J-A03017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ANNA HOBAN (AKA “NANCY), AN             IN THE SUPERIOR COURT OF
INCAPACITATED PERSON                                 PENNSYLVANIA




APPEAL OF: ANNA HOBAN,
AN INCAPACITATED PERSON

                                                   No. 1036 EDA 2015


                  Appeal from the Decree March 31, 2015
           In the Court of Common Pleas of Montgomery County
                 Orphans' Court at No(s): OC#2014-X3309

BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

MEMORANDUM BY MUNDY, J.:                            FILED APRIL 13, 2016

      Appellant, Anna Hoban, appeals from the March 31, 2015 decree,

affirming the adjudication of Ms. Hoban as a totally incapacitated person,

entered after a review hearing of the orphans’ court’s November 4, 2014

order. After careful review, we affirm.

      The facts of this case, as summarized from the certified record, are as

follows. On December 9, 2013, Ms. Hoban, an 84-year-old retired chemist,

was living alone when she suffered from a fall.      Responding emergency

medical personnel took her to Abington Memorial Hospital in Montgomery

County.    On December 11, 2013, she was discharged from Abington

Memorial and then admitted to The Landing at Willow Grove (The Landing),

an independent living facility, after the Montgomery County Office of Aging
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and Adult Services determined that she could not return to her home,

because the house was not in a habitable condition.

      Specifically, James Salanik, an Abington Township code enforcement

officer, testified Ms. Hoban’s “house was in disarray” on December 9, 2013.

N.T., 11/4/14, at 11.       He elaborated that it was difficult to maneuver

throughout the house because of all the clutter. Id. In fact, the police and

medical personnel had trouble taking her from the house because of the

mess. Id.     Additionally, Ms. Hoban’s bed sheets were heavily soiled.    Id.

Her cats were urinating and defecating freely throughout the house.        Id.

There was no running water or working plumbing, and Ms. Hoban “was using

the bathtub and five-gallon buckets to relieve herself.”    Id.   The heating

system was also not functioning, and only “little electric space heaters” were

heating the house.    Id.    Further, the refrigerator was not working.    Id.

Moreover, there was a large hole in the second-story floor above the

kitchen. N.T., 10/28/14, at 26. The Abington Township code enforcement

office sent Ms. Hoban a letter stating that the house was not habitable, and

informing her of the measures she needed to take, including cleaning and

restoring the heating and plumbing.        N.T., 11/4/14, at 16.     Abington

Township considers the house condemned and has boarded it up.             N.T.,

10/28/14, at 14.

      After being admitted to The Landing, Ms. Hoban remained determined

to rehabilitate her house and return to it.   Ms. Hoban explained that she


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contacted state representative Madeleine Dean, who was able to arrange for

Mr. Salanik to permit Ms. Hoban to access the house to attempt to clean it

and make repairs.      Id. at 62; N.T., 11/4/14, at 16-17.   However, despite

Ms. Hoban’s efforts, as of October 29, 2014, the house remained

uninhabitable.   N.T., 11/4/14, at 18-19.       Mr. Salanik noted that the

electricity did not work, and he was unable to access the breaker panel in

the basement because furniture and debris were blocking it. Id. at 18. The

plumbing was still not working, and there was no running water. Further,

the heating company shut off the heater that they had replaced because the

pipes circulating water to the radiators froze. Id.

      Moreover, Ms. Hoban does not have the financial resources to

rehabilitate the house. Her total monthly income from Social Security and

her civil service annuity is $1,524.72. N.T., 2/19/15, at 22-23. She has no

other liquid assets.    N.T., 10/28/14, at 74-75.     Her monthly bill at The

Landing is $2,130.00, and she owed $27,000.00 as of February 2015. N.T.,

2/19/15, at 23. Her monthly mortgage payment is approximately $800.00.

