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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ERIKA BAILEY,                    :     IN THE SUPERIOR COURT OF
A/K/A ERICKA BAILEY, AN ALLEGED         :           PENNSYLVANIA
INCAPACITATED PERSON                    :
                                        :
APPEAL OF: JAMES BAILEY, SR.,           :           No. 2 MDA 2015
                                        :
                      Appellant         :


                 Appeal from the Decree, October 21, 2014,
            in the Court of Common Pleas of Huntingdon County
                  Orphans’ Court Division at No. 2014-184


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED AUGUST 31, 2015

     Appellant, James Bailey, Sr. (“Husband”), appeals the final decree

declaring Erika Bailey (“Wife”) incapacitated and appointing two of his adult

children as co-guardians for Wife’s person and estate. We affirm.

     Husband and Wife, age 71, resided together in their home in

Mill Creek, Huntingdon County, until September of 2014.      In response to

reports of need received by appellee, Huntingdon/Bedford/Fulton Area

Agency on Aging (“the Agency”), an emergency petition for incapacity and

the appointment of guardians was filed on September 9, 2014.             The

Orphans’ Court Division of the Court of Common Pleas of Huntingdon County

issued an order on September 9, 2014, appointing the Agency as the

emergency guardian of the person and estate of Wife, and appointed a

guardian ad litem as well as counsel.       On September 10, 2014, another
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order    was    entered   extending   the   appointment   of   the   Agency   until

September 28, 2014.

        A hearing was held on October 10, 2014. On October 21, 2014, the

Orphans’ Court issued Findings of Fact and a Final Decree declaring Wife to

be totally incapacitated and appointing two of Wife’s children, Nicole Hicks

and John Bailey, as plenary permanent co-guardians of her person and

estate. Husband filed exceptions to the Final Decree on November 10, 2014.

The exceptions to the Final Decree were denied on December 8, 2014.

        On December 23, 2014, Husband filed a notice of appeal.                On

December 29, 2014, the Orphans’ Court ordered Husband to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b);

Husband timely complied and raises the following two issues for our review:

               Whether the Trial Court’s Findings of Fact are
               supported by the record?

               Whether the Trial Court erred and/or abused its
               discretion by concluding that [Husband] was
               incapable of serving as [Wife]’s Guardian?

Husband’s brief at 6.

        Our standard of review is as follows:

               [T]he Court is 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.

In re Peery, 727 A.2d 539, 540 (Pa. 1999).



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      An incapacitated person is:

            [A]n 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.A. § 5501. “The 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.” 20 Pa.C.S.A. § 5511(a).

      In making a determination of incapacity, the Orphans’ Court is

required to make findings of fact:

            In all cases, the court shall consider and make
            specific findings of fact concerning:

            (1)   The nature of any condition or disability
                  which impairs the individual’s capacity 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 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



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                 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.A. § 5512.1(a).

     Additionally:

                 Once     an    individual    has   been     found
           incapacitated within the meaning of 20 Pa.C.S.
           § 5501, Meaning of incapacitated person, and in
           need of guardianship services, it then becomes the
           court’s responsibility to appoint an individual to
           serve, granting limited or plenary powers consistent
           with the incapacitated person’s needs. When making
           the decision who shall so serve, the court may
           consider, in addition to all the evidence before it, the
           preference of the party. Id., § 5511. The selection
           of a guardian for a person adjudicated incapacitated
           lies within the discretion of the trial court whose
           decision will not be reversed absent an abuse of
           discretion.

Estate of Haertsch, 649 A.2d 719, 720 (Pa.Super. 1994).

     Instantly, Husband argues that many of the Orphans’ Court’s findings

of fact are not supported by the evidence that was introduced at the

October 10, 2014 hearing. The 23 findings of fact are as follows:

           1.    Erika Bailey, a/k/a Ericka Bailey (hereinafter
                 referred to as “Mrs. Bailey”) has stage
                 three (3) dementia. N.T. at 3.

