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HomeMy WebLinkAbout09-26-06 an Alleged Incapacitated Person : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS COURT DIVISION : NO. 21-06- 0624 In Re: JOSEPH MEYERHOFER, ANSWER TO MOTION FOR RECONSIDERATION AND NOW, come Paul Bainey, Dora Lee Bainey and Kathy Anthony, by and through their attorneys, Frey & Tiley, and present their answer in opposition to the Motion for Reconsideration filed by Lawrence Meyerhofer in the above-captioned matter: 1. Admitted in part; denied in part. The allegations are admitted with the exception that Kathy Anthony is the niece of Paul and Dora Lee Bainey, not their daughter. By way of further answer, Paul Bainey was named attorney-in-fact of Joseph Meyerhofer pursuant to a duly executed durable general power of attorney. Dora Lee Bainey was named as the alternate attorney-in-fact by Joseph Meyerhofer. ~ 20 ~ 2. Admitted. . , (/) r'1 3. Admitted. ~'n ~ Ol 4. Admitted. 5. Admitted. 6. Admitted. " -0 -":1 t-r; C) ---) (-:' -(1 (-.") i ~c ;-i-1 \_J - .Ie) OJ =.~, '1 ("') rTl r ~j-.l "~~~ N .::- -.l 7. Denied. It is submitted that the evidence was properly weighed by the Court and that the appointment made by the Court was and is in the best interests of Joseph Meyerhofer. PREFERENCE OF INCAPACITATED PERSON 8. No response is required. 9. Admitted. 10. Admitted in part, denied. It is admitted that the wishes of an incapacitated person should be abided if they are rational and do not result in harm to the incapacitated person. By way of further answer, it should be noted that the case cited by Petitioner, In re Peery. 556 Pa. 125,727 A.2d 539 (1999), was a case in which the Supreme Court found that the alleged incapacitated person did not need a guardian because she had "in place a circle of support to assist her in making rational decisions." It is submitted that the testimony demonstrated that Joseph Meyerhofer had in place a circle of support in a power of attorney that he had given to Paul Bainey and the reliance he placed on Kathy Anthony to assist him with his finances, decision making, and personal care. The appointment of Kathy Anthony as guardian of the person and estate merely formalized the informal arrangement for support that Joseph Meyerhofer had made before his incapacity. Therefore, it is suggested that the Peery decision supports the Order entered by your Honorable Court. It is denied that the portion of 20 Pa.C.S.A. ~5521(a) is relevant to the appointment of a guardian. That section imposes duties on a guardian of the person in acting for the best interests of an incapacitated person and is not related to deliberations concerning the appointment of a guardian by the court. 11. Denied. It is submitted that Petitioner testified that Joseph Meyerhofer visited Petitioner and other family in New Jersey on occasion. Petitioner further testified that he and Joseph Meyerhofer discussed his moving to New Jersey. It is submitted that no evidence was presented, as suggested by Petitioner, that Joseph Meyerhofer ever expressed a preference to live in New Jersey rather than Carlisle, Pennsylvania, that Joseph Meyerhofer ever expressed a preference as to the location of a nursing home should that ever become necessary, or that he was only visited by one relative at the nursing home in Carlisle. 12. Admitted in part, denied in part. It is admitted that Joseph Meyerhofer's physician advised that his attendance at the hearing would be detrimental to him. The motivations of the Petitioner's decision not to arrange for Joseph Meyerhofer's attendance at the hearing are unknown to Respondents and are, therefore, denied. 13. Denied. It was stipulated at the hearing by both parties that Joseph Meyerhofer was totally incapacitated. This stipulation reflects on Joseph Meyerhofer's ability to communicate any preferences that Lawrence Meyerhofer speculates Joseph Meyerhofer might have had. 14. Denied. The evidence clearly indicated that Joseph Meyerhofer had indicated his preference as to residence by moving to Carlisle and by further choosing to continue living there after the death of his wife. The evidence from both parties showed that Joseph Meyerhofer dearly loved his wife and enjoyed the relationship with both his family and the family of his wife. That relationship with both sets of families continued after the death of his wife. Testimony was given that Carlisle was chosen as a residence because it was midway between both of their families. Lawrence Meyerhofer testified that he had