In Re: W.S., Appeal of: W.S. ( 2022 )

J-S24033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: W.S., AN INCAPACITATED : IN THE SUPERIOR COURT OF
PERSON : PENNSYLVANIA
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APPEAL OF: W.S. :
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: No. 511 EDA 2022
Appeal from the Decree Entered January 19, 2022
In the Court of Common Pleas of Montgomery County Orphans’ Court at
No(s): 2021-X4874
BEFORE: PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 15, 2022
W.S. appeals from the decree entered in the Court of Common Pleas of
Montgomery County Orphans’ Court (orphans’ court) adjudicating him an
incapacitated person and appointing Kalpana Doshi, a Principal at
Adjustments, Inc. (Ms. Doshi), Plenary Permanent Gaudian of his Estate and
Person. W.S. contends that the orphans’ court abused its discretion in
adjudicating him incapacitated and in need of a guardian where the evidence
shows that he is capable of independent living. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
J-S24033-22
I.
A.
The relevant facts and procedural history of this case are as follows.
W.S. is a 75-year old single male with no known close relatives. On November
18, 2021, the Montgomery County Office of Senior Services (the Agency) filed
a Petition for Adjudication of Incapacity and Appointment of Plenary Guardian
pursuant to Section 5511 of the Probate, Estates and Fiduciaries (PEF) Code.1
The orphans’ court appointed counsel to represent W.S., and
neuropsychologist George Ledakis, Ph.D. to perform an independent medical
examination. Dr. Kenneth Carroll, an expert in geriatric assessment who has
performed over 20,000 psychological examinations (including 2000
specifically to help determine capacity) had previously evaluated W.S. on
three occasions in 2021 while W.S. resided in a nursing and rehabilitation
center, where he continued to reside at the time of the incapacity hearing.
B.
At the January 19, 2022 hearing, caseworker Allison Kifer testified that
the Agency had received reports of self-neglect concerning W.S. in September
and December 2020. W.S. was living independently in an apartment, but was
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1 See 20 Pa.C.S. §§ 5501-5555. Section 5511 provides that a court, “upon
petition and hearing and upon the presentation of clear and convincing
evidence, may find a person domiciled in the Commonwealth to be
incapacitated and appoint a guardian or guardians of his person or estate.”
Id. at 5511(a).
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unable to provide for his daily needs which resulted in falls, numerous
hospitalizations and 911 calls made on his behalf. Ms. Kifer described a
pattern of “multiple hospital stays, multiple rehab stays, usually leaving
against medical advice [(AMA)] from either the hospital or the rehab within
24 hours of being admitted, and then re-presenting to the hospital for similar
issues within a day or two [because of] falls, mobility concerns, shortness of
breath, [and] wounds.” (N.T. Hearing, 1/19/22, at 50-51). Although Ms. Kifer
initially arranged homecare services for W.S. and assistance with his rent,
food and medication, he again deteriorated and experienced falls,
hospitalization and rehabilitation services.
Ms. Kifer recounted that W.S. was discharged AMA from a rehabilitation
facility in September 2021 and that placing him with a guardian was very
difficult because of his limited financial means and lack of cooperativeness.
(See id. at 51, 54). Review of W.S’s financial records showed $5,000 in
cash/investments and a Social Security income of approximately $1,000 per
month. Ms. Kifer opined that, to her knowledge, no guardian would accept an
appointment without assurance that W.S. is in a structured 24-hours/day care
setting, and she advised that W.S.’s former power of attorney resigned
because of his lack of cooperation.
Dr. Carroll testified that he evaluated W.S. in February, March and
October 2021. At their first meeting, W.S. was unable to walk because of a
swollen foot. Dr. Carroll observed that W.S. is “an intelligent man, very smart
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guy,” but that he has issues with abstract reasoning and executive functioning
that can be debilitating. (Id. at 14). W.S. engages in “storytelling [that is]
just not very believable.”. For example, “one time he said he had 24 million
dollars, and the next time it went up to 26 million dollars, and the third time
it dropped to about 400,000.” (Id. at 17). Dr. Carroll diagnosed W.S. with
major neurocognitive disorder (dementia) and assessed W.S.’s insight into his
condition as “very, very poor. He doesn’t really understand how serious his
condition is, and he can’t anticipate problems, so what’s going to happen when
we leave [this hearing] he doesn’t even think about things like that.” (Id. at
20). Dr. Carroll opined that W.S.’s ability to process information is impaired
to an extent he can no longer make and communicate safe and appropriate
decisions for the benefit of his health and welfare as to both his medical and
financial needs. (See id. at 21).
