J-A06032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: GERALD A. COLEMAN, JR.                    IN THE SUPERIOR COURT OF
AN INCAPACITATED PERSON                                PENNSYLVANIA


APPEAL OF: GERALD A. COLEMAN, JR.

                                                     No. 2226 EDA 2014


                   Appeal from the Decree of June 17, 2014
               In the Court of Common Pleas of Lehigh County
                     Orphans’ Court at No(s): 2013-1734


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                           FILED MARCH 30, 2015

      Gerald Coleman, Jr. (“Appellant”) appeals from the decree entered in

the Court of Common Pleas of Lehigh County, Orphans’ Court Division,

adjudicating him to be an incapacitated person and appointing a plenary

guardian of his person and estate. After careful review, we affirm.

      The trial court aptly set forth the pertinent factual and procedural

history as follows:

             On November 14, 2013, Gerald A. Coleman, III, a medical
      doctor Board-certified in emergency medicine (“Dr. Coleman”),
      filed a Petition for Appointment of Emergency Guardian of the
      Person and Estate for his father, Mr. Coleman, and his mother,
      Mrs. Coleman.

            With respect to Mr. Coleman, the petition alleged he was
      74 years of age and married; had recently been discharged from
      Lehigh Center, an assisted living facility, and had returned to his
      personal residence against the recommendation of medical
      professionals that he reside in an assisted living facility; that he
      had fired all medical personnel that had been hired to assist him
      while at home; had refused to relinquish his driver’s license
      despite such advice from several medical professionals; and was
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     unable to control his anger when medical personnel and family
     tried to assist him. The petition contained a note from Dr. Todd
     Holbrook (“Dr. Holbrook”) to the effect Mr. Coleman was not
     capable of making and understanding the consequences of
     decisions. It also contained a letter dated November 6, 2013,
     from Dr. Darryl Jackson, Medical Director of Lehigh Center,
     stating Mr. Coleman suffered from Parkinson’s induced
     dementia, was evasive with details and was impaired to make
     his own decisions.

                                    ...

            A hearing on the emergency petitions was held on
     November 22, 2013. Mr. Coleman appeared mid-way through it;
     it is not clear from the record whether Mrs. Coleman appeared at
     that time.

            With regard to Mr. Coleman, Dr. Holbrook, a medical
     doctor who is Board-certified in family medicine, testified he had
     treated Mr. Coleman since July 17, 2013, and last saw him on
     October 17, 2013. N.T. 11/22/13 at 22. He diagnosed Mr.
     Coleman as having a super nuclear palsy, a progressive disease
     with Parkinson-like symptoms.       Id.    He said Mr. Coleman
     became agitated and angry quickly; could not formulate
     reasonable decisions with regard to his health, safety, financial
     transactions, or medical needs, including giving informed
     consent for a medical or surgical procedure; could be taken
     advantage of by unscrupulous persons; could not take his
     medications safely; and had poor memory. Id. at 22-26. He
     also said Mr. and Mrs. Coleman engage in a lot of yelling with
     each other and do not quite understand the full severity of their
     medical condition or problems. Id. at 23. When presented with
     the statutory definition of an incapacitated person, Dr. Holbrook
     believed Mr. Coleman met that definition and probably required
     placement in a nursing center or, at a minimum, an assisted
     living facility. Id. at 26-27.

           Mr. Coleman testified on his own behalf.          He stated
     accurately that he had been the chief financial officer for CBS, a
     major New York Stock Exchange company. He also admitted he
     drove his automobile to the hearing even though his driver’s
     license had been suspended by PennDOT on the basis of
     information it received about his neurological or psychiatric
     condition. When asked about his license, he was confused and
     self-contradictory. Id. at 39-43.


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                                    ...