           2.    Based upon the fact that she has stage
                 three (3) dementia, Mrs. Bailey is unable to
                 provide any of her own medical history, unable
                 to keep her own checkbook, and unable to



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                make any decisions concerning her physical
                health and safety. N.T. at 3.

          3.    Mrs. Bailey is dependent on others for her
                basic needs. N.T. at 4.

          4.    The dementia that Mrs. Bailey suffers from is
                progressive. There is no medicine or course of
                treatment that will correct or improve her
                condition. N.T. at 4.

          5.    In 2011, Mrs. Bailey’s dementia started to
                progress, and she began wandering from her
                home. N.T. at 19.

          6.    On September 8th, 2014, the Area Agency on
                Aging received a report of need stating that
                Mrs. Bailey was in danger and her
                nutritional/hygiene needs were not being met,
                despite the presence of the twenty-four (24)
                hour aide service. N.T. at 20.

          7.    The Area Agency on Aging and Dr. Mary Etta
                Hadley Donohue (Geriatrics doctor) determined
                Mrs. Bailey required a locked dementia unit
                due to the progression of her dementia and her
                behavioral issues. N.T. at 21.

          8.    The closest facility that could manage
                Mrs. Bailey’s care and condition is in Berlin, PA.
                This facility has a locked dementia unit,
                specifically dedicated to the care and
                treatment of dementia patients. N.T. at 22.

          9.    Mrs. Bailey’s dementia, coupled with her
                requirement of several psychotropic drugs to
                control her behavioral issues would be difficult
                to manage at home. N.T. at 25-26.

          10.   Mrs. Bailey’s husband (hereinafter referred to
                as “Mr. Bailey”) requires a high level of care.
                N.T. at 24.




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          11.   Mr. Bailey’s sugar levels go up and down and
                as a result, his cognitive status fluctuates.
                N.T. at 24.

          12.   Mr. Bailey has required care at the
                Meadowview facility when visiting his wife.
                N.T. 24-25.

          13.   Mr. Bailey lacks the ability to understand
                Mrs. Bailey’s dementia and her disease would
                make it difficult for him to make appropriate
                care choices for her. N.T. at 25.

          14.   Nicole Hicks is the daughter of Mr. Bailey and
                Mrs. Bailey. N.T. at 42.

          15.   Nicole Hicks visits Mrs. Bailey at the
                Meadowview facility every week, sometimes
                twice a week. N.T. at 44.

          16.   Nicole Hicks has bought Mrs. Bailey almost all
                of the clothing she owns. N.T. at 44.

          17.   Nicole Hicks believes, based upon her weekly
                visits to Berlin, PA, that her mother,
                Mrs. Bailey, is receiving appropriate care at the
                nursing facility. N.T. at 45.

          18.   Nicole Hicks is willing to serve as co-guardian
                of Mrs. Bailey, along with her brother,
                John Bailey. N.T. at 46.

          19.   John Bailey is the son of Mr. Bailey and
                Mrs. Bailey. N.T. at 48.

          20.   John Bailey prefers that Mrs. Bailey be at a
                nursing facility rather than at home. N.T. at
                50.

          21.   John Bailey is willing to serve as a co-guardian
                of Mrs. Bailey. N.T. at 50.




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             22.   All of the children of Mr. Bailey and Mrs. Bailey
                   agree that Mr. Bailey should not be a guardian
                   of Mrs. Bailey.

             23.   Mr. Bailey’s health condition and behavior
                   make it impossible for him to provide the level
                   of care necessary for Mrs. Bailey in the home.

Findings of fact, 10/21/14 at 1-6.

      Basically, the crux of Husband’s argument is that the Orphans’ Court’s

conclusion that Wife needed to be placed outside her home is not supported

by competent evidence. According to Husband, the first four findings of fact

are taken from the expert testimony of Dr. Mary Etta Hadley Donohue who

testified that Wife suffers from an incurable dementia which places her

completely dependent on others for her care. However, Husband claims the

Orphans’ Court neglected that portion of Dr. Donohue’s testimony that Wife

could be maintained in her home by the team of caregivers currently in place

and she saw no reason why Husband would be incapable of serving as Wife’s

guardian. (Appellant’s brief at 10.)

