HomeMy WebLinkAbout02-07-12
Rob Bleecher, Esquire
Attorney I.D. No. 32594
Pecht & Associates, PC
1205 Manor Drive, Suite 200
Mechanicsburg, PA 17055
717-691-9810 office
717-766-3361 facsimile
rbleechernpechtlaw.com
IN RE:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA.
MONICA L. KENDALL
ORPHANS' COURT DIVISION
N0.21-2006-848
MOTION TO DISMISS PETITION OF BARBARA KENDALL
AND NOW, this 30th day of January, 2007, comes Monica Kendall Cowan (formerly
known as Monica L. Kendall) (hereinafter "Movant") through her attorneys PECHT &
ASSOCIATES, PC, and moves the Court as follows:
1)
2)
3)
On or about December 4, 2005, Movant suffered a stroke and was hospitalized for
approximately four days.
It is believed that Movant signed a Power of Attorney in late December of 2005, or in
early 2006, appointing her mother Barbara Kendall as her attorney-in-fact and agent.
On September 15, 2006, Movant revoked the aforesaid Power of Attorney that appointed
her mother Barbara Kendall as her true and lawful attorney-in-fact and agent. A copy of
said Revocation of Power of Attorney is attached as Exhibit "A."
4) On September 15, 2006 and again on September 22, 2006, Movant executed a Power of
Attorney naming Matthew C. Cowan as her attorney-in-fact and her agent, copies of
which are attached as Exhibits "B" and "C" respectively.
5) By letter dated September 15, 2006, Barbara Kendall was provided a copy of the
Revocation of Power of Attorney and was further requested by Attorney Wayne M. Pecht
to return all property and money of Movant and to provide an accounting to Movant. A
copy of said letter is attached as Exhibit "D."
6) In the same Revocation of Power of Attorney, Movant also requested that Barbara
Kendall return to her any monies or property of Movant's that Barbara Kendall had in her
possession and further that Barbara Kendall promptly provide to Movant an accounting
of all money or property Barbara Kendall had received on behalf of Movant and an
accounting of all money or property disbursed by Barbara Kendall on Movant's behalf
during the time Barbara Kendall acted as Movant's attorney-in-fact and agent.
7) As of the date of the filing of this Motion, Barbara Kendall has not returned monies or
property to Movant.
8) On or about September 27, 2006, Barbara Kendall, the mother of Movant, filed a Petition
for Adjudication of Incapacity and Appointment of a Guardian. Curiously, the Petition
suggests that Movant was not competent to appoint Matthew C. Cowan as her attorney-
in-fact in September 2006, but Petitioner makes no claim of such incompetence to
appoint Barbara Kendall as attorney-in-fact shortly after Movant's stroke in December of
2005 or January of 2006. A copy of the Petition is attached as Exhibit "E."
9) On October 16, 2006, Judge Wesley Oler, Jr., issued an Order setting a hearing on the
Petition for November 3, 2006, and appointing Leslie Tomeo, Esquire to represent
Movant.
10) The November 3, 2006 hearing was continued at the request of Barbara Kendall.
11) On or about October 28, 2006, Movant and Matthew C. Cowan were married in a civil
2
ceremony conducted by District Magistrate Mark Martin. A copy of their marriage
certificate is attached as Exhibit "F."
12) On or about November 2, 2006, Movant was examined by a Physician, Dr. William S.
Kauffman, whose office is located at 1921 Spring Road, Carlisle, Pennsylvania. Dr.
Kauffman examined Movant and stated in a letter to Movant's attorney (a copy of which
is attached as Exhibit "G"):
"... In conclusion, I believe that Ms. Kendall was competent of decisions regarding the
assignment of power of attorney to her husband one month or so ago."
13) Therefore, it is the position of Movant that 1) she is competent to manage her own
financial affairs, and 2) that she is competent to appoint anyone she chooses as her
attorney-in-fact and agent, including her husband Matthew C. Cowan.
14) In the alternative, even if Movant were deemed by this Court to be not competent to
manage her own affairs, it is the position of Movant that because she in now married to
Matthew C. Cowan (whom she has appointed as her attorney-in-fact and agent), Mr.
Cowan should be accorded a presumption, as her husband, to be the person who will act
in her best interests and who should be appointed as guardian of her estate if the Court
determines that a guardian is necessary.
15) Movant has made a request to Barbara Kendall that Barbara Kendall return any and all
monies and property held in her possession or under her control which belong to Movant.
16) Further, on or about December 9, 2005, Matthew Cowan provided Five Thousand Dollars
in the form of a check (check # 112, PNC Bank) to Barbara Kendall to pay for housing
and utility expense for the rental unit that Movant and Matthew C. Cowan were living in
at the time of the stroke.
3
17) The concurrence of R. Mark Thomas, Esquire, 101 South Market Street, Mechanicsburg,
PA 17055, counsel for Barbara Kendall, was requested and Mr. Thomas's response was
that he concurred in this Request.
18} The concurrence of Leslie Tomeo, Esquire, Court appointed counsel for Monica L.
Kendall, was requested and Ms Tomeo's response was that she concurred in this
Request.