            By order of November 22, 2013, Dr. Coleman was
     appointed emergency guardian of the person and estate for each
     of his parents. He filed a petition for determination of incapacity
     and appointment of a plenary guardian of the person and estate
     for each of his parents pursuant to 20 Pa.C.S.[] § 5501 et seq.,
     on December 10, 2013. On the following day, December 11,
     2013, privately-retained counsel filed her appearance on behalf
     of Mr. Coleman and a motion to appoint a substitute emergency
     guardian of the person and estate and a guardian ad litem for
     Mr. Coleman, and to arrange for an independent evaluation of
     him. By orders of December 16, 2013, the court appointed
     Helen Stauffer, Esquire, guardian ad litem for Mr. Coleman;
     ordered his counsel obtain a medical evaluation of Mr. Coleman
     by a qualified physician of counsel’s choosing who would also be
     acceptable to the guardian ad litem; appointed Shannon
     Piergallini Smith, Esquire, guardian ad litem for Mrs. Coleman;
     and scheduled a hearing in each matter for March 4, 2014. By
     order of January 27, 2014, Mrs. Coleman’s guardian ad litem
     was authorized to arrange for Mrs. Coleman to be evaluated by
     any living/personal care facility selected by her guardian ad litem
     to determine Mrs. Coleman’s suitability for placement in such
     level of care.

           Dr. Coleman subsequently resigned as emergency
     guardian of the estate and person for his parents. By order of
     February 14, 2014, Attorney David Roth was appointed to
     succeed Dr. Coleman as emergency guardian of the estate of Mr.
     Coleman and emergency guardian of the estate and person of
     Mrs. Coleman. As noted in the footnote to that order, no
     appointment of a successor emergency guardian of the person
     for Mr. Coleman was made since he appeared to be cooperating
     with his counsel and his guardian ad litem remained in place. By
     orders dated March 19, and filed on March 24, 2014, the hearing
     on the § 5511 petition was continued to June 9, 2014; Attorney
     Stauffer’s motion to be discharged as guardian ad litem for Mr.
     Coleman was granted; and Mrs. Coleman’s guardian ad litem
     was instructed to arrange for a qualified expert to evaluate her.

           On May 22, 2014, counsel was appointed for Mrs. Coleman
     upon the request of her guardian ad litem. The final hearing on
     the §5511 petitions was held on June 9, 2014. Mr. Coleman
     attended with his privately retained counsel; Mrs. Coleman


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     attended with her court-appointed counsel and her court-
     appointed guardian ad litem.

           With regard to Mr. Coleman, Dr. Susan Ingram, a clinical
     neuropsychologist who was retained by his counsel to evaluate
     Mr. Coleman’s cognitive functioning, testified she evaluated him
     on January 7 and 10, 2014. She found his memory in formal
     testing to be impaired “in some respects,” and his long term
     memory poor if he was not given enough time to process
     information. N.T. 6/9/14 at 65-66. He made several math
     errors when working with decimals and fractions, but, she said,
     was still within a range of most people. Id. at 67. She did not
     assess whether he could formulate decisions concerning his
     physical health and safety. Id. at 68. She concluded he had
     “very mild” dementia secondary to Parkinson’s disease. Id. at
     69. She felt Mr. Coleman could make a responsible decision
     regarding his medical and surgical treatment, but also stated he
     was prone to making “more errors, and poor judgments.” Id. at
     71. She did not assess whether he could make responsible
     decisions regarding financial transactions or whether he was able
     to live independently. Id. at 71-72. She was clear that he
     should not drive. Id. at 67. She also said she believed he could
     “properly function by himself without ongoing monitoring,
     without that ongoing treatment,” although she acknowledged
     she did not assess him outside of her office. Id. at 67, 72.
     When asked whether her report indicated “that Mr. Coleman
     needs a guardian at this time,” she replied “I can't say. I didn’t
     evaluate anything other than the cognitive functioning within my
     testing.” Id. at 75.

