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HomeMy WebLinkAbout02-11-13Thomas A. French, Esquire Attorney I.D. No. 39305 Jillian M. Golden, Esquire Attorney I.D. No. 206510 BROADS & SINON LLP One South Market Street P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Petitioner, Frederick A. Schrader IN RE: JOAN SCHRADER, an Incapacitated Person RECORDED OFFICE OF REGISTER OF WILLS tDl3 FEB I1 P~1 `i 23 GLERK OF ORPHANS' COURT CIIM'BERLAND CO.. PA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY ORPHANS' COURT DIVISION )NO. Q21. ~3- ~~ EMERGENCY PETITION TO ADJUDICATE JOAN SCHRADER INCAPACITATED AND APPOINT A PLENARY GUARDIAN OF HER ESTATE TO THE HONORABLE JUDGE OF SAID COURT: 1. Petitioner, Frederick A. Schrader ("Petitioner") files the within Emergency Petition and seeks to have his sister, Joan Schrader, adjudicated an incapacitated person and to have a plenary guardian of her estate appointed pursuant to Sections 5511 and 5513 of the Pennsylvania Probate, Estate and Fiduciary Code, 20 Pa. C.S. §§5511- 5513. 2. Joan Schrader ("Ms. Schrader"), the alleged incapacitated person, maintains a residence at 508 Conklin Street, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. On January 22, 2013, Ms. Schrader was admitted to Holy Spirit Hospital in Camp Hill, Pennsylvania after reportedly falling two or more times in the month of January and because of her extreme mental confusion. 4. Petitioner was advised by the staff at Holy Spirit that Ms. Schrader was discharged from Holy Spirit Hospital on February 6, 2013. 5. Ms. Schrader is currently rehabilitating on a restricted ward at Forest Park Health Care & Rehabilitation, 700 Walnut Bottom Road, Carlisle, Pennsylvania 17013. 6. Ms. Schrader is 72 years old. 7. Ms. Schrader is unmarried but has maintained an appazently platonic relationship for the last twenty (20) yeazs with Gazy Fisher ("Mr. Fisher"). Mr. Fisher resides with Ms. Schrader at her Mechanicsburg residence. 8. Mr. Fisher was never employed during their time together and Ms. Schrader's substantial assets have been the sole source of income for both throughout their 20- yeaz relationship. 9. Ms. Schrader does not have any children, and her pazents are deceased. 10. Ms. Schrader does not employ any service providers. 11. The names and addresses of Ms. Schrader's living next of kin aze as follows: • Frederick A. Schrader (brother and Petitioner herein) of 2715 Carter Farm Court, Alexandria, Virginia, 22306; • Peter H. Schrader (nephew) of 37 Congress Street, Keene, New Hampshire, 04031; • Andrew B. Schrader (nephew) of 240 Third Avenue, No. 843, Niwot, Colorado, 80544; • David A. Schrader (nephew) of 2916 Lee Road, Silver Lake, Ohio, 44224. 12. Ms. Schrader was employed for 25 years as a research librarian but has not worked since the early 1990's. She is financially dependent on the inheritance received from her parents, which, through prudent investment by Petitioner, has grown to approximately three million dollars ($3,000,000). Ms. Schrader also receives a small pension and social security income. 13. Petitioner has no interest that is adverse to Ms. Schrader. He is not a fiduciary to Ms. Schrader, nor does he have any interest as a beneficiary of Ms. Schrader's estate. He is not -2- the named beneficiary of any trust, retirement account or joint account owned by Ms. Schrader. Petitioner has simply enjoyed a loving and familial relationship with his sister. 14. Ms. Schrader's long- standing and trusted advisors aze Kim Kenawall of Merrill Lynch and Ms. Schrader's attorney at Saul Ewing, Ryan Gager, Esquire and his assistant, Marietta Miller ("Ms. Miller"). 15. Ms. Schrader maintained a personal relationship with Ms. Miller for almost 20 years and Ms. Miller was one of the only people who Ms. Schrader interacted with on a regular basis, apart from her family and Mr. Fisher. 16. On February 9, 2011, Ms. Schrader appointed Ms. Miller and her nephew, Peter Schrader, as her joint powers of attorney. 17. The above-referenced power of attorney was purportedly revoked by Ms. Schrader on October 5, 2012. 18. No court has ever assumed jurisdiction in a proceeding to determine whether Ms. Schrader is an incapacitated person and Ms. Schrader has never had acourt-appointed guardian. Joan Schrader Has Substantial Mental And Functional Limitations That Prevent Her From Receiving And Evaluating Information. Communicating Decisions. Managing Her Financial Resources And/Or Meeting Essential Requirements Of Her Physical Health And Safety 19. Throughout her entire life, Ms. Schrader has suffered from chronic and progressively debilitating mental illness. 