J-A06033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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


APPEAL OF MARGARET A. COLEMAN

                                                    No. 2132 EDA 2014


                   Appeal from the Decree of June 17, 2014
               In the Court of Common Pleas of Lehigh County
                     Orphans’ Court at No(s): 2013-1735


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

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

      Margaret Coleman (“Appellant”) appeals from the decree entered in

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

adjudicating her to be an incapacitated person and appointing a plenary

guardian of her 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 Mrs. Coleman, the petition alleged she was
      71 years of age and married; had recently been discharged from
      Lehigh Center and returned to her personal residence against the
      recommendation of medical professionals that she reside in an
      assisted living facility; that her husband, Mr. Coleman, had fired
      all medical personnel that had been hired to assist her while at
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     home and she was unable to hire her own medical personnel;
     that she suffered from alcohol abuse; that she refused to
     relinquish her driver’s license despite several crashes of a vehicle
     on her own property; that she was under the control of her
     husband; and that she had been admitted to the hospital on
     November 10, 2013, for injuries sustained from an alcohol-
     related fall and remained hospitalized. The petition contained a
     note from Dr. Holbrook to the effect Mrs. Coleman was not
     capable     of  making      decisions   and    understanding    the
     consequences of 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 Mrs. Coleman, at the time of the hearing
     she was a patient in the Lehigh Valley Hospital for the previous
     four days. Dr. Mohammed Fawwad Khan, a medical doctor who
     is Board-certified in internal medicine and specializes in hospital
     medicine, was her attending physician during that time and had
     treated her on two other occasions during other hospitalizations.
     In fact, he testified Mrs. Coleman had been admitted to the
     hospital about six times over the previous twelve months. He
     testified she carried diagnoses of cognitive dysfunction not
     otherwise specified, major depressive disorder and ongoing
     alcohol abuse, and she lacked the capacity to make adequate
     decisions for herself with regard to her physical health and
     safety, including her medical needs, and her financial affairs.
     [N.T. 11/22/13] at 10-11, 15. He said she did not understand
     the medical effects of alcohol; was noncompliant with her
     medications; could not consent to a medical or surgical
     procedure; had poor memory; repeated questions; and had
     diminished concentration. Id. at 10, 13, 15-16. He said she
     could possibly be taken advantage of by unscrupulous persons.
     Id. at 12. He reported she scored 16 out of 29 on the Folstein
     Mini-Mental Status Examination, which placed her in the
     impaired range.       Id. at 11.     He described her as “fully
     incapacitated” when asked whether her “ability to receive and
     evaluate information effectively, and communicate decisions in
     any way, is impaired to such a significant extent, that . . . she is
     partially or totally unable to manage . . . her financial resources,


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     to meet essential requirements for . . . her physical health and
     safety.” Id. at 14-15.

            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 Mrs. Coleman, she was present along with
     her court-appointed counsel, Lia Snyder, Esquire, and her court-
     appointed guardian ad litem, Shannon Piergallini Smith, Esquire.

            An independent evaluation was performed on March 26,
     2014, by Dr. Donna Miller, an osteopathic physician Board-
     certified in internal medicine with added qualifications in geriatric
     medicine, in Mrs. Coleman’s assisted living facility, where Mrs.
     Coleman then resided, in order to evaluate her cognitive
     capabilities. [N.T. 11/22/13] at 9. Dr. Miller testified she
     reviewed Mrs. Coleman’s medical records available at the facility.
     They     listed    her    admission     diagnoses    of   dementia,
     cardiomyopathy, falls, atrial fibrillation, congestive heart failure,
     alcohol     abuse,    anxiety    and    depression,    hypertension,
     hyperlipidemia, osteoporosis, breast cancer, and right radial lobe
     injury with hand weakness related to a right femoral fracture
     after a fall. She also reviewed the list of medications Mrs.
     Coleman was taking on the day of her visit. They included
     Ramipril      for     heart    failure/hypertension,     magnesium
     supplements, Prilosec, Aldactone, and Ativan as needed for
     unusual anxiety. Id. at 11-12. Dr. Miller talked with Mrs.
     Coleman and administered various objective tests.               Mrs.
     Coleman scored 22 out of 30 on the Folstein Mini-Mental Status
     Examination and 16 out of 30 on the St. Louis University Mental
     Status Examination. According to Dr. Miller, both results were
     consistent with dementia. Id. at 10. Dr. Miller reported Mrs.
     Coleman could not draw the clock face for the time specified,
     could not make change calculations correctly, and could not
     describe any of her medications except a vitamin. Nor could
     Mrs. Coleman state the amount of her monthly income; she said
     her husband had always managed all of the money and she had
     never been interested in doing it. Id. at 10-13.