      Husband takes issue with finding of fact no. 7 that, according to

Dr. Donohue and the Agency, Wife needed to be placed in a locked dementia

unit due to the progression of her dementia and behavioral issues. Husband

suggests that Dr. Donohue made no such recommendation. (Id. at 10-11.)

      Husband disputes findings 10 through 13 regarding Wife’s medical

condition.   Husband argues that during her testimony Jackie Hummel, a

supervisor with the Agency, was expressing the reports of others and had no



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first-hand observations to report.        Furthermore, Husband asserts that

Ms. Hummel was not qualified to make an assessment of his health and his

ability to care for his wife. (Id. at 11-12.)

      We begin by addressing Husband’s argument regarding the first four

findings of fact and the testimony of Dr. Donohue. Husband is correct that

Dr. Donohue testified that Wife’s needs were being met while she was in her

home. (Notes of testimony, 10/10/14 at 6.) The doctor also testified Wife

requires 24-hour care, and needs a guardian of her person and estate to

make decisions for her. Additionally, the doctor stated Husband has health

limitations that limit his ability to care for Wife. (Id. at 7-9.)

      While the doctor did state that Wife’s needs were being met, there is

evidence in the record that Dr. Donohue assisted in placing Wife in a nursing

care facility.   Ms. Hummel testified the Agency was working with Dr.

Donohue after the Agency filed the emergency guardianship:

            [Attorney for Husband:] What steps did you take
            once you filed the emergency guardianship
            concerning [Wife’s] care?

            [Ms. Hummel:] We worked with Dr. Donohue to
            determine what kind of -- if they felt she needed
            nursing facility care. Due to the progression of her
            dementia and her behavioral issues and when I say
            that issue is reluctan[ance] to care at times she
            could become aggressive. She could wander. They
            felt she needed a locked dementia unit.           So I
            proceeded to start close and span out to different
            facilities to try to find a facility that could manage
            her care and Berlin, PA was the closest appropriate
            facility that was able to accept her.



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             Q.   What makes that facility appropriate?

             A.   They have a locked dementia unit. So it’s
                  nursing facility level of care. They have a unit
                  that is specifically for dementia patients. The
                  staff on that unit has special training in how to
                  handle Alzheimer’s patients.

Id. at 21-22.

      The above testimony seems to indicate that Dr. Donohue was working

with the Agency to place Mrs. Bailey in a facility with skilled nursing care.

Additionally, on cross-examination, Ms. Hummel was further questioned

regarding Dr. Donohue’s involvement in having Mrs. Bailey moved out of

Husband’s home.


             [Attorney for Wife:] You said that when the decision
             was made to move her there was a form that would
             have been filled out by Dr. Donohue.

             [Ms. Hummel:] Yes.

             Q.   And at that point she [the doctor] felt that it
                  was necessary for her to be in a locked
                  dementia unit?

             A.   No. She felt she needed nursing facility level
                  of care. Due to the wandering the assessor
                  felt that she needed a locked unit.

Id. at 27.

      Based on the above, contrary to Dr. Donohue’s statement that

Mrs. Bailey’s needs were being met at home, it is clear that there is support

in the record that she needed nursing facility skilled care. Additionally, we

observe that Juna Marie Rose, Wife’s in-home caregiver for five years,


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testified that her knowledge of personal in-home care came from practical

experience; she was not a nurse and had no specialized training working

with dementia patients. (Id. at 59, 63.)