20. Ms. Schrader is believed to be bi-polar and manic depressive, and she suffers from a severe anxiety disorder. It is believed, and therefore averred, that she has been under the long-term care of her psychiatrist, Dr. Lee C. Miller of East Shore Psychiatric Associates, 2209 Forest Hills Drive, Suite 19, Hazrisburg, Pennsylvania, 17112. -3- 21. It is believed and therefore averred that throughout her life Ms. Schrader has been highly medicated and is currently taking a cocktail ofanti-anxiety and ant-psychotic prescription medications to stabilize her brain chemistry. 22. Ms. Schrader has been hospitalized numerous times, often due to failure to properly manage and regulate her medications, resulting in her being either under-medicated or over-medicated. 23. It is believed and therefore averred that Ms. Schrader's most recent hospitalization (related to her falling) was compounded by issues with her medications as well. 24. Ms. Schrader has limited to no mobility. She is currently confused, and incoherent and she threatened to end her own life while in the care of Holy Spirit Hospital. While at Holy Spirit, she was unaware of her surroundings and suffered from delusions and hallucinations. 25. Prior to her most recent hospitalization, Ms. Schrader would spend up to sixteen (16) hours a day in bed and had difficulty maintaining her personal hygiene. 26. For the past twenty (20) years, Ms. Schrader has been unable to take care of her medical, financial or household affairs and has relied on Petitioner, Mr. Fisher, Peter Schrader, and her advisors at Merrill Lynch and Saul Ewing to handle her day- to- day care and the management of her financial affairs. 27. It is believed and therefore averred that Mr. Fisher handled the grocery shopping, paid incidental bills from Ms. Schrader's Merrill Lynch bank account, took Ms. Schrader to medical appointments and obtained Ms. Schrader's prescriptions, among other day- to- day tasks. -4- 28. It is believed and therefore aver ed that Ms. Miller did personal chores for Ms. Schrader, such as hiring a home cleaning service, hiring painters, securing lawn Gaze service and loaning her a wheelchair and arranging for in-home caregivers at Ms. Schrader's residence. ~ 29. Without the assistance of Petitioner, Mr. Fisher, Ms. Miller and Peter Schrader, Ms. Schrader could not have lived independently and would have required institutionalized caze and treatment. 30. Ms. Schrader is severely mentally ill with limited mobility, however, she is otherwise in good health and is expected to live for several more yeazs. It is anticipated that she will require comprehensive nursing and rehabilitative caze, including continued treatment with a physiatrist. 31. Given Ms. Schrader's current physical state and her history of debilitating mental illness, Ms. Schrader is an incapacitated person as defined by 20 Pa. C.S. §5501. Ms. Schrader Is In Need Of A Guardian Of Her Estate And Failure To Appoint An Emereencv Guardian And Thereafter A Plenary Guardian Of Ms._Schrader's Estate Will Cause Immediate And Irreparable Harm 32. Ms. Schrader's estate is in imminent danger if a guazdian is not appointed. 33. An emergency plenary and permanent guardian of Ms. Schrader's estate is required because Ms. Schrader has never been able to manage her day- to- day care and, beginning in eazly to mid-2012, Ms. Schrader fell under the influence of a designing person, Mr. Fisher, and without capacity to do so, unwittingly provided Mr. Fisher with the ability to make unlimited and fraudulent gifts to himself in the form of an irrevocable trust for his sole benefit, to the potential detriment of Ms. Schrader's financial interests. 1 Mr. Fisher fired these in-home service providers because he did not like having people in the home. -5- 34. Ms. Schrader's mental and physical health began to further decline in the spring of 2012 when, while under Mr. Fisher's influence, Ms. Schrader fe11,2 was hospitalized, made several 9-1-1 emergency calls, began to make abrupt and substantial changes to her living and financial affairs, and uncharacteristically ended relationships with her family and long-term attorneys and service providers. Termination Of Lonsstanding Relationship With Saul Ewine, LLP And Marietta Miller 35. Ms. Schrader and her family have been clients of Saul Ewing LLP for over 20 yeazs. 