J-A04038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF: NANCY S. KEEGAN,                   IN THE SUPERIOR COURT OF
AN ALLEGED INCAPACITATED PERSON,                           PENNSYLVANIA

                            Appellee



APPEAL OF: KATHLEEN A. GALLAGHER

                                                              No. 496 WDA 2015


                    Appeal from the Order February 18, 2015
                 In the Court of Common Pleas of Butler County
                 Orphans' Court at No(s): O.C. NO. 2015-00005


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM BY SHOGAN, J.:                                      FILED MAY 10, 2016

       Appellant, Kathleen A. Gallagher, appeals from the order that

appointed     Appellant    and    Attorney     Dorothy   J.   Petrancosta   (“Attorney

Petrancosta”) as permanent plenary co-guardians of the person and for the

estate of Nancy S. Keegan (“Mother”).1 We affirm.


____________________________________________


1
  In addition, Appellant has filed an application to strike the supplemental
record submitted sua sponte by the trial court. Instantly, after the filing of
this appeal and the transmittal of the certified record to this Court, the trial
court held ancillary proceedings unrelated to the appointment of Appellant
and Attorney Petrancosta as co-guardians and drafted a supplemental
Pa.R.A.P. 1925(a) opinion that buttressed its decision currently on appeal.
Thereafter, the trial court sua sponte transmitted a supplemental record to
this Court. The trial court’s sua sponte action precipitated Appellant’s
application to strike.

(Footnote Continued Next Page)
J-A04038-16


      The trial court summarized the history of this case as follows:

      Counsel for the Appellant filed a Petition for the Appointment of
      Plenary Guardian of the Estate and Person of an Incapacitated
      Person Under 20 Pa. C.S.A. 5511 Et Seq. (hereinafter “Petition
      for Guardianship”) on or about January 7, 2015, initiating this
      action. Pursuant to the Preliminary Order of Court under date of
      January 7, 2015, the Court scheduled a hearing on said Petition
      for February 17, 2015, at 11:00 o’clock A.M. in Courtroom #3 of
      the Butler County Government Center.

           [Mother] is a widow with five living children[: Appellant],
      Marian S. Keegan, Terence M. Keegan, Kevin M. Keegan, and
      Robert F. Keegan. Terence M. Keegan and Robert F. Keegan
      each filed a Consent of Heir shortly after the Petition for
      Guardianship was filed by Appellant.

            At the time and place set for hearing on the Petition for
      Guardianship, Appellant appeared along with her counsel,
      Elizabeth A. Smith, Esquire. Lynn M. Patterson, Esquire, court
      appointed counsel, appeared on behalf of the adjudicated
      incapacitated person, [Mother]. Marian S. Keegan and Kevin M.
      Keegan also appeared to both contest the adjudication of
      [Mother] as incapacitated, and to protest to the appointment of
                       _______________________
(Footnote Continued)

       Pa.R.A.P. 1926 addresses the correction and modification of the
certified record.     However, Pa.R.A.P. 1926 does not allow for the
introduction of new evidence at the appellate level. Rather, Pa.R.A.P. 1926
permits the correction or modification of the existing certified record when
“anything material to either party is omitted from the record by error or
accident or is misstated therein[.]”        “Material” in this sense means
evidentiary items that were considered by the trial court but, for some error,
were not included in the formal certified record. Rae v. Pa. Funeral Dir’s
Ass’n, 925 A.2d 197, 204 (Pa. Cmwlth. 2007) (vacated on other grounds)
(citing Gulentz v. Schanno Transp., Inc., 513 A.2d 440 (Pa. Super.
1986)). Here, the items in the supplemental record transmitted sua sponte
by the trial court were not material to its consideration of the current order
on appeal. Accordingly, Pa.R.A.P. 1926 cannot be utilized as a vehicle to
introduce these new items. Rae, 925 A.2d at 204. Hence, we grant
Appellant’s application and strike the supplemental record. In reaching our
decision in this matter we have not considered any items contained in the
supplemental record.



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J-A04038-16


     the Appellant as [Mother’s] Permanent Plenary Guardian. Dr. Ira
     S. Handler, M.D., a recognized expert in geriatric psychiatry,
     testified that, after having met with and examining [Mother], his
     diagnosis of her was Dementia, Not Otherwise Specified. He
     further offered that this condition will not improve, but is likely
     to worsen, and specifically that her ability to consider abstract
     concepts has decreased even since his treatment of [Mother]
     began in 2001. Dr. Handler testified that no medication exists to
     cure [Mother’s] Dementia, and that without her late husband to
     care for her, he believes her to have a difficult time performing
     daily tasks. It was Dr. Handler’s opinion that because [Mother]
     has simplistic and unrealistic thoughts as well as executive
     function deficiency, she requires supervision in the least
     restrictive form of a Permanent Plenary Guardian. Additionally,
     it was made known to Dr. Handler, and he testified to [Mother]
     being very upset because of the disagreement amongst her
     children regarding this Guardianship.

