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HomeMy WebLinkAbout09-14-06 NO. 21-~-0624 r-..,) (2 ~5 IN THE COURT OF COMMON~AS O~ CUMBERLAND COUNTY, PENN~V ~ ORPHANS' COURT DIVISION.:~ 1+1 - Ci) :~ .s:- '-") (."')0'1'. -0 r- :::: :n '-,--1 );> w ::u -T) n.J "'I'~ ~:;.:) CD c-; ::TJ ---10 r "1 fli :;:) CJ ~;)C) )"1"1 --." C'''.} rTl ~2 , , IN RE: JOSEPH MEYERHOFER, AN ALLEGED INCAPACITATED PERSON ALLEGED INCAPACITATED PERSON C> \.P MOTION FOR RECONSIDERATION AND NOW, Lawrence Meyerhofer, by and through his attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, hereby requests that this Court reconsider the order it issued on August 14,2006, naming Kathy Anthony as plenary guardian of the PERSON and ESTATE of Joseph Meyerhofer, and in support thereof avers as follows: BACKGROUND AND INTRODUCTION 1. On or about May 23, 2006, Paul Bailley and Dora Lee Bailley, petitioned this Court to declare Joseph Meyerhofer, their brother-in-law, permanently incapacitated and appoint their daughter, Kathy Anthony (hereinafter "Respondent"), as guardian ofthe PERSON and ESTATE of Joseph Meyerhofer. 2. Larry Meyerhofer (hereinafter "Petitioner"), one ofthe next-of-kin of Joseph Meyerhofer, thereafter sought to be appointed as guardian of the PERSON and ESTATE of Joseph Meyerhofer. 3. A hearing on guardianship was held on August 11,2006. Although the Court adjudicated Joseph Meyerhofer incapacitated, the critical issue presented for the Court to resolve was who should be named as guardian of Joseph Meyerhofer, Petitioner or Respondent. 4. The Court received evidence from both Petitioner and Respondent with respect to the best interests of Joseph Meyerhofer. 5. On August 14,2006, the Court entered an Order declaring Joseph Meyerhofer to be totally and permanently incapacitated. 6. In that same Order, the Court appointed Kathy Anthony as permanent and plenary guardian of the PERSON and the ESTATE of Joseph Meyerhofer. It is this Order that Petitioner 6 would like the Court to reconsider. 7. While it is clear that either Petitioner or Respondent would take care of Joseph Meyerhofer's basic medical and financial needs, Petitioner asserts that the weight of the evidence compels a finding that appointing Petitioner as Guardian would be in the best interests of Joseph Meyerhofer. PREFERENCE OF INCAPACITATED PERSON 8. Paragraphs 1-7 and incorporated herein by reference. 9. Guardianship law recognizes that every individual has unique needs and differing abilities, and it is the purpose of20 Pa.C.S.A. ~ 5511, et. seq, to promote the general welfare of all citizens by establishing a system which permits incapacitated persons to participate as fully as possible in all decisions which affect them, accomplishing these objectives through the use of the least restrictive alternative. 10. With respect to guardianship a Court should abide by an incapacitated person's wishes as long as they are rational and do not result in farm to the incapacitated person. See In re Perry, 556 Pa. 125, 727 A.2d 539 (1999). Moreover, "[e]xpressed wishes and preferences ofthe incapacitated person shall be respected to the greatest possible extent." 20 Pa.C.S.A. ~ 5521(a). 11. Petitioner put forth evidence in the form of testimony that Joseph Meyerhofer would prefer to be in New Jersey with his extensive family, than in a Carlisle nursing home, visited by one relation. 12. While Petitioner could have arranged to transport Joseph Meyerhofer to the hearing to have testify himself of his preference to be close to his family in New Jersey, that arrangement was not pursued, because it was believed that requiring Joseph Meyerhofer to attend the guardianship hearing could potentially harm his mental and physical health. 13. Petitioner's choice in presentation of Joseph Meyerhofer's preference should not be read as Petitioner's lack of faith in the ability of Joseph Meyerhofer to communicate his basic preference about guardianship. 14. The evidence reflects that Joseph clearly would prefer to be in New Jersey. Joseph is a family man who is extremely close to his nephew and extended family. Before Joseph's hospitalization, Joseph and Petitioner would talk weekly on the telephone. Joseph and Petitioner's family spent holidays together. Joseph became so close to Petitioner's family that he walked Petitioner's wife down the aisle at Petitioner's wedding. Joseph was also planning on moving in with Petitioner, although their plans were unfortunately cut short by Joseph's hospitalization. Petitioner even revamped his basement into a bedroom in anticipation that Joseph would be moving in with Petitioner and his family. Additionally, Joseph was planning on being buried in Trenton, New Jersey, and bought a plot in a cemetery in Trenton, NJ. Joseph's best friend, Betty Howley lives in Trenton, New Jersey, and filed an affidavit with the Court that Joseph told her that he intended on moving to New Jersey and that Petitioner was going to "handle his affairs." 