36. Ms. Schrader maintained a friendship with Ms. Miller and trusted Ms. Miller to assist her with various changes to her will over the yeazs. 37. In June 2012, Ms. Schrader abruptly and without prior notice, terminated her attorney-client relationship with Saul Ewing. 38. Petitioner counseled his sister on this issue and expressed his concern that she was making a mistake by terminating this attorney-client relationship. 39. Ms. Schrader ignored Petitioner and is no longer a client of Saul Ewing. 40. Ms Schrader has ceased all contact with Ms. Miller. Sale Of Family Home And 4-1-1 Emergency 41. On Mazch 12, 2012, Ms. Schrader sold the family home, located at 261 North 29`~ Street, Harrisburg, Dauphin County, Pennsylvania, and moved to an assisted living facility, Bethany Village, in Mechanicsburg, Pennsylvania, with Mr. Fisher. : Although, when asked about the incident, Ms. Schrader stated that she couldn't remember how she was injured. -6- 42. In order for Mr. Fisher to be permitted to live with Ms. Schrader in the residence, he had to have independent means such that if Ms. Schrader passed away, he could continue to pay the expenses of living at Bethany Village. At that time, Ms. Schrader made a gift of $300,000 to him in an irrevocable trust. 43. After relocating to Bethany Village, a continuing caze facility, Mr. Fisher convinced Ms. Schrader that they were being too closely "monitored" by the support staff there. 44. Mr. Fisher decided that they should leave Bethany Village and convinced Ms. Schrader to purchase a ranch home in Cumberland County. 45. In July 2012, Ms. Schrader reportedly fell and injured her leg while in the shower at Bethany Village. She was hospitalized and rehabilitated at Manor Care Nursing Home throughout August 2012. 46. Ms. Schrader never returned to Bethany Village. While Ms. Schrader was at Manor Caze, Mr. Fisher moved their Bethany Village apartment directly to the new Cumberland County residence. 47. When the staff at Bethany Village were advised that Ms. Schrader had been persuaded to leave, the star' were gravely concerned and contacted Ms. Schrader's nephew and power of attorney, Peter Schrader, to discuss their concerns for Ms. Schrader. In addition, it has also been alleged that, during this period, at least two 911 calls were made, resulting in emergency responses for medical and domestic issues. 48. At the time, concern was expressed that Mr. Fisher was exercising undue influence over Ms. Schrader, and that Mr. Fisher was taking advantage of her and not acting in her best interest. -7- Throu¢h Ezercise Of Undue Influence At A Time When Ms Schrader Means Of Support. 49. In or azound October 2012, Mr. Fisher convinced Ms. Schrader to terminate her existing power of attorney, to draw up a new power of attorney naming Mr. Fisher and an individual by the name of John Fraelish as her agents in fact (with the power to act independently). 50. Mr. Fraelish has since renounced his appointment as Ms. Schrader's agent. 51. It is believed and therefore averred that Mr. Fisher caused Ms. Schrader to execute a power of attorney which vests him with the individual power to create an irrevocable trust in his name alone and for his sole benefit. 52. Petitioner feazs for his sister's welfaze and maintenance if Mr. Fisher is afforded with unrestricted access over Ms. Schrader's estate and is able to deprive her of financial wherewithal to pay for the best quality care she can receive. 53. Mr. Fisher has never held along- term job, other than a tour of duty in the military some forty (40) yeazs ago, and has never been vested with financial authority for Ms. Schrader other than the ability to pay routine bills from his monthly allowance. 54. Mr. Fisher is incapable of providing the comprehensive personal and financial management that Ms. Schrader's estate requires and is in a position to cause immediate and irrepazable harm to Ms. Schrader should he exercise authority under the power of attorney to transfer all of her assets to a trust for his own benefit. Increasias Isolation From Familv And Friends From Early 2012 To Present 55. Beginning in early 2012, Ms. Schrader became increasingly withdrawn from her family. -8- 56. When Petitioner called to speak to Ms. Schrader, she would end conversations quickly. 