information is needed, please, contact me. If necessary I would appreciate being able to testify by phone. Respectfully, Herbert E. Myers, M.D. Senior Psychatrist Behavioral Healthcare Services DURABLE GENERAL POWER OF ATTORNEY NOTICE THE PURPOSE OF THIS POWER OF ATTORNEY IS TO GIVE THE PERSON YOU DESIGNATE (YOUR "AGENT") BROAD POWERS TO HANDLE YOUR PROPERTY, WHICH MAY INCLUDE POWERS TO SELL OR OTHERWISE DISPOSE OF ANY REAL OR '=.~=_~"'k,^l Dc, r~D,-,:,-rv ~,-ru~, ,-r ^r~-^k.--= ~,'~"r,.'-= TO yc~, ! OR ~o,~=.,~/^! BY v,-,;., THIS POWER OF ATTORNEY DOES NOT IMPOSE A DUTY ON YOUR AGENT TO EXERCISE GRANTED POWERS, BUT WHEN POWERS ARE EXERCISED, YOUR AGENT MUST USE DUE CARE TO ACT FOR YOUR BENEFIT AND IN ACCORDANCE WITH THIS POWER OF ATTORNEY. YOUR AGENT MAY EXERCISE THE POWERS GIVEN HERE THROUGHOUT YOUR LIFETIME, EVEN AFTER YOU BECOME INCAPACITATED, UNLESS YOU EXPRESSLY LIMIT THE DURATION OF THIS POWERS OR YOU REVOKE THESE POWERS OR A COURT ACTING ON YOUR BEHALF TERMINATES YOUR AGENT'S AUTHORITY. YOUR AGENT MUST KEEP YOUR FUNDS SEPARATE FROM YOUR AGENT'S FUNDS. A COURT CAN TAKE AWAY THE POWERS OF YOUR AGENT IF IT FINDS YOUR AGENT IS NOT ACTING PROPERLY. THE POWERS AND DUTIES OF AN AGENT UNDER A POWER OF ATTORNEY ARE EXPLAINED MORE FULLY IN 20 PA. C. S. CH. 56. IF THERE IS ANYTHING ABOUT THIS FORM THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A LAWYER OF YOUR OWN CHOOSING TO EXPLAIN iT TO YOU. I HAVE READ OR HAD EXPLAINED TO ME THIS NOTICE AND I UNDERSTAND ITS CONTENTS. April 12, 2002 ? FRANCES J. BREZINSKY EXHIBIT "B" DURABLE GENERAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that I, FRANCES J. BREZINSKY, of 770 South Hanover Street, Carlisle, Pennsylvania 17013, do by these presents make, constitute and appoint BERNICE HARMON, or if she cannot or does not serve, LAYTON HARMON (hereinafter referred to as "my agent"), my true and lawful agent under a power of attorney, for me and in my name and on my behalf generally, to do and perform all matters and things, including, without limiting the generality of the foregoing, to transact all business, to make, execute, acknowledge, endorse and deliver all deeds of conveyance, certificates of stock, bonds, car titles, releases of lien or satisfaction of bonds and mort§ages, contracts, orders, releases, checks, notes and endorsements, transfers and assignments of any such contracts, specifically including but in no way limited to the execution in my name of checks or orders of any nature for the withdrawal of funds standing to my credit in any type of account in any bank, building and loan association or other financial institution, and also to deposit in any accounts in my name in any such institutions any money, funds, checks or drafts, payable or belonging to me; to enter my safe deposit boxes in any and all banking institutions and to establish new safe deposit boxes and to add to and to remove any of the contents thereof; to borrow money and to mortgage, pledge or hypothecate any property, real or personal, now or hereafter owned by me as security therefore; to buy, sell possess, insure, manage, maintain, improve, lease, mortgage, pledge, encumber, convey and otherwise dispose of, or take any other action with respect to, any property, real or personal, now or hereafter owned by me, on such terms and conditions as my agent may consider appropriate, and in the event of sale of any of my real estate, to execute [he sales agreement and the deed in my name and to make settlement and receive the ~roceeds; and to prepare, execute and file any tax returns, gov'ernmental reports and other instruments of whatever kind, and likewise to execute any and all writings, assurances, instruments or documents which may be requisite or proper to effectuate any matter or thing appertaining or belonging to me. I hereby authorize my agent to contract with and arrange for my entrance to any hospital, nursing home, health center, convalescent home, residential care facility or similar institution, to authorize medical, therapeutic and surgical