HomeMy WebLinkAbout02-23-15 Rhoads&Sinon LLP
By: Scott Alan Mitchell
Attorney ID No. 76124
One. South Market Square, 12`h Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
Phone: (717)231-6602 '"'�'
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Facsimile (717)260-4402 � s.,r-, :-�� r-�,.i
E-mail: smitchell@rhoads-sinon.com �� � -� i�°� c-�
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IN RE: : IN THE COURT OF COMMON PEAS,_
: CUMBERLAND COUNTY, PEN1�IS;YL�{#�NIA.. - ;
JILL R. HERMAN : � „
: ORPHANS' COURT DIVISIQN �, �..,
An Alleged incapacitated Person : � ''
: No. � � - 15 - Dzo�
PETITION FOR APPOINTMENT OF PLENARY GUARDIANS
OF THE PERSON AND ESTATE OF JILL R. HERMAN
TO THE HONORABLE JUDGES OF THE SAID COURT:
The Petition of Alan H. Herman and Deborah K. Herman by and through their
counsel, Scott Alan Mitchell, Esquire, of Rhoads & Sinon LLP, respectfully represents the
following:
1. Petitioners are Alan H. Herman and Deborah K. Herman, adult individuals
residing at 870 Crooked Stick Drive, Mechanicsburg, PA 17050, who are the parents of Jill
R. Herman, the alleged incapacitated person.
2. The alleged incapacitated person is Jill R. Herman ("Jill"), who is the daughter of
Petitioners and resides with Petitioners in their home at 870 Crooked Stick Drive,
Mechanicsburg, PA 17050.
3. Jill is 37 years of age, having been born January 4, 1978.
4. Jill suffers from Severe Genetic Developmental Brain Disorder (Trisomy 14
Mosaic); Pervasive Developmental Delay— not otherwise unspecified (PDD/NOS);
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Semantic Pragmatic Language Disorder (SPLD); Intellectual Disability (with an iQ of 54);
Congenital Cardiac Defect (IVSD); Autism Spectrum Disorder (ASD); and Obsessive
Compulsive Disorder (OCD).
5. Jill is able to count to 10, but she otherwise cannot do basic math and has no
sense of monetary values or financial matters, and she has no ability to handle monetary
transactions.
6. Although Jill understands very basic personal hygiene, she has no ability to
select proper clothing based upon weather conditions, nor does she have the ability to
determine whether or when to seek medical assistance involving health care matters.
Additionally, Jill does not have the ability to distinguish between a trustworthy person and
an individual who may want to take advantage of her or do her harm.
7. Jill is under the care and treatment of numerous medical professionals.
However, since April 2012, Jill and her family have attended the same church as Dr.
Gregory J. Moore, and Dr. Moore has become a family friend of Petitioners and Jill, and Dr.
Moore sees Petitioners and Jill at church and church-related functions on a weekly basis.
8. Attached hereto as Exhibit "A" and incorporated herein by reference is a
Deposition of Individual Qualified in Evaluation of Incapacitated Person, which has been
completed and verified by Dr. Moore. The deposition questionnaire is being presented to
the Court in lieu of a formal deposition transcript.
9. Because of Jill's mental and physical condition, as outlined further in Exhibit "A,"
it is believed and therefore averred by Petitioners that Jill is an incapacitated person within
the meaning of Chapter 55, Subchapter A, Section 5501 of the Probate, Estates and
Fiduciaries Code, in that her ability to receive and evaluate information effectively and
communicate decisions in any way is impaired to such a significant extent that she is totally
unable to manage her financial resources or to meet essential requirements for her physical
health and safety.
10. Jill's income currently consists of approximately $641.00 per month from
Supplemental Security Income (SSI) payments.
11. Jill's assets consist of miscellaneous personal property of nominal value.
12. Jill's next of kin consists of her parents, the Petitioners, and the following adult
siblings:
a. Adam M. Herman (brother) - 400 Chestnut Street, West Fairview, PA
17025; and
b. Bethany J. Isabell (sister) - 1715 Broad Street, Perkasie, PA 18944.
13. Jil� has never been a member of the Armed Services of the United States and is
not receiving any benefits from the United States Veteran's Administration or its successor.
14. Jill has previously executed a Financial Power of Attorney and Durable Health
Care Power of Attorney, but as a result of Jill being older and having more times of
independence in group home and other environments, and because Jill is susceptible to
being victimized by designing persons, Petitioners believe that a guardianship would
provide more protection for Jill's person and estate than the exiting powers of attorney.
15. Due to the condition set forth above, Jill is totally unable to manage or even
appreciate the significance of her financial affairs, property and business and to make and
communicate any decisions relating thereto, including the ability to communicate her need
for assistance in these areas.