19) THEREFORE, Movant asks this Honorable Court to dismiss, with prejudice, the
"Petition for Adjudication of Incapacity and Appointment of a Guardian" filed by
Barbara Kendall, AND order that Barbara Kendall immediately turn over to Movant, or
to this Court, any and all monies and property held in her possession or under her control
which belong to Movant.
Respectfully Submitted,
PECHT & SOC , PC
-~'
By:
Rob ~leecher, Esq.
Attorney I.D. No. 32594
1205 Manor Drive, Suite 200
Mechanicsburg, PA 17055-4894
717-691-9810 (office)
717-766-3361 (fax)
rbleecher(~,pechtlaw. com
Wayne M. Pecht, Esquire
Attorney I.D. No. 38904
1205 Manor Drive, Suite 200
Mechanicsburg, PA 17055
717-691-9808 office
717-766-3361 facsimile
wpecht ~,,pechtlaw.com
4
REVOCATION OF POWER OF ATTORNEY
I, Monica L. Kendall, do hereby revoke the Power of Attorney that I executed in
late 2005 or early 2006, and hereby remove my mother, Barbara Kendall, as my true
and lawful agent and attorney-in-fact under said General Power of Attorney. I also
request that Barbara Kendall return to me any monies or property of mine that she has
in her possession and promptly provide me with an accounting or all money or property
she received on my behalf and that she disbursed on my behalf, during the time she acted
as my attorney-in-fact or agent.
IN WITNESS WHEREOF, the undersigned set her hand and seal this 15th day of
September 2006.
WITNESS : '
Monica L. Kendall
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
SS
On this, the 15th day of September 2006, before me the undersigned officer,
personally appeared Monica L. Kendall, who be duly sworn according to law, deposes
and says that the foregoing Revocation of Power of Attorney is his act and deed and that
he desires the same to be recorded as such.
IN WITNESS WHEREOF, I hereunto set my hand and notarial seal the day and
year aforesaid.
(SEAL)
~ ~CA~''~
~~
Barbara L. Eaton, Notary Public
My Commission Expires:
COMMONWEALTH OF PENNSYLVANIA
Notaria{ Sea!
Barbara L Eaton, Notary Public
Lower R{Ien Twp., Cumber{and County
My Commission Expires May 21, 2D10
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 PERSONAL PROPERTY WITHOUT ADVANCE NOTICE TO YOU OR APPROVAL BY
YOU.
THIS POWER OF ATTORNEY DOES NOT IlVIPOSE A DUTY ON YOUR AGENT
TO EXERCISE GRANTED POWERS, BUT WHEN POWERS ARE EXERCISED, YOUR
AGENT MUST USE DUE CARE TO ACT FOR YOUR BENEFIT AND IN ACCORDANCE
WITH THIS POWER OF ATTORNEY.
YOUR AGENT MAY EXERCISE THE POWERS GIVEN HERE THROUGHOUT
YOUR LIFETIME, EVEN AFTER YOU BECOME INCAPACITATED, UNLESS YOU
EXPRESSLY LIMIT THE DURATION OF THESE POWERS OR YOU REVOKE THESE
POWERS OR A COURT ACTING ON YOUR BEHALF TERMINATES 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 COIvTTENTS.
September 15, 2006
1V.~oniea L. Kendall -
KNOW ALL PERSONS BY THESE PRESENTS, that I, Monica L. Kendall, of
Cumberland County, Pennsylvania, have made, constituted and appointed and do hereby make,
constitute and appoint my friend, Matthew C. Cowen, my true and lawful agent and attorney-in-
fact and surrogate to make health care and medical treatment decisions for me. My agent may,
for me and in my name and on my behalf, do and perform all matters and things, transact all
business, make, execute and acknowledge all contracts, orders, deeds, writings, assurances and
instruments which may be requisite or proper to effectuate any matter or thing appertaining or
belonging to me, including without limitation:
(i) the right to make gifts, in unlimited amounts, to such donees, including my
Agent, at such times, in such amounts, in such proportions, and subject to
such trusts or conditions as my Agent may decide, with no duty to equalize
among donees. The power to make unlimited gifts shall mean that my
agent shall have the broadest possible authority to make gifts on my
behalf. I hereby express my desire that my Agent make gifts and other
transfers that, in the sole discretion of my Agent, may limit death taxes,
estate recovery and/or estate administration expenses, and/or nursing home
and/or other healthcare related expenses, and/or that may help qualify me
for public or private benefits, including, but not limited to, Medical
Assistance (Medicaid), S SI, or any other public, private, or charitable
benefits,
(ii) to create a trust for my benefit,
(iii) to make additions to an existing trust for my benefit,
(iv} to claim an elective share of the estate of my deceased spouse,
(v) to disclaim any interest in property,
(vi) to renounce fiduciary positions,
(vii) to withdraw and receive the income or corpus of a trust,
(viii) to sell or transfer ownership of insurance policies on my life,
(ix) to represent me in all matters involving federal, state, and local taxes,
(x) to engage in real property transactions,
(xi) to engage in tangible personal property transactions,
(xii) to engage in stock, bond and other securities transactions,
(xiii) to engage in commodity and option transactions,
(xiv) to engage in banking and financial transactions,
(xv) to borrow money,
(xvi} to enter safe deposit boxes,
(xvii) to engage in insurance transactions,
(xviii) to engage in retirement plan transactions,
{xix} to handle interests in estates and t! usts,
2
(xx) to pursue claims and litigation,
(xxi) to receive government benefits, and
(xxii) to make an anatomical gift of all or part of my body,
with the same powers, and to all intents and purposes with the same validity as I could, if
personally present; hereby ratifying and confirming whatsoever my agent shall and may do, by
virtue hereof.