procedures for me and to pay all bills in connection therewith. GIVING AND GRANTING unto my agent full authority and power to do and perform any and all other acts necessary or incident to the performance and execution of the powers herein expressly granted, with power to do and perform ail acts authorized hereby as fully to all intents and purposes and with the same validity as I might or could so if personally present, hereby ratifying and confirming whatsoever all that my agent shall lawfully do or cause to be done by virtue hereof. AND, I hereby declare that any a~t or thing lawfully done hereunder by my agent shall be binding on myself and my heirs, legal and personal representatives and assigns. AND. If incapacity proceedings for my estate or person are hereafter commenced. I :qereby nominate my agent to be appointed the guardian of my estate or person by any court having jurisdiction in accordance with the provision'~ of section 5604 (c) (2) of the Probate, Estates and Fiduciaries Code. This Power of Attorney shall continue in force and may be accepted and relied upon by anyone or any entity to whom it is presented despite my purported revocation of it or my death, until actual written notice of any such event is received by such person or entity. In the event of my incapacity from whatever cause, this Power of Attorney shall not thereby be revoked but shall thereupon become irrevocable and may be accepted and relied upon by anyone or any entity to whom it is presented despite such incapacity, subject only to it becoming void and of no further effect only upon receipt by such person or entity either of (1) written evidence of the appointment of a guardian (or similar fiduciary) of my estate following adjudication of incapacity, or (2) written notice of my death. This Power of Attorney shall not be affected by my subsequent disability or incapacity. This power of attorney shall rescind and revoke any other powers of attorney previously made by me. IN WITNESS WHEREOF, I have hereunto set my hand and seal this 12TM day of April, 2002. FRANCES J. BREZINSI~Y ~/ (SEAL) COMMONWEALTH OF PENNSYLVANIA · :SS: COUNTY OF CUMBERLAND · On this, the 12TM day of April, 2002, before me, the undersigned officer, personally appeared FRANCES J. BREZlNSKY, known to me or satisfactorily proven to be'the person whose name is subscribed to the within instrument, and acknowledged that she executed same for the purposes therein contained. Notary Pu~~ Notadat Seal Harc~d S. Irwin Ill, Notan/Public Carlisle Boro, Cumberland County My Commission Expires Sept. 23, 2002 Member, Pennsylvsnia Association ot Notaries ACKNOWLEDGMENT BY AGENT I, BERNICE HARMON, and I, L~YTON HARMON, have read the attached Power of Attorney executed by FRANCES J. BREZINSKY and am the person identified as the Agent for the PRINCIPAL. I hereby acknowledge that in the absence of a specific provision to the contrary in the Power of Attorney or in 20 PA. C. S. when I act as Agent: I shall exercise the powers for the benefit of the PRINCIPAL. I shall keep the assets of the PRINCIPAL separate from my assets. I shall exercise reasonable caution and prudence. I shall keep a full and accurate record of all actions, receipts and disbursements on behalf of the PRINCIPAL. ,April 12, 2002 BERNICE HARMON I~AYTO N HARMON COMMONWEALTH OF PENNSYLVANIA · :SS: COUNTY OF CUMBERLAND · On this, the 12TM day of April, 2002, before me, the undersigned officer, personally ~ppeared BERNICE HARMON and LAYTON HARMON, known to me or satisfactorily proven ~o be the persons whose names are subscribed to the within acknowledgment and acknowledged that they executed same for the purposes therein contained. WITNESS my hand and seal the day a~ Notary Public Notadai Seai HarCd S. Irwin ill, Notary Public Carlisle Boro, Cumberland County My Commission Expires Sept. 23, 2002 Member, Pennsyh ~r¢& ,~ssooistion of Notaries IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION IN THE MATTER OF FRANCES J. BREZINSKY CONSENT I, Bernice T. Harmon, hereby consent to act as guardian