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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: THOMAS D. WILLIAMS, AN              :   IN THE SUPERIOR COURT OF
    INCAPACITATED PERSON                       :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: THOMAS D. WILLIAMS              :
                                               :
                                               :
                                               :
                                               :   No. 264 WDA 2020

                Appeal from the Order Dated December 30, 2019
       In the Court of Common Pleas of Cambria County Orphans' Court at
                             No(s): No. 11-19-967


BEFORE:      MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 18, 2020

        Thomas D. Williams (Appellant) appeals from the order adjudicating him

an incapacitated person and appointing Appellee David Williams (Williams)

limited guardian of Appellant’s person and estate. Upon review, we affirm.

        On October 3, 2019, Williams, Appellant’s 55 year-old son, filed an

emergency petition requesting that the orphans’ court appoint him plenary

guardian of Appellant, who was 81 years old at the time and suffering from

certain ailments. Williams asserted that Appellant was legally incompetent

under the provisions of Pennsylvania’s Probate, Estates and Fiduciaries Code

(PEF Code). See 20 Pa.C.S.A. § 101, et seq. At the time, Appellant was a



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*   Former Justice specially assigned to the Superior Court.
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patient at Conemaugh Hospital in Johnstown, pursuant to the Mental Health

Procedures Act.1      See 50 P.S. § 7302 (governing involuntary emergency

medical examination and treatment).

       On October 3, 2019, the orphans’ court determined that Appellant’s

medical condition and incapacity called for Williams to be appointed temporary

plenary guardian of Appellant’s person and estate pursuant to 20 Pa.C.S.A. §

5513 (governing emergency guardianships). The court appointed counsel to

represent Appellant, and scheduled a hearing to address Williams’ request that

the court find Appellant to be an “incapacitated person,” as that term is

defined in Section 5501 of the PEF Code.         20 Pa.C.S.A. § 5501 (defining

“incapacitated person” as “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.”).

       The orphans’ court held a hearing on December 6, 2019 (“the

competency hearing”), where it considered testimony from Appellant, who

was adamant that he was competent to care for himself and did not want

anyone to be appointed as his guardian.          See N.T., 12/6/19, at 66-70.


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1 Appellant was admitted to Conemaugh Hospital on two occasions: May 2019
(“the May hospitalization”), and September 2019 (“the September
hospitalization”). Appellant was treated for, inter alia, alcohol use disorder,
alcohol-induced dementia, alcoholic liver disease, and mood disorder.

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Appellant testified that his relationship with Williams was “lousy” and he did

not often see Williams, who resides in Florida. Id. at 57.

      Williams testified that he is a board-certified physician in emergency

medicine. Id. at 5. Appellant resided with Williams in Florida on many prior

occasions, and Williams had been Appellant’s primary caretaker during those

times.   Id. at 6.   Williams explained that he had previously arranged for

Appellant to be provided with various services, including meals on wheels,

transportation for medical appointments, outpatient psychiatric therapy, and

home health care/cleaning. Id. at 12-15. According to Williams, Appellant

has a long history of alcohol abuse, and his overall health, medical care

compliance and cognition was deteriorating. Id. at 9-10, 12, 23. Williams

further stated that there were multiple questionable ATM withdrawals from

Appellant’s checking account during the September hospitalization. Id. at 18-

19. Finally, Williams asserted that, as guardian, he intended to “maintain my

father’s independence as much as possible to allow him to reside in his house

and work with him to the extent possible to care for him.” Id. at 23.

      The court also considered the testimony of Umesh Chakunta, M.D. (Dr.

Chakunta), who specializes in geriatric and adult psychiatry, and was deposed

two days prior to the competency hearing.      Dr. Chakunta was Appellant’s

attending physician at Conemaugh Hospital during the May and September

hospitalizations. We explain Chakunta’s testimony infra; in sum, he opined




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Appellant is medically incompetent and lacks the cognitive capacity to make

appropriate decisions regarding his care. See N.T., 12/4/19, at 17-18, 35.

       At the conclusion of the competency hearing, the orphans’ court

requested Appellant to undergo a neuropsychological evaluation, per the

medical advice of Dr. Chakunta, to assess the degree of Appellant’s cognitive

deficits.   The court ordered that in the interim, Williams would remain

temporary plenary guardian, and indicated it would consider the evaluation

report when making its final competency determination. Appellant, however,

refused to participate in the evaluation; accordingly, Appellant’s counsel sent

the court a letter requesting that it render a decision based solely on the

evidence presented at the competency hearing.

       By order entered on December 30, 2019, the orphans’ court appointed

Williams limited guardian of Appellant’s person and estate.2 Appellant timely

filed a counseled notice of appeal, followed by a court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.

       Appellant presents one issue for our review: Whether Williams “did not

meet his burden by clear and convincing evidence that the Appellant is an

alleged incapacitated person per 20 Pa.C.S.A. § 5501 of the Pennsylvania

Fiduciary Code[?]” Appellant’s Brief at 4.



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2 As limited guardian, Williams has certain powers and duties, including
managing Appellant’s finances, medical care, general care, and residence.
See Order, 12/30/19, at 2.

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      We are mindful of our standard of review:

      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. 20 Pa.C.S.A. § 5511. However, 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, 150 A.2d 525, 526 (Pa. 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, 607-08 (Pa. Super. 2002) (citations modified).

Additionally, for an appellant to meet the “heavy burden” of establishing abuse

of a trial court’s exercise of discretion, it is “not sufficient to persuade the

appellate court that it might have reached a different conclusion under the

same factual situation.” Fancsali v. Univ. Health Ctr., 761 A.2d 1159, 1162

(Pa. 2000).