16. Due to the severity of the condition set forth above, Jill lacks the ability to make
or communicate any responsible decisions concerning her person and is unable to attend to
her personal safety or to keep herse�f properly nourished, hydrated and medicated, or to
communicate to others her need for assistance in these areas.
17. Due to the severity of the diagnosed condition set forth above, the assistance of
other persons or services would not enable Jill to participate in the making of any decisions
concerning her estate or person.
18. The severity of the diagnosed condition of Jill requires that a plenary guardian
be appointed to manage the estate of Jill. Said guardian should be appointed to manage
and handle all aspects of her estate, specifically including, but not limited to: all issues
relating to her cash, checks in any bank or savings account held in her name, her stocks
and bonds, her personal property, her real estate, her life and other insurance of which she
is an owner or a beneficiary; her entitlement to any government or non-government benefit
plans, federal, state and local taxes, trust accounts of which she is a beneficiary, claims
made or to be made on her behalf or against her, the execution of documents, the entry into
contracts affecting her and the payment of reasonable compensation or costs to provide
services to her.
19. Less restrictive alternatives, other than the appointment of a plenary guardian
of her estate, have been considered but determined not to be viable alternatives. Petitioners
therefore believe that the best interests of Jill and her estate are not being provided for at
this time and wilt not be provided for absent the appointment of a guardian of her estate.
20. In the alternative, Petitioner request the Court to appoint a limited guardian of
the estate for the following purposes:
a. To execute documents or enter into contracts affecting her physical and
neurological health care and treatment;
b. To pay reasonable compensation or costs to provide services to her; and
c. To receive and pursue any income or benefits to which she is entitled and
to use such funds for the payment of her bills.
21. The severity of Jill's mental condition, as stated above, mandates that a plenary
guardian of her person be appointed to handle all issues relating to the person of Jill R.
Herman, the alleged incapacitated person, specifically including, but not limited to: her living
arrangements, her medical and neurological care, the administration of inedication to her
and the employment and discharge of physicians, neurologists, dentists, nurses, therapists
and other professionals for her physical and neurological treatment and care.
22. Less restrictive alternatives, other than the appointment of a plenary guardian
of her person, have been attempted but determined not to be viable alternatives. Petitioner
therefore believe that the best interests of Jill and her person are not being provided for at
this time and will not be provided for absent the appointment of a guardian of her person.
23. In the alternative, Petitioner request the Court to appoint a limited guardian of
the person with powers that correspond to Jill's degree of incapacity and, at a minimum, for
the following purposes:
a. To make decisions regarding her living arrangements and level of care,
designating the place for her to live;
b. To make decisions regarding her medical and neurological care;
c. To handle all issues relating to the administration of inedication to her; and
d. To handle all issues relating to the employment and discharge of
physicians, neurologists, nurses, therapists, and other health care professionals for
her physical and neurological treatment and care.
24. The proposed guardians of the person and estate of Jill are her parents, Alan H.
Herman and Deborah K. Herman, and her siblings, Adam M. Herman and Bethany J.
Isabell.
25. The proposed guardians are qualified individuals pursuant to 20 Pa.C.S.A. §
5511(fl . The proposed guardians do not have any adverse interest to Jill and copies of
their Consents to serve as guardians of Jill's estate and person are attached to and
incorporated herein by reference.
26. No other Court has ever assumed jurisdiction in any proceeding to determine
the capacity of the alleged incapacitated person nor has a guardian already been appointed
for Jill.
WHEREFORE, the Petitioners, Alan H. Herman and Deborah K. Herman, pray that a
Citation be issued and directed to Jill R. Herman, the alleged incapacitated person, to show
cause why she should not be adjudged a totally incapacitated person and Alan H. Herman,
Deborah K. Herman, Adam M. Herman, and Bethany J. Isabell appointed permanent
plenary guardians of her person and estate.
Respectfully submitted,
Rhoads & Sinon LLP
, , �Dated: � _,< <� ----_
By: --�,
Scott Alan Mitch�
Atty. I.D. #76124
One South Market Sq., 12t" Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 231-6602
Attorneys for Petitioners
Exhibit "A"
IN RE: JILL R.HERMAN
DEPOSITION BY INDIVIDUAL QUALIFIED IN EVALUATION OF
INCAPACITATED PERSON
The deposition of Crregory J. Moore MD, PhD, a witness in this matter, made on the 31 st
day of January, 2015, at Hummelstown,Pennsylvania.