        As to Husband’s claim that Wife did not need to be in a secured

dementia unit, the record reflects Wife was assessed and it was determined

that she needed to be placed in a secured unit.       (Id. at 21.)   In fact,

Ms. Hummel testified that in 2011, Wife’s dementia started to progress. At

that time, the Agency was working with Husband to help him understand

what Wife’s care issues were and what her limitations were because she was

needing more care and more supervision. (Id. at 19.) Ms. Hummel further

stated, in 2011, “[Wife] had started to wander from the home, we had

gotten reports from State Police and others where she had wandered from

the home and had to be brought back.” (Id.) Clearly, the record supports

Wife’s need to be placed in a locked dementia unit for her own safety to

prevent her from wandering off.

        Husband next takes issue with the Orphans’ Court’s findings of fact

regarding his own medical condition, as well as Ms. Hummel’s opinion of his

medical condition. Our review of the record indicates Dr. Donohue testified

she is Husband’s primary care physician.     (Id. at 7.)   The doctor did not

address specific medical conditions, but only stated Husband would

“probably be overly fatigued if he provided all of the care [for his wife].”

(Id.)



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        Cathy Procelli, who was employed by Helpmates, an agency that

provided in-home services, such as, cooking, cleaning, and helping with

baths, testified that the Veterans Administration (“VA”) would come into the

home to give Husband a bath, like she did for Wife.           (Id. at 13, 15.)

John Bailey, appellant’s son, testified his father suffers from diabetes,

macular degenerative disease, such that he has to have someone do any

driving for him, and he has a disability with his back, such that he needs

someone to help him bathe.         (Id. at 52-53.)     Ms. Rose, the in-home

caregiver, testified that she has assisted Husband in putting bandages on his

legs when needed, and she also helps him write checks because of his poor

eyesight. (Id. at 65-66.)

        Jerry Bailey, one of Husband and Wife’s children, testified that for the

last six months, he was at the family home between three and five days a

week. (Id. at 29-30.) He testified that his father is not able to take care of

his mother.     (Id. at 32.)   He stated, “It’s the caregivers that tend her.”

(Id.)

        Even without Ms. Hummel’s testimony regarding her opinion of

Husband’s medical condition, there is sufficient testimony from other

witnesses regarding the state of Husband’s health.       The record is replete

with testimony that Husband requires outside help to take care of himself as

well as his wife.




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        In his second issue, Husband argues he should have been appointed

guardian of his Wife’s person and estate.        A guardian of the person is

responsible for all of an incapacitated person’s care and custody.      In re

Estate of Border, 68 A.3d 946, 956 (Pa.Super. 2013), citing 20 Pa.C.S.A.

§ 5521. The selection of a guardian for an incapacitated person lies within

the trial court’s discretion.    Estate of Haertsch, 649 A.2d at 720-2721.

The Probate, Estates and Fiduciary Code1 gives the trial court broad

discretion to appoint as guardian “any qualified individual” 2 or agency,

20 Pa.C.S. § 5511, but the court should select the guardian based on the

best interests of the incapacitated person. In re Duran, 769 A.2d 497, 506

(Pa.Super. 2001), citing In re Estate of Dorone, 535 A.2d 452, 454 (Pa.

1987).

        Husband contends it was Dr. Donohue’s opinion that he was capable of

serving as his wife’s guardian, and as such, the trial court should have

appointed him his wife’s guardian. In explaining its decision, the Orphans’

Court opined:

                   Mr. Bailey was very clear in his testimony.
             Had we acquiesced to his wishes and appointed him
             as his wife’s guardian, he would have removed his
             wife from the secure dementia unit where she is
             currently a patient. Mrs. Bailey’s quality of life would
             be extremely diminished if forced to return to her

1
    20 Pa.C.S.A. § 101 et seq.
2
  The term “any qualified individual” is not defined by statute, and the
relevant statutory provisions do not delineate a set of factors a court must
consider in appointing a guardian.


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            home, especially when compared to the exceptional
            care she receives at the Meadow View personal care
            home in Berlin, Pennsylvania.      While at Meadow
            View, Mrs. Bailey is maintained in a facility designed
            to treat and care for patients suffering from
            dementia. Quite frankly, the desire of Mr. Bailey to
            have his wife removed from the dementia unit is
            evidence of the lack of judgment that would prevail if
            we had appointed Mr. Bailey as his wife’s guardian.