N.T., 10/28/14, at 65. Moreover, the mortgage is underwater. Ms. Hoban

owes $187,000.00 on the mortgage, but the house has been valued at

$70,000.00 to $80,000.00 in its current state of disrepair. N.T., 2/19/15, at

25. As of February 2015, the mortgage company had delayed foreclosure,

pending the outcome of these guardianship proceedings.




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      The orphans’ court detailed the procedural history of this case as

follows.

                 On September 19, 2014, The Landing at
           Willow Grove (hereinafter “The Landing”), a long-
           term care facility located in Willow Grove,
           Montgomery County, petitioned [the orphans’ court]
           for an adjudication of incapacity and the
           appointment of plenary guardians for Anna Hoban,
           an 84 year old resident of the facility. Upon the
           [orphans’] court being advised Ms. Hoban wished to
           contest the petition, Jacqueline J. Shafer, Esquire,
           was appointed as counsel for her on October 1,
           2014.    The matter proceeded to hearings on
           October 28, and November 4, 2014.            At the
           conclusion of the hearings, [the orphans’ court]
           determined that Ms. Hoban suffered from moderate
           dementia and adjudicated her a totally incapacitated
           person. Adjustments, Inc., through its principal
           Kalpana Doshi, was appointed plenary permanent
           guardian of the person and estate of Ms. Hoban.

                 On November 10, 2014, Ms. Hoban filed a
           timely appeal from the adjudication of incapacity.1
           Shortly thereafter, counsel for Ms. Hoban advised
           the [orphans’] [c]ourt that rather than pursue the
           appeal, she and Ms. Hoban would prefer that the
           [orphans’] [c]ourt appoint another professional to
           conduct an independent evaluation of Ms. Hoban
           and hold a review hearing.        Pursuant to the
           [orphans’] [c]ourt’s agreement to do so, the appeal
           was discontinued as of December 26, 2014.

                 On January 9, 2015, [the orphans’] [c]ourt
           appointed Kenneth R. Carrol, Ph.D., a clinical
           psychologist, to perform an evaluation of Ms.
           Hoban. A review hearing was held at The Landing
           on February 19, 2015. At the conclusion of that
           hearing, [the orphans’] [c]ourt announced its
           intention to affirm its earlier decision adjudicating
           Ms. Hoban a totally incapacitated person. [The
           orphans’ court’s] final decree issued March 30,
           2015, expressly affirmed the findings at the

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              conclusion of the earlier hearings and the terms of
              [the orphans’] [c]ourt’s final decree issued
              November 4, 2015.


              1
                  This appeal was docketed at [] 3363 EDA [2014].

Orphans’ Court Opinion, 6/4/15, at 1-2 (footnote in original).        On April 7,

2015, Ms. Hoban filed a timely notice of appeal.1

       On appeal, Ms. Hoban presents the following issues for our review.

              A. Whether the Montgomery County [o]rphans’
                 [c]ourt erred in adjudicating Anna Hoban as an
                 [i]ncapacitated [p]erson without having received
                 evidence on whether a less restrictive alternative
                 to a plenary guardianship of the person and of the
                 estate existed[?] 20 Pa.C.S.A. § 5502.

              B. Whether the Montgomery County [o]rphans’
                 [c]ourt erred in failing to consider whether Anna
                 Hoban could understand and execute a power of
                 attorney[?] 20 Pa.C.S.A. § 5601.

              C. Whether the Montgomery County [o]rphans’
                 [c]ourt erred in failing to consider whether Anna
                 Hoban could execute an [a]dvanced [d]irective for
                 [h]ealthcare or [l]iving [w]ill[?]   20 Pa.C.S.A.
                 § 5422.

              D. Whether the Montgomery County [o]rphans’
                 [c]ourt erred in failing to consider whether Anna
                 Hoban could execute a [h]ealthcare [p]ower of
                 [a]ttorney[?] 20 Pa.C.S.A. § 5452.



____________________________________________


1
  Ms. Hoban and the orphans’ court have complied with Pennsylvania Rule of
Appellate Procedure 1925. Moreover, we note that The Landing advised us
that it would not be filing a brief in this appeal.