1. What is your name and professional address?
a. My name is Dr. Gregory J. Moore, and my professional address is:
Geisinger Health System
100 N. Academy Ave MC 44-00
Danville, PA 17882
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.
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b. My special qualifications and training with respect to evaluating persons with
incapacities consists of:
As detailed in my curriculum vitae (attached), prior to my current position at
Geisinger Health system I was a tenured Professor at Penn State University
College of Medicine in the Department of Psychiatry and Behavioral
Neurosciences in Hershey, PA and prior to that at in the Department of
Psychiatry and Behavioral Neurosciences at Wayne State University School
of Medicine in Detroit, MI. A significant part of my 20+ year medical
research career has involved the evaluation of children and adults with a
variety of developmenta.l and behavioral disorders correlating clinical
evaluations associated with diagnosis and treatment response with changes in
the brain utilizing advanced brain imaging techniques including MRI. I have
published my research findings extensively in peer reviewed medical journals
including Lancet, Biological Psychiatry, American Journal of Psychiatry,
Journal of Child and Adolescent Psychiatry, Neuroimage, Behavioural Brain
Research, and others.
3. In what states are you licensed to practice medicine?
I am licensed to practice medicine in the State of Pennsylvania as a Physician
and Surgeon Medical License # MD437137 Exp 12/31/2016 (copy of license
attached)
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 Jill R. Herman and if so, upon what occasions and in what
fashion have you been able to do so?
a. I first become acquainted with Jill R. Herman the month of Apri12012, when
she was brought to my attention by means of regular weekly engagement with
Jill and her family at weekly Sunday School and church worship at Trinity
Presbyterian Church in Harrisburg, PA. I ha.ve since that time had the
pleasure to interact with Jill regularly in weekly church activities and other
fellowship times with an average frequency of four times per month.
5. To a reasonable degree of inedical certainty, do you have an opinion as to whether
the ability of Jill R. Herman to receive and evaluate information effectively and to
communicate decisions is in any way impaired to such significant extent that she
is:
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or
b. Totally unable to manage her financial resources.
Yes, It is my professional opinion is that Jill is totally unable to manage her
financial resources. While Jill is able to count to ten; she has no sense of
monetary values; cannot do simple math; and other than knowing that she needs
money to purchase things, she has no ability to responsibly handle a monetary
transaction.
6. To a reasonable degree of inedical certainty, do you have an opinion as to whether
the ability of Jill R. Herman to receive and evaluate information effectively and to
communicate decisions is in any way impaired to such significant extent that she
is:
��
or
b. Totally unable to meet essential requirements for her physical health and
safety.
It is my professional opinion that Jill is totally unable to meet essential
requirements for her physical health and safety secondary to her significant
array of congenital, mental, physical and emotional deficits (detailed below).
For example Jill is unable to take her required medicines properly on her own
(requires close supervision and assistance) and has no sense of dietary balance
or needs. Further, Jill has no ability to select proper clothing for weather and
no ability to determine if/when to seek medical assistance. Additionally she
does not have the ability to distinguish a trustworthy person from someone
who may want to take advantage of her or to do her harm.
7. Please describe the type and severity of any impairments of Jill R. Herman?
The impairments of Jill R. Herman are as follows:
Impairment
Severity (Circle one)
a) Severe Genetic Developme rain Disorder(Trisomy 14 Mosaic)
none mild moderate severe
b) Pervasive Developmental Delay—not otherwise unspecified(PDDlNOS)
none mild moderate severe
c) Semantic Pragmatic Language Disorder(SPLD)
none mild moderate severe
d) Intellectual Disabi '
none mild moderate severe
e) Congeni ardiac Defect(IVSD)
none mil moderate severe
� Autism Spect�er(ASD)
none mild moderat severe
g) Obsessive Compu ' isorder(OCD)
none mild moderat severe
h) Impaired Cognition (particularly with respect to sensing danger to hersel�
Notably, Jill has no sense of stranger danger, no sense of personal safety [e.g.,
crossing streets, etc], and noC-�appropriate boundaries.
none mild moderate severe
i) Osteoporosis
none mild moderate severe
8. To a reasonable degree of inedical certainty, can you express an opinion as to
whether Jill R. Herman is partially or totally unable to manage her financial
resources?
a. The ability of Jill R. Herman to manager her financial resources is impaired
(��* �* �", ���*��"�•,totally)as follows:
Yes, It is my professional opinion that Jill is totally unable to manage her
finance resources secondary to her various impairments. (as further detailed in
in item 5 above).
