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HomeMy WebLinkAbout11-29-12McNEES WALLACE & NURICK LLC By: Scott Alan Mitchell Attorney ID No. 76124 570 Lausch Lane, Ste. 200 Lancaster, PA 17601 Phone: (717) 581-3713 Facsimile: (717) 260-1633 E-mail: smitchell@mwn.com IN RE: DAVID JAMES EBY, AN ALLEGED INCAPACITATED PERSON t a "`~,, ^ ~ ~ , ~ ~ ~ ~ 1-~ C.`~3 ~ ~ ~.-.., ~ {µ~I .~ ;~ ;~c ~ ~~ ~~; ..t„~ ~ • IN THE COURT OF COMM®N .EAS ~u ~ t~^~~+ ~'s CUMBERLAND COUNTY, P~PINSYLVARdi-A ~> ~ ~ `n ORPHANS' COURT DIVISION N O. - ~i .°~'~~ ~ ~~-- PETITION FOR APPOINTMENT OF PLENARY GUARDIAN OF THE PERSON AND ESTATE OF DAVID JAMES EBY TO THE HONORABLE JUDGES OF THE SAID COURT: The Petition of Linda K. Burnett, by and through her counsel, McNees Wallace & Nurick LLC, respectfully represents the following: 1. The Petitioner is Linda K. Burnett, an adult individual residing at 2714 Cedar Street, Mechanicsburg, Pennsylvania 17055. 2. The alleged incapacitated person is David James Eby ("David"), who is an adult individual and the son of the Petitioner. David resides with Petitioner and Petitioner's husband in their home at 2714 Cedar Street, Mechanicsburg, Pennsylvania 17055. 3. David is eighteen years of age, having been born on December 3, 1993. 4. David suffers from severe autism, resulting in significantly limited verbal communication skills beyond only very basic wants and needs, and is unable to live and function independently with respect to financial decisions or decisions concerning his basic daily personal/self-care needs. {A3057509:1 } (~ 5. David is under the care and treatment of Gary Schwartz, M.D., of Shepherdstown Family Practice, 2140 Fisher Road, Mechanicsburg, PA 17055. Additionally, David currently has a caseworker (Connie Herman) through MH/IDD. 6. Attached hereto as Exhibit A and incorporated herein by reference is a Deposition of Individual Qualified to Render Opinion as to Incapacitation, which has been completed and verified by Gary Schwartz, M.D. of Shepherdstown Family Practice. The deposition questionnaire is being presented to the Court in lieu of a formal deposition transcript. 7. Because of David's mental and physical condition, it is believed and therefore averred by Petitioner that David is an incapacitated person within the meaning of Chapter 55, Subchapter A, Section 5501 of the Probate, Estates, and Fiduciaries Code, in that his ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially, or totally, unable to manage his financial resources and to meet essential requirements for his physical health and safety. 8. David currently receives no income, and his assets consist of approximately $30.00. Additionally, Petitioner receives approximately $930.00 per month from her ex- husband for child support for David, and Petitioner anticipates creating a special needs trust through Petitioner's counsel for purposes of assigning the child support to David's special needs trust so that David can also receive SSI benefits. Apart from creating the special needs trust and assigning the child support to the trust, the child support is counted as David's income and, due to the amount of the child support, makes him ineligible for SSI benefits at this point. {A3057509:1 } 9. David has never been a member of the armed services of the United States and is not receiving any benefits from the United States Veterans' Administration or its successor. 10. David's next of kin consist of his mother (Petitioner), his father, L. Marlin Eby, and two adult brothers, Daniel M. Eby and Michael J. Eby, both of whom also are the sons of Petitioner and L. Marlin Eby. David has no children. 11. Petitioner and L. Marlin Eby were divorced on April 6, 2006, after which Petitioner was awarded full custody of David. 12. L. Marlin Eby is a professor at Messiah College, One College Avenue, Grantham, Pennsylvania 17027, where he receives mail. Petitioner shall provide L. Marlin Eby (and Daniel M. Eby and Michael J. Eby) with at least twenty (20) days' written notice of the hearing regarding this Petition. 