15. The law requires that the Court abide by the incapacitated person's preferences if they are rational and do not harm the incapacitated person. Here, the desire to move to New Jersey to be close to the bulk of his family is clearly rational and moving Joseph to a similar nursing home to the one he is in now would not harm him. Petitioner submitted evidence that he already has particular nursing homes in mind with substantially similar programs. 16. If the Court is not convinced by the evidence presented at the hearing regarding Joseph's individual preference, then a guardian ad litem should be appointed to determine for the Court whether Joseph has enough capacity to be indicating a preference and the record should be opened to the extent necessary for the Court to hear this evidence. The Court has authority to do this pursuant to 20 Pa.C.S.A. ~ 5511, 5512.2. WHEREFORE, Lawrence Meyerhofer humbly requests that this Court enter an order reversing its August 14,2006 appointment of Kathy Anthony as permanent and plenary guardian of the PERSON and the ESTATE of Joseph Meyerhofer, and instead appoint Lawrence Meyerhofer as permanent and plenary guardian ofthe PERSON and ESTATE of Joseph Meyerhofer - OR - in the alternative, enter an Order opening the record to receive Joseph Meyerhofer's testimony with respect to his own preference in a manner which the Court directs. BEST INTERESTS AND LEAST RESTRICTIVE ALTERNATIVE 17. Paragraphs 1-16 are incorporated herein by reference. 18. In determining the propriety of a particular guardianship, the Court should consider the best interests of the incapacitated person and must prefer a limited guardianship, one that accomplishes the objectives of20 Pa.C.S.A. ~5501, et seq., through the use of the least restrictive alternative. See 20 Pa.C.S.A. ~ 5502,5512.1; In re Peery, 556 Pa. 125, 727 A.2d 539 (1999) (interpreting Chapter 55 to require that the courts' actions be guided by a scrupulous adherence to the principles protecting the incapacitated person by the least restrictive means possible). 19. Petitioner asserts that the least restrictive means and the best interests of the incapacitated person compel a finding that appointing Petitioner as guardianship in the instant case is proper. 20. Petitioner asserts that when one is placed in a nursing home and declared incapacitated, the majority of that person's autonomy has been stripped away from them, however necessarily. In such a situation, the fellowship of family usually becomes the most important aspect of one's life; such fellowship provides the incapacitated person with loving attention, stimulating interaction, and a connection with the outside world. This is especially true, as is the case in the matter sub judice, when one was extremely close with one's family to begin with. 21. Family is what is most important to Joseph now, and with the exception of Kathy Anthony, who is the daughter of a brother-in-law, no family lives closer than two hours to him. The bulk of Joseph's family, roughly thirty individuals, is in New Jersey. While Respondent has been forming a relationship with Joseph over the past few years, Petitioner has shared a close relationship with Joseph Petitioner's entire life. Petitioner is not the only one who misses interaction with Joseph; Josephine, Petitioner's mother, has had a very close relationship with Joseph too. If Joseph is not moved to New Jersey, Josephine will be unable to see Joseph because of her mobility limitations. Unfortunately for Joseph, she is not the only family member who will be unable to visit with Joseph. Traveling six hours (three hours to and from Washington, NJ) is prohibitively burdensome for the bulk ofthe family. 