9. To a reasonable degree of inedical certainty, can you express an opinion as to
whether Jill R. Herman is able to meet essential requirements for her physical
health and safety?
a. The ability of Jill R. Herman to meet essential requirements for her physical
health and safety is impaired(�e���t�;totally) as follows:
It is my professional opinion that Jill is totally unable to manage her physical
health and safety secondary to her various impairments. (as detailed above in
item 6 and secondary to impairments detailed in item 7 ).
10. Can you please evaluate the present condition of Jill R. Herman with respect to
incapacities of the iype 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 Jill
R. Herman,her adaptive behavior, and her social skills?
a. Based upon my education, training and experience, as well as my
acquaintance with Jill R. Herman, as stated above, it is my opinion that her
incapacities and disabilities are:
Severe Genetic Developmental Brain Disorder (Trisomy 14 Mosaic);
Pervasive Developmental Disorder (PDD/NOS); Language Disorder (SPLD);
Intellectual Disability; Congenital Cardiac Defect (IVSD); Autism Spectrum
Disorder, OCD, and Impaired Cognition.
b. Her mental condition:
Intellectual Disability; Moderate Level of Mental Retardation (IQ= 54);
Significantly impaired cognition with very poor adaptive skills, thus requiring
very close supervision. She carries the diagnoses of PDD/NOS, ASD and
OCD as detailed above.
c. Her emotional and physical conditions are:
PHYSICAL: Congenital Cardiac Defect (IVSD); Osteoporosis; Severe
Genetic Developmental Brain Disorder (Trisomy 14 Mosaic), Language
Disorder which causes communication difficulty.
EMOTIONAL: Autism Spectrum Disorder resulting in a variety of autistic
behaviors; OCD which manifests as perseveration&repetitive behaviors.
11. Is the condition of Jill R. Herman such as would make her susceptible to be taken
advantage of by unscrupulous or designing persons?
a. Her adaptive behavior is:
Jill's adaptive behavior is significantly impaired. Jill will walk into any/every
situation without any discernment regarding personal safety. Jill is extremely
trusting, therefore susceptible to being taken advanta.ge of by unscrupulous or
designing persons.
b. Her social skills are:
Jill is extremely friendly, social, verbal, and gregarious young woman.
However she has difficulty with conversations because of her language
disorder (SPLD) and her interactions can also be impaired at times by her
autistic behaviors as well as her OCD. She is lacking of stranger awareness
and appropriate boundaries as a result of her intellectual disabilities and
impaired cognition.
12. What recommendations would you make concerning services necessary to meet
the essential requirements for the physical health and safety of Jill R. Herman?
a. I would recommend that her physical health and safety be protected by
A legal guardianship on the part of her immediate family members, who are
well-aware of Jill's multiple impairments and disabilities as outlined above. It
is my opinion that her immediate family members are the most knowledgeable
about the best ways to help Jill effectively negotiate her activities of daily
living.
13. What recommendations would you make concerning management of the financial
resources of Jill R. Herman?
a. I would recommend the following:
That Jill's father and mother be entirely responsible for handling Jill's
finances.
14. What recommendations would you make concerning the development or
regaining of physical or mental abilities of Jill R. Herman?
a. I would recommend the following:
Jill's severe intellectual disability, various impairments and conditions
described above are a result of the severe genetic developmental brain
disorder that she was born with (Trisomy 14 Mosaic). Her intellectual and
developmental status is static and her associated conditions are chronic with
no reasonable expectation of resolution or improvement. I recommend
parental supervision, along with the supervision provided by PA MHIDD
resources; community habilitation aids; regular participation in weekly gym
activities; social activities; and full engagement with her local church
activities.
15. What types of assistance do you think are required by Jill R. Herman?
a. I believe she needs assistance with the following:
Family and/or social agency assistance with all items as detailed above in
section 14 and to include activities of daily living and finances as previously
described.
16. Why is it no less restrictive alternatives would be appropriate?
a. Less restrictive alternatives would not be appropriate because Jill does not
demonstrate the intellectual capacity to make safe and sound and discerning
decisions for herself.
17. What is the probability that the extent of incapacities of Jill R. Herman may
significantly change?
a. In my judgment, and based upon my experience, training and acquaintance
with Jill R. Herman, I believe the probability that her incapacities may
significantly lessen or change is:
Jill's significantly impaired intellectual and developmental status is static and her
associated conditions are chronic with no reasonable medical expectation of
resolution or improvement. There is essentially no probability that her disabilities
and related conditions will resolve or lessen. There is a small probability that Jill's
disability and related chronic conditions may gradually worsen as she grows
older.