      The PEF Code provides:

      To establish incapacity, the petitioner must present testimony, in
      person or by deposition, from individuals qualified by training and
      experience in evaluating individuals with incapacities of the type
      alleged by the petitioner, which establishes the nature and extent
      of the alleged incapacities and disabilities and the person’s mental,
      emotional and physical condition, adaptive behavior and social
      skills[, and] … evidence regarding the probability that the extent
      of the person’s incapacities may be significantly lessened or
      changed.




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20 Pa.C.S.A. § 5518. Medical testimony is of great significance since it assists

the trial court in determining the nature, severity, and consequences of an

alleged incompetent’s disability. In re Estate of Wood, 533 A.2d 772, 774

(Pa. Super. 1987). However, no rule has been adopted requiring the use of

this type of testimony. The testimony of lay witnesses who have observed

the person is also admissible and highly probative in evaluating incapacity.

Id.

      Here, Appellant argues that the orphans’ court erred in concluding that

Williams presented clear and convincing evidence that Appellant is an

“incapacitated person” pursuant to Section 5501 of the PEF Code.           See

Appellant’s Brief at 9-14.   Appellant acknowledges Dr. Chakunta’s medical

determination that Appellant is incapacitated. Id. at 12. However, he argues

that portions of Dr. Chakunta’s testimony show “deficiencies in this medical

conclusion.” Id. Specifically, the testimony that (1) before the September

hospitalization, according to Appellant, he “was still competent enough to

know he needed” to call 911 and seek in-patient care at Conemaugh Hospital

for treatment despite his abuse of alcohol, id. at 13; and (2) Dr. Chakunta

had not received any reports of Appellant having abused alcohol since October

4, 2019. Id. at 12. Finally, Appellant relies on the holding in Wood, supra,

that the introduction of expert testimony is not always necessary, and lay

testimony alone can suffice to establish incompetency. Id. at 12; see also




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Wood, 533 A.2d at 774. Appellant essentially argues that his testimony alone

was enough for the orphans’ court to reject Williams’ claim of his incapacity.

      We initially observe that the orphans’ court appointed Williams limited

guardian of Appellant’s person and estate. See 20 Pa.C.S.A. § 5512.1(a)(6)

(mandating that court prefer limited guardianships); see also N.T., 12/6/19,

at   62   (Williams   testifying   that   he    preferred   limited   guardianship).

Additionally, Appellant refused the orphans’ court’s directive to undergo a

neuropsychological evaluation, which hampered the court’s competency

determination.    See N.T., 12/4/19, at 35 (Dr. Chakunta stating that

neuropsychological evaluation would be “much more extensive testing” and

very helpful).

      Our review discloses sufficient evidence to support the orphans’ court’s

determination that clear and convincing evidence established that Appellant is

an incapacitated person. We emphasize the testimony of Dr. Chakunta that

while he was providing psychiatric care for Appellant during the May and

September hospitalizations, Appellant suffered from multiple ailments,

including “fairly severe” alcohol use disorder, alcohol withdrawal, dementia,

kidney disease, alcoholic liver disease, and mood disorder. Id. at 9, 12-13,

15-16. Appellant’s medical and cognitive condition had worsened between

the May and September hospitalizations, and Appellant resumed abusing

alcohol and was not eating. Id. at 13, 14. Dr. Chakunta stated that Appellant

had cognitive deficits “in the dementia range,” and he had concerns about


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Appellant’s condition worsening.         Id. at 35.       Further, “[b]ecause of

[Appellant’s] cognitive deficits, there were concerns about his ability to . . .

make appropriate choices when it came to healthcare or managing his day-

to-day needs.”     Id. at 17; see also id. at 16 (Dr. Chakunta opining that

Appellant was “impaired in terms of being able to make the right choice for

future nourishment and future care for himself.”).

      Dr. Chakunta concluded:

      because of [Appellant’s] extensive history of alcohol use, his
      diagnosed history of cognitive deficits and his established history
      of poor decision making when it comes to his care outside of the
      hospital, specifically recurrent alcohol abuse, inability to comply
      with medications, inability to follow through with outpatient care,
      . . . taking all of that into account, I feel it’s reasonable to say that
      he does not have the capacity to make reasonable
      healthcare or financial decisions. And that he would need
      a suitable alternate person to help him with the same.

Id. at 18 (emphasis added); see also id. (Dr. Chakunta opining that

Appellant’s “best interest and welfare [would] be served by the appointment

of a guardian”).

      We further hold that the primary authority upon which Appellant relies,

Wood, supra, is unavailing. There, the petitioner sought to have his step-

aunt declared incapacitated under the PEF Code. Wood, 533 A.2d at 773.

This Court affirmed the orphans’ court’s holding that petitioner failed to meet

his burden by clear and convincing evidence. Id. at 775. In particular, the

record showed (1) petitioner’s step-aunt consistently maintained that she

wanted her bank, not petitioner, to manage her assets; and (2) a psychiatrist


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interviewed petitioner’s step-aunt, who opined that she was competent to

choose a financial representative. Id.; see also id. at 773 (noting petitioner

did not present any admissible psychiatric evidence).

      Wood is distinguishable. The petitioner in Wood did not present any

medical evidence, and the step-aunts psychiatrist opined that she was

competent. In contrast, Williams presented the only medical evidence, the

testimony of Dr. Chakunta, who testified that Appellant does not have the

capacity to make reasonable healthcare or financial decisions.

      In sum, it was within the purview of the orphans’ court to consider and

weigh the testimony and evaluate credibility. See In re Estate of Cruciani,

986 A.2d 853, 860 (Pa. Super. 2009). We discern no abuse of the court’s

discretion in concluding that clear and convincing evidence established that

Appellant was an “incapacitated person.” We therefore affirm the orphans’

court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2020




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