HomeMy WebLinkAbout01-22-13
Pyfer, Straub, Gray & Farhat, P.C.
Melissa Mattox Wohlsen, Esquire
Attorney ID. # 94593
128 North Lime Street
Lancaster, PA 17602 ORIGINAL
(717) 299-7342
IN THE ORPHANS COURT OF CUMBERLAND COUNTY, PELINSYLVIA
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CIVIL ACTION - LAW
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IN RE: EMILY JANE MILLER No. 21-12-0956 C rv
LORI MILLER'S RESPONSE TO: GUARDIAN AD LITEM FOR EMILY JANE A LL
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RECOMMENDATIONS TO THE COURT
Respondent, Lori Miller, through her attorney of record, Melissa M. Wohlsen, Esquire
and Pyfer, Straub, Gray & Farhat, P.C., respectfully files the following
Response/Objection to John Mangan, Esquire's Report and Recommendation and
Response/Objection to the proposed Revised Care Plan:
1. RESPONSE/OBJECTION TO RECOMMENDATION
a. PROCEDURAL HISTORY
The instant action was initiated by the filing of a Petition for Adjudication of Incapacity
and for the Appointment of a Plenary Guardian of the Person and Estate by Christine M. Miller
and Wendy Sue Basehore. Said Petition was responded to, and parts objected to, by Lori L.
Miller. The parties involved are the alleged incapacitated person, Emily Jane Miller (herein after
sometimes referred to as "Jane"), her daughter Wendy Sue Basehore (herein after referred to as
"Wendy"), Jane's daughter in law Christine M. Miller (herein after referred to as "Chris") who is
Jane's son, Jeffrey ("Jeff') Miller's wife and Respondent, Jane's daughter, Lori L. Miller (herein
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after referred to as "Lori"). John Mangan, Esquires was appointed as Guardian Ad Litem for the
alleged incapacitated person, Emily Jane Miller. A hearing was held on October 11, 2012 and
October 12, 2012. Attorney Mangan issued his Recommendation on January 11, 2013.
b. ARGUMENT
The Court of Common Pleas of Philadelphia County rendered an Opinion which we
believe to be instructive on the matter at issue. In the Guardianship Proceedings involving the
Estate of Arthur D. Lewis, an Incapacitated Person, 2001 WL 34148893 (Pa.Com.Pl.), Mr.
Lewis's children from his first marriage and his second wife could not agree on the appropriate
guardian of the person or the estate. A hearing was held and Judge Tucker issued a decree
stating that "due to the rivalry among family members, no member shall be considered as
guardian for Arthur Lewis" (emphasis added). Mr. Lewis's second wife filed Exceptions and the
Court dismissed the Exceptions. In the Opinion, among other things, the Court determined that
there was no abuse of discretion by Judge Tucker in her Decree finding that "Arthur D. Lewis is
a mildly demented person who is caught in a tug of war between his spouse and his
daughters" (emphasis added) and "Judge Tucker was fully justified in appointing a neutral
person as limited guardian" (emphasis added). The instant case is similar to the Lewis case and
we offer this case in support of our position that a neutral guardian of the person is most
appropriate given the circumstances.
By way of response and objection to Attorney Mangan's Recommendation, we offer the
following. In the Recommendation at paragraph 5, it is noted by the GAL that Emily Jane
Miller's family has some difficult dynamics in terms of their relationship with each other.
Family discord has existed for many years. The siblings are not united as a family and have little
1 Herein after sometimes referred to as "the GAL".
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to no regard for each other, similar to that of strangers. Despite the "sibling rivalry", Jane clearly
wanted all of her children to participate in her care which is evidenced by the fact that prior to
her "incapacitation" she appointed all three of them as equal agents with Power of Attorney.
Jane did not favor one child over another and a presumption of "favoritism" should not be made
simply because two children conspired to remove Jane from her house and moved her to their
house. Furthermore, a presumption of "preference" should not be made simply because a
vulnerable elderly person suffering from mental confusion was taken to an evaluation and an
elaborate self-serving "Care Plan" was derived there from and submitted to the Court. It could
just as easily be surmised that Jane "preferred" Lori as she enjoyed living with Lori in her
residence for 6 years.
