J-S46032-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ELSIE M. BENDER                 :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
Petition for the Appointment of a      :
Guardian of the Person and Estate      :
Of Elsie M. Bender, an Alleged         :
Incapacitated Person                   :
                                       :
                                       :     No. 304 MDA 2014

           Appeal from the entered on Order of February 8, 2014,
             in the Court of Common Pleas of Lebanon County
                                                    -517

BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ:

MEMORANDUM BY MUSMANNO, J.:                       FILED AUGUST 20, 2014



adjudicating her an incapacitated person, and confirming the appointment of



guardian for the person and estate of Bender. We affirm.

                                                        he relevant history

underlying the instant appeal, which we incorporate herein by reference.

                                      -5.

      On appeal, Bender presents the following claims for our review:

                                                              xpressed
      by a mentally competent adult to either refuse, forgo or ignore a
      medical treatment regimen, even if that refusal or forbearance
      may lead to her further injury or death?

Brief of Appellant at 2.
J-S46032-14




incapacitated person.      Id. at 7-8.   Bender asserts that this case is about



competent adult, whether to assume the risk of personally managing her

disease, or whether the court has the power to take away that right and

                                 Id. at 8. Bender argues that, contrary to the

                                                       Id. (emphasis omitted).

Citing In Re: Estate of Border, 68 A.3d 946 (Pa. Super. 2013), Bender

claims that a competent adult has the absolute right to refuse treatment.

Brief of Appellant at 9.



administration of insulin, but being forced to administer insulin under the

direction and control of others.     Id. at 10.   She objects to nurses having

control over decisions regarding the amount and timing of her insulin

injections. Id. at 10-11. Bender states that she has no dependents, and

her right to self-determination is not outweighed by the interest of the state

in preserving her life. Id. at 14. Finally, Bender advises that she has no

intention of committing suicide. Id. at 15.

      A person is presumed to be mentally competent; incapacity must be

proven by clear and convincing evidence. In re Hyman, 811 A.2d 605, 608



competency case is based on an abuse of discretion standard, recognizing,



                                    -2-
J-S46032-14

of course, that the trial court had the opportunity to observe all of the

witnesses, including, as here, the allegedly incapacitated                   Id.

finding of mental incompetency is not to be sustained simply if there is any

evidence      of   such   incompetency[,]    but    only   where   the   evidence    is

                                                                           Id. Once

an individual has been found incapacitated and in need of guardianship



to   serve,    granting    limited   or   plenary   powers    consistent   with     the

incapacitated                        Estate of Haertsch, 649 A.2d 719, 720 (Pa.

Super. 1994).



adjudication, which is supported in

4/21/14, at 3-

multiple hospitalizations resulting from her diabetes, her diagnosis of non-

specific dementia affecting short-

a

Bender is not refusing treatment. See id. at 3-

findings are supported in the record, and its legal conclusions are sound.

Accordingly, we affirm on the ba

regard to the claim raised by Bender.

      Order affirmed.

      Lazarus, J., concurs in the result.



                                      -3-
J-S46032-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/20/2014




                          -4-
Circulated 07/25/2014 02:48 PM
Circulated 07/25/2014 02:48 PM
Circulated 07/25/2014 02:48 PM
Circulated 07/25/2014 02:48 PM
Circulated 07/25/2014 02:48 PM