            Further testimony in this case revealed a strong discord
     between three of the siblings. Appellant testified that after her
     father’s death she moved [Mother] to New Haven Residential
     Assisted Living on December 12, 2014.           Appellant further
     testified that she has handled [Mother’s] finances, and has made
     medical decisions for her mother since the death of her father,
     Terence J. Keegan [(“Father”)]. Appellant identified for the
     Court a Power of Attorney dated November 15, 1996, signed by
     [Mother], appointing [Father], and alternatively, [Appellant], as
     [Mother’s] Power of Attorney. Appellant further identified a
     Health Care Declaration and Health Care Power of Attorney
     dated March 2, 1999, signed by [Mother], appointing only
     [Father] as her surrogate with no successor. [Father] was
     identified as [Mother’s] late husband. When asked why the
     proceedings were instituted if Appellant was already vested as
     [Mother’s] Power of Attorney, Appellant explained that she was
     having difficulty exercising her Power of Attorney due to her
     brother and sister, Marian S. Keegan and Kevin M. Keegan,
     having contacted New Haven Residential Assisted Living in an
     effort to obviate the authority of Appellant to make medical
     decisions for [Mother]. Lastly, Appellant stated that, in her
     opinion, a Co-Guardianship with her siblings would not work.

           Both Kevin M. Keegan and Marian S. Keegan strongly
     objected to the appointment of a Guardian, and specifically to
     the appointment of [Appellant] as the Guardian of [Mother].

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J-A04038-16


       Kevin M. Keegan and Marian S. Keegan both stated in open court
       that they believe Appellant to be exerting control over [Mother].
       In so claiming, both siblings used Appellant’s move of [Mother]
       from her condo into New Haven Residential Assisted Living as an
       example of said control.        Marian S. Keegan testified that
       [Mother] had expressed to Marian an interest in participating in
       the Meals on Wheels program, and a desire to remain in her
       condo, both of which, she claimed, Appellant did nothing to
       facilitate. Marian S. Keegan expressed her shock that [Mother]
       had been moved out of the condo only two months after the
       death of [Father]. Marian S. Keegan further stated that she
       believed Appellant to be “commandeering” [Mother’s] assets in
       an effort to alienate Marian S. Keegan and Kevin M. Keegan from
       [Mother].

Trial Court Opinion, 4/9/15, at 1-4 (citations omitted).

       On February 18, 2015, the trial court entered an order declaring

Mother to be an incapacitated person2 and appointed Appellant and Attorney

Petrancosta, an unassociated third party, to act as permanent plenary co-

guardians of Mother.        This appeal followed.   Both Appellant and the trial

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

       Appellant presents the following issue for our review:

       Did the Orphans’ Court abuse its discretion when it appointed an
       attorney as a “third party” Co-Guardian in addition to the
       Appellant, Kathleen A. Gallagher, daughter of the incapacitated
       person, where the incapacitated person previously declared in a
       signed and notarized Power of Attorney that she nominated
       Appellant as her sole Power of Attorney, where the evidence
       established Appellant to be trustworthy, where the evidence also
____________________________________________


2
  The term “incapacitated person” is defined pursuant to 20 Pa.C.S. § 5501
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.”



                                           -4-
J-A04038-16


      established that the incapacitated person placed great trust in
      Appellant, and where the incapacitated person, through her
      Court appointed attorney, neither sought out nor requested a
      court appointed “third party” Co-Guardian.

Appellant’s Brief at 9.

      In her sole issue, Appellant argues that the trial court abused its

discretion in appointing Attorney Petrancosta to serve as co-guardian along

with Appellant.   Appellant’s Brief at 15-18.   Appellant claims that the trial

court did not give substantial weight to Mother’s original intent in signing the

power of attorney dated November 15, 1996. Appellant contends the trial

court abused its discretion by speculating that the appointment of a co-

guardian with Appellant would minimize the discord between the siblings. In

essence, Appellant asks to be the permanent sole and plenary guardian.

      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)).

      Our Supreme Court has explained that pursuant to the guardianship

statute, which is a provision of the Pennsylvania Decedents, Estates and

Fiduciaries Code, “[a] guardian is appointed only upon a finding that the

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J-A04038-16


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, 541 (Pa. 1999)

(internal quotations marks and citations omitted) (emphasis in original).

      In addition, this Court has stated the following:

      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.    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 Hyman, 811 A.2d 605, 607-608 (Pa. Super. 2002) (citations and

quotation marks omitted).

      To   establish   incapacity,   a    petitioner   must   comply   with   the

requirements set forth in section 5518 of the guardianship statute.            In

addition, section 5512.1 of the guardianship statute stipulates a list of items

for the trial court to consider in making a determination of incapacity.

      Following a determination of incapacity, the guardianship statute

provides the following statutory authority for a trial court to appoint a

guardian for the incapacitated person:

      § 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. . . .


                                         -6-
J-A04038-16


                                          ***

       (f) Who may be appointed guardian.--The court may appoint
       as guardian any qualified individual, a corporate fiduciary, a
       nonprofit corporation, a guardianship support agency under
       Subchapter F (relating to guardianship support) or a county
       agency. . . . If appropriate, the court shall give preference to
       a nominee of the incapacitated person.

