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HomeMy WebLinkAbout01-29-14 (2) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA RECORDED OFFICE OF ORPHANS' COURTDIVISION REGISTER OF WILLS O.C. NO.21-Ill-095s 29 F(1 i y7 IN RE: STEVEN JOSHUA BERGEY CLERK O F AN INCAPACITATED PERSON ORPHANS' COURT PETITION FOR REVIEW HEARING AND SUBSTITUTION OF GUA kW R1q9 , PA PERSON AND ESTATE OF STEVEN JOSHUA BERGEY TO THE HONORABLE JUDGE OF SAID COURT: The Petitioner, Fox Subacute, by and through its attorneys Eric J. Bialas, Esquire, and Hynum Law, presents the following Petition to this Honorable Court for a Review Hearing and Substitution of the Guardian of the Person and Estate of STEVEN JOSHUA BERGEY, an incapacitated person, and in support thereof avers as follows: 1. Fox Subacute (hereafter "Fox" or"Petitioner") is a Skilled Nursing Facility specialized in service to post acute ventilator dependent patients and is located at 120 S. Filbert Street, Mechanicsburg, PA 17055. 2. STEVEN JOSHUA BERGEY (the "incapacitated person" or "Josh") was born on September 1, 1991, is 22 years of age, and currently resides at Fox, where he has resided since September 2010. 3. Petitioner is an interested party because it has provided and currently provides care and nursing services to the incapacitated person. Petitioner has a statutory and contractual obligation to act in the best interest of the incapacitated person. 4. The incapacitated person's living next of kin and interested parties are as follows: Jessica Simes-Bergey P.O. Box 13102 Harrisburg, PA 17110 Mother, Guardian of Person and Estate Steven Bergey 40 Bennett Street Bethel, PA 19507 Father, Proposed Substitute Guardian of Person and Estate Matthew Menges, Esq. Menges & McLaughlin, PC 145 Market Street York, PA 17401 Trustee for Special Needs Trust 5. Matthew Menges, Esquire assisted with the guardianship proceedings and was also the attorney involved with the incapacitated person's personal injury suit. As a result of that litigation, a special needs trust was created in which Mr. Menges is trustee. Mr. Menges has an interest in this hearing as Josh's fiduciary. 6. STEVEN JOSHUA BERGEY was adjudged an incapacitated person by Decree of this Court dated October 22, 2010, by Judge Ebert. A true and correct copy of the October 22, 2010, Decree is attached hereto as Exhibit "A". 7. The Guardian of the incapacitated person's Person and Estate is Jessica Simes-Bergey, whose address is referenced in Paragraph 4. Ms. Simes-Bergey is the incapacitated person's mother. 8. Since her appointment as guardian, Ms. Simes-Bergey ("Mother") has failed to act in the best interests of STEVEN JOSHUA BERGEY, as evidenced by the following synopsis: a. Josh was admitted into Fox on September 21, 2010 from Health South, for post acute care resulting from a traumatic brain injury (TBI). b. Fox Subacute specializes in ventilator dependent patients, which Josh was at the time of his admission. c. Josh has since been decannulated, thus no longer using a ventilator, which is Fox's specialization. d. Fox does not specialize in TBI, nor is it appropriate for long term care in Fox's facility for that condition. e. The proper care for a TBI patient is rehabilitative services with the ultimate goal being the home setting/home care. f. Further, Josh is 22 years old and residing in a nursing home with mostly elderly residents. He has continually asked staff when he will be able to return home. g. Fox's staff and social workers have attempted to discharge Josh to a more appropriate setting, such as facilities that deal with rehabilitation of patients with TBI or a home setting with available community based services. As part of this process over two dozen other facilities were contacted for Josh's alternate placement. h. Despite being accepted to several facilities, Mother has refused to move Josh from Fox. As explanation, Mother stated that she did not want to relocate in order to visit Josh. i. Mother has further refused to bring Josh home, even though he has been approved for a waiver that will pay for home services. j. Not only is the home setting with community based services the ideal setting, the refusal of home care ultimately prevents Josh from many rehabilitative programs, which require discharge to the home setting. k. In addition to Mother's refusal to move Josh to an appropriate setting, she has been distant and non responsive to communications from the facility regarding Josh's care. 1. Continued refusal to transfer Josh to a rehabilitative facility or the home setting has, and will continue to stunt Josh's progress and development, and as such is not in his best interest. 9. Given the above averments, it is Petitioner's belief that a Review Hearing is warranted because the guardian has failed to perform her duties in accordance with law or to act in the best interest of the incapacitated person pursuant to 20 Pa.C.S. §5512.2. 10. Given Mother's failure to act in Josh's best interests, it is Petitioner's belief that the Guardian of the Person and Estate should be substituted in favor of Josh's father, Steven Bergey ("Father"). 11. Father is agreeable to place Josh in a rehabilitation setting appropriate to Josh's condition and is also agreeable to home based services at his residence, the home where Josh grew up. 12. Father has expressed a willingness to learn the proper care techniques and has been in contact with Fox's social services department regarding the appropriate waivers available for Josh's care. 13. It is also Petitioner's belief that Father has spoken to his sister, Josh's aunt, who resides locally and able to assist in caring for Josh should Father or home care services be unavailable. 