In addition, the agent appointed by this Power of Attorney shall be authorized to make
-health care and medical treatment decisions for me which shall include, but not be limited to the
following:
1. To authorize my admission to a medical, nursing, residential or
similar facility and to enter into agreements for my care at the expense of my
estate;
2. To authorize medical and surgical procedures;
3. To authorize the administration of pain relieving drugs or other
medical or surgical procedures calculated to relieve my pain even though their use
may lead to permanent physical damage, addiction or even hasten the moment of
(but not intentionally cause) my death and to authorize unconventional pain relief
therapies which my agent believes may be helpful to me;
4. To withhold consent to any medical care or treatment (including
medical and surgical procedures);
5. To revoke or change any consent previously given or implied by
law for any medical care or treatment (including medical and surgical procedures);
and
6. To arrange for my removal from any medical or nursing facility;
7. To grant, in conjunction with any instructions given under this
power, releases to hospital staff, physicians, nurses and other medical and hospital
administration personnel who act in reliance on instructions given by my agent or
who render written opinions to my agent in connection with any matter described
in this power from all liability for damages suffered or to be suffered by me; to
sign documents titled or purporting to be a "Refusal to Permit Treatment" and
"Leaving Hospital Against Medical Advice," as well as any necessary waivers of
or releases from liability required by any hospital or physician to implement my
«~ishes regardir_g medical treatment or non-treatment.
3
8. HIPAA Release Authority. (a) I intend for my agent to be treated
as I would be with respect to my rights regarding the use and disclosure of my
individually identifiable health information or other medical records. This release
authority applies to any information governed by the Health Insurance Portability
and Accountability Act of 1996 (also known as "HIPAA"), 42 U.S.C. § 1320(d)
and 45 C.F.R. § § 160-164. (b) I authorize:
(a) Any physician, health care professional, dentist, health
plan, hospital, clinic, laboratory, pharmacy or other covered health care
provider, any insurance company and the Medical Information Bureau,
Inc. or other health care clearinghouse that has provided treatment or
services to me or that has paid for or is seeking payment from me for such
services, to give, disclose, and release to my agent, without restriction: All
of my individually identifiable health information and medical records
regarding any past, present, or future medical or mental health condition,
to include all information relating to the diagnosis and treatment of
HN/AIDS, sexually transmitted diseases, mental illness and drug or
alcohol abuse. .
(b} The authority given my agent shall supersede any prior
agreement that I may have made with my health care providers to restrict
access to or disclosure of my individually identifiable health information.
The authority given my agent has no expiration date and shall expire only
in the event that I revoke the authority, in writing, and deliver it to my
health care provider.
9. Insurance Policies. To insure my life or the life of anyone in whom
I have an insurable interest; to continue life insurance policies now or hereafter
owned by me on either my Life or the lives of others; to pay all insurance
premiums; to engage in insurance transactions, including, without limitation, to
exercise alI options and privileges available under Life insurance policies which I
may own, including but not limited to the right to designate and change
beneficiaries of insurance policies insuring my life and of any annuity contract in
which I have an interest; to transfer ownership of any insurance policies covering
my life or of any annuity contracts in which I may an interest; to decrease
coverage under or cancel any of the policies described herein; and to receive and
make such disposition of the cash value upon termination of any such policy as
my agent shall deem appropriate; to receive dividends of distributive shares of
surplus, disability benefits, surrender values, or the proceeds of matured
endowments; to obtain and receive such advances or loans on account of a policy
uThich may be available; to exercise any option, withdrawal right or exchange
privilege under any variable Life insurance policy (including the power to
wi~ihdraw from and reallocate the subaccounts of such policies); to exercise any
4
option or privilege granted in a policy or permitted by an insurer including, but
not limited to, the right to direct that dividends be used under any of the options
promised in the policy or permitted by the insurer; to sell, assign, or pledge a
policy; to exercise an option rider on any policy providing for guaranteed
insurability on a designated surviving life at the death of the insured and, in
connection therewith, to determine the amount of insurance to be purchased on
such designated surviving life on a paid-up basis, on apremium-paying basis, or
in any combination of the foregoing. These rights shall include the right to use
any part or all of said policies on death or maturity under any or all of the
settlement options.
This Power of Attorney shall not be affected by any disability on my behalf, including the
event that I become incompetent to handle my affairs.
