J-S06033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF: ELIZABETH N.                    IN THE SUPERIOR COURT OF
MCGUSTY, AN ALLEGED                                     PENNSYLVANIA
INCAPACITATED PERSON

APPEAL OF: ELIZABETH N. MCGUSTY
                                                      No. 2699 EDA 2016


                  Appeal from the Order Entered July 20, 2016
        in the Court of Common Pleas of Chester County Orphans’ Court
                             at No(s): 1516-0113

BEFORE: MOULTON, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 01, 2017

        Appellant, Elizabeth N. McGusty, appeals from the order entered in the

Chester County Court of Common Pleas appointing Appellant’s adult sons,

Appellee, James C. McGusty, Jr., and Edwin A. McGusty plenary guardians of

Appellant’s person and Appellee as the sole plenary guardian of Appellant’s

estate. Appellant contends that the trial court erred by failing to properly

consider her testimony regarding her sons. We affirm.

        We adopt the facts and procedural history set forth by the trial court’s

opinion.     See Trial Ct. Op., 10/10/16, at 1-3.       In this timely appeal,

Appellant raises the following issue for review: “Did the trial court commit an

abuse of discretion when it failed to properly account for or consider the

testimony of Appellant as it related to the appointment of her adult sons as



*
    Former Justice specially assigned to the Superior Court.
J-S06033-17


plenary guardians of her person, and [Appellee] as guardian over the

estate?” Appellant’s Brief at 9.

      Appellant argues that the trial court failed to properly consider her

testimony regarding her “distrust of and objection to the appointment of her

sons as co-guardians of her person and Appellant as plenary guardian of her

estate.”    Id. at 13.       To this end, Appellant specifically points to her

testimony regarding her sons purported lack of interest in caring for her

daily needs. Id. at 18. She also cites her previous refusal to grant her sons

a durable power of attorney as evidence of her continual distrust.         We

conclude no relief is due.

      Our standard of review is well settled:

           The findings of a judge of the [O]rphans’ [C]ourt division,
           sitting without a jury, must be accorded the same weight
           and effect as the verdict of a jury, and will not be reversed
           by an appellate court in the absence of an abuse of
           discretion or a lack of evidentiary support. This rule is
           particularly applicable to findings of fact which are
           predicated upon the credibility of the witnesses, whom the
           judge had the opportunity to hear and observe, and upon
           the weight given to their testimony. In reviewing the
           Orphans’ Court’s findings, our task is to ensure that the
           record is free from legal error and to determine if the
           Orphans’ Court’s findings are supported by competent and
           adequate evidence and are not predicated upon capricious
           disbelief of competent and adequate evidence. However,
           we are not limited when we review the legal conclusions
           that the Orphans’ Court has derived from those facts.

In re Estate of Cherwinski, 856 A.2d 165, 167 (Pa. Super. 2004) (quoting

In re Estate of Schultheis, 747 A.2d 918, 922 (Pa. Super. 2000)).




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      The appointment of a guardian lies within the sound discretion of the

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

“Discretion must be exercised on the foundation of reason.        An abuse of

discretion exists when the trial court has rendered a judgment that is

manifestly unreasonable, arbitrary, or capricious, has failed to apply the law,

or was motivated by partiality, prejudice, bias, or ill will.” In re Duran, 769

A.2d 497, 506 (Pa. Super. 2001) (quoting Harman ex rel. Harman v.

Borah, 756 A.2d 1116, 1123 (Pa. 2000)).

      The Pennsylvania Decedents, Estates and Fiduciaries Code provides:

         (f) Who may be appointed guardian.--The court may
         appoint as guardian any qualified individual, a corporate
         fiduciary, a nonprofit corporation, a guardianship support
         agency under Subchapter F (relating to guardianship
         support) or a county agency. . . . If appropriate, the
         court shall give preference to a nominee of the
         incapacitated person.

20 Pa.C.S. § 5511(f) (emphasis added).

      If a guardianship nominee is also named in a durable power of

attorney for an incapacitated person, that individual should receive particular

consideration. In re Sylvester, 598 A.2d 76, 83-84 (Pa. Super. 1991).

      In the case sub judice, we note that Appellant had not executed a

durable power of attorney in favor of anyone. Accordingly, the trial court did

not err by failing to consider that Appellee was not previously named as

Appellant’s agent.   See id.   Further, the trial court specifically noted its

consideration of Appellant’s testimony:



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         As the record of the proceedings reflects, the court has
         taken great care to consider the needs and desires of
         [Appellant]. By way of example, the court took care to:
         appoint counsel for [Appellant], allow [Appellant]
         additional time to obtain an “independent” evaluation of
         her capacity, and receive into evidence the direct
         testimony of [Appellant] at both of the proceedings. As
         the court told [Appellant] directly at the close of the
         second hearing, although it was required under the law to
         rule as it did, “I do understand you. I understand what
         you are saying and I respect your views.”

Trial Ct. Op. at 5.

      We conclude that the trial court aptly considered the evidence

presented,   including    Appellant’s   testimony.    See   In   re   Estate   of

Cherwinski, 856 A.2d at 167. Therefore, we hold that the trial court did

not abuse its discretion by naming Appellee and Edwin A. McGusty as the

plenary co-guardians of Appellant’s person and Appellee as the sole plenary

guardian of Appellant’s estate. See Estate of Haertsch, 649 A.2d at 720;

In re Duran, 769 A.2d at 506.           Accordingly, we affirm the trial court’s

order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/1/2017




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