           Dr. Miller concluded to a reasonable degree of medical
     certainty Mrs. Coleman had deficits with memory, judgment,
     reasoning, some calculation issues, executive functions,
     problems which are consistent with the diagnosis of dementia.
     She said Mrs. Coleman’s dementia was most likely related to
     alcohol, alcoholism; characterized the level of her dementia as
     mild to moderate; and said she was in need of a guardian of her


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     person and estate. Id. at 15, 20. She also said Mrs. Coleman
     could return to her home with her husband if there was 24-hour
     in-home care. As Dr. Miller explained it, the reason for 24-hour
     care was to ensure good nutrition, no alcohol, the right drugs,
     and very consistent medical care, with consistent providers.
     That’s how she would do well. Id. at 18-19.

           David Roth, Esquire, Mrs. Coleman’s court-appointed
     emergency guardian of the estate and emergency guardian of
     her person testified Mrs. Coleman exhibited confusion and lapses
     of memory. For example, when he spoke with her, she would
     lose her train of thought; she was not aware of the medication
     she was taking when she visited the urologist; she failed to
     disclose her history of alcoholism to the doctor; she would call
     Mr. Roth’s office multiple times with the same request or
     question; and she would forget medical appointments. Id. at
     24-25; 27.

            Mrs. Coleman’s attorney called Dr. John Mitchell, a Board-
     certified psychiatrist, who examined Mrs. Coleman on April 29,
     and June 4, 2014. He also had some previous contact with her
     as a patient, most recently on June 12, 2013, for depression,
     anxiety and alcohol abuse, and at various other times when she
     accompanied her husband, who also had been his patient.

           Dr. Mitchell described Mrs. Coleman as a 72-year old
     woman, who was “alert, well oriented, spontaneous, somewhat
     anxious because she understood the seriousness of why we were
     meeting . . . quite relevant in all of our conversations . . . able to
     think and communicate in abstract manner, with relevant
     analogies . . . [and] goal directed.” Id. [at] 37. He did note she
     occasionally made “some minor mistakes related to memory.”
     Id. He accepted her representation that she understood alcohol
     was problematic for her and she was no longer drinking. Id. at
     38. He also said he administered the St. Louis University Mental
     Status Examination to her, and she scored 23, “which put her in
     the mild neurocognitive disorder status, which is not at the level
     that one would consider dementia.” Id. at 38, 47-48. He also
     said she was “cognitively alert” and had a “fairly good
     understanding of her finances.” Id. at 39. In short, Dr. Mitchell
     found Mrs. Coleman had no significant impairment in her
     reasoning ability or attitude, and she possessed the capacity to
     conduct her personal and financial affairs.




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            With respect to Mrs. Coleman’s medical condition, Dr.
     Mitchell understood her to have arthritis, atrial fibrillation, and a
     history of fractures related to her alcohol abuse. He said she
     was aware of the medication she was taking and intended to be
     compliant with it. Id. at 10. He further concluded she could
     formulate reasonable decisions concerning her physical health
     and safety. Id. at 40. He believed Mrs. Coleman could make
     reasonable decisions relative to giving consent for medical or
     surgical procedures and purchase or prepare her own meals. He
     said her short-term memory and working memory were slightly
     impaired, but her long term memory was good. In sum, he said
     Mrs. Coleman could handle her own affairs without the need for
     appointment of guardians to assist her, and could live at home
     “with the proper kinds of help.” He suggested in-home care for
     six to eight hours per day. Id. at 42.