With regard to the remainder of paragraph 5, it is noted by the GAL that no party is
suggesting that Emily Jane Miller reside at her own home. Prior to Jane's surreptitious
"relocation" to Enola, she was well cared for in her own home in Elizabethtown by her daughter
Lori. Although allegations were made to the contrary, neither the GAL in his recommendation
or the Lancaster Office of Aging upon an investigation, made any different findings. There were
no "crisis circumstances" that necessitated removing Jane from her home in July of 2012. There
were other less extreme measures that could have been explored. If Respondent's siblings were
so concerned about Jane's care, why did they do little to nothing with regard to her care for 6
years? Could they not have suggested a homecare agency to help Lori with Jane? Could they
not have offered to take Jane into their home(s) for the weekend or part of the week and provide
care for her and give Respondent some respite? None of these options were considered and
tried.
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It is our position that moving Jane back to her home in Elizabethtown would be in her
best interest and would serve to preserve her resources and assets which would be quickly
drained should the proposed Care Plan be approved. As the GAL made note, Lori Miller
indicates that she has a very good relationship with her mother. Lori has experience working
with dementia patients and has the training and skill necessary to handle her mother's current
and future needs. Lori could work fewer hours as a Certified Nursing Assistant at Masonic
Village and care for Jane on a full-time basis. If she did so, she would not request or expect
compensation for her services.
With regard to paragraph 6, it is noted that the Cumberland County Office of Aging not
once, but two times offered an opinion that based on the strained relationship between Emily
Jane Miller's children, a neutral third party would be appropriate both for guardian of the person
and the estate. As the GAL states in paragraph 5 of his Recommendation, Charles Cobaugh2,
Jane's brother, has a very good relationship with his sister. Attorney Mangan states Mr.
Cobaugh is very mentally sharp and willing to assume the responsibilities of Guardian of the
Person and/or Estate for Jane at no charge. In the alternative, services could be provided by an
agency such as Neighborhood Services or Keystone Guardian Services.
With regard to paragraph 7, the GAL noted that Christine has made all of the necessary
arrangements for medical treatment of Emily Jane Miller. Ironically, even though the current
health care POA lists all three siblings as the decision makers for Jane; Chris, a non-relative of
Jane's has taken it upon herself to make all these decisions, excluding Lori. Chris changed
Jane's primary care physician and she has maliciously refused to provide Lori with information
regarding her physical and/or mental health.
z Herein after sometimes referred to as "Uncle Melvin".
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In one of the next sentences of the Recommendation in paragraph 7 the GAL noted that
Christine and Jeffrey have indicated that they welcome Lori and Mr. Cobaugh to have frequent
contact with Emily Jane. For the Court's information, this family has never had "frequent
contact" during the past 30 years. There is no history of having Thanksgiving dinner together,
celebrating Christmas, birthdays, etc. Lori acknowledges receipt as of recently of her siblings
invitations for family events but questions the "genuineness" due to the pending litigation. For
your Honor's information, there have been two significant holidays since the hearing, that being
Thanksgiving and Christmas, the later requiring attorney intervention to open the lines of
communication and facilitate visitation. The letter from our office to Attorney Nesbit's office
dated December 27, 2012 is attached as Exhibit "A". If this is any indication of the future, the
hostility will continue unless there is a neutral guardian.
In summary, half of the paragraph in the GAL's Recommendation under the heading,
"Recommendations" focuses on visitation. We would request that this Court see past the
"physical custody" fagade and enter an Order which is in its entirety, is in the best interest of
Jane.
II. RESPONSE/OBJECTION TO PROPOSED REVISED CARE PLAN
We submit the following comments with regard to the revised proposed Care Plan
(January 2013 Edition).
As to the section titled "Visitation of Jane" on page 2, the time constraints are
unreasonable and would restrict Lori and Jane from engaging in activities that they have enjoyed
in the past such as attending shows at Sight and Sound and Elizabethtown College performances.
Furthermore, should Lori desire to take Jane back to Elizabethtown to visit with friends and
family, nearly half the visit would be compromised from the start due to the travel time between
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Elizabethtown and Enola. As to the notice requirement, 7-10 days is unrealistic for short
outings. One cannot even predict the weather, or how Jane might be feeling, for example, that
far in advance. With regard to the location of the visits, there has been no report from a licensed
medical professional indicating that Jane was stressed or confused about visiting with Lori in her
former home on Poplar Street. Lori obtained several letters from family and friends that Jane
saw during her "home" visit(s) with Lori following the hearing and they all indicate Jane
appeared happy and not stressed. Finally, with regard to visitation, no explanation has been
provided why Lori is subject to stringent visitation guidelines while her sister, Wendy or Uncle
Melvin could visit with Jane at their leisure.
