Estate of Phillips, R., an Alleged Incapacitated ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ESTATE OF ROSE PHILLIPS, AN : IN THE SUPERIOR COURT OF
ALLEGED INCAPACITED PERSON : PENNSYLVANIA
:
:
APPEAL OF: PHILADELPHIA :
CORPORATION FOR AGING :
:
:
: No. 2331 EDA 2017
Appeal from the Decree June 23, 2017
In the Court of Common Pleas of Philadelphia County Orphans' Court at
No(s): 539 AI of 2017
BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 14, 2018
The Philadelphia Corporation for Aging (“PCA”) filed this appeal from the
June 23, 2017 decree denying a petition for adjudication of incapacity and
appointment of a plenary guardian for the person and estate of Rose Phillips,
an alleged incapacitated person. We affirm.
During October 2016, Ms. Phillips was discharged from a physical
rehabilitation facility and returned to the home she owns at 5038 Market
Street, Philadelphia. She was a seventy-five-year-old diabetic who was
convalescing from the lingering effects of a stroke. Soon after her return
home, PCA sent Jennifer Mathews, a nurse investigator, to check on her
status. The agency had received reports that Ms. Phillips was in an imminent
risk of harm because she was not eating or taking her medication. Ms.
Matthews found Ms. Phillips, who had answered the door with the assistance
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of a walker, sitting without underwear on a soiled chuck pad that is used to
collect human waste. Ms. Phillips possessed underclothing but complained
that they did not fit properly. Although Ms. Phillips resided by herself, she
indicated that her son, Shannon Phillips, assisted with her care.
Unfortunately, Ms. Phillips was unable to provide any information regarding
the schedules of her son or any of her caretakers. PCA initiated temporary
personal care services so that Ms. Phillips could remain in her home.
On March 29, 2017, and June 19, 2017, Wendy Michelle Spencer, Psy.D,
a psychologist employed by PCA, twice visited Ms. Phillips to perform clinical
face-to-face evaluations and to administer the Saint Louis University Mental
Status Exam. Ms. Phillips cooperated during the initial visit but declined to
participate on the latter occasion. Dr. Spencer testified that Ms. Phillips’s
score on the one mental status examination that she performed was
consistent with cognitive impairment. Moreover, based upon her two
exchanges with Ms. Phillips, who demonstrated varying degrees of
cooperation, Dr. Spencer diagnosed Ms. Phillips with neurocognitive disorder.
Significantly, however, Dr. Spencer did not request a blood test, review any
of Ms. Phillips’s medical records associated with the recent stroke, or consider
any other physiological reasons for Ms. Phillips’s low score on the mental
status examination. Similarly, she neglected to perform any alternative
mental status examinations or speak with Ms. Phillips’s son and caregivers.
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Indeed, Dr. Spencer was unaware that Ms. Phillips was accompanied by a
personal aid for six or seven hours per day.
On April 24, 2017, nearly two weeks prior to Dr. Spencer’s second
examination of Ms. Phillips, PCA instituted the instant guardianship
proceedings pursuant to § 5512.1 of the Pennsylvania Probate, Estates and
Fiduciaries Code (“PEF Code”). 20 Pa.CS. § 5501-5555. The agency
contended that Ms. Phillips was totally incapacitated due to a moderate degree
of unspecified neurocognitive disorder and required guardianship services.
The orphans’ court issued a citation to show cause why the petition should not
be granted, and held an evidentiary hearing on June 22, 2017. PCA presented
the testimony of Dr. Spencer and Nurse Matthews, and also called to the stand
a proposed guardian, Steve McClosky, the principal of JMS Guardianship
Services, Inc.
Ms. Phillips countered by testifying on her own behalf and presenting
the testimony of her son and Charlotta Bryan, her personal aid. The agency’s
testimony was consistent with the foregoing recitation of the facts. Ms.
Phillips’s evidence established that Shannon Phillips visits twice per day,
purchases groceries, manages medication, and maintains her finances. Ms.
Phillips also adduced evidence to establish that her son is her power of
attorney, and she confirmed her understanding of the decision to confer that
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authority to her son as opposed to a third party.1 Specifically, she explained
to the orphans’ court, “Well, like I said before, if there’s anybody that’s going
to handle my finances and do things for me, I want it to be my son.” N.T.,
6/22/17, at 65.