            On cross-examination, Dr. Mitchell acknowledged Mrs.
     Coleman, like many abusers of alcohol, understated her
     consumption to him when he was treating her in 2013 and that
     her consumption was enough to cause her to lose her balance,
     have blackouts and be hospitalized for multiple fractures. Since
     his treatment of her in late 2013, Mrs. Coleman has not resided
     in her home but, instead in a rehabilitation facility and then an
     assisted living facility where, presumably, she would not have
     had access to alcohol. Id. at 44. Dr. Mitchell also relied on Mrs.
     Coleman’s representations when he testified he believed Mrs.
     Coleman was compliant with her medical treatment and intended
     to follow through with all of her medical appointments and
     medical care. However, Dr. Mitchell did not ask Mrs. Coleman
     who her doctors were to know who she would follow up with,
     and agreed all of Mrs. Coleman’s medical appointments in the
     last seven or eight months have been either at the nursing home
     or assisted living facility where she had been residing or where
     she had been transported by the facility. Id. at 46.

           Dr. Mitchell was asked if he could explain why Mrs.
     Coleman scored 16 out of 30 on the SLUMS test on March 26,
     2014, with Dr. Miller and 23 out of 30 on June 4, 2014, with
     him. He suggested the difference could be the result of a
     general improvement in her condition, perhaps due to
     medications, or the way the test was administered to her. He
     also indicated Mrs. Coleman’s score of 23 out of 30 on the
     Folstein Mini-Mental Status Exam administered by Dr. Miller was
     consistent with her performance on the SLUMS test administered
     at the same time. Id. at 51-53.

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             Finally, when asked if there was anything else he wanted
      to say, Dr. Mitchell said allowing Mrs. Coleman to return to her
      home could present some “difficulty” because Mr. Coleman is
      “less cooperative, more demanding, very angry.” Id. at 54.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed September 30, 2014 (“1925(a)

Opinion”), at 2-12 (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

her person and estate. Appellant filed a timely notice of appeal on July 15,

2014. 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?

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)).




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      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

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)).

      Here, Appellant challenges the weight of the evidence.                 See

Appellant’s Brief, pp. 11-19. In short, she claims the trial court should not

have placed the emphasis/credence it did on the testimony of Dr. Donna

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Miller, an osteopathic physician who performed an independent evaluation of

Appellant and who concluded, to a reasonable degree of medical certainty,

that Appellant suffers from mild to moderate dementia and was in need of a

guardian of her person and estate. Id. at 12-15. Instead, Appellant claims

the trial court should have placed more emphasis/credence in the testimony

of Dr. John Mitchell, whom Appellant presented, and who testified that

Appellant’s dementia was alcohol-related, that she had ceased consuming

alcohol, and that, with appropriate help, Appellant could care for herself and

her affairs without the appointment of guardians. Id. at 15-19.

      The trial court considered both doctors’ testimony and discussed the

testimony in its opinion.   See 1925(a) Opinion, pp. 8-12.     The trial court

ultimately determined:

            Little weight was accorded to the testimony of . . . Dr.
      Mitchell, who treated and evaluated Mrs. Coleman. . . .

              Dr. Mitchell accepted Mrs. Coleman’s representation that
      she understood alcohol was problematic for her and she was no
      longer drinking. In fact, Mrs. Coleman was a diagnosed alcoholic
      with a long history of multiple alcohol-related falls and
      hospitalizations.      Dr. Mitchell knew alcoholics habitually
      understate their use, and Mrs. Coleman had been living in the
      controlled environment of a hospital and an assisted living
      facility where, unlike home, it was unlikely she would have
      access to alcohol. He said Mrs. Coleman had a “fairly good
      understanding” of her finances, yet Mrs. Coleman herself said
      she knew little about her finances; her husband had always
      handled them. She did not know her doctors, yet Dr. Mitchell
      accepted her assurance she would follow through with all
      medical appointments and medical care. Finally, Dr. Mitchell
      acknowledged the results of the two tests Dr. Miller administered
      to Mrs. Coleman, the Folstein Mini-Mental Status Examination
      and the St. Louis University Mental Status Examination, which


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      indicated dementia, were consistent with each other.
      Additionally, Dr. Miller testified Mrs. Coleman failed other
      objective tests she administered to Mrs. Coleman, the clock face
      and change calculations tests, and it does not appear Dr. Mitchell
      administered any objective tests to Mrs. Coleman other than the
      same St. Louis University Mental Status Examination
      administered by Dr. Miller.

1925(a) Opinion, p. 13.

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

testimony of the court-appointed guardian, Attorney Roth, and of Dr.

Mohammed Fawwad Khan, as well as Appellant’s in-court appearance and

demeanor in rendering its decision. The trial court found the testimony of

Dr. Miller 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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