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HomeMy WebLinkAbout93-0688 Orphans'IN THE MATTER OF THE IN THE COURT OF COMMON PLEAS OF PERSON AND ESTATE OF EDWARD E. MORRIS, CUMBERLAND COUNTY, PENNSYLVANIA an alleged incapacitated person • 688 ORPHANSt COURT 1993 IN RE: PETITION FOR GUARDIANSHIP BEFORE OLER J, ORDER OF COURT AND NOW, this 19th day of August, 1993, upon consideration of the Petition for Guardianship, and following hearing, Edward E. a Morris is adjudicated an incapacitated person. The Office of Aging, 9� g, County of Cumberland, is appointed emergency plenary guardian of his Person. This appointment shall continue for a period of 72 hours, after which tim Petitioner is authorized to seek an extension of the a e for up to 20 days. The appointment guardian is directed to file reports in accordance with the provisions of 20 Pa. C.S. Section 5521. bond shall be required of the No No By the Court, Anthony L. DeLuca, Esquire For the Petitioner Carol J. Lindsay, Esquire For the Respondent wcy i J Wesley O Jr. J. IN THE MATTER OF THE IN THE COURT OF COMMON PLEAS OF PERSON AND ESTATE OF CUMBERLAND COUNTY, PENNSYLVANIA EDWARD E. MORRIS, an alleged incapacitated person 688 ORPHANS' COURT 1993 IN RE: PETITION FOR GUARDIANSHIP Oler, J. BEFORE OLER, J. OPINION AND ORDER OF COURT At issue in the present case is whether Edward E. Morris should be adjudicated an incapacitated person and, if so, whether Petitioner should be appointed plenary guardian of his person. A hearing was held in this matter on Thursday, August 19, 1993, before the undersigned judge at the room of the alleged incapacitated person in the Cumberland County Nursing Home in Cumberland County, Pennsylvania. Based upon the evidence presented at the hearing, the following Findings of Fact, Discussion and Order of Court are made and entered: FINDINGS OF FACT 1. The allegedly incapacitated person is Edward E. Morris, a domiciliary of Cumberland County, Pennsylvania, born March 1, 1926, and residing at the Cumberland County Nursing Home, 375 Claremont Road, Carlisle, Cumberland County, Pennsylvania; Mr. Morris is divorced. 2. Petitioner is the Office of Aging, County of Cumberland, having its office at Room 111, East Wing, One Courthouse Square, Carlisle, Cumberland County, Pennsylvania, and being a county agency. 3. The allegedly incapacitated person has been represented in these proceedings by Carol J. Lindsay, Esquire, Court -Appointed Counsel, who appeared at the hearing on his behalf. 4. Mr. Morris suffers from dementia as well as clinical depression, the former condition having unfortunately advanced to the point that his ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is totally unable to meet essential requirements for his physical health and safety. 5. The aforesaid condition of dementia and the resultant incapacity is expected to be of unlimited duration. 6. As a result of Mr. Morris's condition, he has been unable or unwillingly in recent months to take sufficient nourishment to maintain his health, as a result of which he has lost a considerable amount of weight and is in danger of death without further action. 7. Medical treatment in the form of a gastrostomy procedure has been recommended by his medical personnel. 8. Pursuant to 20 Pa. C.S. Section 5512.1(C), the Court makes a specific finding that Mr. Morris is totally incapacitated and in need of plenary guardianship services. 9. The necessary duration of these services is indefinite at the present time because of the apparently permanent condition of incapacity of Mr. Morris. 10. The Court finds pursuant to 20 Pa. C.S. Section 5513 that it has not been feasible under the present circumstances to proceed in accordance with certain nonemergency provisions in the guardianship act, because a failure to make an immediate appointment of a guardian will result in irreparable harm to the person of Mr. Morris. 11. Pursuant to 20 Pa. C.S. Section 5513, an emergency guardianship is required in this case. 12. Petitioner is an entity qualified under 20 Pa. C.S. Section 5511(F) to serve as plenary guardian of Mr. Morris's person. 13. All reasonable efforts have been made by the nursing home to secure a decision with respect to medical treatment of Mr. Morris by members of his family, but such efforts to date have been unsuccessful. 