On the basis of the foregoing evidence, the orphans’ court denied PCA’s
petition for adjudication of incapacity and appointment of a plenary guardian,
finding that Rose Phillips was not in need of a guardian. This appeal followed.
Appellant raises two issues for our review:
1. Did the Orphans’ Court abuse its discretion by disregarding the
uncontradicted and unrebutted evidence of incapacity offered by
Philadelphia Corporation for Aging's expert, who testified pursuant
to [§] 20 Pa.C.S.A. § 5518?
2. Was it against the weight of the evidence for the Orphans’ Court
not to grant Philadelphia Corporation for Aging's petition where
the hearing evidence unequivocally demonstrated both incapacity
and the need for guardianship services?
Appellant’s brief at 2-3. We address these issues collectively.
We employ a deferential standard when reviewing an orphans’ court
decree. In re Estate of Smaling, 80 A.3d 485 (Pa.Super. 2013). We must
ensure, however, that the court’s decision is free from legal error. In re
Estate of Rosengarten, 871 A.2d 1249, 1253 (Pa.Super. 2005). Our
Supreme Court reiterated this principle in In re Peery, 727 A.2d 539, 540
(Pa. 1999) (quoting Lawner v. Engelbach, 249 A.2d 295 (Pa. 1969)),
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1 The written power of attorney was not introduced during the hearing or
included in the certified record.
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wherein it stated that reviewing courts are “bound by the trial judge’s findings
of fact unless those findings are not based on competent evidence.
Conclusions of law, however, are not binding on an appellate court whose duty
it is to determine whether there was a proper application of law to fact by the
lower court.”
We are mindful of the purpose of the PEF Code’s provisions relating to
incapacitated persons, 20 Pa.C.S. §§ 5501-5555. In this vein, § 5502
recognizes that “every individual has unique needs and differing abilities.” The
purpose of the statute is to establish “a system which permits incapacitated
persons to participate as fully as possible in all decisions which affect them
. . . and which accomplishes these objectives through the use of the least
restrictive alternative.” 20 Pa.C.S. § 5502.
The definition of an incapacitated person is as follows:
“Incapacitated person” means an adult whose ability to receive
and evaluate information effectively and communicate decisions
in any way is impaired to such a significant extent that he is
partially or totally unable to manage his financial resources or to
meet essential requirements for his physical health and safety.
20 Pa.C.S. § 5501.
Instantly, PCA argues that the orphans’ court’s findings are not
supported by competent evidence. The statute governing determinations of
incapacity is found at 20 Pa.C.S. § 5512.1, and provides in pertinent part:
(a) Determination of incapacity – In all cases, the court shall
consider and make specific findings of fact concerning:
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(1) The nature of any condition or disability which impairs the
individual to make and communicate decisions.
(2) The extent of the individual’s capacity to make and
communicate decisions.
(3) The need for guardianship services, if any, in light of such
factors as the availability of family, friends and other supports
to assist the individual in making decisions. . . .
(4) The type of guardian, limited or plenary, of the person or
estate needed based on the nature of any condition or disability
and the capacity to make and communicate decisions. . . .
....
(c) Plenary guardian of the person – The court may appoint a
plenary guardian of the person only upon a finding that the person
is totally incapacitated and in need of plenary guardianship
services.
20 Pa.C.S. § 5512.1.(a) and (c).
Herein, PCA had the burden of proving the statutory grounds to appoint
a plenary guardian under § 5512.1(c), i.e., that the person is totally
incapacitated and in need of such services. Pursuant to § 5518,
[t]o establish incapacity, the petitioner must present
testimony, in person or by deposition from individuals qualified
by training and experience in evaluating individuals with
incapacities of the type alleged by the petitioner, which
establishes the nature and extent of the alleged incapacities and
disabilities and the person’s mental, emotional and physical
condition, adaptive behavior and social skills. The petition must
also present evidence regarding the services being utilized to meet
essential requirements for the alleged incapacitated person’s
physical health and safety, to manage the person’s financial
resources or to develop or regain the person’s abilities; evidence
regarding the types of assistance required by the person and as
to why no less restrictive alternatives would be appropriate; and
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evidence regarding the probability that the extent of the person’s
incapacities may significantly lessen or change.
