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HomeMy WebLinkAbout04-25-78 (2) II , II IN RE: ESTATE OF In the Court o~ Co~on Pleas of Cumberland County, Pennsylvania I JACOB HENRY MILLER, " An Alleged Incompetent Orphans' Court Division No. 121 Orhapns' 1978 MEMORANDUM ON BEHALF OF JA,COB HENRY MILLER, SR. I. FACTS Jacob H. Miller, Sr. resides at R. D. 4, Mechanicsburg, Pennsylvania on a 167 acre farm where he has ~armed the property since the mid 1940's. Mr. Miller and his wife had two children, Harold A. Miller and Jacob H. Miller, Jr. Mrs. Miller, the wife, passed away several years ago. Mr. Miller up to the present time continues to do some farming at his farm and is currently actively managing his own af~airs. In October of 1977 the sons had Mr. Miller hospitalized at the Holy Spirit Hospital. A~ter receiving treatment, the sons expressed a desire that Mr. Miller be taken to a nursing home rather than his own home. He was subsequently taken to the Camp Hill Nursing Home. Mr. Miller became upset when he was hospitalized at the Holy Spirit Hospital and even more upset when he was placed in the Camp Hill Nursing Home. It had been his desire throughout to return to his farm and to continue to manage his own affairs. While Mr. Miller was in the Holy Spirit Hospital, his sons apparently had him sign a power of attorney to Jacob H. Miller, Jr. to manage the affairs of his father. When Mr. Miller returned home, he found money and other items missing from his home and upon learning of the power of attorney, he immediately had it revoked. Several months have passed and Mr. Miller has competently managed his own affairs and run his farm. He has become upset with the action of his sons who returned some of the money they had taken while he was in LAW OFFICES o1ANCKE &: LlGHTMAN the hospital. 6UIT~ 1010 P..VNE..HOE.....I<ER BUIl.DING I-lARRISBURG. P.... 17108 LAW OFFICES MANCKE &: LiGHTMAN SU.TE,QIO PAYNE.SHO[MAo;(R BU'LO'NG HARRISBURG. PA. 1710B " II 'I For reasons known only to themselves, Mr. Miller's sons have now petitioned the Court to have him declared incompetent. Numerous witnesses, including an expert medical witness, will testify on behalf of Mr. Miller and will testify as to his competency and his continued ability to manage his own affairs. II. LEGAL PRINCIPLES 1. Jacob H. Miller, Sr. is presumed competent and the burden of proving otherwise rests with the petitioners. ~,Myer's Estate, 395 Pa. 459 (1959). Jacob H. Miller, Sr. is presumed competent. As noted by the Pennsylvania Supreme Court in construing previous but similar statutory language: . . . the proof of mental incapacity must clearly meet the terms of the law before any persons should be deprived, under it, of the right to manage his or her own property. The presuDlption of sanity and mental capacity cannot be lightly overthrown. McGuigan Estate, 349 Pa. 581 at 589 (1944). In Estate of Porter, 463 Pa. 411 (1975), the Supreme Court discussed the burden of proof which would apply to the instant case. In the Porter case, the Supreme Court reversed a lower court which had refused to order that the appellant was competent after a previous determination of feeb1e- mindedness.l The court also discussed the standard of proof applicable to the petition in the present case. The court noted: Proof of mental incompetency must possess such strength and clarity as to lead incontestably to but one conclusion, to wit, that respondent is mentally incompetent. A finding of mental incompetency is not to be sustained simply if there is any evidence of such incompetency but only where the evidence is preponderating and points unerringly lThe case involved an estate valued at about $250.000. -2- LAW OFFICES V1ANCKE Be LlGHTMAN SU,TE1010 P......NE..HOE"'...KER BUILDING HAIUllSIIURG, PA.. 17108 II II to mental incompetency. If the finding of mental incompetency i~ not ba~ed on evidence of ~uch quality then ~uch finding amount~ to an abuse of judicial di~cretion. 463 Pa. at 416 citing Myer'~ E~tate, 395 Pa. 459 (1959). The te~timony will reveal that the burden of proof ha~ not been met by the pet1tioner~ and mu~t be dismissed. 2. Testimony of lay witnesses is admissible on the issue of competency. See, Owens Appeal, 167 Pa. Super. 