20 Pa.C.S. § 5511(a) and (f) (emphases added).

       Section 5511 must be read in conjunction with section 5604(c)(2),3

which directs the court to give preference to the nominee of the now

incapacitated person. The statute provides, in pertinent part, as follows:

       § 5604. Durable powers of attorney

       (a) Definition.--A durable power of attorney is a power of
       attorney by which a principal designates another his agent in
       writing.     The authority conferred shall be exercisable
       notwithstanding the principal’s subsequent disability or
       incapacity. . . .

                                          ***

       (c) Relation of agent to court-appointed guardian.--

                                          ***

              (2) A principal may nominate, by a durable power of
              attorney, the guardian of his estate or of his person
              for consideration by the court if incapacity
              proceedings for the principal’s estate or person are
              thereafter commenced. The court shall make its
              appointment in accordance with the principal’s most
              recent nomination in a durable power of attorney
              except for good cause or disqualification.
____________________________________________


3
  Chapter 56 of Pennsylvania Decedents, Estates and Fiduciaries Code
addresses powers of attorney. 20 Pa.C.S. §§ 5601-5611.



                                           -7-
J-A04038-16



20 Pa.C.S. § 5604(a), (c)(2) (emphases added).

     Appellant argues that pursuant to our decision in In re Sylvester, 598

A.2d 76 (Pa. Super. 1991), Mother’s nomination of Appellant as the

successor to Father in Mother’s durable power of attorney should be given

great deference and that Appellant should have been appointed the sole

guardian. We disagree.

     As we explained in Sylvester, generally there is no need to appoint an

independent guardian of the person and the estate where the incapacitated

person has executed a durable power of attorney to handle his finances.

Sylvester, 598 at 83-84.      In Sylvester, an emergency guardian was

appointed based on allegations that the attorneys-in-fact had isolated the

incapacitated person and misused his funds. At the hearing, despite the lack

of proof regarding any wrongdoing by the attorneys-in-fact, the court

appointed different guardians. On appeal, this Court reversed, finding that

the trial court ignored the dictates of section 5604(c)(2) and we held that,

“[i]n the absence of proof of good cause or disqualification based on

competent evidence at the guardianship hearing, there was no need to

appoint an independent party as permanent guardian.’’         Id. at 83-84.

However, the facts of the instant case are distinguishable from Sylvester in

that the trial court did not ignore Mother’s election of Appellant as the

successor in the durable power of attorney. Here, the trial court appointed

Appellant to serve as a co-guardian, along with Attorney Petrancosta.

                                    -8-
J-A04038-16


      The trial court offered the following reasoning for its decision to

appoint an independent third party to serve as Mother’s co-guardian along

with Appellant:

            It was apparent to this Court that based on the facts and
      testimony presented, there continues to be serious disagreement
      between Appellant and her siblings, Kevin M. Keegan and Marian
      S. Keegan, regarding the treatment of [Mother]. Testimony
      indicated that these issues will not be resolved in the near
      future, but would only increase if Appellant were granted sole
      and exclusive guardianship authority of [Mother]. Therefore,
      this Court weighed all facts and testimony presented concerning
      the assists and supports available to [Mother], and utilized its
      inherent judicial powers in law and equity to appoint a third-
      party as Co-Guardian, to serve with Appellant, in an effort to
      prevent further disagreements relative to [Mother’s] care and
      future financial expenditures on her behalf.           Such an
      appointment is well within this Court’s legal and equitable
      powers to administer justice.

Trial Court Opinion, 4/9/15, at 5.

      Based upon our review of the record, we discern no abuse of discretion

in the trial court’s appointment of co-guardians in this matter.   The three

siblings herein each offered testimony to the trial court that supported the

conclusion there is serious discord among the family members and complete

disagreement regarding the well-being and appropriate treatment of Mother.

N.T., 2/17/15, at 50, 52, 61, 71-73, 74-87. In addition, it is undisputed that

Appellant was listed on the 1996 durable power of attorney as the successor

to Father in the event that Father was unable to serve.        Id. at 31-32.

Interestingly though, Appellant was not named as the successor to Father on

the 1999 healthcare power of attorney executed by Mother. Id. at 37-38.


                                     -9-
J-A04038-16


In addition, Dr. Handler testified that Mother is vulnerable to unscrupulous

and designing persons.     Id. at 12.    Appellant’s sister, Marian Keegan,

testified regarding concerns that Appellant was manipulating Mother and has

commandeered Mother’s assets. Id. at 82-86. The evidence before the trial

court was sufficient good cause as to why Appellant’s appointment as the

sole guardian of either Mother’s person or estate was not appropriate.

      Accordingly, we conclude that the trial court followed the proper

statutory authority when it considered and appointed Appellant, the named

successor in Mother’s durable power of attorney, as a co-guardian in this

matter.   Likewise, we conclude that the trial court was acting within its

discretion in choosing to appoint Attorney Petrancosta as an independent co-

guardian to serve along with Appellant.       Thus, because the trial 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 trial court. Estate of Haertsch, 649 A.2d 719.

      Order affirmed. Application to strike supplemental record granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/2016




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