18. Would the physical or mental condition of Jill R. Herman be harmed by her
presence in open court?*
a. I believe that the presence of Jill R. Herman in open Court would not be
harmful to her because Jill demonstrates some capacity to understand and will
likely be able to give some answers to questions regarding her routines and
needs. She will likely have some anxiety prior to and during the proceedings,
however it is my professional opinion that this will not cause significant harm
to her mental or physical condition.
*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 hartned
by his/her presence.
VERIFICATION
I, Gregory J. Moore MD, PhD, 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.
Dated: January 31, 2015 �� � > �'
Sig
Exhibit "B"
IN RE: : IN THE COURT OF COMMON PEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
JILL R. HERMAN :
: ORPHANS' COURT DIVISION
An Alleged Incapacitated Person :
; No. - 15 -
CONSENT OF PROPOSED PLENARY GUARDIAN
OF THE PERSON OF JILL R. HERMAN
I, Alan H. Herman, proposed Guardian of the Person and Estate of Jill R. Herman,
the alleged incapacitated person, agree to accept the appointment as permanent Guardian
of the Person and Estate and aver that:
1. I am the father of Jill R. Herman, the alleged incapacitated person.
2. I reside at 870 Crooked Stick Drive, Mechanicsburg, PA 17050.
3. I certify that I speak, read and write the English language.
4. I have no interest adverse to the alleged incapacitated person.
5. 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 I am not the
surety, or an officer or employee of the corporate surety, of such fiduciary.
. �/ I �� . �����► •
Date. I
Alan H. Herman
IN RE: : IN THE COURT OF COMMON PEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
JILL R. HERMAN :
: ORPHANS' COURT DIVISION
An Alleged Incapacitated Person :
: No. - 15 -
CONSENT OF PROPOSED PLENARY GUARDIAN
OF THE PERSON OF JILL R. HERMAN
I, Deborah K. Herman, proposed Guardian of the Person and Estate of Jill R.
Herman, the alleged incapacitated person, agree to accept the appointment as permanent
Guardian of the Person and Estate and aver that:
1. I am the mother of Jill R. Herman, the alleged incapacitated person.
2. I reside at 870 Crooked Stick Drive, Mechanicsburg, PA 17050.
3. I certify that I speak, read and write the English language.
4. I have no interest adverse to the alleged incapacitated person.
5. 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 I am not the
surety, or an officer or employee of the corporate surety, of such fiduciary.
/ ,�/
Date: � � �� _(��1����- f� Llf%G-�y 1� ��
Deborah K. Herman
IN RE: : IN THE COURT OF COMMON PEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
JILL R. HERMAN :
: ORPHANS' COURT DIVISION
An Alleged incapacitated Person :
: No. - 15 -
CONSENT UF PROPOSED PLENARY GUARDIAN
OF THE PERSON OF JILL R. HERMAN
I, Bethany J. Isabell, proposed G�ardian of the Person and Estate of Jill R. Herman,
the alleged incapacitated person, agree to accept the appointment as permanent Guardian
of the Person and Estate and aver that:
1. I am the sister of Jill R. Herman, the alleged incapacitated person.
2. I reside at 1715 Broad Street, Perkasie, PA 18944.
3. I certify that I speak, read and write the English language.
4. I have no interest adverse to the alleged incapacitated person.
5. 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 I am not the surety, or
an officer or employee of the corporate surety, of such fiduciary.
.
Date: ��-I � � ��(� �
B thany J. Isabell
IN RE: : IN THE COURT OF COMMON PEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
JILL R. HERMAN :
: ORPHANS' COURT DIVISION
An Alleged Incapacitated Person :
: No. - 15 -
CONSENT OF PROPOSED PLENARY GUARDIAN
OF THE PERSON OF JILL R. HERMAN
I, Adam M. Herman, proposed Guardian of the Person and Estate of Jill R. Herman,
the alleged incapacitated person, agree to accept the appointment as permanent Guardian
of the Person and Estate and aver that:
1. I am the brother of Jill R. Herman, the alleged incapacitated person.
2. I reside at 400 Chestnut Street, West Fairview, PA 17025.
3. I certify that I speak, read and write the English language.
4. I have no interest adverse to the alleged incapacitated person.
5. 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 I am not the
surety, or an officer or employee of the corporate surety, of such fiduciary.
Date: � a f�
Adam M. er an
VERIFICATION
The Undersigned hereby verifies that the statements made in the foregoing
document are true and correct to the best of my knowledge, information and belief. I
understand that false statements herein are made subject to penalties of 18 Pa.C.S.
Section 4904, relating to unsworn falsification to authorities.
Dated:
,� �� �.� �1 /����'/��� .
Alan H. Herman
� �� '
Dated: � � ���'�ll��.. � /������»��'Ci�-
Deborah K. Herman