As to the first paragraph under heading "Contingency Residential Plans for Jane"
"Respite Care" on page 2, should it become necessary for Jane to receive temporary care outside
of the proposed primary residence, her daughter Lori would be able to provide such care, free of
charge.
As to the bullets under the headings "Finances" "Monthly" on page 3, when questioned at
the hearing, Chris testified that she would care for Jane for no compensation if the circumstances
arose. More recently, in a letter addressed to your Honor dated January 10, 2013, Chris and Jeff
indicated that they can no longer indefinitely sacrifice financially and forego employment to care
for the AIP without reasonable reimbursement. Wendy also testified that she had been
performing a duty akin to Guardian of the Estate in the past without compensation. Eliminating
the need to pay for a homecare agency plus family care and bookkeeping would reduce the need
to further strain/drain the principle. It is emphasized that the difference in the cost of the care
plan provided by non-professional family members is approximately $800 more than the cost of
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care in a neutral setting where Emily would receive professional assistance and activities with
peers geared towards her cognitive abilities and the like.
As to the paragraph under the heading "Initial Payments from Principle..." on page 4,
there is no breakdown of the figures, calling the reimbursement scheme and the future
compensation arrangement, in to question. For example, why can Jane be cared for, for
approximately 6 months at a cost of $1,475/month and as of February 2013, that amount will
increase significantly to $5,295/month. Also, the $15,000 requested in attorney's fees seems
relatively high based on the services provided. Furthermore, if it is Petitioners' desire to be paid
going forward and the revised Care Plan meets the Court's approval, Respondent will make a
claim for reimbursement from the principle of Emily Jane Miller for care she provided to Jane
for 6 years.
As to the paragraph under the heading "Present Use and Disposition of Jane's Real
Estate" on page 4, Respondent would object to any plan which would require Lori to reimburse
Jane any money for her use and occupancy of Jane's residence at 255 Poplar Street in
Elizabethtown, PA. Lori had an oral agreement with Jane to reside in the residence. For 6 years,
she cared for her mother, paid utilities, took her dog Maggie to the vet (and paid some of the
bills), took her mother out to eat (and paid the bills), bought groceries, did home improvements
and helped maintain the house. She alone has been occupying the house since July 22, 2012 and
during that time she has been abiding by the agreement she had with her mother, paying some of
the utilities3 and maintaining and safeguarding the residence as was asked of her by her siblings.
Lori did not enter into any new agreement/lease with Jane or Wendy or Jeff effective July 20,
2012. Wendy has petitioned the Court to be Appointed Guardian of the Estate but an Order
affirming the same has yet to be issued. Until this Court enters an Order in this matter, any
3 Verification from the utility companies could be provided, upon request of the Court.
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existing general power of attorney, limited power of attorney and/or health care power of
attorney executed by the incapacitated person remains valid. That being the case, the "power" is
stilled shared by the three siblings, equally. As such, two siblings cannot arbitrarily make a
decision regarding Jane's property to the detriment of the third sibling. If Wendy is appointed
Guardian of the Estate, at that point she would have unfettered control over Jane's assets and
resources.
As to the paragraph under the heading "General Overview of Daily Care Plan of Jane",
there is a serious concern regarding Jane's ex-husband and/or his new Wife providing care for
Jane. The Care Plan has been revised to say, "All of Chris and Jeff Miller's family members will
participate with Jane's care". Jeff's father obviously falls within the category of a family
member. Subsequent to the hearing, on visits with Uncle Melvin and Lori, Jane voiced a clear
opinion against the possibility of being cared for by Lee or Rita Miller.
III. CONCLUSION
Based upon the forgoing, it is our opinion that it is not in Jane's best interest to place
exclusive power and control in the hands of two siblings (Wendy and Jeff/Chris) who will
alienate and isolate Lori, from her mother, who she cared for almost exclusively for 6 years and
who she loves so very much. The level of care required for Jane at this point has not risen to a
level that it would be unreasonably burdensome for Jane's immediate caretaker and decision
maker to be different people.