            Attorney Roth, Mr. Coleman’s court-appointed emergency
     guardian of his estate, also testified. He said that although Mr.
     Coleman had been what Mr. Roth described as the controller of a
     division of CBS, his finances were “disheveled, and starting to
     come apart.” Id. at 80. He also said Mr. Coleman complained
     to him that his garbage had not been collected, although Mr.
     Coleman could not remember the name of the private company
     he used so that it could be contacted to address the matter, and
     that Mr. Coleman was confused about whether he had paid his
     real estate taxes and medical bills. Id. at 79-80.

           Mr. Roth also testified that Mr. Coleman lived at home and
     received about six hours of services each week day. He has
     fallen and was hospitalized at least six times since February.
     One time his alert button went off, the police responded, [but]

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      he could not get up to answer the door so the police kicked it in,
      and Mr. Coleman refused medical treatment and threatened the
      police. It turned out he had pneumonia. Id. at 81. Another
      time after a fall in his house and being hospitalized Mr. Coleman
      agreed to 24-hour care, but canceled it the very next day. Id.
      at 82. At times he has refused to admit his home health aid[e]s
      entry to his house. He called Mr. Roth daily to report his toilet
      was overflowing and “there was water everywhere.”            Upon
      arriving at Mr. Coleman’s residence, Mr. Roth said “there was no
      water anywhere . . . the toilet just needed to be jiggled.” Id. at
      83-84.

            Mr. Roth described Mr. Coleman as cooperative, polite,
      courteous and rational at times, and completely irrational,
      inappropriate and aggressive at other times. Id. at 84. He
      believed Mr. Coleman could not manage his financial affairs or
      manage his own medical care or be safe “in any respect
      whatsoever” without assistance. Id. at 86.

            Finally, Mr. Coleman testified. There was nothing about
      his demeanor or answers that supported a finding he was
      capable of managing his own financial affairs or making
      decisions; on the contrary, he provided every indication he was
      incapable of managing his own affairs or otherwise making any
      such decisions.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed September 30, 2014, at 2-8

(footnote omitted).

      On June 17, 2014, the trial court entered a final decree adjudicating

Appellant to be an incapacitated person and appointing a plenary guardian of

his person and estate. Appellant timely appealed. Both Appellant and the

trial court complied with Pa.R.A.P. 1925.

      Appellant raises the following issue for review:

      I. Whether the lower court abused its discretion and committed
      an error of law in determining that Appellant is incompetent and
      in appointing a guardian of the person and a guardian of the
      estate?


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Appellant’s Brief, p. 6 (all capitals removed).

      “The appointment of a guardian lies within the discretion of the trial

court and will be overturned only upon an abuse of discretion.”            In re

Duran, 769 A.2d 497, 506 (Pa.Super.2001) (citing Estate of Haertsch,

649 A.2d 719, 720 (Pa.Super.1994)).          This Court will find an abuse of

discretion only where “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.”      Id. (quoting

Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1123 (Pa.2000)).

      An “‘[i]ncapacitated 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.      A court may appoint a

guardian “only ‘[u]pon a finding that the person is partially incapacitated and

in need of guardianship services,’” or “upon a finding that the person is

totally incapacitated and in need of plenary guardianship services[.]” In re

Peery, 727 A.2d 539, 540 (Pa.1999) (citing 20 Pa.C.S. § 5512.1(b)-(c))

(emphasis deleted). A person is presumed to be mentally competent and a

petitioner seeking guardianship must establish incapacity by clear and

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

“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

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preponderating and points unerringly to mental incompetency.” Id. (quoting

In Re Myers' Estate, 150 A.2d 525, 527 (Pa.1959)). This Court has noted

“[a] statute of this nature places a great power in the court. The court has

the power to place total control of a person’s affairs in the hands of another.

This great power creates the opportunity for great abuse.”         Id. (quoting

Estate of Haertsch, 609 A.2d 1384, 1386 (Pa.Super.1992)).

