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HomeMy WebLinkAbout06-18-15 IN RE: CALENE M. CLOUSE, IN THE COURT OF COMMON PLEAS an alleged incapacitated person OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION On the Petition of No. 21-2015-0093 J. Edward Clouse , C> �— c� oo CD RESPONSE OF CALENE M. CLOUSE TO MOTION FOR HEARING AND EVALUATION ry r rn 0 G 7 (r) C AND NOW comes Respondent, Calene M. Clouse ("Calene"or"Respondent'),by her attorneys, Saidis, Sullivan&Rogers, and hereby files this Response to Motion for Hearing and Evaluation: 1. It is admitted only that a status conference was held on May 27, 2015. With respect to footnote 1 asserting incorporation of other documents, Respondent hereby incorporates by reference her Answer to Motion for Status Conference. Inasmuch as a hearing stay has been in place pursuant to Order dated March 2, 2015, Respondent has not yet filed a response to the Motion to Adjudicate Incapacitated and Appoint Plenary Guardian. Nevertheless, Respondent denies all conclusions of law and assertions of incapacity set forth therein, does not by virtue of this document admit any fact asserted therein, and will respond more fully if necessary and appropriate at a future time. 2. Denied as stated. Attorney Saidis represented that Calene had executed a Revocable Agreement of Trust in which Tricia D. Naylor, Esq. was named as Trustee ("Revocable Trust") and a Durable General Power of Attorney for Property Management naming Tricia D. Naylor, Esq. as agent ("Power of Attorney"). These documents were both executed on `S� April 22, 2015. Respondent is unaware of any other"new testamentary documents"having been executed. Copies of the Revocable Trust and Power of Attorney were provided to Petitioner's counsel promptly after the status conference. See also response to paragraph 3, below, which is hereby incorporated by reference. 3. Denied. Execution of the Revocable Trust and Power of Attorney,both of which were executed only after receiving an opinion confirming Calene's capacity from her long-time treating psychiatrist, Dr. Moola,has been pursued as an alternative strategy to appointment of a plenary guardian of her person and estate with the goal of promoting Calene's general welfare through the use a less restrictive alternative. Such an approach is wholly appropriate and desirable, particularly in recognition and appreciation that Pennsylvania's guardianship statute, "...which empowers a court to declare an individual mentally incompetent and to place such individual's business affairs in the hands of another for management and care is a dangerous statute easily capable of abuse." Myers Estate, 150 A.2d 525, 526 (Pa. 1959). Further, as reflected in Exhibit A to the Trust Agreement, the Trust has only been funded in the amount of $5,000.00. No other transfers have been made to date. As was discussed at the status conference, counsel is attempting to determine the nature and extent of Calene's interests in various family business entities, and the extent to which governance documents or other considerations would preclude transfer of Calene's ownership interests in these entities to the Revocable Trust. 4. Denied as stated. The opinion of Dr. Moola expressed in his letter dated April 9, 2015 (attached to Petitioner's Motion as Exhibit"A") explains that upon examination on April 3, 2015, Calene was "capable of making decisions affecting her everyday life including financial 2 matters," "had a clear knowledge of the general composition of the property she owns" and, as of that time, was "capable of determining the disposition of her estate and making other financial decisions." Remarkably, Attorney Yahn appears to wholly and improperly discount and disregard the opinion of Calene's treating psychiatrist who has treated her for an extended period of time (at least 7+years), and who based his conclusions upon a personal examination close in time to the time of execution of the Revocable Trust and Power of Attorney, not on the basis of a one-time examination with no prior history with Calene, and not at some distant time in the past. 5. Admitted in part and denied in part. It is admitted that Exhibit`B" appears to be a report submitted to Mr. Yahn by Robert Howse, M.D. This letter—which is undated but appears to have been presented on June 12, 2015 —relates to an evaluation of Calene performed on October 23, 2014, almost eight months ago. The letter does not reflect that Dr. Howse had any prior knowledge of Calene,had ever treated her as a patient, or has had any follow-up with her subsequent to October 23, 2014. 6. Denied. Dr. Howse's letter speaks for itself and Respondent denies the accuracy and completeness of any attempt to describe,paraphrase or selectively cite or quote the contents of the letter. In further response, nevertheless, Respondent denies that Dr. Howse's observations, made approximately six months prior to execution of the Revocable Trust and Power of Attorney, are relevant with respect to the issue of Calene's capacity on April 22, 2015 or currently. 