J-A28022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF HELEN HARPER, AN               IN THE SUPERIOR COURT OF
ALLEGED INCAPACITATED PERSON,                         PENNSYLVANIA

                            Appellee



APPEAL OF: ROBERT J. HARPER

                                                      No. 91 EDA 2016


               Appeal from the Order Entered November 25, 2015
               In the Court of Common Pleas of Delaware County
                        Civil Division at No(s): 2015-0597


BEFORE: PANELLA, SHOGAN, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED JANUARY 05, 2017

       This is a pro se appeal by Appellant, Robert J. Harper (“Robert”), the

son of Helen Harper (“Helen”), from the Delaware County Common Pleas

Orphans’ Court decision deeming Helen, age ninety-seven, an incapacitated

person and appointing Jacquelyn Goffney, Esquire, as Guardian ad litem

(“GAL”). Appellee is the Delaware County Office of Services for the Aging

(“COSA”). We affirm.

       On October 8, 2015, COSA filed a Petition for Adjudication of

Incapacity and Appointment of a Plenary Guardian of the Person and Estate

on behalf of Helen. Robert was represented by counsel in the proceedings

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A28022-16


before the orphans’ court.    COSA alleged that Helen lived in deplorable

conditions, and her financial affairs were in disarray.   The orphans’ court

entered a preliminary decree on October 14, 2015, and held an evidentiary

hearing on November 23, 2015. The orphans’ court entered a final decree

on November 25, 2015, and appointed Ms. Goffney and Robert as co-

guardians of Helen’s person and Ms. Goffney and Dana Breslin, Esquire, as

co-guardians of Helen’s estate. Robert filed a notice of appeal on December

23, 2015. Both Robert and the orphans’ court complied with Pa.R.A.P. 1925.

Robert is proceeding pro se on appeal.

      The orphans’ court described the conditions of Helen’s home as

follows:

            At the time the Petition at Issue was filed, Helen Harper
      was 97 years old. For some time prior to the Petition being filed,
      Helen Harper resided with her son, Robert Harper. While Helen
      Harper was residing with Robert, COSA received a report of need
      concerning Helen Harper and Donna Smith was the COSA case
      manager assigned to investigate that report. Donna testified
      that she had to visit the house in which Robert and Helen Harper
      resided four times before she was able to meet with Helen. The
      exterior of the house was in poor condition looking as if the roof
      needed to be replaced and the lawn not having been mowed in
      quite some time. Upon entering the house, Donna testified that
      she was confronted with a strong odor and a cluttered mess with
      piles of various items stacked nearly to the ceiling. The clutter
      was so dense that it appeared to Donna that there was only one
      path through the house to Helen Harper’s room with access to all
      other rooms being blocked. After interviewing Helen Harper,
      Donna took Helen to a doctor who found Helen to be dirty with
      rashes and dry skin. As a result, Donna recommended that
      Helen Harper be evaluated for mental capacity.

            Helen Harper was evaluated by Dr. Kenneth Carroll, a
      forensic geriatric psychologist, who prepared a Psychological

                                    -2-
J-A28022-16


     Assessment and testified in Court. Dr. Carroll reported that
     Robert Harper was, at first, resistant to the evaluation but after
     a brief discussion consented to it. Dr. Carroll, just like Donna
     Smith, described the home as an awful mess both outside and
     inside with junk piled to the ceiling. Dr. Carroll observed that
     Helen is unable to walk and relies on others to move from her
     wheelchair to her bed. During the evaluation, Helen Harper
     could not remember when she married, when her husband died
     or how many children she had. Helen Harper believed she was
     in an apartment rather than her own home despite remarking
     that she put up the hallway wallpaper years ago. In addition,
     Helen Harper was unable to identify her doctor or any health
     problems and Dr. Carroll testified that Helen Harper knew
     nothing about her finances. Dr. Carroll reported that Helen
     Harper was completely isolated but never mistreated by Robert
     Harper. Based on his interaction with Helen Harper, Dr. Carroll
     diagnosed Helen Harper with moderate dementia, probably
     Alzheimer’s and recommended that a guardian be appointed for
     her person and estate to ensure her health, safety and financial
     security.   Dr. Carroll recommended a guardian because he
     believes that Helen Harper can no longer safely reside in her
     home due to its disrepair and because Robert has been resistant
     to assistance and his ability to care for Helen Harper is doubtful.