14. Petitioner has analyzed and reviewed alternate pathways, however has determined that a substitution of Guardian of the Person and Estate is the least restrictive means possible. 15. Petitioner proposes father, Steven Bergey, as substitute Guardian of the Person and Estate. Attached hereto as Exhibit "B" is consent of Mr. Bergey as guardian of the Person and Estate. 16. Mr. Bergey does not have any adverse interest to the incapacitated person and thus does not present a situation that generally would require imposition of a bond. 17. Petitioner also requests that Ms. Simes-Bergey file an inventory and accounting by the time of the review hearing in order to assist the proposed substitute guardian in managing the incapacitated person's affairs. WHEREFORE, Petitioner respectfully requests that this Honorable Court issue a Citation, directed to the incapacitated person, with notice thereof to be given to his next of kin, his current Guardian, Jessica Simes-Bergey, to the trustee of his special needs trust, Matthew Menges, Esq., and to such other persons as this Court may direct, to show cause why a Review Hearing should not be held for STEVEN JOSHUA BERGEY, why STEVEN BERGEY should not be substituted as Guardian of the Person and Estate for the incapacitated person, and why Jessica Simes-Bergey should not provide an inventory and accounting to the Court by the time of the hearing. Respectfully submitted, HYNUM / 1 a� -iy - Eric J. Bia s, squire Pa. Supreme Court I.D. No. 312326 Hynum Law 2608 North 3rd Street Harrisburg, PA 17110 (717) 774-1357 office (717) 774-0788 fax Ebialas a hYnumpacom Attorney for Petitioner i i VERIFICATION I f / I, wsLPu X am an authorized representative of Fox Subacute., Petitioner,in this matter, and do hereby verify that the facts contained in the foregoing Petition are true and I correct to be best of my knowledge,information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unswom falsification to authorities. Dated: 9 I of hl nt . .,�-�. . iii Tastlrno 0 n wherot, hef u o sat mil hand and rre seal Of said ourt a,C?di ie,PA Thfa of 0 \ rk othfl O hoes COUN i IN THE COURT OF COMMON PLEAS OFcno a CUMBERLAND COUNTY,PENNSYLVANIA n� o ORPHANS' COURTDIVISION ��LF --ti_ In Re: No. 21-10• iD Steven Joshua Bergey _ T; Alleged Incapacitated Person c • FINAL DECREE I -5-- AND NOW,tins 2�n d J day of ©c�obe r 2r10,based upon the evidence i received and the record,this court finds,by clear and convincing, vidence„that Steven Joshua Bergey is adjudged a totally incapacitated person. i The court finds that Steven Joshua Bergey suffers fto�a traumatic brain injury,a condition or disability that totally impairs his capacity to re�eive and evaluate information effectively and to make and communicate°decisions cone is management of financial affairs or to meet essential requirements for h/plepermanent health aad safety. Jessica E. Bergey is hereby appointed guardian of the PERSON of Steven Joshua Bergey. This Guardian of the Pall file a report on the social,medical and other relevant conditions as required by. Stat.Ann. Section 5521(C). Jessica E. Bergey is hereby appointed plenary permanent guardian of the ESTATE of Steven Joshua Bergey. This guardian of the ESTATE shall not post a court approved bond and r , I I. . 1. shall file a report within ninety days and annually thereafter.These reports shall comply with 20 Pa. Cons. Stat.Ann. Section 5521(C). J The guardian of the PERSON shall have authority and responsibility to decide where I Steven Joshua Bergey shall live and how meals,personal care,transportation and recreation will be provided.The guardian of the PERSON shall also have the authority to authorize and consent to medical treatment and surgical procedures necessary for the well being of Steven Joshua J Bergey.The guardian of the PERSON and the guardian of the ESTATE shall cooperate to I prepare a budget to cover the cost of providing the aforementioned services to the person of Steven Joshua Bergey. The guardian of the ESTATE shall have authority and responsibility to manage and use Steven Joshua Bergey's property primarily for his benefit and secondarily for the benefit of his legal dependents in accordance with 20 Pa. Cons. Stat.Ann. Section 5536(A). 20 Pa.Cons. Stat. Ann. Section 5536(A)authorizes the guardian of the ESTATE to spend income for the aforesaid purposes without the court's written approval,however,the guardian cannot spend principal assets without written court approval. The aforementioned judicial determinations have taken into consideration the matters required by 20 Pa. Cons. Stat.Ann. Section 5512.1. The court's findings of fact and conclusions of law have been placed on the record at the evidentiary hearing, BY THE COURT, ' - J. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION O.C. NO. 21-10-0958 IN RE: STEVEN JOSHUA BERGEY AN INCAPACITATED PERSON ACCEPTANCE OF PROPOSED SUBSTITUTION OF PLENARY GUARDIAN OF THE PERSON AND ESTATE I, Steven Bergey, proposed substitute plenary guardian of the Person and Estate of Steven Joshua Bergey, the incapacitated person, agree to accept said appointment and aver that: 1. I am the father of the incapacitated person. 2. 1 reside at 40 Bennett Street, Bethel, PA 19507. 4. As proposed substitute guardian, I speak, read, and write the English language. 5. As proposed substitute guardian, I do not have any interest adverse to the incapacitated person. in DATED: I Ix-o/f� - STEVEN BERGEY