of the estate and person of my mother, Frances J. Brezinsky. I reside at 28 Little Knoll Drive, Hanover, PA 17331. I am the daughter of Frances J. Brezinsky and have no interest adverse to her. I consent to act as guardian of the estate and person. Bernice T. Harmon EXHIBIT "C" GUTHRIE, NONEMAKEF~, GUTHRIE & YINGST ATTORNEYS - AT - LAW 40 YORK STREET HANOVER, PENNSYLVANIA 17331-3139 SHERIFF'S RETURN - REGULAR CASE NO: 2003~00773 O COMMONWEALTH O~'~PEI'q-NSYLV-~NIA: COUNTY OF CUMBERLAND IN THE MATTER OF VS BREZINSKY FRANCES J ROBERT BITNER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within ORDER AND PETITION was served upon BREZINSKY FRANCES J the RESPONDENT at 770 SOUTH HANOVER STREET CARLISLE, PA 17013 , at 1100:00 HOURS, on the 1st day of October CHAPEL POINTE by handing to FRANCES J BREZINSKY a true and attested copy of ORDER AND PETITION together with , 2003 and at the same time directing Her attention to the contents thereof. Additional Comments SERVED IN PRESENCE OF MARY LOU BEGLEY, ADMINISTRATOR. Sheriff's Costs: Docketing Service Affidavit Surcharge 18 00 3 45 00 10 00 00 31 45 Sworn and Subscribed to before me this d day of d~(i r(~ll~ ~[}O~ A.D. So Answers: R. Thomas Kline 10/01/2003 GUTHRIE NONEMAKER GUTHRIE YING By: ~Deputy Sheriff IN THE MATTER OF FRANCES ]. BREZINSKY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA · NO. 21-03-773 ORPHANS' COURT DIVISION ORDER OF COURT AND NOW, this 20TH day of OCTOBER, 2003, the order of court, dated September 26, 2003, appointing Michael Whare, Esquire, is hereby vacated· The remainder of the order shall remain in full force and effect. Lisa Greason, Esquire, has been retained as counsel for the above captioned matter. Michael Whare, Esquire Lisa Greason, Esquire :sld Edward E. Guido, ]. I2-4 THE COU-RT OF CON~'ION PLEAS OF CL;2vIBER_L.~.~D COUNTY, ORPHANS' COURT DIVISION IN THE MATTER OF NO..~. } .... ,_;,Z3 - -! ''J, .?'" FRANCES J. BREZINSKY PRELIMINARY ORDER OF COURT AND NOW, this t~J'~day of.__ff£~, 2003, upon consideration of the foregoing Petition, it is ordered that a citation be issued and directed to be served on the alleged incompetent to shoxv cause why she should not be adjudicated an incapacitated person and a guardian of her estate and of her person appointed as requested therein. It is further ORDERED that at least twenty (20) days notice of said hearing shall be given to the alleged incapacitated person by personal service of the within Petition and Citation. All other required notice shall be by ~ertified mail. Returnable the ~.~ ~t~lay''~ of ~~I~~~, 2003 at ,~-°,~t~.M. in Orphans' Court Division, Court Room# ,~ at which timed hearing will be held. S:\Document\Files\03c 165\petition.wpd IN RE: FRANCES J. BREZINSKY : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : : NO. 21-2003-0773 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 Bernice T. Harmon is attached. You are hereby ordered to appear at a hearing to be held in Court Room No. 5, Cumberland County Courthouse, Carlisle, Pennsylvania, on October 23 ,2003, at 2:30 P.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 heating, you have the tight 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 tights 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 heating (either in person or by an attorney representing you) the court will still hold the heating in your absence and may appoint the Guardian requested. Clerk, Orphans' Court Division ~?, ~/fy]-~(~ Cumberland County, Carlisle, PA My Commission Expires 1 st Monday, January, 2006 IN THE MATTER OF FRANCES J. BREZINSKY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 21-03-773 ORDER OF COURT AND NOW, this 23rd day of October, 2003, at the request of the Petitioner, the Petition for the Appointment of a Guardian for the Estate and the Person of an Incapacitated Person is withdrawn and the citation issued upon Frances J. Brezinsky is dismissed. By the Court,-.. Edward E. Guido, J. Matthew L. Guthrie, Esquire For the Petitioner Lisa M. Greason, Esquire For Frances J. Brezinsky :lfh