       Appellant challenges the weight of the evidence.         See Appellant’s

Brief, pp. 10-17. In short, Appellant claims Dr. Susan Ingram provided the

only medical testimony, that she testified Mr. Coleman was capable of

looking after himself with a little help 6-8 hours a day, and that the trial

court ignored this evidence without satisfactorily explaining its reasons in the

decree or the 1925(a) Opinion.1 Id. Appellant is incorrect.

       The trial court considered Dr. Ingram’s testimony and discussed it in

its opinion.     See 1925(a) Opinion, pp. 6-7.       The trial court ultimately

determined:

       Little weight was accorded to the testimony of Dr. Ingram, who
       evaluated Mr. Coleman[.] . . . Dr. Ingram’s testimony was of
       little help or credibility; it was self-contradictory, confusing and
       unsubstantiated. She said Mr. Coleman had mild dementia and
____________________________________________


1
  Appellant also suggests that the trial court placed too much weight on its
assessment of Appellant’s testimony.         See Appellant’s Brief, p. 12.
Appellant does not elaborate on this argument in his brief. Additionally, we
may not substitute our judgment for that of the trial court, which had the
opportunity to observe Appellant testify. See In re Hyman, 811 A.2d at
609 (“[w]e will not substitute our judgment for that of the lower court
absent a clear abuse of discretion [.]”).



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     was prone to making errors and poor judgments, and she
     acknowledged she did not assess whether he could formulate
     decisions concerning his physical health and safety, yet she
     nonetheless concluded he could make a responsible decision
     regarding his medical and surgical treatment. She also admitted
     she did not assess whether he could live independently and did
     not assess him outside of her office, yet she concluded he could
     “properly function by himself.” And, finally, when asked whether
     she thought Mr. Coleman needed a guardian she replied “I can’t
     say.    I didn’t evaluate anything other than the cognitive
     functioning with my testing.”

1925(a) Opinion, pp. 12-13.

     Additionally, Appellant incorrectly suggests that Dr. Ingram provided

the only medical testimony in this matter. This allegation completely ignores

the November 22, 2013 testimony of Dr. Todd Holbrook, which the trial

court considered and discussed.    See 1925(a) Opinion, pp. 3-5.      The trial

court summarized Dr. Holbrook’s testimony as to Mr. Coleman as follows:

     With regard to Mr. Coleman, Dr. Holbrook, a medical doctor who
     is Board-certified in family medicine, testified he had treated Mr.
     Coleman since July 17, 2013, and last saw him on October 17,
     2013. N.T. 11/22/13 at 22. He diagnosed Mr. Coleman as
     having a super nuclear palsy, a progressive disease with
     Parkinson-like symptoms. Id. He said Mr. Coleman became
     agitated and angry quickly; could not formulate reasonable
     decisions with regard to his health, safety, financial transactions,
     or medical needs, including giving informed consent for a
     medical or surgical procedure; could be taken advantage of by
     unscrupulous persons; could not take his medications safely;
     and had poor memory. Id. at 22-26. He also said Mr. and Mrs.
     Coleman engage in a lot of yelling with each other and do not
     quite understand the full severity of their medical condition or
     problems.     Id. at 23.     When presented with the statutory
     definition of an incapacitated person, Dr. Holbrook believed Mr.
     Coleman met that definition and probably required placement in
     a nursing center or, at a minimum, an assisted living facility.
     Id. at 26-27.


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1925(a) Opinion, p. 4.

      In addition to this medical testimony, the trial court considered the

testimony of the court-appointed guardian, Attorney Roth, and Appellant

himself in rendering its decision. In the trial court’s eyes, the testimony of

both Attorney Roth and Appellant supported its conclusion that Appellant

requires a guardian. This Court will not substitute its judgment for the lower

court. See In re Hyman, 811 A.2d at 609 (“[w]e will not substitute our

judgment for that of the lower court absent a clear abuse of discretion [.]”).

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2015




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