In the event that legal proceedings concerning my incapacity, within the meaning of
Chapter 54 of the Pennsylvania Probate, Estates and Fiduciaries Code, or for the appointment of
a guardian of my estate and/or person are commenced, I nominate the agent appointed by this
Power of Attorney for consideration by the court having jurisdiction of those proceedings for
appointment as the guardian of my estate and/or person, and I request the court to make its
appointment in accordance with this nomination, except for good cause or disqualification.
My agent may delegate any one or more powers granted herein to one or more persons
and on such terms as the agent may designate and specify.
I may from time to time execute one or more special powers of attorney in favor of my
agent herein, or in favor of any other person or entity.
I hereby revoke any warrant or power of attorney given by me to any person or
corporation prior to the date hereof.
IN WITNESS WHEREOF, and intending to be legally bound hereby, I have hereunto set
my hand and seal this 15th day of September 2006.
WITNE S:
( I ~ i
F r` ~ t f
• ~ (SEAL)
1V~anica L. Kendall
5
ACKNOWLEDGMENT
I, Matthew C. Cowen, have read the attached Power of Attorney and am the person
identified as the agent for the principal. I hereby acknowledge that in the absence of a specific
provision to the contrary in the Power of Attorney or in 20 Pa. C.S. when I act as agent:
1. I shall exercise the powers for the benefit of the principal.
2. I sha11 keep the assets of the principal separate from my assets.
3. I shall exercise reasonable caution and prudence.
4. I shall keep a full and accurate record of all actions, receipts and
disbursements on behalf of the principal.
September 15, 2006
Matthew C. Cowen
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF CUMBERLAND
On this, the 15th day of September 2006, before me, the undersigned officer, personally
appeared Monica L. Kendall, who being duly sworn according to law, deposes and says that the
foregoing Power of Attorney is her act and deed and that she desires the same to be recorded as
such.
IN WITNESS WHEREOF, I hereunto set my hand and notarial seal the day and year
aforesaid.
Notary Public
My Commission Expires:
(SEAT ~ COMMONWEALTH OF PENNSYLVANIA
Notarial Seat
Barbara L. Eato^, Notary Pub(io
Lower A1fen Twp., Cumberland County
My Commission Expires May 21, 20iQ
Member, Pennsyf~ania Association of Notaries
6
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 PERSONAL PROPERTY WITHOUT ADVANCE NOTICE TO YOU OR APPROVAL BY
YOU.
THIS POWER OF ATTORNEY DOES NOT IMPOSE A DUTY ON YOUR AGENT
TO EXERCISE GRANTED POWERS, BUT WHEN POWERS ARE EXERCISED, YOUR
AGENT MUST USE DUE CARE TO ACT FOR YOUR BENEFIT AND IN ACCORDANCE
WITH THIS POWER OF ATTORNEY.
YOUR AGENT MAY EXERCISE THE POWERS GNEN HERE THROUGHOUT
YOUR LIFETIME, EVEN AFTER YOU BECOME INCAPACITATED, UNLESS YOU
EXPRESSLY LIIVIIT THE DURATION OF THESE POWERS OR YOU REVOKE THESE
POWERS OR A COURT ACTING ON YOUR BEHALF TERl~~IINATES 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.
c
September 22, 2006
onica L. Kends 1
KNOW ALL PERSONS BY THESE PRESENTS, that I, Monica L. Kendall, of
Cumberland County, Pennsylvania, have made, constituted and appointed and do hereby make,
constitute and appoint my friend, Matthew C. Cowen, my true and lawful agent and attorney-in-
fact and surrogate to make health care and medical treatment decisions for me. My agent may,
for me and in my name and on my behalf, do and perform all matters and things, transact all
business, make, execute and acknowledge all contracts, orders, deeds, writings, assurances and
instruments which may be requisite or proper to effectuate any matter or thing appertaining or
belonging to me, including without limitation:
(i) the right to make gifts, in unlimited amounts, to such donees, including my
Agent, at such times, in such amounts, in such proportions, and subject to
such trusts or conditions as my Agent may decide, with no duty to equalize
among donees. The power to make unlimited gifts shall mean that my
agent shall have the broadest possible authority to make gifts on my
behalf. I hereby express my desire that my Agent make gifts and other
transfers that, in the sole discretion of my Agent, may limit death taxes,
estate recovery and/or estate administration expenses, and/or nursing home
and/or other healthcare related expenses, and/or that may help qualify me
for public or private benefits, including, but not limited to, Medical
Assistance (Medicaid), SSI, or any other public, private, or charitable
benefits,
(ii) to create a trust for my benefit,
(iii) to make additions to an existing trust for my benefit,
(iv) to claim an elective share of the estate of my deceased spouse,
(v) to disclaim any interest in property,
(vi) to renounce fiduciary positions,
(vii) to withdraw and receive the income or corpus of a trust,
(viii) to sell or transfer ownership of insurance policies on my life,
(ix) to represent me in all matters involving federal, state, and local taxes,
(x) to engage in real property transactions,
(xi) to engage in tangible personal property transactions,
(xii) to engage in stock, bond and other securities transactions,
(xiii) to engage in commodity and option transactions,
(xiv) to engage in banking and financial transactions,
(xv) to borow money,
(xvi) to enter safe deposit boxes,
(xvii) . to engage in insurance transactions,
(xviii) to engage in retirement plan transactions,
(xix) to handle interests in estates and trusts,
2
(xx) to pursue claims and litigation,
(xxi) to receive government benefits, and
(xxii) to make an anatomical gift of all or part of my body,
with the same powers, and to all intents and purposes with the same validity as I could, if
personally present; hereby ratifying and confirming whatsoever my agent shall and may do, by
virtue hereof.