14. The foregoing Findings of Fact are made on the basis of clear and convincing evidence. DISCUSSION The provisions respecting an adjudication of incapacity have recently been amended and are contained in 20 Pa. C.S. Sections 5501 et sea. Petitioner has fully complied with these provisions, as they relate to the appointment of an emergency guardian of the person, and based upon the foregoing Findings of Fact, the following Order of Court will be entered: ORDER OF COURT AND NOW, this 19th day of August, 1993, upon consideration of the Petition for Guardianship, and following a hearing, Edward E. Morris is adjudicated an incapacitated person. The Office of Aging, County of Cumberland, is appointed emergency plenary guardian of his person. This appointment shall continue for a period of 72 hours, after which time Petitioner is authorized to seek an extension of the appointment for up to 20 days. The guardian is directed to file reports in accordance with the provisions of 20 Pa. C.S. Section 5521. No bond shall be required of the guardian. By the Court, Ls/ J. Wesley Oler, Jr. J. Anthony L. DeLuca, Esquire For the Petitioner Carol J. Lindsay, Esquire For the Respondent wcy Q Mellon Bank Fiduciary Review Incapacitated Person — Plenary Guardian — Hearing — Orphans' Court Division — Status of Court Upon petition of County Office of Aging at hearing in Cumberland County Nursing Home where Edward, the alleged incapacitated person resided, and where a court-appointed guardian appeared in Edward's behalf, it was HELD: Edward "suffers from demen- tia as well as clinical depression ... is totally incapacitated and in need of ple- nary guardianship services ... it has not been feasible under the present circum- stances to proceed in accordance with cer- tain nonemergency provisions in the guardianship act, because a failure to make an immediate appointment of a guardian will result in irreparable harm to the person of" Edward. The County Office of Aging is qualified under PEF 5511(f) to serve as emergency plenary guardian of the person of Edward "for a period of 72 hours, after which time peti- tioner is authorized to seek an extension of the appointment for up to 20 days. The guardian is directed to file reports in accordance with the provisions of 20 Pa. C.S. Section 5521. No bond shall be required of the guardian." Morris, Inca- pacitated (O.C. Div. Cumb.), 13 Fiduc. Rep. 2d 368. As the court said, "All reasonable efforts have been made by the nursing home to secure a deci- sion with respect to medical treatment of [Edward] by members of his family, but such efforts to date have been unsuccessful." It appears that Edward had not executed a durable power of attorney or living will to clarify the situation and that as a result of Edward's condition, "he has been unable or unwilling in recent months to take sufficient nourishment to maintain his health, as a result of which he has lost a considerable amount of weight (Continued on Page Two) Trust Offices Philadelphia, Plymouth Meeting, Pittsburgh, Wilmington, Harrisburg, York, Lancaster, Shippensburg, Carlisle, Oil City, Erie, Altoona, Lewisburg, Lock Haven, Meadville State College Wilkes-Barre, Stroudsburg DECEMBER, 1993 CURRENT CASES Account — Upon adjudication of account of inter vivos trust which included disbursement in payment of obliga- tions of the estate of the deceased settlor, the executors of the estate of the deceased settlor were directed to file an inventory and accounting in the deceased settlor's estate. Legal counsel were ordered to file an affidavit of services rendered to the co-executors. Piscaglio Trust (O.C. Div. Chester), 13 Fiduc. Rep. 2d 408. Attorney Fee based on hourly rates was "entirely reason- able in light of the extreme length of time it has taken to finalize this estate, through no fault of the attorney. Interest on the outstanding unpaid attorney fee was dis- allowed. Seitz Est. (O.C. Div. Bucks), 13 Fiduc. Rep. 2d 378. Bequest of $20,000 "to my step -brother, John" who was in fact testatrix" predeceased half-brother is payable in equal shares to John's four children. Fortier Est. (O.C. Div. Bucks), 13 Fiduc. Rep. 2d 384. Charity — Non-profit nursing home is not operated as a purely public charity entitled to a real estate tax exemp- tion despite its charitable purpose when it receives Med- icaid or private funds for payment of patient services. Couriers -Susquehanna, Inc. v. Cty. of Dauphin, 113 Dauph. 224. Claim — Upon petition of former wife for specific perfor- mance of agreement to pay for support of minor children, it was ruled that the trustees of decedent's life insurance trust should fulfill decedent's obligations under the sepa- ration agreement. DiCicco Est. (O.C. Div. Bucks), 13 Fiduc. Rep. 2d 386. Compensation of executor -attorney as reduced by audit- ing judge was affirmed. Attorney fee disallowed for unbilled services during decedent's lifetime and allowed at rate of $150 per hour during estate administration. Executor's compensation was reduced from 3% to hourly rate of $50. Broadwater Est. (Pa. Super.), Sept. 13, 1993. [See Fiduc. Rev., August 1992.] Constructive Trust imposed upon proceeds of federal employee's