57. Mr. Fisher would typically answer the phone and listen to any discussion that Petitioner had with Ms. Schrader. 58. When asked questions over the telephone, Ms. Schrader typically stated that she "had to get Gary" before she could provide a response. 59. Uncharacteristically, Ms. Schrader declined to spend the 2011 and 2012 Christmas holiday with Petitioner and her nephews as she had done in past years. 60. Likewise, Mr. Fisher has stopped returning Petitioner's phone calls, and Petitioner was not informed by Mr. Fisher of Ms. Schrader's most recent hospitalization until February 1, 2013, 12 days after she was admitted. Petitioner was also not notified of Ms. Schrader's discharge from Holy Spirit Hospital on February 6, 2012, until Petitioner called Holy Spirit Hospital two days later. There Are No Less Restrictive Alternatives That Would Protect Ms. Schrader 61. Both Ms. Miller and Peter Schrader have received a letter stating that their powers of attorney have been revoked and they have no authority to act on behalf of Ms. Schrader and protect her interests. 62. It is believed and therefore averred that in October 2012, while under the influence of Mr. Fisher, Ms. Schrader made significant changes to her estate plan and vested Mr. Fisher with control over her financial affairs. 63. Mr. Fisher is ill-equipped to provide Ms. Schrader with the comprehensive financial management services she requires to preserve her assets for her long-term physical and mental health. -9- 64. Because Ms. Schrader lacks the capacity to authorize changes to her power of attorney and estate planning documents, the within Petition for Guardianship is the only way to protect Ms. Schrader's estate from imminent and irreparable harm. 65. Petitioner agrees that, despite recent abuse of his confidential relationship with Ms. Schrader, Mr. Fisher is a trusted companion of Ms. Schrader and that Ms. Schrader would want to ensure that Mr. Fisher is provided for financially. As such, Petitioner agrees that Mr. Fisher should continue to reside at the Cumberland County home and should continue to receive a monthly allowance of $2,000, as previously permitted by Ms. Schrader prior to her incapacity. Recommended Guardian Of The Estate 66. Petitioner respectfully submits that M&T Bank should be appointed as the guardian of the estate of Ms. Schrader. 67. M&T Bank is an experienced corporate fiduciary. M&T Bank has consented to serve as stated in the executed "Consent to Serve" attached hereto as Exhibit "A". 68. According to the Petitioner's knowledge and belief, the gross value of Ms. Schrader's estate is approximately $3,000,000. The net income available to Ms. Schrader from all sources is approximately $135,000 69. M&T Bank does not have an interest that is adverse to Ms. Schrader. WHEREFORE, Petitioner respectfully requests that the Court, under Sections 5513 and 5511 of the Probate, Estates and Fiduciaries Code, issue a citation to Joan Schrader, Joan Schrader's next of kin, and to such other persons as the Court directs, to show cause why Joan Schrader should not be adjudged to be an incapacitated person and plenary guardian of her estate appointed. -10- & SINON LLP By: as A. French - Ji 1 an M. Golden O South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 -11- VERIFICATION I, Frederick A. Schrader, 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. §4904, relating to unsworn falsification to authorities. . G~.~ Frederick A. Schrader Date: i/ ` t.Q- ,2p !3 EXHIBIT A 549937.1 IN RE: JOAN SCHRADER, anIncapacitated Person IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY ORPHANS' COURT DIVISION NO. CONSENT TO APPOINTMENT AS PLENARY GUARDIAN OF THE ESTATE 1. The name of the proposed guardian of the estate is: M&T Bank. 2. The proposed guardian has a place of business at: 213 Market Street, Second Floor, Harrisburg, PA 17101. 3. The proposed guardian is a national bank, with trust powers. 4. The proposed guardian does not have an interest adverse to the alleged incapacitated person. 5. The proposed guardian is 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 is not the surety, or an officer or employee of a corporate surety of such fiduciary. 6. The proposed guardian consents to act as guardian of the estate of Joan Schrader. Dated: ~ ~~ l M&T