13. David has not previously executed a general power of attorney, advance health care directive, or healthcare power of attorney, and he currently lacks the capacity to execute such documents, which has led to Petitioner filing this Petition. 14. Due to the condition set forth above, David 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. 15. Due to the severity of the condition set forth above, David lacks the ability to make or communicate any responsible decisions concerning his person and is unable to attend to his personal safety or to keep himself properly nourished, hydrated, and medicated, or to communicate to others his need for assistance in these areas. {A3057509:1 } 16. Due to the severity of the diagnosed conditions set forth above, the assistance of other persons or services would not enable David to participate in the making of any decisions concerning his estate or person. 17. The severity of the diagnosed conditions of David requires that a plenary guardian be appointed to manage the estate of David. Said guardian should be appointed to manage and handle all aspects of his estate, specifically including, but not limited to: all issues relating to his cash, checks in any bank or savings account held in his name, stocks and bonds, personal property, real estate, life and other insurance of which he may be a beneficiary, entitlement to any government or non-government benefit plans, federal, state, and local taxes, trust accounts of which he may be a beneficiary, claims made or to be made on his behalf or against him, the execution of documents, the entry into contract affecting him and the payment of reasonable compensation or costs to provide services to him. 18. Less restrictive alternatives, other than the appointment of a plenary guardian of his estate, have been considered but determined not to be viable alternatives. Petitioner therefore believes that the best interests of David and his estate are not being provided for at this time and David not be provided for absent the appointment of a guardian of his estate. 19. The severity of David's condition, as stated above, mandates that a plenary guardian of his person be appointed to handle all issues relating to the person of David, specifically including, but not limited to: his living arrangements, his medical and neurological 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 neurological treatment and care. {A3057509:1 } 20. Less restrictive alternatives, other than the appointment of a plenary guardian of his person, have been attempted but determined not to be viable alternatives. Petitioner therefore believes that the best interests of David and his person are not being provided for at this time and David not be provided for absent the appointment of a guardian of his person. 21. The proposed guardian of the person and estate of David is his mother, Linda K. Burnett, the Petitioner. 22. The Petitioner is a qualified individual pursuant to 20 Pa.C.S.A. § 5511(f). The proposed guardian does not have any interest adverse to David, and a copy of a consent to serve as guardian of David's estate and person is attached hereto and incorporated herein by reference. 23. No other Court has ever assumed jurisdiction in any proceeding to determine the capacity of David, nor has a guardian already been appointed for him. WHEREFORE, Petitioner, Linda K. Burnett, prays that this Honorable Court award a Citation directed to David James Eby, the alleged incapacitated person, and to such other persons as the Court may direct, to show cause why he should not be adjudged to be an incapacitated person and why Linda K. Burnett should not be appointed plenary guardian of his person and estate. Respectfully submitted Date: ~! ~Z •~ (~~- McNees Wallace &Nurick LLC By: _- ---~ Scott Alan Mitchell, Esquire Attorneys for Petitioner McNees Wallace &Nurick LLC 570 Lausch Lane, Lancaster, PA 17601 (717) 581-3713 Sup. Ct. Atty. ID #76124 {A3057509:1 } VERIFICATION The Undersigned hereby verify that the statements made in the foregoing document are true and correct to the best of our knowledge, information and belief. We understand that false statements herein are made subject to penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Dated: ll JT" / ~ Linda K. Burnett {A3057509:1 } EXHIBIT A DEPOSITION OF INDIVIDUAL QUALIFIED TO RENDER OPINION AS TO INCAPACITATION In Re: David James Eby DEPOSITION BY INDIVIDUAL QUALIFIED IN EVALUATION OF INCAPACITATED PERSON The deposition of Gary M. Schwartz, M.D., a witness in this matter, made on the day of October, 2012, at Mechanicsburg, Pennsylvania. 