10 (1950). --- Jacob H. Miller, Sr. will present numerous lay witnesses who will unequivocally indicate that Jacob H. Miller, Sr. is fully competent to handle his own affairs. Many of these witnesses are totally impartial and stand nothing to gain from their testimony. The witnesses will include businessmen, a lawyer, a real estate agent, friends and neighbors. Their conclusions will be supported by a psychiatrist and by Jacob H. Miller Sr. In Owens Appeal, 167 Pa. Super. 10 (1950), the Superior Court disregarded the testimony of a physician and reversed a lower court which had declared the appellant to be incompetent. The Superior Court noted: It i~ a serious thing to deprive any person of the control of their own property or of their right to dispose of it by will. This right will be judicially taken away from a person only after preponderating proof of his lack of mental capacity to manage his own busine~s affairs. (Emphasis added.) A lay witness may testify to the mental condition of a person when the facts upon which the opinion is based are stated. Rouch v. Zehring, 59 Pa. 74; Dickinson v. Dickinson, 61 Pa. 401. 167 Pa. Super. 10 at 14, 17. -3- LAW OFFICES v1ANCKE & L1GHTMAN 5u,rEIO'O PAVNE.SHOEMAKE" eUILD'Na HARRISBURG. PA. 1710B I' II II 3. The testimony of the petitione. and other should be scrutinized carefully by the court. Denner v. Beye., 352 Pa. 386 (1945). relatives ~, A court should scrutinize the evidence carefully and determine the true motives of the petitioners. It is believed that the court will conclude: The record gives the impression that the motive for the petition was not so much to conserve the respondent's property as to channel its inheritance to the next of kin. Denner v. Beyer, 352 Pa. 386 (1945); ~ also, Axe Estate, 34 D & C 2d 625 (1964) . 4. The testimony will indicate that the petitioners have failed in their burden of proof. In Re Porter's Estate, 463 Pa. 411 (1975). The petition filed contains absolutely no facts to support its conclusiona'Y allegation.2 The evidence, however, will reveal that Jacob H. Mille., Sr., age 85, is fully competent to handle his own affairs. The only possible suggestions to the contrary come from persons who have an interest in the outcome of the case. Unfortunately, the sons of Jacob H. Miller, Sr. took it upon themselves to admit Jacob H. Miller Sr. to the Holy Spirit Hospital on or about October 15, 1977. He was admitted with "shortness of breath, bad cold syndrome, probable pneumonitis". He became very upset when he realized that it was his family's plan to transfer him to a nursing home rather than permit him to go home. He 2The petition is based on the conclusion that the alleged incompetent is unable to manage his property because of infirmities of old and physical illness. It should be noted that physical illness is not even included as a reason for incompetency in the statute. See, 20 Pa. Stat. Ann. ~550l. See Owens Appeal, 167 Pa. Super. 10 (1950). - -4- L.AW OFFICES V1ANCKE Be LlGHTMAN SUFTt'OIO P.....NE..HOE......,ER BUILOINU HARRISBURG. PA. 17108 .. II was eventually transferred to the Camp Hill Nursing Home. He then secured his release fr~ the nursing home and returned to his farm. H~ learned that while he was in the hospital, he apparently signed a power of attorney giving 3acob H. Miller, Jr., power of attorney. This power of attorney was dated October 26, 1977 and was apparently signed at the Holy Spirit Hospital.3 Upon learning of the existence of the docu~ent, he i~ediately had it revoked. The power of attorney was apparently drawn up at the request of Jacob H. Miller, Jr. and witnessed by Harold A. Miller, the other son. The existence of the power of attorney certainly indicates that the very persons who now atte~pt to show incompetency, only several ~onths ago had Jacob H. Miller Sr. sign a legal document. Jacob H. Miller Sr. acted properly in revoking the power of attorney after leaving the Camp Hill Nursing Home. While Jacob H. Miller, 3r. had access to the accounts, he cashed in a savings certificate which lost several hundred dollars for Mr. Miller. When Jacob H. Miller Sr. returned home from the nursing home, he also found