encouraged Joseph Meyerhofer to move to New Jersey and even volunteered to have him live in a part of his house. The testimony from both parties was that despite what Lawrence Meyerhofer might have wanted his uncle to choose, Joseph Meyerhofer chose to remain in Carlisle after his wife's death and the evidence is absolutely void of any steps that Joseph Meyerhofer took to initiate a move to New Jersey. Further, Joseph Meyerhofer did not choose to name Lawrence Meyerhofer or any of his blood relatives as attorney-in-fact to act on his behalf, instead choosing his brother-in-law, Paul Bainey, one of the Respondents herein, as attorney-in-fact to make decisions on his behalf. When Joseph Meyerhofer determined that he needed assistance in managing his finances and in other matters, he turned to Respondent Kathy Anthony for assistance. To the extent that the evidence shows that Joseph Meyerhofer expressed a preference concerning guardianship, the most convincing evidence is the actions taken by him, rather than oral statements alleged to have been made by him. Joseph Meyerhofer's actions showed a desire to live in Carlisle, relatively centrany located to all of his family, not just his blood relatives. This desire continued for several years after the death of his wife when he could have made alternate arrangements if his desires were as alleged by Petitioner. Joseph Meyerhofer further took action to designate someone to assist him as his memory began to deteriorate. That person was Kathy Anthony. Finany, Joseph Meyerhofer took action to designate someone to make decisions for him if he were unable to do so. That person was Paul Bainey and the alternate was Dora Lee Bailley. Both are in agreement that order entered by your Honorable Court was in the best interests of Joseph Meyerhofer. Courts have determined "that a person executing a power of attorney normally names as attorney-in-fact that person whom he or she reposes great confidence." In re Estate of Tosi, 38 D & C 4th 422 (Monroe 1997), quoting In re Howard, 9 Fiduc. Rep.2d 338, 339 (York Co. 1989). Therefore, their opinion concerning guardianship should be given significant weight. 15. Admitted in part, denied in part. It is admitted that the law is accurately stated. As stated above, it is denied that the evidence shows that Joseph Meyerhofer expressed a desire to move to New Jersey. 16. Denied. No guardian ad litem is necessary as Joseph Meyerhofer designated Paul Bainey to act on his behalf and in his best interests as attorney-in-fact. For the same reason that there is no need to appoint a permanent guardian where an attorney-in-fact has been previously appointed, see e.g. In re Sylvester, 409 Pa. Superior Ct. 439, 598 A.2d 76 (1991), there is no need to appoint a guardian ad litem where the attorney-in-fact is a party to the proceedings. Paul Bailley has acted as attorney-in-fact for Joseph Meyerhofer. As part of his duty as attorney-in-fact, he filed the petition in this matter and nominated a guardian that he felt to be in the best interests of Joseph Meyerhofer. He was present and gave testimony at the hearing. In this capacity as attorney-in-fact, Paul Bainey determined that Joseph Meyerhofer was in need of a guardian of the person and estate, that Joseph Meyerhofer was unable to express his opinions on this matter, and that Kathy Anthony was the appropriate person to be appointed guardian of the person and estate. As stated above, the opinion of an attorney-in-fact should be given great weight because of the confidence that Joseph Meyerhofer had in him. BEST INTERESTS AND LEAST RESTRICTIVE AL TERNA TIVE 17. No response is necessary. 18. Admitted. 19. Denied. For the reasons stated above, Respondents submit that the Order of Court entered August 14,2006 was in the best interests of Joseph Meyerhofer and represented the least restrictive means to provide for the care of Joseph Meyerhofer. 