1. What is your name and professional address? a. My name is Gary M. Schwartz, M.D. and my professional address is: Shepherdstown Family Practice 2140 Fisher Road, Mechanicsburg, PA 17055 2. Please describe your education, training, and background with particular emphasis on your expertise in evaluating individuals with incapacities. If you prefer to do so, please attach curriculum vitae to those interrogatories that detail this information. a. (Cross out that Answer that does not apply.) i. My curriculum vitae detailing this information is attached. Or ii. I received my college degree at~/~.l~r,~ ~~;~', ~~~a.-- (,~~,I ~ ~/t^--~ ~ ~ ~ and my post graduate training at ~ ',l' and I have practiced ~ 4-~' j, ,~,~ ~%~/ ~ (e.g. medicine; psychiatry, psychology, gerontological social work, etc.) since / ~ ~~ . b. My special qualifications and training with respect to evaluating persons with incapacities consists of: iris ~-~~'-~~~; ~; ~ //'~y~~~"~ r. yr 3. In what states are you licensed to practice medicine? a. I am licensed to practice medicine in the following states: {A3062569:1 } 4. In your capacity (e.g. physician, psychologist, social worker, etc.) have you had the opportunity to meet with, examine, speak with and otherwise become acquainted with David James Eby and if so, upon what occasions and in what fashion have you been able to do so? a. I first become acquainted with David James Eby the month of when he was brought to my attention by means of !~ ~' x'1/1 y ~~.1"L.... I have since that time (visited/spoken with/examined/treated) him on ~ ° ~ other occasions with an average frequency of ~'3 - ~ times per ~ ~ (day/week/month/year). 5. To a reasonable degree of medical certainty, do you have an opinion as to whether the ability of David James Eby to receive and evaluate information effectively and to communicate decisions is in any way impaired to such significant extent that he is: a. Partially unable to manage his financial resources, or b. Totally unable to manage his financial resources. Yes, my opinion is ~ ~~~ +' 1 r'S ~1 11/~C'_ ~~~~ 6. To a reasonable degree of medical certainty, do you have an opinion as to whether the ability of David James Eby to receive and evaluate information effectively and to communicate decisions is in any way impaired to such significant extent that he is: a. Partially unable to meet essential requirements for his physical health and safety, or b. Totally unable to meet essential requirements for his physical health and safety. r /, Yes, my opinion is ~ ; _ ~~ i /~', Y''1zZ~tA~ ~~- - G I I ~ ., {A3062569:1 } 7. Please describe the type and severity of any impairments of David James Eby? a. The impairments of David James Eby are as follows: Impairment (Circle one) ~~ ~U none mild moderate se none mild moderate evere ~ none mild moderate ~ severed d) ° C=,. ,~ ~ ~,c ~,(,~ none mild moderates severe .~~~ ~, ~, ~ .~. •. e) ~>~ ~ ~ ~,~ ~-Q..~ ~ none mild moderate severe ~`~ - ~ none mild moderate evere '~ ~ ~~ ~c~ I f ~~:.~~~ ~'~~ g) ~ ,~ ~ ~-~` ~~~~~, r'" none mild moderate severe ~, ____--. h) ~,~ jL,~,~,~ ''~ ;~,~,,~` ~~ ~ '~L~`"r~ ~ none mild moderate severe 8. To a reasonable degree of medical certainty, can you express an opinion as to whether David James Eby is partially or totally unable to manage his financial resources? a. The ability of David James Eby to manager his financial resources is impaired (not at all, partially, totally) as follows: ,- Yes m o inion is ~ ~ ~ ~; y p 9. To a reasonable degree of medical certainty, can you express an opinion as to whether David James Eby is able to meet essential requirements for his physical health and safety? a. The ability of David James Eby to meet essential requirements for his physical health and safety is impaired (not at all, partially, totally) as follows: .