J-A35032-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF EDWARD                          IN THE SUPERIOR COURT OF
WALTERMAN, AN INCAPACITATED                            PENNSYLVANIA
PERSON,



APPEAL OF: EDWARD WALTERMAN,

                       Appellant                 No. 498 WDA 2014


                   Appeal from the Order March 6, 2014
           In the Court of Common Pleas of Washington County
                   Orphans' Court at No(s): 63-13-0377


BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.:                         FILED DECEMBER 30, 2014

     Edward Walterman appeals from the orphans’ court’s determination

that he is an incapacitated person. We affirm.

     Marsha    J.   Adams,   a   Protective   Service   Caseworker,   and    The

Southwestern Pennsylvania Area Agency on Aging, Inc., instituted this action

seeking a declaration that Appellant was an incapacitated person. A citation

was issued, Appellant was permitted to proceed in forma pauperis, and

Neighborhood Attorneys, LLC was appointed to represent Appellant.           After

the matter proceeded to a hearing, the orphans’ court found that Appellant

was incapacitated. This appeal followed, and Appellant raises these issues

on appeal: “Did the Trial Court abuse its discretion and/or err as a matter of

law in adjudicating the Appellant incapacitated?” and “Was the evidence

sufficient to support the Trial Court's finding that the Appellant is
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incompetent and in need of guardians of his estate and person?” Appellant’s

brief at 3.

      Appellant’s contentions are argued together on appeal.      He suggests

that there was not sufficient evidence to sustain the orphans’ court’s

conclusion that he is incapacitated. We employ a deferential standard when

reviewing a decree entered by the orphans’ court.           In re Estate of

Smaling, 80 A.3d 485 (Pa.Super. 2013). Specifically,

          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.
      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. However, we are not constrained to give the same
      deference to any resulting legal conclusions. Where the rules of
      law on which the court relied are palpably wrong or clearly
      inapplicable, we will reverse the court's decree.

In re Estate of Fuller, 87 A.3d 330, 333 (Pa.Super. 2014).

      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.     Thus, a person is incompetent if either he cannot

manage his financial resources or if he cannot effectively communicate so as

to meet the essential requirements for his physical health and safety. Syno

v. Syno, 594 A.2d 307 (Pa.Super. 1991).




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      “[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 Myers' Estate, 395 Pa. 459, 150
      A.2d 525, 526 (1959).        Our review of the trial court's
      determination in a competency case is based on an abuse of
      discretion standard, recognizing, of course, that the trial court
      had the opportunity to observe all of the witnesses, including, as
      here, the allegedly incapacitated person. Id. “A finding of
      mental incompetency is not to be sustained simply if there is any
      evidence of such incompetency but only where the evidence is
      preponderating and points unerringly to mental incompetency.”
      Id. at 527.

In re Hyman, 811 A.2d 605, 608 (Pa.Super. 2002).

      Appellant’s brief merely recites the evidence favorable to himself.

However, the orphans’ court found that Appellant cannot receive and

evaluate information effectively to meet the essential requirements for his

own physical health and safety.       This finding, contrary to Appellant’s

position, is amply supported by the evidence. Appellant was admitted to a

nursing home after he broke his hip.      He desired to return home even

though his wife was incapable of meeting his physical needs.

      The court found Appellant incapacitated based upon the following

facts. Appellant was ninety-five years old at the time of the adjudication of

incapacity.   Before his admission into the nursing home, Appellant

continually drove his car, even though his license was revoked due to his

mental infirmity. By these consistent actions, Appellant placed himself and

the public in danger. Before his placement in the nursing facility, Appellant

was observed wandering around in traffic on a cold day.        Appellant also

routinely shoplifted for excitement and had been arrested and convicted of


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that crime. Before he broke his hip and went into the nursing home, he had

in-home assistance and his caregivers all expressed concern for his safety.

       While at his nursing home, Appellant fell and insisted that he was fine

and was not in need of treatment even though he obviously was in extreme

distress in that he fractured his shoulder and orbital bone. Nursing home

personnel established that Appellant was incapable of performing any

activities of daily living (“ADLs”) in that he has to be assisted with bathing,

eating, dressing, and taking his numerous medications. A registered nurse

at the nursing home reported that Appellant suffered from short-term

memory loss and forgot where he was and what he needed to do next. In

direct contradiction to the testimony of these people, Appellant insisted that

he was capable of caring for himself as well as his wife. The court viewed

this   delusional   testimony   as   further   evidence   that   Appellant   was

incapacitated.

       In light of the above proof, the adjudication of incapacity is supported

by the record, and we affirm based upon the well-reasoned opinion of the

Honorable Katherine B. Emery dated July 23, 2014.

       Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2014




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