It is our position that the Probate, Estates and Fiduciary Code and case law supports the
appointment of a neutral guardian. In addition to the case referenced above herein, the law states
that the guardian must not have interests that conflict with those of the incapacitated person
unless no alternative exists. 20 Pa. Cons.Stat.Ann. Section 551l(f); see also Wilhelm v. Wilhelm,
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657 A.2d 34, (Pa.Super.Ct. 1995). In Wilhelm, the Court held that the son of an incapacitated
person may be an inappropriate guardian where the son stood to benefit from money remaining
in a bank account upon his father's death and where there is a history of hostile relationships
between the children and the parents. (emphasis added)
Similarly, in the instant case, valid questions have been raised regarding the motives and
intentions of the proposed guardians and it cannot be disputed that they have interests that
conflict with the incapacitated person. For example, why does Wendy require payment for her
services when she performed them at no charge in the past? Why do Chris and Jeff require
payment above and beyond reimbursement for a homecare agency and food? Could they not
work during the 40-hours allotted for homecare service for Jane, to provide for their own
financial needs? Could they not care for their own Mother as they would a child at all other
times? Did they not on their own volition come and take her and agree to assume her care? Is
the motivation money? Draining Jane's assets and resources at the rate proposed in the Care
Plan is not in Jane's best interest. Jane suffers from memory deficit which is degenerative and
progressive but she still performs some activities of daily living, is not incontinent, not confined
to the home or unable to eat yet the Care Plan annual cost is an astounding $68,835.
The likelihood of abuse of power in this case is great. The plan to eliminate Lori from
her mother's care and life in general was set in motion months ago and by all indications will
continue if the proposed Care Plan is approved. For example, Lori was completely unaware that
she shared power of attorney with her siblings. This fact was intentionally kept from her and
evidenced in the Power of Attorney documents that were presented to the Court. The
Acknowledgement page with Lori's signature was missing in its entirety from the Power of
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Attorney and the Acknowledgement of Agent page attached to the DHC Power of Attorney was
attached, unsigned by Lori.
For all the reasons above, we respectfully object to the Recommendation of the Guardian
Ad Litem for Emily Jane Miller and request that this Honorable Court appoint a Guardian for the
Estate of Emily Jane Miller as deemed appropriate and appoint a neutral Guardian for the Person
of Emily Jane Miller, whether that be Charles Melvin Cobaugh or a designated agency.
Respectfully submitted,
Pyfer, Gray, Straub & Farhat, P.C.
By:
Melissa Mattox Wohlsen, Esquire
Attorney I.D. No. 94593
128 North Lime Street
Lancaster PA 17602
(717) 299-7342
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EXI IIBIT A
John F. Pyfer,Jr. 128 North Lime Street
PYFERPARTNERS Lancaster, 17602
Robert H. Reese, Jr. 717.2 .299.7342
Christopher C. Straub
~aw P y f e•r, Straub, Gray & Farhat, P.C. fax (main): 717.299.1376
fax (annex): 717.399.1827
Sandra Edwards Gray
2801 Willow Street Pike
Gabriella Hashem Farhat P.O. Box 157
Willow Street, PA 17584
Melissa Mattox Wohlsen 717.464.5900
David A. Lewis December 27, 2012 fax: 717.464.3818
wfww B,'t_ a.
David Nesbit, Esquire
KEYSTONE ELDER LAW, P.C.
555 Gettysburg Pike
Suite C100
Mechanicsburg, PA 17055-5207
(VIA FAX 691-8070)
Re: Guardianship of Emily Jane Miller
Dear Mr. Nesbit:
I arrived back from Christmas break to some upsetting news from my client. It was my
understanding, following the hearing that your clients were going to be very open and
receptive to my client's visitation and access to her mother. Unfortunately, this has not been the
case. For example, on December 511, my client made arrangements to get something to eat with
her mother. She was not able to pick her up until later in the afternoon because of work and
was then informed by Jeff that there were only certain hours that Jane could eat. Please let me
know if a doctor or other professional has put restrictions on Jane's eating schedule. Should
that not be the case, we believe this is an example of how your clients will be relentless in their
attempts to control my client's visits with her mother. Unable to go for a meal, they instead
went for coffee with Uncle Melvin and a friend and when Jane pulled out her wallet to get
money, there was none to be found. Not only was her wallet empty, her purse was completely
empty. Your clients should know that Jane was embarrassed by this fact. We question whether
going to this extreme, depriving Jane of personal possessions and money, is really necessary
and in Jane's best interest.
More recently, on December 21S1, my client made arrangements to go Christmas
shopping and out to eat with Jane. She asked ahead of time that Jane have some money
available for shopping and food. She proceeded to pick up Jane only to find out that she had
been given a meager $25.00 in "allowance" for the day.
Of greater concern, my client has been attempting to call the Miller residence to no avail
for the past three (3) days to wish her mother a Merry Christmas. The calls go unanswered and
she is unable to leave a voice message. My client also called Chris's cell phone and left
messages that have been unreturned. Finally, on December 26th at 6:50 p.m. Chris called back.