As to any cognitive differences W.S. demonstrated over the course of
the evaluations, Dr. Carroll testified that overall, there was “not much
difference among the three testings.” (Id. at 13). Regarding W.S.’s potential
marginal improvements, Dr. Carroll explained that although W.S. showed
some gains in a clock drawing test, this finding did not conflict with his ultimate
diagnosis of dementia because W.S. performed “better than the previous time
but not great. And the difficulty in assessing his insight is not a good thing
. . . [because of] the difficulty in separating [what he says as] fact from
fiction.” (Id. at 23). For instance, W.S. “told me he left the nursing home
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because he was bored . . . and managed really well and was living okay for a
year.” (Id.). When Dr. Carroll challenged W.S. by clarifying that W.S. was in
a nursing home during the relevant time period, W.S. “changed [his response]
but he believes he is capable of independent living,” and is eager to return
home, without recognizing any pattern in his history. (Id.).
Dr. Ledakis testified that he administered an extensive
neuropsychological evaluation of W.S. composed of several tests and that he
reviewed W.S.’s medical records and spoke with nursing staff. (See id. at 33-
34). Dr. Ledakis opined that any improvements Dr. Carroll observed with
respect to W.S.’s ability speaks to “how sick medically he was in those earlier
evaluations” and flatulate “depending how sick he is.” (Id. at 34). During
W.S.’s hospitalizations, he was diagnosed with a bone and blood infection and
toxic encephalopathy (delirium), which likely caused changes in his mental
status. (See id. at 35).
Dr. Ledakis further testified that W.S. is medically fragile and the acute
chronic conditions he suffers have only stabilized because of the treatment he
has received. Dr. Ledakis opined that W.S. is suffering from vascular
dementia because he has multiple vascular heart conditions including heart
disease, congestive heart failure and hypertension. (See. id. at 35-38). Dr.
Ledakis stated his belief that if W.S. were released to his home as requested,
the outcome would not be positive and he would be “right back to where we
are now [] maybe a hospitalization for addressing acute issues [or] in some
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skilled nursing facility to kind of rehab back to baseline. It’s the same pattern
that we’ve seen over the past year.” (Id. at 39).
Ms. Doshi testified briefly at the hearing and explained that if W.S.
maintained trading accounts, this could interfere with his eligibility for
government benefits because Medicaid requires liquidation of assets to remain
in a nursing home facility. (See id. at 58-59).
W.S. did not testify, but he did make a statement to the orphans’ court
indicating that he earned $178,062 in trading investments in the last 19
months and described his trading record as “spectacular.” (Id. at 60). W.S.
planned to establish a retail business within the next three months and was
actively looking to purchase property for this purpose. Regarding his health,
W.S. averred that although he had medical issues in 2009, he now has “no
problems whatsoever” and is medically sound without need of a guardian.
(Id. at 61). W.S. also denied any problems with maintaining adequate food,
electricity and medical care, and he described the infection in his leg as
“ancient history.” (Id. at 62).
At the conclusion of the hearing, the orphans’ court adjudicated W.S.
incapacitated and appointed Ms. Doshi as plenary guardian of his estate and
person. In doing so, the court found that W.S. “has neurocognitive
impairment, a condition that totally impairs [his] capacity to receive and
evaluate information effectively and to make and communicate decisions
concerning management of [his] financial affairs or meet essential
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requirements of [his] physical health and safety.” (Id. at 67). The orphans’
court also noted its credibility determination against W.S. regarding his
description of his mental state and ability to live independently, and found the
testimony of Drs. Carroll and Ledakis and Ms. Kifer far more believable. (See
Orphans’ Court Opinion, 4/12/22, at 10). W.S. timely appealed and he and
the orphans’ court complied with Rule 1925. See Pa.R.A.P. 1925(a)-(b).2
II.
A.
W.S. challenges the orphans’ court appointment of a plenary guardian
of his estate and person, primarily by disputing the court’s credibility
determinations in favor of the Agency. W.S. points to Dr. Carroll’s testimony
regarding the improvements he exhibited, including Dr. Carroll’s observation
that W.S. was “alert, clear, coherent, cooperative [and] well-orientated to
time and place” during the final visit. (W.S.’s Brief, at 20). According to W.S.,
Dr. Carroll baselessly concluded that he is a “pathological liar” without
independently confirming the veracity of the information W.S. provided, and
that the findings of Dr. Ledakis are in conflict with those of Dr. Carroll with
respect to his honesty. (Id. at 23-24). W.S. also contends the orphans’ court
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2 “A person is presumed to be mentally competent, and the burden is on the
petitioner to prove incapacity by clear and convincing evidence.” In re
Hyman, 811 A.2d 605, 608 (Pa. Super. 2002) (citation omitted). Our review
of an orphans’ court’s determination in a competency case is an abuse of
discretion standard, recognizing that the court had the opportunity to observe
all of the witnesses. See id.-7-
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should have accorded more weight to his own assessment of his capacity and
ability to support himself financially. (See id. at 25).
B.
The PEF Code defines an incapacitated person as “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. To 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 evidence regarding the probability that the
extent of the person’s incapacities may significantly lessen or
change.