20. Admitted in part, denied in part. It is admitted that family is an important aspect of any person's life, including persons who have been admitted to a nursing home or declared incapacitated. However, family is only one factor. Other important facts include proximity to former neighbors and friends. In this case a next door neighbor presented testimony that the arrangements made for Joseph Meyerhofer were appropriate and that she and others visited him on a regular basis. Another important factor is stable surroundings. Joseph Meyerhofer has been a resident of Claremont Nursing Home since May, 2006. Moving him from these surroundings would be disruptive and potentially detrimental to him. 21. Denied. It is denied that any evidence was presented as to what is most important to Joseph Meyerhofer at this point in time. It is further denied that Petitioner's beliefs of what are most important to his uncle are in any way a relevant factor for consideration by the Court. Finally, the fact that the Petitioner and his wife may miss the company of Joseph Meyerhofer is not a relevant factor to consider in a guardianship proceeding. The relevant factor to consider is what is in the best interests of Joseph Meyerhofer. See e.g. In re Forsyth's Estate, 12 D & C3d 368 (1979). 22. Denied. It is denied that any evidence was presented to suggest that Joseph Meyerhofer would receive greater stimulation at a nursing home closer to New Jersey. No evidence was presented that suggested he was not getting adequate stimulation currently. Furthermore, no evidence was presented regarding the programs, therapy or treatment that Joseph Meyerhofer would receive if Petitioner were named guardian. Therefore, the suggestions made by Petitioner are without basis. 23. Denied. Kathy Anthony showed prompt and responsible care for Joseph Meyerhofer in responding to an emergency. Her primary concern was to obtain medical treatment and evaluation for Joseph Meyerhofer and then to locate an appropriate facility where he would not place himself in danger as he had done previously. Under these circumstances, the actions she took were responsible and demonstrated her ability to effectively act as guardian. Going through the personal papers of Joseph Meyerhofer to locate telephone numbers of nieces and nephews was less urgent. 24. Denied. It is denied that the Order entered is not tailored to the best interests of Joseph Meyerhofer. In fact, the order entered and the arrangements made are in the best interests of Joseph Meyerhofer and moving him to New Jersey would not be in his best interests and could be detrimental to his health, even if it would be more convenient to some members of his family. 25. Denied. Petitioner named two individuals to act as attorney-in-fact for him: Paul Bainey and, in the alternative, his sister-in-law, Josephine Meyerhofer. He never named Petitioner to act in such capacity and the suggestion that he trusted Lawrence Meyerhofer with his affairs is denied. It is admitted that he named Lawrence Meyerhofer as an alternate executor in the event that both Paul and Dora Lee Bainey were unable to serve. However, Joseph Meyerhofer did not designate Lawrence Meyerhofer to have any responsibilities for his affairs during his lifetime. To the contrary, the testimony showed that as Joseph Meyerhofer learned that he was in need of assistance in managing his affairs, he turned to Kathy Anthony, for assistance. When the police found Joseph Meyerhofer lost in Shippensburg, it was Kathy Anthony's telephone number that they found on him. As stated above, Joseph Meyerhofer through his actions demonstrated where he wanted to live, Carlisle, and also in whom he trusted to assist him with his needs, Kathy Anthony. 26. Admitted in part; denied in part. It is admitted that Kathy Anthony was not named as executor or attorney-in-fact in any document executed by Joseph Meyerhofer. It is further admitted that the power of attorney signed by Joseph Meyerhofer did not grant the power to choose alternates. It is denied that the preference of Paul Bainey and Dora Lee Bailley are irrelevant. As stated above, their opinions are very important as Joseph Meyerhofer trusted them to make decisions on his behalf if he were unable to do so. As such, their opinions should receive the greatest weight. TIMELINESS 27. No response is required. 28. Admitted. 29. Admitted. Respectfully submitted, Frey & Tiley, Attorneys for Paul Bailley, Dora Lee Bainey and Kathy Anthony By: R bert G. Frey, Esquire Supreme Court Number 46397 5 South Hanover Street Carlisle, Pennsylvania 17013 (717) 243-5838 CERTIFICATE OF SERVICE I, Robert G. Frey, do hereby certify that I have served a true and correct copy of the foregoing Answer to Motion for Reconsideration on this date by hand delivery as follows: Michael 1. Collins, Esquire Martson, Deardorff, Williams & Otto 10 East High Street Carlisle, Pennsylvania 17013 Mr. Joseph Meyerhofer Claremont Nursing and Rehabilitation Center 1000 Claremont Road Carlisle, Pennsylvania 17013 /'-'" -' L1~ V Robert G. Frey, Esquire Supreme Court Number 46397 5 South Hanover Street Carlisle, Pennsylvania 17013 (717) 243-5838