            Charles Harper, Helen Harper’s son and Robert’s brother,
     testified that Robert has resided with Helen Harper since 2001
     but Charles has not visited Helen Harper in her home since 2014
     because Robert would not allow it. Charles testified that, in
     2013, Robert discovered that Helen Harper’s real estate taxes
     had not been paid and that Robert as agent under power of
     attorney for Helen Harper made three withdrawals from Helen
     Harper’s account totaling nearly $70,000.00.       Charles also
     testified that, since Helen Harper was admitted to a nursing
     home, Charles has been able to visit Helen Harper. Based on his
     observations and the nursing home reports, Charles testified that
     Helen Harper’s condition improved in the nursing home and, as a
     result, Charles does not think that Robert should be appointed
     guardian of Helen Harper.

           Robert Harper testified that he has been caring for Helen
     Harper since 2001 and that he believes he can handle the duties
     and responsibilities of being Helen Harper’s guardian with the
     assistance of a home health aide. Robert also testified that,
     while Helen Harper was under his care, he filed for bankruptcy

                                    -3-
J-A28022-16


      on behalf of Helen Harper, sold properties owned by Helen
      Harper in order to be able to pay real estate taxes, and the Fire
      Department placed a Do Not Enter on the house in which Robert
      and Helen Harper resided because the clutter was so thick inside
      that, if a fire were to ignite inside, it would be too dangerous for
      fire fighters to go inside to fight the blaze. Robert also testified
      that he does not work and has no income relying, instead, on
      Helen Harper’s social security income of approximately
      $2,300.00 per month to provide for himself and Helen Harper.
      To save money, Robert testified that he heats the house with
      electric space heaters and has done so for about four years.

            Jacquelyn Goffney, Esquire, Helen Harper’s court-
      appointed Guardian Ad Litem, addressed the Court and reported
      that Helen Harper filed for Chapter 13 bankruptcy because she
      had approximately $260,000.00 of debt.       Ms. Goffney also
      reported that she identified additional problems with Helen
      Harper Harper’s accounts and estate planning. Just as Donna
      Smith and Dr. Kenneth Carroll reported, Ms. Goffney reported
      that the house in which Robert and Helen Harper resided smelled
      awful and contained an obscene amount of clutter.

            Helen Harper also addressed the Court and expressed her
      opinion that Robert Harper takes excellent care of her. Helen
      Harper knew nothing about her financial situation and expressed
      a desire to return home because she thinks she can care for
      herself.

Orphans’ Court Opinion, 3/10/16, at 2–4.

      Robert raises the following two issues on appeal:

         A. Whether the lower court abused its discretion in appointing
            a guardian ad litem on behalf of Helen Harper over her
            objection and contrary to evidence?

         B. Whether the lower court erred in denying the Appellant’s
            request for an independent evaluation and less restrictive
            options in violation of her due process rights?

Appellant’s Brief at 6.




                                     -4-
J-A28022-16


       Our standard of review of the findings of an orphans’ court is

deferential.    In re Ware, 814 A.2d 725, 731 (Pa. Super. 2002).                When

reviewing a decree entered by the orphans’ court, “this Court must

determine whether the record is free from legal error and the court’s factual

findings are supported by the evidence.” In re Estate of Devoe, 74 A.3d

264, 267 (Pa. Super. 2013). “Because the Orphans’ Court sits as the fact-

finder, it determines the credibility of the witnesses and, on review, we will

not reverse its credibility determinations absent an abuse of that discretion.”

In re Fiedler, 132 A.3d 1010, 1018 (Pa. Super. 2016), appeal denied, 145

A.3d 166 (Pa. 2016).

       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. § 5521).            We have long stated that 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)).

             Pennsylvania law defines a guardian as a person lawfully
       invested with the power, and charged with the duty, of taking

                                         -5-
J-A28022-16


      care of the person and/or managing the property and rights of
      another person, who, for defect of age, understanding or self-
      control is considered incapable of administering his own affairs.
      Two classes of guardians have long been recognized at law: (1)
      guardian of the person being invested with the care of the
      person of the [incapacitated person], and (2) guardian of the
      estate being entrusted with the control of the property of the
      [incapacitated person]. The spheres of authority of a guardian
      of the person and of a guardian of the estate are distinct and
      mutually exclusive.

            The guardian of the [incapacitated person’s] person is the
      person having primary physical responsibility for the care and
      custody of the [incapacitated person].        However, natural
      guardianship confers no inherent right to intermeddle with the
      property of the [incapacitated person], and the natural guardian
      has no inherent authority to demand or power to receive, hold or
      manage the [incapacitated person’s] property unless the natural
      guardian has also been appointed as guardian of the
      [incapacitated person’s] estate.

Rock v. Pyle, 720 A.2d 137, 141 (Pa. Super. 1998) (citations omitted).