22. Additionally, while Respondent might be good at paying the bills, she only occasionally visits Joseph in the nursing home. The evidence reflected the fact that Joseph would get far more stimulation at a nursing home closer to his family. If paying bills is a concern ofthe Court, Petitioner notes that he presented evidence of his experience paying bills, balancing budgets, and being fiscally responsible. Picking up where Respondent left offwith handling Joseph Meyerhofer's Estate will not be an onerous task for Petitioner. Ultimately, the point of real concern in this case is Joseph's happiness and quality of life, not who signs the checks. 23. Moreover, it is completely unacceptable that the family was not informed by Respondent when Joseph was admitted into the hospital and later into the nursing home. At the hearing, Respondent testified that she was too busy to call the family at the time. She did not even notify her father of the fact until sometime later. If Respondent is too busy to keep the family appraised of basic medical events with respect to Joseph's healthcare, Petitioner asserts that she is also too busy to serve as guardian. 24. In the very least, ifthe Court still feels that Respondent would make the better guardian, it should design a guardianship that is tailored to Joseph Meyerhofer's best interests. Such a guardianship scheme would direct that Joseph Meyerhofer be transported to a nursing home in New Jersey so he can be close to his family. 25. Finally, Petitioner asserts that Joseph Meyerhofer has named three individuals to care for his matters should the need ever arise: 1) Paul Bailey; 2) Dora Lee Bailey; and 3) Lawrence Meyerhofer. Paul and Dora Lee have already indicated they are unable or unwilling to serve, so the responsibility of guardianship should be given to the third individual Joseph Meyerhofer trusted with his affairs, Petitioner. 26. Notably, Respondent was never mentioned by Joseph Meyerhofer as being a potential agent or administrator of his estate. While Paul and Dora Lee have indicated a preference for Respondent, their preference is irrelevant. The Power of Attorneys that named Paul and Dora Lee agents of Joseph Meyerhofer never gave them the power to choose successors, and the Court should not be concerned with what Paul and Dora Lee want or what is in their best interests; rather, the Court must be concerned with the best interests of Joseph Meyerhofer. WHEREFORE, Lawrence Meyerhofer humbly requests that this Court enter an order reversing its August 16,2006 appointment of Kathy Anthony as permanent and plenary guardian of the PERSON and the ESTATE of Joseph Meyerhofer, and instead appoint Lawrence Meyerhofer as permanent and plenary guardian of the PERSON and EST ATE of Joseph Meyerhofer - OR - in the alternative, enter an Order directing that Joseph Meyerhofer be moved to a nursing home in New Jersey consistent with his best interests. TIMELINESS 27. Paragraphs 1-26 are incorporated herein by reference. 28. Petitioner notes that the instant Motion for Reconsideration is being filed almost a month after the issuance of the Court's August 14,2006 Order of Court. Despite the fact that the Court issued the original Order on August 14, neither counsel for Petitioner nor counsel for Respondent received the same until on or about Monday, September 11, 2006. 29. Counsel for Petitioner discussed the instant Motion for Reconsideration with Counsel for Respondent on Tuesday, September 12, 2006. While Respondent does not concur with the substance of Petitioner's Motion for Reconsideration, she also does not procedurally object to Petitioner's moving for reconsideration despite the fact that the normal time line for such a motion has passed, because neither party was served with the August 14,2006 Order until September 11,2006. WHEREFORE, Joseph Meyerhofer humbly requests that this Court consider his Motion for Reconsideration despite the fact that it was filed more than ten days after the entry ofthe final order with respect to guardianship. Respectfully Submitted, MARTSON DEARDORFF WILLIAMS & OTTO By WwlJ ud... Michael J. Co11inJ' ~ Attorney J.D. No. 200427 10 East High Street Carlisle, P A 17013 (717) 243-3341 Date: 1 ~q loro Attorneys for Lawrence Meyerhofer CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Motion for Consideration was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Robert G. Frey, Esquire FREY & TILEY 5 South Hanover Street Carlisle, P A 17013 Mr. Joseph Meyerhofer Claremont Nursing and Rehabilitation Center 1000 Claremont Road Carlisle, PA 17013 MARTS ON DEARDORFF WILLIAMS & OTTO ~//'I/tJ~ BY~tl,Q~, M . Price Ten ast HIgh Street Carlisle, PA 17013 (717) 243-3341