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Ms. Hoban’s Brief at 2-3. We will address all the issues together because

they are interrelated.

      The decision to declare a person incapacitated and to appoint a

guardian is within the discretion of the orphans’ court, and we will reverse

only for an abuse of that discretion. In re Duran, 769 A.2d 497, 506 (Pa.

Super. 2001). An orphans’ court abuses its discretion if it “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. (citation and internal quotation marks omitted).        This Court will not,

however, reweigh the evidence and substitute our judgment as long as the

evidence “is sufficient in quality and quantity to sustain the [orphans’

court’s] finding of incompetency[.]”    In re Myers’ Estate, 150 A.2d 525,

526 (Pa. 1959) (citations omitted); see also Estate of Haertsch, 609 A.2d

1384, 1385 (Pa. Super. 1992).

      Section 5501 of the Probate, Estates and Fiduciaries Code, 20

Pa.C.S.A. §§ 101-8815, defines an incapacitated person as follows.

            § 5501. Meaning of incapacitated person

            “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.A. § 5501.


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                 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. Myers’ Estate, [supra]. “Mental capacity
           and competency are to be presumed and before any
           person shall be deprived of the right to handle his or
           her own property and manage his or her affairs there
           must be clear and convincing proof of mental
           incompetency      and     such     proof   must     be
           preponderating.” Id.

Estate of Haertsch, supra, at 1386 (parallel citation omitted). “Once an

individual has been found incapacitated within the meaning of 20 Pa.C.S.A.

§ 5501 … and in need of guardianship services, it then becomes the court’s

responsibility to appoint an individual to serve, granting limited or plenary

powers consistent with the incapacitated person’s needs.”           Estate of

Haertsch, 649 A.2d 719, 720 (Pa. Super. 1994), citing 20 Pa.C.S.A. § 5511.

“The selection of a guardian for a person adjudicated incapacitated lies

within the discretion of the [orphans’] court whose decision will not be

reversed absent an abuse of discretion.” In re Duran, supra.

     Ms. Hoban challenges the orphans’ court’s conclusion that she is totally

incapacitated.   Specifically, she contends that the evidence shows she

effectively received and evaluated information, and she made a conscious

decision to pay the mortgage on her house and her monthly bills instead of

making payments to The Landing. Ms. Hoban’s Brief at 21. Moreover, she

argues that the appointment of a plenary guardian was not the least

restrictive alternative. Id. at 22, citing, 20 Pa.C.S.A. § 5502. Instead, Ms.


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Hoban asserts that the orphans’ court should have permitted her to appoint

a power of attorney, execute an advanced directive for healthcare, and

designate a healthcare power of attorney.2           Id. at 22-24, citing, 20

Pa.C.S.A. §§ 5601, 5422, and 5452.

       During the initial incapacity proceedings, in addition to extensive

evidence on the condition of Ms. Hoban’s house summarized above, two

doctors who had independently evaluated Ms. Hoban testified. The orphans’

court summarized their testimony as follows.

                     Paul R. Moyer, M.D., testified as to the results
              of his evaluation of Ms. Hoban. … Dr. Moyer is a
              geriatrician who primarily takes care of patients in
              nursing homes. He has been the medical director at
              seven facilities where he also acts as attending
              physician. He met Ms. Hoban on October 17, 2014,
              at The Landing.      He was unable to review her
              medical records and was not provided with a list of
              medications she was taking. The doctor’s evaluation
              consisted of a detailed conversation with Ms. Hoban
              which lasted for somewhere between half an hour
              and one hour. The doctor found Ms. Hoban oriented
              and aware of current events surrounding her own
              situation. She was further able to give a personal
              history. He found that she had “some mild memory
              loss.” Because Dr. Moyer found that Ms. Hoban was
              aware of pertinent facts, he could not say that she
              met the criteria for incapacity. But, he expressed
              serious concern about her ability to execute a plan
____________________________________________


2
  Ms. Hoban did not raise the issue of less restrictive alternatives to plenary
guardianship to the orphans’ court until she filed her Rule 1925(b) concise
statement. The trial court addressed those arguments in its opinion. We
decline to find waiver on the issue of alternatives to guardianship because
the express purpose of the guardianship chapter is to impose the least
restrictive alternative on an incapacitated person. 20 Pa.C.S.A. § 5502.