In addition, the agent appointed by this Power of Attorney shall be authorized to make
health care and medical treatment decisions for me which shall include, but not be limited to the
following:
1. To authorize my admission to a medical, nursing, residential or
similar facility and to enter into agreements for my care at the expense of my
estate;
2. To authorize medical and surgical procedures;
3. To authorize the administration of pain relieving drugs or other
medical or surgical procedures calculated to relieve my pain even though their use
may lead to permanent physical damage, addiction or even hasten the moment of
(but not intentionally cause) my death and to authorize unconventional pain relief
therapies which my agent believes may be helpful to me;
4. To withhold consent to any medical care or treatment (including
medical and surgical procedures);
5. To revoke or change any consent previously given or implied by
law for any medical care or treatment (including medical and surgical procedures);
and
6. To arrange for my removal from any medical or nursing facility;
7. To grant, in conjunction with any instructions given under this
power, releases to hospital staff, physicians, nurses and other medical and hospital
administration personnel who act in reliance on instructions given by my agent or
who render written opinions to my agent in connection with any matter described
in this power from all liability for damages suffered or to be suffered by me; to
sign documents titled or purporting to be a "Refusal to Permit Treatment" and
"Leaving Hospital Against Medical Advice," as well as any necessary waivers of
or releases from liability required by any hospital or physician to implement my
wishes regarding medical treatment or non-treatment.
3
8. HIPAA Release Authority. (a) I intend for my agent to be treated
as I would be with respect to my rights regarding the use and disclosure of my
individually identifiable health information or other medical records.. This release
authority applies to any information governed by the Health Insurance Portability
and Accountability Act of 1996 (also known as "HIPAA"), 42 U.S.C. §1320(d)
and 45 C.F.R. § § 160-164. (b) I authorize:
(a) Any physician, health care professional, dentist, health
plan, hospital, clinic, laboratory, pharmacy or other covered health care
provider, any insurance company and the Medical Information, Bureau,
Inc. or other health care clearinghouse that has provided treatment or
services to me or that has paid for or is seeking payment from me for such
services, to give, disclose, and release to my agent, without restriction: All
of my individually identifiable health information and medical records
regarding any past, present, or future medical or mental health condition,
to include all information relating to the diagnosis and treatment of
HN/AIDS, sexually transmitted diseases, mental illness and drug or
alcohol abuse.
(b) The authority given my agent shall supersede any prior
agreement that I may have made with my health care providers to restrict
access to or disclosure of my individually identifiable health information.
The authority given my agent has no expiration date and shall expire only
in the event that I revoke the authority, in writing, and deliver it to my
health care provider.
9. Insurance Policies. To insure my life or the life of anyone in whom
I have an insurable interest; to continue life insurance policies now or hereafter
owned by me on either my life or the lives of others; to pay all insurance
premiums; to engage in insurance transactions, including, without limitation, to
exercise all options and privileges available under life insurance policies which I
may own, including but not limited to the right to designate and change
beneficiaries of insurance policies insuring my life and of any annuity contract in
which I have an interest; to transfer ownership of any insurance policies covering
my life or of any annuity contracts in which I may an interest; to decrease
coverage under or cancel any of the policies described herein; and to receive and
make such disposition of the cash value upon termination of any such policy as
my agent shall deem appropriate; to receive dividends of distributive shares of
surplus, disability benefits, surrender values, or the proceeds of matured
endowments; to obtain and receive such advances or loans on account of a policy
which may be.available; to exercise any option, withdrawal right or exchange
privilege under any variable life insurance policy (including the power to
withdraw from and reallocate the subaccounts of such policies); to exercise any
4
option or privilege granted in a policy or permitted by an insurer including, but
not limited to, the right to direct that dividends be used under any of the options
promised in "the policy or permitted by the insurer; to sell, assign, or pledge a
policy; to exercise an option rider on any policy providing for guaranteed
insurability on a designated surviving life at the death of the insured and, in
connection therewith, to determine the amount of insurance to be purchased on
such designated surviving life on a paid-up basis, on apremium-paying basis, or
in any combination of the foregoing. These rights shall include the right to use
any part or all of said policies on death or maturity under any or all of the
settlement options. _
This Power of Attorney shall not be affected by any disability on my behalf, including the
event that I become incompetent to handle my affairs.
In the event that legal proceedings concerning my incapacity, within the meaning of
Chapter 54 of the Pennsylvania Probate, Estates and Fiduciaries Code, or for the appointment of
a guardian of my estate and/or person are commenced, I nominate the agent appointed by this
Power of Attorney for consideration by the court having jurisdiction of those proceedings for
appointment as the guardian of my estate and/or person, and I request the court to make its
appointment in accordance with this nomination, except for good cause or disqualification.