20 Pa.C.S. § 5518 (emphasis added).
At the outset, we reject the agency’s bullet-point list of assertions that
we should grant relief because Ms. Phillips did not: (1) present an expert to
testify about her intellectual capacity; (2) dispute Dr. Spencer’s qualifications;
or (3) challenge the credibility of Dr. Spencer’s testimony. See Appellants
brief at 10. Stated plainly, as outlined in § 5518, PCA had the burden of
demonstrating the need for guardianship by clear and convincing evidence.
That is, to prevail on its petition, the agency was obligated to present the
testimony of a qualified expert. In contrast, Ms. Phillips was not required to
produce any evidence, much less countervailing expert testimony.2
Moreover, PCA’s references to Dr. Spencer’s qualifications and the
credibility of her testimony are unavailing as neither is implicated in this case.
Pointedly, the orphans’ court did not assess Dr. Spencer’s credibility. Instead,
it examined Dr. Spencer’s attention to detail in rendering her conclusion that
Ms. Phillips was incapacitated despite the numerous facts that she admittedly
neglected to consider in forming her opinion. Accordingly, we reject the
assortment of preliminary arguments that PCA outlines in its brief.
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2 To the extent that PCA invokes Pa.R.E. 701 to challenge the admissibility of
lay testimony regarding Ms. Phillips’s capacity, that claim is waived because
the agency failed to level that objection during the hearing.
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Likewise, we find unpersuasive PCA’s chief arguments that (1) the
orphans’ court was bound by Dr. Spencer’s expert testimony under the
circumstances presented in this case, and (2) the orphans’ court’s contrary
determination was against the weight of the evidence. It is beyond
peradventure that a trial court commits an abuse of discretion by dismissing
uncontradicted expert testimony as unpersuasive M.A.T. v. G.S.T., 989 A.2d
11, 19-20 (Pa.Super. 2010). Nevertheless, as the ultimate arbiter of fact, the
orphans’ court is not required to adopt even an uncontradicted expert opinion
where competent evidence of record supports the court’s independent
determination. See Nomland v. Nomland, 813 A.2d 850, 854 (Pa.Super.
2002) (“So long as the trial court's conclusions are founded in the record, the
lower court was not obligated to accept the conclusions of the experts.”);
Murphey v. Hatala, 504 A.2d 917 (Pa.Super. 1986) (“[T]he trier of fact is
not bound by the testimony of any expert witness and is under no obligation
to accept the conclusions of an expert witness.”).
Ignoring the evidence that Ms. Phillips presented to demonstrate both
her current intellect and existing support system, PCA asserts that the
orphans’ court’s decision to deny the petition for guardianship was against the
weight of the evidence. Relatedly, as a preliminary matter, PCA asserts that
the orphans’ court erred in weighing the evidence in favor of Ms. Phillips when
“it is unclear from the record whether Shannon Phillips . . . has her power of
attorney.” Appellant’s reply brief at 1. While PCA is preoccupied with the fact
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that the power of attorney was not introduced during the hearing or included
in the certified record, both Ms. Phillips and her son confirmed the document’s
existence. N.T., 6/22/17, at 50-51, 61. Indeed, Shannon Phillips testified
that his mother recently executed a new power of attorney at the request of
a local credit union. Id. at 51. As the orphans’ court accepted the foregoing
testimony as credible, it is competent evidence that the document exists
regardless of whether PCA reviewed it. Phrased differently, mindful that PCA
did not challenge the specific terms of the power of attorney, once the
orphans’ court deemed the relevant testimony about the document credible,
the record supported its finding that the document did, in fact, exist.
For the following reasons, we find that the certified record sustains the
orphans’ court’s independent determination that PCA did not satisfy its
statutory burden to prove that Ms. Phillips had a mental, emotional, or
physical incapacity that required guardianship services. First, Dr. Spencer’s
evaluation failed to account for the fact that Ms. Phillips was still recovering
from a stroke and physical rehabilitation when Dr. Spencer performed the
mental status examination on March 29, 2017, and Dr. Spencer did not review
any relevant medical records or images related to the stroke. Id., 13, 24, 28.