      Robert’s first issue asserts that the orphans’ court abused its discretion

in appointing a GAL on behalf of Helen.            Robert challenges COSA’s

contention that Helen had to be removed from the home due to substantial

medical circumstances maintaining “there was no substantial proof.”

Robert’s Brief at 15.   He suggests that the testimony of psychologist Dr.

Kenneth Carroll, that Helen lived in deplorable conditions, does not “equate[]

to incapacity.” Id.

      Robert contends that Helen was removed from the home against her

will. Robert’s Brief at 16. He urges that Helen’s forgetfulness is due merely

to her age. Id. Robert maintains that Helen was mentally competent “by




                                     -6-
J-A28022-16


clear and convincing evidence,” yet he does not cite to anything in the

record as support for his assertion. Id. at 17.

       Robert also avers that the orphans’ court shifted the burden of proof to

him.   Robert’s Brief at 17.   He suggests that the orphans’ court failed to

comply with 20 Pa.C.S. § 5512.1, which provides:

          § 5512.1. Determination of incapacity and appointment of
                                 guardian

       (a) Determination of incapacity.--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 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).




                                      -7-
J-A28022-16


      Robert also maintains the orphans’ court failed to give consideration to

Helen’s choice of GAL in contravention of 20 Pa.C.S. § 5511, which provides,

in part:

           § 5511. Petition and hearing; independent evaluation

                                    * * *

      (f) Who may be appointed guardian.--The court may appoint as
      guardian any qualified individual . . . . If appropriate, the court
      shall give preference to a nominee of the incapacitated person.

20 Pa.C.S. § 5511 (emphasis added). Robert’s Brief at 19. Robert submits

that “if [Helen] needed a guardian, then, in such event, [he] was the best

person to be appointed.”       Robert’s Brief at 20.    Robert’s argument is

conclusory and unsubstantiated by reference to the record.

      COSA argues that the issue is waived because Robert failed to include

it in his Pa.R.A.P. 1925(b) statement. COSA’s Brief at 2. While Robert may

not have stated the issue in his appellate brief in the exact terms as

presented in the concise statement, it is sufficiently suggested therein.

Thus, we decline to find waiver.      In the alternative, COSA relies on the

orphans’ court’s explanation and the evidence presented at the November

23, 2015 hearing.       COSA’s Brief at 2.   We rely on the orphans’ court’s

explanation, as well.

           At the November 23, 2015 evidentiary hearing, all parties
      were given a full and fair opportunity to present their case. Dr.
      Kenneth Carroll, a forensic geriatric psychologist, testified and
      recommended a guardian because Helen Harper suffers from
      moderate dementia, probably Alzheimer’s and was not receiving
      adequate care or support from Robert Harper who was living

                                     -8-
J-A28022-16


     with Helen Harper and who contested the Petition on the
     grounds that a guardian was unnecessary because of his care.
     Dr. Carroll’s diagnosis of moderate dementia, probably
     Alzheimer’s was based on his clinical testing of Helen Harper and
     his substantive observations such as Helen Harper’s inability to
     walk, inability to remember when her husband died, inability to
     remember how many children she had, inability to describe her
     physical and mental condition and her inability to articulate any
     understanding of her finances. Dr. Carroll’s recommendation
     that a guardian be appointed was based on his perception of
     Helen Harper’s home environment. When Dr. Carroll evaluated
     Helen Harper at her home, Dr. Carroll noted that the house was
     an awful mess inside and outside and emitted a displeasing odor.
     Based on those observations, Dr. Carroll reported that Robert
     Harper’s ability to care for and support Helen Harper is doubtful
     as Helen Harper was not, at that time, receiving adequate care
     and support.      This evidence of record wholly satisfies the
     requirement of 20 Pa.C.S. §5518 that the Petitioner provide
     evidence of incapacity from a qualified individual.

            Finding that Helen Harper is an incapacitated person is
     even more appropriate after considering the factors listed In 20
     Pa.C.S. § 5512.1(a) because the lack of adequate care and
     support for Helen Harper is further supported by the record.
     Both Donna Smith, the COSA case manager, and Jacquelyn
     Goffney, Esquire, the Guardian Ad Litem, corroborated Dr.
     Carroll’s report and testimony that Helen Harper’s house was
     malodorous, in a concerning state of disrepair and clogged with
     junk inside. Robert Harper even testified that, while he and
     Helen Harper were residing in the house, the Fire Department
     placed a Do Not Enter [sign] on the house because the clutter
     was so thick inside that, if a fire were to ignite inside, it would be
     too dangerous for fire fighters to go inside to fight the blaze.
     Despite that obvious warning and concern, Robert Harper
     testified that he heated the home with electric space heaters for
     the last four years.