My agent may delegate any one or more powers granted herein to one or more persons
and on such terms as the agent may designate and specify.
I may from time to time execute one or more special powers of attorney in favor of my
agent herein, or in favor of any other person or entity.
I hereby revoke any warrant or power of attorney given by me to any person or
corporation prior to the date hereof.
IN WITNESS WHEREOF, and intending to be legally bound hereby, I have hereunto set
my hand and seal this 22nd day of September 2006.
WITNESS
(SEAL)
Monica L. Kendall
5
ACKNOWLEDGMENT
- I, Matthew C. Cowen, have read the attached Power of Attorney_and am the person
identified as the agent for the principal. I hereby acknowledge that in the absence of a specific
provision to the contrary in the Power of Attorney or in 20 Pa. C.S. when I act as agent:
1. I shall exercise the powers for the benefit of the principal.
2. I shall keep the assets of the principal separate from m~ assets.
3. I shall exercise reasonable caution acid prudence.
4. _ I shall keep a full and accurate record of all actions, receipts and
disbursements on behalf of the principal.
September 22, 2006
Matthew C. Cowen _
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF CUMBERLAND
On this, the 22nd day of September 2006, before me, the undersigned officer, personally
appeared Monica L. Kendall, who being duly sworn according to law, deposes and says that the
foregoing Power of Attorney is her act and deed and that she desires the same to be recorded. as
such.
IN WITNESS WHEREOF, I hereunto set my hand and notarial ,seal the day and year
aforesaid.
Notary Public -
My Commission Expires:
(SEAL) COMMflNV11EAL~H OF PENNSYLVANIA
V{3i~t}c~7 Sea!
- Earba:a i. La::~ ;, tVatary Public
L~,*r~*e3 Auer r T.w.: ~u~~berfand County
My Cammiss~or ~xpires May 2~, 2ai 0
6 Member, Pennsyivania Association of Notaries
PECHT & ASSOCIATES, PC
Suite 200
1205 Manor Drive
Mechanicsburg, PA 17055-4894
Wayne M. Pecht
Member of California Bar
CPA/LLM in Taxation
Rob Bleecher
Herbert P. Henderson, II
September 15, 2006
Ms. Barbara Kendall
110 East Locust Street
Mechanicsburg, PA 17055
Re: Revocation of Power of Attorney
Dear Ms. Kendall:
Telephone: 717-691-9810
Fax: 717-766-3361
e-mail: wpecht@pechtlaw.com
This letter will confirm that we have been asked to represent your daughter, Monica L. Kendall. In that
regard, we have prepared, and Monica has executed, a revocation of the power of attorney that she
granted to you in late 2005 or early 2006. I am enclosing a copy of the revocation for your file.
As of now, you are no longer authorized to act on her behalf. This letter will serve as a formal request for
you return all property and money of hers that is in your possession. Also, if you are receiving regular
payments on her behalf, you should cooperate in having those payments made to an account in Monica's
name. Finally, we request an accounting from you concerning all monies or property you received on
Monica's behalf and expended on her behalf during the time you served as her attorney-in-fact or agent.
We would like this accounting as soon as you can provide the same to us.
If you have any questions concerning this matter, please call me.
Very truly yours,
PECHT & ASS~C TES, PC
By:
Wayne M. echt
WMP/ble
Enclosure
Elizabethtown Office
55 West High Street
Elizabethtown, PA 17022
717- 367-2800 o f fice
717-367-9400 facsimile
tN RE
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111i1::2:
. S-. .
VIONICA L: KENDALL f::~.
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. ORPHAN S COURT DIVISION c~
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PETITION FOR ADJUDICATION OF INCAPACITY AND
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APPOINTMENT OF GUARDIAN - .- _-, ;
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AND NOW comes the Petitioner; Barbara Kendall
by and through her attc~
rie~
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Thomas; Esquire; aril fifes this Petition pursuant to Title 20 Pa.C.S:A.; Section 551 l; aria in
support tfiereof~ resp~ctfiilly represents:
1i ~ Petitioner; Barbara Kendall; is an adult individual who currently-resides at 1l0
1/ast l:,octist Street; lVteclianicsburg, Cumberland County; Pennsylvania 17055:
~: Petitie~er is the other of Monica L: Kendall; the alleged incapacitated adult:
~j ~ MohCa L~ Kefidall is forty-six (~5) years of age; her date of birth bein ~ :Tul 6
g Y ~
19603 aiid ci~.~rently `resides at 222 West Simpson Street; Ivlechariicsbur ~;
g
~tifriher~ati~ ~ountyj Pennsylvania, with her boyfriend, IVtatthew C: ~Coweri:
~1 On of aliotit December ~; 2005; MOI11Ca ~,: Kendall suffered at least two (Z); but
possibly niofe strokes:
5= Mc~riica ~~ Kendall Was taken to Holy Spirit Hospital where she `remained for
approximately two (2) weeks-:
t5: Upon IV~diiica ~. Kendall's release from I~oly Spirit Hospital; she was an inpatient
at Health South Rehab at Mechanicsburg; Pennsylvania, for several months where
she received speech; physical; and occupational therapy.