Similarly, Dr. Spencer declined to order a blood test to consider whether a
physiological reason existed for Ms. Phillips’s apparent condition, administer
any other type of mental status examination, or interview Ms. Phillips’s son or
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fulltime care giver, who works with Ms. Phillips approximately forty-seven
hours per week. Id. at 19-20, 25, 58.
Furthermore, contrary to PCA’s allegations of incapacity, during the
hearing, Ms. Phillips explained her understanding of the power of attorney that
she previously executed and stated her preference for her son to continue to
handle her personal affairs. Importantly, she noted with disapproval her
awareness that PCA intended to give someone else authority over her
finances. Id. at 62. She testified, “if anybody does it, it should be my son.
[Why] do I need somebody else?” Id. She was adamant about her aversion
to outside meddling and reiterated the point while being examined by the
orphan’s court. She stated, “Well, like I said before, if there's anybody that’s
going to handle my finances and do things for me, I want it to be my son.”
Id. at 65. In addition, Ms. Phillips testified about her mental capacity. She
stated, “I’m not crazy either. I was sick [when PCA intervened]. I had a
stroke. I fell. And I’m [still] sick. But there’s a lot of things that I can do
now that I couldn’t do before.” Id. at 62. She continued that she executed
the power of attorney so that her son could be of assistance, but she added,
“I could pretty much help myself as far as that goes[.]” Id. at 63. For
example, Ms. Phillips explained how she relayed her burial arrangements to
her son and “I've told him where certain things are that he needs to look at,
too.” Id.
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In addition to Ms. Phillips’s testimony about her intellectual capacity,
she presented evidence that her son visits her twice a day to check her blood
sugar levels, feed her, and help administer medication, although Ms. Phillips
is able to administer insulin independently. Id. at 45, 49, 51. He maintains
his mother’s finances and purchases supplies and food, which is prepared by
Ms. Bryan. Id. at 45-46, 61. In addition to her son and Ms. Bryan, Ms. Phillips
is visited throughout the week by various family members. Id. at 49. When
asked about his mother’s mental capacity during their daily interactions,
Shannon Phillips testified, “I see her every day and there's nothing . . . that I
see that she's mentally incapacitated like [PCA asserts].” Id. at 46.
In In re Peery, supra at 541, our High Court held that “a person cannot
be deemed incapacitated if his impairment is counterbalanced by friends or
family or other support.” Instantly, Ms. Phillips stated her preference to
continue her current support structure and the record reveals that those
supports offset any of Ms. Phillips’s impairments. As noted, Shannon Phillips
has demonstrated great concern for his Mother. He visits frequently and
assumed an active role in her financial welfare and home health care, including
utilizing the power of attorney and hiring an aid to care for his mother in his
absence. He testified that he intends to have his mother reside with him and
his family, where his wife can help him provide care. N.T., 6/22/17, at 50,
55. He also plans to increase the amount of services his mother currently
receives, including extending Ms. Bryan to fulltime care. Id. at 54-58. Ms.
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Phillips also has the support of additional family members who visit her several
times per week. Accordingly, based upon the competent evidence in the
certified record, we discern no abuse of discretion in the orphans’ court’s
findings that these facts demonstrate that a less restrictive alternative to
guardianship is both reasonable and appropriate. Stated plainly, all of the
foregoing evidence supports the orphans’ court’s determination that PCA failed
to demonstrate clear and convincing evidence that Ms. Phillips was a totally
incapacitated person in need of plenary guardianship services. Thus,
notwithstanding Dr. Spencer’s expert testimony, the orphans’ court did not
err in denying PCA’s petition for the appointment of a plenary guardian.
Finally, we observe that, while we rule against PCA in this appeal, we
applaud the agency for interceding with this family. The agency’s intervention
provided immediate services to Ms. Phillips, and its ensuing investigation likely
provided the initiative for her son to assume a proactive role in his mother’s
care and to fashion the framework of support that rendered the appointment
of a plenary guardian unnecessary at this juncture. In this vein, should the
existing supports falter, we continue to look to PCA to intervene on Ms. Phillip’s
behalf and take the necessary steps, including refiling a guardianship petition,
to assure that her needs are being appropriately met.
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/18
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