group life insurance in favor of son, whose claim arose under marital settlement agreement between his parents. The federal law giving an employee the "absolute right to change beneficiaries" does not "shield federal employees from their obligations under valid marital separation agreements approved by state court order." Eonda v. Affinito (Pa. Super.), 629 A. 2d 119. Page Two December, 1993 FIDUCIARY REVIEW 60 East Penn Street Norristown, Pa. 19404 EDITORS M. PAUL SMITH H. OBER HESS ASSOCIATE EDITORS J. BROOKE AKER RICHARD L. GROSSMAN Requests for change of address should be directed to the bank distributing complimentary issues to addressee. Subscriptions to Fiduciary Review can be obtained by letter addressed to P.O. Box 150, Norristown, PA 19404 at the annual rate of $53.00 including tax. and is in danger of death without further action.... Medical treatment in the form of a gastrostomy procedure has been recommended by his medical personnel." Place of Holding Court Procedures The county Office of Aging's petition for the adjudication of Edward as an incapacitated person is in accord with its responsibilities: see Fiduc. Rev., March 1991. It is not clear whether the court's hearing at the county nursing home was suggested initially by the agency, by the court-appointed attorney or by the court. Regardless of any possi- ble earlier concern as to whether a court session may be held lawfully in any place other than in the court house (20 Am. Jur. 2d, Courts, 36), it fortu- nately is now specifically provided in PEF 5511(a) that "The hearing may be closed to the public and without a jury unless the alleged incapacitated per- son or his counsel objects. The hearing shall be closed and with or without a jury if the person alleged to be incapacitated or his counsel so requests. The hearing may be held at the residence of the alleged incapacitated person." Procedure — Guardian's Reports All statutory steps for appointment of an emergency guardian of the person of Edward under PEF 5511 as amended in 1992 were taken. Especially noteworthy is Judge Oler's order that "The guardian is directed to file reports in accor- dance with the provisions of" PEF 5521. The re- ports of a guardian of the person and estate of an incapacitated person to the court as set forth in PEF 5521 must be filed "at least once within the first 12 months of his appointment and at least annually thereafter, attesting to the following": (i) Guardian of the estate: (A) current principal and how it is invested; (B) current income; (C) expenditures of principal and income since the last report; and (D) needs of the incapacitated person for which the guardian has provided since the last report. FIDUCIARY REVIEW (ii) Guardian of the person: (A) current address and type of place- ment of the incapacitated person; (B) major medical or mental problems of the incapacitated person; (C) a brief description of the incapaci- tated person's living arrangements and the social, medical, psychological and other support services he is receiving; (D) the opinion of the guardian as to whether the guardianship should continue or be terminated or modified and the reasons therefor; and (E) number and length of times the guardian visited the incapacitated person in the past year. Court's Reports As reported in the June 1992 issue of Fidu- ciary Review, p. 2, the then current amendments to Chapter 55 of the PEF Code listed the added responsibilities of the court as follows: These include but are not limited to the fol- lowing: a. Arrange for appointment and payment for counsel and/or for evaluation. b. Conduct full hearing possibly at residence of incapacitated person. c. Make specific and detailed findings of fact. d. Conduct subsequent and possibly frequent hearings upon request (or own motion) due to change in capacity. e. File annual statistical and detailed reports to administrator of Supreme Court. f. Review annual reports filed by guardians. Does this impose burden to monitor and con- duct hearing on its own motions? g. Review less restrictive alternatives, types of assistance available otherwise, etc. prior to outlining powers of guardians. h. Investigate and employ Guardianship Sup- port Agencies to be established. PEF 5512.3 as to the court's annual report states: The court shall annually file with the Su- preme Court Administrator's Office on forms furnished by the office a statistical and descrip- tive report to assist in evaluating the operation and costs of the guardianship system. To date, it is not known whether the Supreme Court administrator's office has formulated the required forms. In any event, the burden of prepar- ing and reviewing the required reports may well prove discouragingly difficult and counterproductive.