7: During the entire rehabilitation process for Monica L. Kendall arid. pursuant to ~ier
appointment as Power of Attorney; Barbara Kendall; Petitioner.herein; handled all
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY; PENNSYLVANIA
DOCKET N0. Z.1- a ~ ~ ~ ~$ .
~~
of lVtonica's financial affairs and provided her with transportation for. all medical
treatment needs:
g: Konica L~ Kendall resided with Petitioner at 110 East Locust Street;
1Vlechatucsburg; Pennsylvania; until Ivray 2006.
9~ 1V~onica ~~ Kendall currently resides in her former residence with leer boyfriend
Matthew C Gwen; and has lived there since her completion of outpatient theta
PY
+~f day 2006:
10: Konica ~: Kendall has never completely recovered from the effects of the strokes
which sle suffered on December ~; 2005, and it is believed and therefore averred
that she is incapable of managing her own financial affairs, anti is in need of a
Guardian for the following reasons:
s
(a) She heeds to acquire and take several medications on a daily basin bttt
lacks the mental capacity to ensure that she constantly has the tnedcatioris
and takes them at the appropriate times; -
(b) Slie receives regular income from Social Security in the airiotint of
- $ f ;01 x:00 monthly; but lacks the capacity to handle her finances
responsibly;
(c) shy lives with her boyfriend and it is believed and therefore averred that
- lus interests are not always consistent with the best interests of 1Vlonca L,
Kendall;
{d) It is believed that 1Vtonica L: Kendall's incapacity is either permanent or
,.
will continue for an indefinite period of time; and
(e) Petitioner has heretofore acted as 1Vlonica L. Kendall's de facto Guardian;
but has recently received notice that she is no longer to act in that
capacity.
11: In December 2005, when IVlonica L. Kendall, suffered the strokes; she had bank
account balances of approximately $11,200.00. She now has a balance totaling
approximately $28;000.00 as a result of Petitioner's handling of her financial
affarsi
2~ On of about September 17; 2006; Petitioner received a Revocation of Power +of
Attorn~~ `signed by IVfonica L: Kendall along with a copy of a new Power of
Attorney in which 1Vlonica L: Kendall appointed Matthew C. Cowed as lien
attoi~e~-iii=fact: ~ `
l3: ~ Matthew C~ Cowen has made demand upon Barbara Kendall to account for hey
actions-as the attorney-in-fact for 1Vlonica L. Kendall and made demand for the
~eturii o~ ail assets belofiging to Monica L. Kendall' .
~~: I~tte to tli~ lengthy histot-y involving Monica L: Kendall and 1Vtatthew C: Cavven
as observed by Petitioner as well as other family members of Monica L. Kendall;
yot~ petitioner believes aria therefore avers that 1Vlonica_ L. Kendall's limited
assets vvoitld be vva.sted if Matthew C: Cowen was her attorney-iii-fact: .
l5:. Petitioner has na interest adverse to the interests of Monica L. Kendall:
WHEREFORE; your Petitioner pays that this Honorable Court will enter ari Order which
would include the following:
f: Schedule a date and time for a hearing to detei7nine the competency of Monica L:
Kendall and her capacity to appoint a dower of Attorney;
2. Apilioirit ~. physician to examine IVlonica L. Kendall, so that the Court will have
l
the benefit of exert testimony in the inakin of its determinationo
g ,
~ ~ ~ireet I~etitioner to deposit all of 1Vlonica L: Kendall's monies ct~rrenti ~ ~ in
Y
l~etitit~ner3§ liossession into an interest bearing bank account until such ti
me as the
~dtitt has had ari opportunity for a full hearing and decision in this matter and .