20 Pa.C.S. § 5518.
In determining whether the appointment of a guardian is appropriate, a
court must consider:
(1) The nature of any condition or disability which impairs the
individual’s capacity to make and communicate decisions.
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(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 and in light of the
existence, if any, of advance directives such as durable powers of
attorney or trusts.
(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.
(5) The duration of the guardianship.
(6) The court shall prefer limited guardianship.
20 Pa.C.S. § 5512.1(a)(1)-(6).
We also note that expert medical testimony is of great significance in an
incapacity proceeding because it assists the orphans’ court in determining the
nature, severity and consequences of an alleged incompetent person’s
disability. See In re Estate of Wood, 533 A.2d 772, 774 (Pa. Super. 1987).
C.
Instantly, the orphans’ court found clear and convincing evidence to
adjudicate W.S. incapacitated and concluded that he is in need of a permanent
plenary guardian of his estate and person. In rendering its decision, the court
explained:
[Dr. Carroll’s] 20-plus page expert report [] concluded in
multiple locations that Appellant was a totally incapacitated
person and in need of plenary guardianship[.] Appellant would
have us believe, simply because he says so, that he is capable of
independent living and can adequately care for himself. However,
the petitioners presented clear and convincing evidence to the
contrary through the testimony of two experts and the social
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worker. Appellant presented no evidence to refute the factual
conclusion that Drs. Carroll and Ledakis reached regarding his
financial prowess, his medical problems or his living situation. Nor
did this Court find credible Appellant’s explanations as to the lack
of food, electricity and phone in his home. The undersigned, while
sympathetic to Appellant’s own description of his mental and
physical state and his stated desire to live independently, found
the other witnesses to be far more believable.
. . . The Trial Court heard two witnesses each conclude,
albeit in different words, that Appellant was a totally incapacitated
individual in need of a guardian to help him with his care and
decision making. . . . Both Dr. Carroll and Dr. Ledakis concluded
unequivocally that Appellant was totally impaired in almost every
function. Dr. Carroll diagnosed Appellant with ‘major
neurocognitive impairment’ and Dr. Ledakis diagnosed Appellant
with ‘major vascular-cased cognitive disorder.’ The undersigned
saw no conflict in their testimony and Appellant did not present
any testimony to that effect.
Two highly-experienced experts presented extensive
testimony and written reports concluding that Appellant was a
totally incapacitated person in need of plenary guardianship.
Appellant failed to present the Trial Court with any evidence to
counterbalance these other witnesses and reports. No bank or
stock account or ‘trading’ statements, tax returns or other written
evidence was provided which would have enabled us to accept as
fact his claims about his earning capacity or his prior business
activities or to support his statement that he expected to continue
to earn income through trading, through restarting a retail
business or through his anticipated purchase of a property where
he would establish a new business.
. . . While Appellant was articulate and at times charming,
the court found Appellant’s testimony to be indicative of his
impaired mental status. His claims that ‘I’m not incapacitated in
any way’ simply did not pass muster.
. . . Having heard all the testimony and reviewed the expert
reports, the undersigned concluded that Appellant’s testimony
was not as credible as both experts and [Ms. Kifer]. The
presumption of capacity was handily overcome and clear,
convincing and extensive proof of Appellant’s need for
appointment of a guardian of both the person and estate was
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presented. The court concluded that no less restrictive alternative
to appointment of a guardian was available.
(Orphans’ Court Op. at 10-13) (record citations omitted).
The record supports the orphans’ court’s conclusion and the credibility
determinations it made against W.S. after observing the witnesses, listening
to their testimony, interacting with W.S., and considering the expert reports.
Both Drs. Carroll and Ledakis expressed substantial concerns regarding W.S.’s
ability to receive information, process the information and make reasonable
decisions about his healthcare and finances. Although they performed
different tests, they concurred that W.S. suffers from dementia, is
incapacitated and is in need of plenary guardianship. Despite any marginal
improvement W.S. may have demonstrated, Dr. Carroll concluded there was
essentially “no difference” between the three evaluations he conducted, and
Dr. Ledakis explained that W.S.’s medical condition had likely caused delirium
and changes to his mental status.
Ms. Kifer testified that W.S. is inclined to exercise his discretion AMA to
his detriment, which has resulted in a pattern of reinjury and rehospitalization.
W.S.’s lack of cooperativeness and limited financial resources have made
placement with any guardian difficult, especially in light of his poor cognitive
functioning and medical history, making assurance of his full-time residency
in a structured setting necessary.
W.S. offered only his own personal viewpoint as to his ability to live
independently and support himself financially, as he presented no
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documentation or testimony to support this position. Although the orphans’
court was sympathetic to W.S.’s very difficult circumstances and desire to
maintain independence, the court remained mindful of its responsibility to
ensure that W.S. does not continue to act against his own interests or
jeopardize his eligibility to receive much needed medical benefits. In sum,
the Agency presented clear and convincing evidence to adjudicate W.S.
incapacitated and appoint a plenary guardian of his estate and person.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2022
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