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          for her own well-being, for her own maintenance,
          and for her own living arrangements. Because of
          those concerns, he felt that she might need a
          guardian. Asked about Ms. Hoban’s repeated efforts
          to get back into her residence, the doctor replied
          that her actions spoke to a judgment issue and
          worried him to the point that he believed she was
          marginally incapacitated. He did add that this was a
          hard call.

                                    …

                 Kenneth B Goldberg, Psy.D., … performed a
          neurophysiological evaluation of Ms. Hoban at Holy
          Redeemer Hospital on August 4, 2014 pursuant to a
          referral from her physician[.] After interviewing Ms.
          Hoban and care staff, Dr. Goldberg administered
          multiple tests that included the Mattis Dementia
          Rating Scale, the Wechsler Adult Intelligence Scale
          (logical memory 1 and 2 subtests), the California
          verbal learning test (short form), the Boston naming
          test, the controlled word association test, the animal
          naming test, the clock drawing test, judgment of line
          orientation test, the trail-marking test, and the
          geriatric depression scale. He said he concluded that
          Ms. Hoban suffered from deficits in executive
          functioning, visual memory, visual scanning,
          complex verbal learning, and verbal fluency. Her
          scores placed her in the first, second (twice), sixth,
          seventh, eighth, and sixteenth percentiles based on
          a population of 84 year old females. Dr. Goldberg
          testified that Ms. Hoban had arrived two hours early
          for the evaluation and was disoriented in the
          hospital.     He formed a diagnosis of moderate
          dementia and concluded that Ms. Hoban has limited
          insight into her condition and the extent of her
          deficits. He opined that she cannot safely manage
          her healthcare decisions or her finances and that she
          meets      the   definition   of   incapacity    under
          Pennsylvania’s guardianship statute.

               On     cross-examination,   Dr.   Goldberg
          acknowledged that Ms. Hoban had complained that
          she was cold in her evaluation room and that he

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            adjusted the heat upward for her. He explained that
            his diagnosis of dementia was subcortical as opposed
            to cortical, which makes it likely to be the result of a
            cerebral vascular accident (stroke) or a vascular
            condition rather than an Alzheimer’s type dementia.
            As such, the dementia may be progressive or may be
            stable. Asked whether he felt Ms. Hoban needed a
            little help or a lot of help, Dr. Goldberg replied “A lot
            of help.”

Orphan’s   Court   Opinion,    6/4/15,   at   4-5,    7-8   (citations   omitted).

Immediately following the November 4, 2014 hearing, the trial court

adjudicated Ms. Hoban totally incapacitated.         At the review hearing, on

February 19, 2015, Kenneth Carroll, Ph.D, a licensed clinical psychologist

that the orphans’ court appointed to conduct a third evaluation of Ms.

Hoban, testified as follows.

            Counsel stipulated to the qualifications of Dr. Carroll
            as an experienced clinical psychologist with a
            specialization in geriatric cases. He testified that he
            evaluated Ms. Hoban on January 16, 2015 at The
            Landing. Dr. Carroll administered the Folstein mini-
            mental state exam and supplemented that with a
            number of other tests primarily designed to assess
            executive function. These included the similarities
            test, the Weschler Adult Intelligence Scale, and a
            comprehension subtest from that scale. He also
            administered a clock drawing test, the animal
            naming test, and the geriatric depression scale
            following a lengthy interview with Ms. Hoban. Dr.
            Carroll testified that Ms. Hoban is a retired research
            chemist who is very intelligent, bright, and did well
            on most of the tests that were administered. On the
            Folstein exam, she scored 27 out of 30. Although
            she did well on the similarities test, she did not do as
            well when asked to interpret proverbs. She also had
            difficulties on some comprehension questions. She
            was unable to draw a clock accurately which Dr.
            Carroll characterized as significant.        Dr. Carroll