           The testimony of Charles Harper, Jacquelyn Goffney,
     Esquire and Robert Harper himself also reveals that Helen
     Harper’s financial situation was in dire straits as a result of
     Robert Harper’s stewardship as agent under power of attorney
     for Helen Harper over the last few years. Robert Harper failed to
     pay taxes on several pieces of real estate owned by Helen
     Harper which required him, as agent, to make about $70,000.00

                                     -9-
J-A28022-16


      worth of withdrawals of Helen Harper’s funds to make partial
      payment. To make further payment of previously unpaid real
      estate taxes, Robert Harper sold real property owned by Helen
      Harper. Robert Harper also allowed Helen Harper to accrue
      approximately $260,000.00 of debt resulting in the institution of
      bankruptcy proceedings. Lastly, Robert Harper testified that he
      is not employed and has not been employed for some time so,
      while he and Helen Harper were residing together, Robert Harper
      was relying on Helen Harper’s $2,300.00 per month to support
      both himself and Helen Harper.

            Considering this record as created at the November 23,
      2015 evidentiary hearing and recounted above, the Petitioner,
      COSA, easily satisfied its burden of proving by clear and
      convincing evidence that Helen Harper is an incapacitated person
      pursuant to the requirements of 20 Pa.C.S. §§ 5511, 5518 and
      5512.1(a). Not only does Helen Harper suffer from moderate
      dementia, probably Alzheimer’s which impacts her cognitively to
      the point where she cannot remember who her doctor is and
      what her finances are but the record revealed that Helen Harper
      also does not have a sufficient support system in place to render
      her not incapacitated as per the Supreme Court of
      Pennsylvania’s analysis in In re Peery [727 A.2d 539 (Pa.
      1999)]. As such, there was no less restrictive alternative to
      guardianship available to the [c]ourt. The [c]ourt, therefore,
      appointed Jacquelyn Goffney, Esquire and Robert Harper Co-
      Guardians of the Person of Helen Harper and appointed
      Jacquelyn Goffney, Esquire and Dana Breslin, Esquire Co-
      Guardians of the Estate of Helen Harper. Despite the record
      revealing that the level of care provided by Robert Harper to
      Helen Harper was deficient, the [c]ourt appointed Robert Harper
      Co-Guardian of the Person of Helen Harper because it was
      evident from the record that Robert Harper had great affection
      for and is devoted to his mother, Helen Harper.

Orphans’ Court Opinion, 3/10/16, at 7–9.

      Robert also argues that the orphans’ court erred in denying his request

for an independent evaluation. Robert’s Brief at 22. He wholly fails to cite

to the record where such denial occurred.       In support of his argument,

Robert refers to the relevant statute, which provides as follows:

                                    - 10 -
J-A28022-16


           § 5511. Petition and hearing; independent evaluation

     (a) Resident.--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. The
     petitioner may be any person interested in the alleged
     incapacitated person’s welfare. The court may dismiss a
     proceeding where it determines that the proceeding has not
     been instituted to aid or benefit the alleged incapacitated person
     or that the petition is incomplete or fails to provide sufficient
     facts to proceed. . . . In addition, notice of the petition and
     hearing shall be given in such manner as the court shall direct to
     all persons residing within the Commonwealth who are sui juris
     and would be entitled to share in the estate of the alleged
     incapacitated person if he died intestate at that time, to the
     person or institution providing residential services to the alleged
     incapacitated person and to such other parties as the court may
     direct, including other service providers. . . .

20 Pa.C.S. § 5511(a) (second emphasis added).          Robert suggests that

because “only those persons who are sui juris and would be entitled to share

in the alleged incapacitated person’s estate are required to be notified of

impending incapacitation proceedings,” the class of individuals entitled to

challenge the adjudication “should be limited to these same intestate heirs

and the alleged incapacitated person himself.”     Robert’s Brief at 24.   As

noted in the emphasis above, the language of the statute itself belies the

propriety of such a claim. See also In re Hyman, 811 A.2d 605, 607-608

(Pa. Super. 2002) (“Any person interested in the alleged incapacitated

person’s welfare may petition the court for a judicial determination that the

person is indeed incapacitated and for the appointment of a guardian.”).

     Robert also cites to section (d) of the statute, which provides:


                                   - 11 -
J-A28022-16


      (d) Independent evaluation.--The court, upon its own motion
      or upon petition by the alleged incapacitated person for cause
      shown, shall order an independent evaluation which shall meet
      the requirements of section 5518 (relating to evidence of
      incapacity).   The court shall give due consideration to the
      appointment of an evaluator nominated by the alleged
      incapacitated person.