things missing from the home including his legal documents. In Denner v. Beyer, 352 Pa. 386 (1945), the court indicated that a revocation of a power of attorney under si~lar circumstances was proper. The court noted at page 397: Her revocation of a power of attorney given her brother-in-law, from whose home she had been eyicted, and the ~ecution of a power of attorney in fayor of her trusted friend, who was her husband's counsin, was likewise reasonably called for under the circumstances. Instead of e~hibiting the vacillation characteristic of weakness of mind, she e~hibited the decision characteristic of strength of mind. 30n that date, the medical records reveal that Mr. Miller was extremely upset and under medication. -5- \\ I I !! II ii . The petitioners apparently realize that their ~ather is extremely upset with his sons for atte~pting to keep him in a nursing home away ~rom his farm. Apparently they have attempted to show that because Jacob H. Miller, Sr. is suspicious of them, this proves incompetency. Those suspicions are well founded and do not suggest incompetence. In determining that a person was competent the court in a similar case noted: On the witness stand Aaron D. Weaver testified lucidly. He knew his relatives, his property. Although eighty-five years of age, he was of clear intellect. He seemed suspicious and is displeased with his son, and the other members of the family, and does not trust them. Part of this distruct, however, comes from the fact that a petition to declare him feeble minded has been lodged by the son. In Re Weaver, 3 Lyc. 191 (1952). It is doubtful that the petitioners will produce expert medical testimony to support their position. If, however, the petitioner uses the doctor who treated Jacob H. Miller, Sr. in the hospital, his testimony should be disregarded or treated lightly.4 See Owens Appeal, 167 Pa. Super. 10 (1950); Ex parte v. Gunn, 65 Mont. L.R. 167 (1949). The only other factor which the petitioners may raise is the fact that a sale of real estate of Jacob H. Miller, Sr.'s farm is imminent. That sale, however, was the rpsult o~ careful negotiations in which Jacob H. Miller Sr. participated in with total competence. An attorney, a real estate salesman, and others will support that. The evidence will also show the reason for the sale and fairness of the bargain. Cf., In Re Weaver, 3 Lyc. 191 (1952). The petitioners seem also upset that Jacob H. Miller, Sr. has a housekeeper who is taking care of him. The housekeeper's employment, however, is exactly what was suggested by the nursing home. SL"TI!:'O'O 4Dr. Sullivan's notes on the hospital chart do not suggest incompetenc Several weeks ago, in fact, Dr. Sullivan's office contacted Mr. Miller at home in an attempt to get Mr. Miller into his office "to talk" about the court case. When Mr. Miller inquired "why?", no further contact was pursued by the doctor's o~~ice. When the attorney for Mr. Miller tried to find out w y the doctor called, the doctor offered no explanation. LAW OFFICES vtANCKE Be LlGHTMAN PAVNI!:_SHOI!:"'''KUIIlUILD'NG HARRISBURG. PA. '7,08 -6- . L.AW OFFICES o1ANCKE 6: LlGHTMAN lIu,TEI010 PAYNE.SHOEMAKER lUOLOING HARRISBURG. PA. 17109 II II . " " The biggest fear which the petitioners apparently have is the fact that they might lose their inheritance because of their attempts to keep Jacob H. Miller Sr. in a nursing home against his will. The court, however, should not prevent Jacob H. Miller, Sr. from handling his affairs. If the father wants to change a Will because of what his sons have done to him, he has that right. As noted in Estate of Porter, 463 Pa. 411 at 415 (1975): A ~n ~y do what he pleases with his personal estate during his life. He may even beggar himself and his family if he chooses to commit such an act of folly. When he dies, and then only, do the rights of his heirs attach to his estate. In Axe Estate, 34 D & C 2d 625 at 635 (1964), the court likewise noted: The act is for the protection of the respondent and is not intended to prevent the owner of an estate from doing with his own what he pleases in order that his children may inherit a greater amount. Respectfully submitted, ncke, Esquire for Jacob H. Miller, Sr.