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            explained that Ms. Hoban does not appreciate how
            dire her circumstances had become when she was
            living at home and that this represents executive
            dysfunction and an inability to access [sic] situations
            accurately. For instance, he showed her some of the
            photos from her home and her assessment of them
            was inaccurate. Dr. Carroll said another symptom of
            her executive dysfunction is the inability to plan,
            recognize problems, and figure out solutions. Her
            plans were vague. She had not decided what she
            wants to do, she talked about having someone come
            to live with her but has not pursued that. She said
            she may or may not sell the house. Her answers
            exhibited an obvious absence of purpose. Although
            Ms. Hoban was able to identify the sources of her
            income, she could not explain how she got into
            serious financial difficulty and did not seem
            concerned about that. Dr. Carroll opined that Ms.
            Hoban is an incapacitated person, that it is a total
            incapacity, and her determination to return to her
            house would present a life-threatening situation.

Orphans’ Court Opinion, 6/4/15, at 9-10 (citations omitted).           At the

February 19, 2015 review hearing, Kalpana Doshi also testified that Ms.

Hoban’s physician opined that Ms. Hoban should not be driving. Id. at 11.

Ms. Doshi’s opinion was that Ms. Hoban’s insistence on returning to her

house is impossible because it is not safe and she cannot afford the

necessary repairs. Id.

      The orphans’ court found that “[t]he expert testimony clearly

established [] Ms. Hoban is totally incapacitated.” Id. at 12. The orphans’

court also concluded that “any of the traditional less restrictive alternatives

(power of attorney/health care power of attorney) would be ineffective as

Ms. Hoban would undoubtedly revoke any such power as soon as her agent


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made decisions inconsistent with her own unrealistic plans. … Regrettably,

there is no realistic alternative to [] plenary guardianship[.]” Id.

      Here, three experts in geriatric mental health testified that Ms. Hoban

was incapacitated. Ms. Hoban’s overwhelming desire to return to her home

demonstrated her compromised judgment.         The evidence showed that her

home was not in a habitable condition and her return to it would be a danger

to her health and safety. Further, Ms. Hoban cannot afford to make all of

the necessary repairs due to her financial situation.

      Ms. Hoban argues that her payment of the mortgage, utilities, and bill

for the new heater, instead of the outstanding bill for The Landing, reflected

that she was capable of making conscious choices regarding her finances.

Ms. Hoban’s Brief at 18.      However, those decisions further support the

orphans’ court’s finding that despite the impossibility of returning to her

home, “[s]he rationalized away all the concerns expressed by others as well

as the professional evaluation testimony. … Sadly, Ms. Hoban showed a total

inability to understand her situation, accept her limitations, and benefit from

the assistance of others.” Orphans’ Court Opinion, 6/4/15, at 12. It also

displays that there are no less restrictive alternatives available to plenary

guardianship because Ms. Hoban would revoke any alternative form of

guardianship or power of attorney when it became incompatible with her




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unrealistic goal of returning to her home.3        Our review of the record thus

demonstrates the evidence is sufficient to sustain the orphans’ court’s

finding of incompetency. See Myers’ Estate, supra.

       Based on the foregoing, we conclude that the orphans’ court did not

abuse its discretion in adjudicating Ms. Hoban totally incapacitated.       See

Duran, supra.       Therefore, we affirm the orphans’ court’s March 31, 2015

decree.

       Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2016




____________________________________________


3
  We agree with the orphans’ court that “[Ms. Hoban] may be able to
execute a valid advance directive for health care and nothing in the orphans’
court’s decree prohibits this.” Orphans’ Court Opinion, 6/4/15, at 12. We
note that our decision is without prejudice to Ms. Hoban’s right to execute an
advance directive for health care.



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