20 Pa.C.S. § 5511(d). In his reply brief, Robert references a document he

presented at the November 23, 2015 hearing purporting to be Helen’s

request for an independent evaluation. Robert’s Reply Brief at Appendix A;

N.T., 11/23/15, at 60.     Robert continues in his assertion that medical

records did not support Helen’s incapacitation and that the orphans’ court

appointment of a guardian ad litem was against the weight of the evidence.

Robert’s Brief at 27–28.

      Once again, we look to the decision of the orphans’ court, which found

as follows:

             The record overwhelmingly supports a finding that Helen
      Harper is an incapacitated person who requires the appointment
      of a guardian of her person and estate. Helen Harper was
      properly served with notice of the Petition and the hearings in
      this matter as required by 20 Pa.C.S. § 5511(a). At the initial
      hearing on November 9, 2015, Robert George, Esquire, counsel
      for COSA, submitted into evidence an Affidavit of Service which
      was notarized and signed by Jane Ervin who attested that she
      had “personally served, read to, explained and left a copy of the
      CITATION WITH IMPORTANT NOTICE, Preliminary Decree, and
      accompanying Petition” upon Helen Harper. In light of the
      absence of Helen Harper at the November 9, 2015 hearing, the
      significance of the allegations regarding Helen Harper’s condition
      and finances, and John Nilan, Esquire appearing as opposing
      counsel on behalf of Robert Harper, the [c]ourt appointed
      Jacquelyn Goffney, Esquire Guardian Ad Litem on behalf of Helen
      Harper and scheduled this matter for an evidentiary hearing to
      be held on November 23, 2015. At no point from the moment

                                    - 12 -
J-A28022-16


      the Petition was filed until the appealed Final Decree was signed,
      did Helen Harper request counsel or an independent evaluation.
      Instead, the [c]ourt proactively appointed a Guardian Ad Litem
      for Helen Harper in order to ensure that the rights and best
      interest of Helen Harper were protected throughout this entire
      process.

Orphans’ Court Opinion, 3/10/16, at 6–7 (footnote omitted).

      Here, the evidence presented establishes that Robert has failed to act

in the best interests of Helen’s person and estate.    He has prevented his

brother Charles from visiting Helen since May of 2014. N.T., 11/23/15, at

29, 36. COSA presented the testimony of Dr. Carroll, the forensic geriatric

psychologist, who prepared a Psychological Assessment dated August 3,

2015, and testified in court regarding Helen’s condition.     Upon assessing

Helen, Dr. Carroll asked Helen to assess her circumstances “and she said

there was nothing wrong.” N.T., 11/23/15, at 47. “She did not realize she

was losing weight . . . and she could not recall whether she had anything to

eat that day or the day before.” Id. Dr. Carroll’s report noted that:

      All memory functions are impaired, including remote recall. She
      had difficulty recounting her history. She is unsure when she
      married, or when her husband died, and she is unsure how many
      children she has. She is confused about her whereabouts; she
      does not believe she is in her own home, but in some apartment
      elsewhere. . . . [S]he is otherwise disoriented to place, and she
      is completely disoriented to time.

Psychological Assessment, 8/3/15, at 1. Dr. Carroll opined that Helen “has

moderate dementia, which seriously limits her ability to recall and integrate

information, to assess situations, to consider options, to adapt to change, to

make decisions, to have the judgment needed to make plans, and the

                                    - 13 -
J-A28022-16


initiative to carry them out.” Id. at 3. Dr. Carroll stated that Helen required

“the assistance of a guardian of both her person and her estate.” Id.

      Despite record evidence that Robert provided deficient care to Helen,

the orphans’ court appointed him as a Co-Guardian of the Person of Helen

“because it was evident from the record that Robert Harper had great

affection for and is devoted to his mother, Helen Harper.” Orphans’ Court

Opinion, 3/10/16, at 9.      The evidence before the orphans’ court was

sufficient good cause as to why Robert’s appointment as the sole guardian of

either Helen’s person or estate was not appropriate.

      Considering the record as a whole, there is support for the orphans’

court’s conclusion that there existed no less restrictive options available.

Moreover, because the orphans’ court considered the necessity of an

independent co-guardian and articulated a sound evidentiary basis for its

decision, we discern no abuse of discretion in the decision of the orphans’

court. Estate of Haertsch, 649 A.2d 719. Thus, we have no hesitation in

affirming the decision of the orphans’ court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2017

                                    - 14 -