~~ ~` Yes, my opinion is ~ ~ ~~ ~ ~~''. {A3062569:1 } 10. Can you please evaluate the present condition of David James Eby with respect to incapacities of the type alleged in the Petition. In particular, could you please comment on the nature and extent of the alleged incapacities and disability and also, insofar as you are able, the mental, emotional, and physical condition of David James Eby, his adaptive behavior, and his social skills? a. Based upon my education, training and experience, as well as my acquaintance with David James Eby, as stated above, it is my opinion that his incapacities and disabilities are: ~~ e ~~~~~, 11. • (~ i, f ' , ~~ ~ ~ -, r ~ ,~ ~~ °~ ~ > Is the condition of David James Eby such as would make him susceptible to be taken advantage of by unscrupulous or designing persons? a. His adaptive behavior is: r { ~~ j• ' \` 11'3 ~1 ~~i ~~Ga~ ~ ,~~ ~~~~ ~~ (lam. L~'Y`~' 1~~,' ~ ~~~(.~'~ L ~ ,~ ~ ~' ~-0.-''f , ~, 1.~~~--C . Gr`"i • ~ '~ ~ 1„aX L1 ,'Vir. G~~-~-~ -.'~ L. . ~~// \ p~ {A3062569:1 } c. His emotional and physical conditions are: rr1 ,~ b. His mental condition: 12. What recommendations would you make concerning services necessary to meet the essential requirements for the physical health and safety of David James Eby? a. I would recommend that physical health and safety be protected by 13. What recommendations would you make concerning management of the financial resources of David James Eby? 14. a. I would recommend the following: ,~~~ ~~ ,~ ; ~~ ,~ ~ ~ l~.a ~~ ~C~ ~ ~ ~~~ a. I would recommend the following: ~ 15. What types of assistance do you think are required by David James Eby? a. I believe he needs assistance with the following: ~ r 16. Why is it no less restrictive alternatives would be appropriate? 17. a. Less restrictive alternatives would not be appropriate because What is the probability that the extent of incapacitles f David James Eby may significantly change? a. In my judgment, and based upon my experience, training and acquaintance with David James Eby, I believe the probability that his incapacities may significantly lessen or change is: ~. {A3062569:1 } What recommendations would you make concerning the development or regaining of physical or mental abilities of David James Eby? 18. Would the physical or mental condition of David James Eby be harmed by his presence in open court? a. NOTE: Pennsylvania law (20 Pa. C.S. §5511(a)(1) requires that the alleged incapacitated person must be present at the hearing unless a physician or licensed psychologist provides by testimony or statements, an opinion that his/her physical or mental condition would be harmed by his/her presence. VERIFICATION I, Gary M. Schwartz, M.D., verify that the statements made in the foregoing Deposition are true and correct to the best of my knowledge, information, and belief. I understand that the statements herein are subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. ~,~ ~` / y M. chwartz, M.D. ~l ~ ~~ Dated: {A3062569:1 } I believe that the presence of David James Eby in open Court would not be harmful to him because EXHIBIT B CONSENT TO SERVE AS GUARDIAN McNEES WALLACE & NURICK LLC By: Scott Alan Mitchell Attorney ID No. 76124 570 Lausch Lane Lancaster, PA 17601 Phone: (717) 581-3713 Facsimile: (717) 260-1633 E-mail: smitchell@mwn.com IN RE: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DAVID JAMES EBY AN ALLEGED INCAPACITATED PERSON ORPHANS' COURT DIVISION NO. 2012 CONSENT OF GUARDIAN OF THE PERSON AND THE ESTATE I, Linda K. Burnett, certify that I am willing to serve as Plenary Guardian of the Person and of the Estate of David James Eby. My current residence is 2714 Cedar Street, Mechanicsburg, Pennsylvania 17055. I currently am employed ~ ~ ~~,~j~p y ~,~~n,~ I certify that I speak, read and write the English language. I certify that I do not have an interest adverse to the alleged incapacitated person I certify that I am not a fiduciary, or an officer or employee of a corporate fiduciary, of an estate in which the alleged incapacitated person has an interest, and that I am not the surety, or an officer or employee of a corporate surety of such a fiduciary. Dated: ~ 2 Linda K. Burnett {A3057509:1 }