                   Our decision not to consider Mr. Bailey as a
            guardian of his wife was required when considering
            Mr. Bailey’s own medical history, his vision issues
            and his general confusion in the courtroom. A return
            home for Mrs. Bailey would equate to a recipe for
            failure. While her treating physician did testify that
            Mrs. Bailey could be maintained in her home, that
            testimony was not developed to explain how
            nonprofessional care givers would be able to manage
            that task. Certainly, it is possible to maintain any
            patient in the home when battling a serious illness.
            The question, however, is whether there are the
            resources and care givers in place to do so. The
            very person charged with the daily care of
            Mrs. Bailey, prior to her removal from the home,
            testified that she took care of Mrs. Bailey “to the
            best of my ability . . . I’m not trained.” (Testimony
            of Juna Marie Rose N.T. 59.) Although he is well
            intentioned, Mr. Bailey is not able [sic] of providing
            appropriate care and making proper decisions for his
            wife.    We have chosen the option of superior,
            licensed and professional care as opposed to having
            Mrs. Bailey “maintained” in her home.

Orphans’ Court opinion, 2/10/15 at 2-3.

      The Orphans’ Court appointed two of Husband and Wife’s children,

Nicole Hicks and John Bailey, as co-guardians of Wife’s person and estate.

Nicole Hicks, who is a registered nurse, testified she visits her mother every

week and sometimes twice a week. (Notes of testimony, 10/15/14 at 43-



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44.) She described the difference in her mother the first time she visited

her at the nursing facility as, “She was kempt. She was dressed well, not in

just, you know, diapers.    [M]y mother was always cold and, she was in

warm clothing and stuff like that.    And we [my husband and I] were just

totally surprised by the transformation.” (Id.) When asked if she would be

in favor of moving her mother back to her father’s house, she replied,

“No way.” (Id. at 45-46.)

      John Bailey testified that before his mother was placed in the nursing

facility, he was worried about her. He testified:

            In the last few months[,] my dad has changed and
            the stress that has changed him has changed the
            way they live. My mother no longer sleeps in her
            bedroom. She sleeps in another room. Healthcare-
            wise we do -- the toenails. I’ve seen moldy food in
            the kitchen.

                   But as far as mom’s physical condition, it’s
            declining and at a point that when I talked to the
            healthcare workers and I asked them specifically --
            Juna and Peggy I had talked to before -- about, you
            know, there would be a point that will come to or a
            line that we’ve got to say[,] is this beyond us and I
            think we were at that point[,] not just for my mom’s
            sake but for my dad’s sake too. The stress and --
            could the healthcare be better?         I don’t know
            whether it could be or not.         Mom became so
            belligerent and angry at points where, you know, she
            wouldn’t let anybody touch her, so I don’t fault the
            healthcare for that.    I fault the training of the
            healthcare. I think my mother is to a point where
            she needs trained professional people to deal with
            these situations. I seen [sic] her at the [nursing]
            home. She looks better. She looks healthy.

Id. at 48-49.


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      John Bailey was asked if he thought his father should be appointed

guardian. He answered:

             I don’t think my dad -- my dad’s living with this and
             he doesn’t see what it’s doing and if you look from
             the outside [in], anybody in this courtroom that
             knows my dad to where my dad was a year ago or
             six months ago to where he is today, the stress and
             the care and everything[,] I don’t think he’s capable
             of. I think he’s capable of supplying help but I don’t
             think that help is the appropriate help but I don’t
             think he’s capable of being a guardian.

Id. at 50.

      The Orphans’ Court found Nicole Hicks and John Bailey would serve

their Mother’s best interests by keeping her in the nursing facility.   This

decision by the Orphans’ Court, in light of all the evidence before it, was

reasonable and supported by the record. We discern no error. Accordingly,

we affirm the final decree of the Orphans’ Court.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2015




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