Several emails have been exchanged, the most discouraging coming from Wendy, which I have
attached to this letter. Wendy indicates that she has to visit with Jane at Chris and Jeff's house
Lawyers. Leaders.
PTYFER PARTNERS
Pyfer, Straub, Gray & Farhat, P.C.
David Nesbit, Esquire
December 27, 2012
Page 2
when, in fact, Jane has told Lori that she has been to Wendy's house on several recent occasions,
including Christmas Day.
Finally, my client continues to be excluded and uninformed when it comes to mom's
health and doctor's appointments.
As we have attempted to communicate for months, my client loves her mother very
much and is trying to make the best of the current situation. Why can your clients take Jane out
shopping all day, eating, to Chocolate World, etc. at their leisure but when my client attempts to
do the same, she is drilled about such things like meal times, what they will be doing during the
visit and how long the visit will last? Why is there flexibility and freedom when your clients
want to do activities with Jane but when my client attempts to do the same, her dementia is
suddenly advanced instead of early-stage and she must be treated like a child instead of an
adult? Why the double standard? It's our opinion that Jane has not reached a point that she
cannot hold a conversation concerning her affairs and the fact that your clients feel it necessary
to quiz her after her visits with my client, likely causes her the underlying stress that your
clients blame on my client.
It is my client's intention to pick up Jane for a visit on Saturday, December 291h at
noon. My client would like an opportunity to celebrate Christmas with her mother. She
communicated this request with your clients and proposed Saturday instead of Friday as her
request for Friday was refused. Based on emails exchanged between the parties, we have a
concern that our request will not be honored and Jane will be made unavailable. Please confirm
by close of business tomorrow (Friday, December 281h) that your clients will not interfere with
Lori's attempt to pick up Jane for a visit at noon on Saturday. As a reminder, there is no Court
Order in place denying her that right. Please address the other issues raised in this letter with
your clients accordingly.
Thank you.
Very truly yours,
44i§A :1V .,WOHtSEN
MMW
cc: John Mangan, Esquire (VIA FAX 241-2456)
Lori L. Miller
To ensure compliance with Treasury Department regulations (Circular 230), we inform you that, unless otherwise indicated in writing, any U.S.
Federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for
the purpose of (1) avoiding penalties under the Internal Revenue Code or applicable state and local tax provisions or (2) promoting, marketing
or recommending to another party any tax related matters addressed herein.
From: Wendy Sasehore <zipper57@ erizon.net>
Date: Thu, Dec 27, 2012 at 6:32 AM
Subject: Visiting Mom
To: Lori Miller <greeneYed ir1243(a nail.com>
Cc: J Miller <mifferim@verizon.net>
Lori,
I understand from Jeff that you want to see mom this weekend.
Upon mom's return last Friday night 21-DEC-2012, it was clear that something was wrong with mom.
She was distraught, confused and sad. She was not that way when she left in the morning.
While mom made some comments regarding things that were told to her on Friday, we all know that
mom has Alzheimer's and can become confused easily, therefore her version of what happened may
be distorted. She stated that she spent most of the day with you at your house in Etown. She talked
something about a secret and having to work in the girl's yard. She said you called Melvin to come
over and that you and Melvin told her about "some plan that involves Wendy, Jeff, dad & Rita taking
her money and other stuff".
Regardless of what really happened, something definitely affected mom in an adverse way, resulting
in our spending the entire weekend through Christmas morning working to restore her spirits.
The doctor previously stated that mom should be kept in a stress-free environment where she is
emotionally stable and content in the moment and safe. Until the Court hands down a decision
regarding her care I, along with Jeff, request that if you wish to visit with mom you do so at their
house. That's what I have to do when I want to see her.
Rgds,
Wendy
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CERTIFICATE OF SERVICE
I hereby certify that I have this 22nd day of January, 2013, served the foregoing upon the
person and in the manner indicated below, which service satisfies the requirement of Pa. R.C.P.
440.
Service by First Class Mail, as follows:
John Mangan, Esquire
Bayley & Mangan
17 West South Street
Carlisle, PA 17013
David D. Nesbitt, Esquire
Keystone Elder Law, P.C.
555 Gettysburg Pike
Mechanicsburg, PA 17055
Pyfer, Straub, Gray & Farhat, P.C.
By: A"'L(~JOAAUVI
Melissa Mattox Wohlsen, Esquire
Attorney ID. No. 94593