s
~: ~f ~afi~ca ~;: Kendall is found to be incom etent as well as nca a
p p citated; appoint
~~bara Kendat~ as the guardian of the estate of IVlonica I,: Kend
. all. (A copy of
` ~etitititierjs consent to the appointment of Guardian is attached hefeto~
. )
. respectfully submitted;
R: Mar Thomas; Esquire
ID No: X1301
101 South fvtarket Street
. ~ 1vlechanicsburg, PA 17055
. Telephone: 717-796-2100
. ' ~~
IN ~ ~OIVICA L: KENDALI,
IN THE COURT OF COIVtMO~ PLEAS OF
CUMBERLAND COUNTY; PENNSYLVANIA
. DOCKET NO, oZ I - v t.~ - ~ ~ g
ORPHAN'S COURT DNISION
CONSENT OF PETITIONER
T'etit~otie~3 ~ar~ia~~. Ken~atl; hereby consents to h
er appointment as Guardian of the Estate
' t ,
of IVtrtiic~, I;, Keticf a1~3 I'etitioner;s daughter:
~. j a~ ~oo~
~AT~
. ~ BARBARA KENDALL; P itioiier
Do~v E. Brophy, M
F1 S. Ka~~' M~
V ~V~ia~ an Reid, ~.D
Bry re2, MD
~~ G 3as~n~Ram
.Sp~ngR°a~p.com
~~ ~3-8578 • www
-~`}~.~ li . Fes: (717} 2
1 ~~ - 717) 2~3~'~
I~~ ~~'C~ .17013 ,Phone. ~
~ d . Carlis1Q PA
'1921 spying A°a
November 3, 2006
Wayne PeCht, Esquire
' ca Kendall -old female who s ec f ~a 1y
Re. Nlon- 46-year etency SP
ne: unfortunate
r Way ica Kendall, an termination of Ved nl Power of attorney
pea
Sed to see your 5 She Was heTer Land ng the issues -nvo
I was plea able of uncle ent some time in
eCember of 20s cap since She has suffered
stroke m o whether she hOSpital and
in terms was in the able to work since• to have e
documents • stroke and been a She continues also has som
anent suffered a but has not Ver tim, •. ms. Her husband, who
Ved eWhat an ass-stive de ~e es-She That was
the P reviously tO that,
has -mprO som wire y
Last December worked P rehens-on prOb n s-gned these
rehab. She had ares'-s which h she does not req comp her power °f attorney
from a right sided p althou9 is and reading is currently hav- g
ambulation, shag married, ovver of attorney
problerns.with some dY . p been P
rOblems' ears but )ust reCentl other had
word find-ng P for 23 y is ear. no disc l swhen
she has known a o previous to th o thr y ale in
signed a m°.ntJa 9 ary or February a leasant fem articeak n full
her to be P ul at times P
ents m ono She was sl-ghtly to She was able to sP
docum s Kendall today,• uestions.
ination of M examinat~ d fief husband • or no Q
exam e to the other an what the day
On my. fitly nervous du een her and best when ansWer-ng yes tell me directly eek or
was slig discord betW s of the w
talking abOUt the hOWever shed ample, she is unabhrough the day Fall as the
occasionally, s For ex running She idensh-e had similar
Sentences finding Problem , • however when correct one' icsbure She was able to
have word onth ear is, me at the echan
She apes rn of they riately stop lived in M oic udg ent in
Week or the would apPrOp knew that she iven mult-ple ch pOd ') em
of the ear sh ompting• She also well when 9 She demonstrated 9er own without
months of they doing on h was quite
without any Pher birthday ~ t em n °SOPving did fficult-es
Season entifying, n--ing withoble aura f riding and
problems ~d le ob)ects na s-mple pro with her `NO
ident~y to situp activities and the exam
of day to day rustrated during nt well. a full understanding of
elieve she had otential POA ~swant hat to
P ompt-ng• Sn heacornmunication we 'th her. I b a of life (P . he would
pleased whe sin conversing wWe discusses en stay alive s Bring for her,
rid eXplained a Ventilator to and n She also volunteere
roblem to heC • ut on °t answ
pverall I found n0 p to be p. beS-de her wish. similar
eV erything that I sa-d a needed ob s-ttm ressed the same • under a
th. She stated that if she excellent )fact exp e kept al-vs well.
len9 did an din ant to b --
Her husband' who she ha uld not w . he feels a
en. her stroke ed is
haPP ed that Prior to that is h°w -
onfirm e fact that her h kbow edg
c ressed th
and eXStanCe and her husband a
clrcum
Page 2
Re: Monica Kendall
fn conclusion, I believe that Ms. Kendall was competent of decisions regarding the assignment of
power of attorney to her husband one month or so ago. Thank you for this consultation, and please
do not hesitate to contact me if there are any questions in this regard.
Sincerely,
William S. Kauffman, M.D.
WK/hw
CERTIFICATE OF SERVICE
I, Rob Bleecher, Esquire, of PECHT & ASSOCIATES, PC, attorney for Matthew
Cowan and Monica L. Kendall a/k/a Monica Kendall Cowan, hereby certify that I have
served the foregoing papers upon the persons listed below this date by depositing a true
and correct copy of the same in the United States mail, first-class postage prepaid,
addressed as follows:
R. Mark Thomas, Esquire
101 South Market Street
Mechanicsburg, PA 17055-3851
Leslie Tomeo, Esquire
155 South Hanover Street
Carlisle, PA 17013
Date: ~ z~c~~
Attorney I.D. No. 32594
1205 Manor Drive, Suite 200
Mechanicsburg, PA 17055-4894
717-691-9810 (office)
717-766-3361 (fax)
rbleecher(a~pechtlaw. com
VERIFICATION
I, Matthew C. Cowan, state that the statements made in the foregoing document
are true to the best of my knowledge, information and belief. Further, I am aw f 18hPa any
false statements which may be made herein are made subject to the penalties o
C.S. Section 4904, relating to unsworn falsification to authorities.
~~~ ~~.~~
Dated: Matthew C. Cowan
VERIFICATION
I, Monica Kendall Cowan, state that the statements made in the foregoing
document are true to the best of my knowledge, information and belief. Furtheor~he m
aware that any false statements which may be made herein are made subject t
enalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities.
p
Dated: ~ ~ ~'~~~~ ~, ~~ ~.~:~ ~, ,
Monica Kendall Cowan
~,, .: t. l C ~~ {.fib ~:~, ~; ,~~~~
~~'~~ /' ~t,-