7. Denied. In particular, it is clear from Ex. B that Dr. Howse has not made a"most recent evaluation"of Calene and that his evaluation is based on an examination from October 23, 2014. The relevance and importance of Dr. Howse's conclusions pale in significance to the 3 Apri19, 2015 opinion of Calene's own long-term treating psychiatrist, Dr. Moola. Respondent's responses to paragraphs 5 and 6 are hereby incorporated by reference. 8. Denied as stated. The parties agreed to explore identification of a mutually- agreeable person(whether psychiatrist,psychologist or other credentialed and qualified person was not discussed), and in the absence of agreement would submit alternate names to the Court. No particular timeframe was addressed or established. In particular, counsel for Calene stated that no exigent circumstances existed and there was no compelling reason to rush to a hearing. Further, it is undersigned counsel's recollection that a specific point of discussion and ultimate outcome of the status conference was that July 8, 2015 would not be held as a hearing date. It was further discussed that preparation for a hearing, if one was necessary, would take a longer preparation time. Respondent's counsel also advised that if a non-adjudicated resolution was not possible, that counsel intended to challenge through a motion to dismiss or other preliminary pleading the legal merits of the underlying Petition. In still further response, Petitioner has no right to demand or require an independent evaluation. On the contrary, "the court,upon its own motion or upon petition by the alleged incapacitated person for cause shown, shall order an independent evaluation . . ." 20 Pa. C.S.A. §5511 (d) (emphasis supplied). Thus, only the Court or Calene, for cause shown, can pursue an independent examination, not Petitioner. 9. Admitted in part and denied in part. In an e-mail not sent until late(4:22 p.m.) Friday afternoon, May 29, 2015, Petitioner's counsel forwarded the names of two physicians as suggested candidates to evaluate Calene. Calene's counsel acknowledged receipt of this e- mailed letter in a reply e-mail sent the following Tuesday, June 2, 2015. In further communication,most recently June 8, 2015, Calene's counsel advised Petitioner's counsel that 4 the process of reviewing the two physicians who had been identified was underway, as was the effort to identify potential alternate candidates. Any implication that this matter has been ignored is unfounded. On the contrary,the significant issues affecting Calene's liberty and property interests in these proceedings require careful scrutiny, not a rush to judgment, and despite diligence, Respondent's counsel has not yet been able to identify alternate candidates to conduct an independent examination. Moreover, it is now clear that Petitioner's counsel's attempt at the status conference to offer Dr. Howse as an independent evaluator was wholly disingenuous, given that Dr. Howse had apparently already reached the very conclusion Petitioner advocates. (See Ex. `B"to the Motion for Hearing and Evaluation.) Under these circumstances, Calene vigorously objects to a_y psychiatrist or other person offered by Petitioner to serve as an independent evaluator. 10. Denied. First, July 8, 2015 had not been set aside for a hearing and, on the contrary, it was specifically discussed and concluded at the status conference that the case would not be procedurally ready for a hearing and a hearing would not be held on July 8, 2015. See also response to paragraph 8, which is hereby incorporated by reference. Second, as noted, Petitioner has no right to demand an independent evaluation by anyone, let alone one of the psychiatrists Petitioner nominates. Third, if this matter requires adjudication, the critical issue is not an adjudication by the Court whether Calene is incapacitated,but rather whether it is necessary to appoint a guardian for Calene,particularly a plenary guardian of her person and estate as demanded by Petitioner. Finally, no emergency or exigent circumstances exist, the pleadings are not closed, sufficient time has not been afforded to identify assets and complete implementation of a less restrictive alternative to protect Calene and her interests, and 5 Respondent rejects outright Petitioner's attempts to fast track these proceedings when it is not necessary and not in the alleged incapacitated person's best interests. 11. Admitted. WHEREFORE, Respondent respectfully requests that this Honorable Court deny the Motion for Hearing and Evaluation and allow the parties more time to identify assets and other necessary information. Respectfully submitted, SAIDIS SULLIVAN & ROGERS Dated: June �'Q, , 2015 T�,� Robert C. Saidis Attorney ID. #21458 Daniel L. Sullivan Attorney ID. #34548 26 West High Street Carlisle, PA 17013 Phone: (717) 243-6222 Attorneys for Calene M. Clouse 6 IN RE: CALENE M. CLOUSE, IN THE COURT OF COMMON PLEAS an alleged incapacitated person OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION On the Petition of No. 21-2015-0093 J. Edward Clouse CERTIFICATE OF SERVICE I hereby certify that on this IWA day of June, 2015, a true and correct copy of the foregoing document was served upon the party listed below, via First Class Mail,postage prepaid, addressed as follows: Neil W. Yahn, Esq. 134 Sipe Avenue Hummelstown, PA 17036 SAIDIS, SULLIVAN &ROGERS Phyll McCoy