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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: GEORGE S. RILEY, JR., AN           :   IN THE SUPERIOR COURT OF
 INCAPACITATED PERSON                      :        PENNSYLVANIA
                                           :
                                           :
                                           :
 APPEAL OF: GEORGE S. RILEY, JR.           :   No. 447 MDA 2019

             Appeal from the Decree Entered February 15, 2019
   In the Court of Common Pleas of York County Orphans’ Court at No(s):
                                6719-0022

BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY BOWES, J.:                          FILED DECEMBER 12, 2019

      George S. Riley, Jr. appeals from the February 15, 2019 order that

decreed him an incapacitated person and appointed a professional plenary

guardian of his person and estate. We remand with instructions.

      This action was initiated when WellSpan Health, a non-profit corporation

providing care for Mr. Riley, filed a petition for adjudication of incapacity and

appointment of guardian pursuant to 20 Pa.C.S. § 5511. Therein, WellSpan

Health indicated that Mr. Riley “suffers from a major neurocognitive disorder

and schizophrenia along with various physical health problems.”           Petition,

1/4/19, at ¶ 4. It alleged that, as a result of these conditions, Mr. Riley is

unable to manage his finances or to make responsible decisions relating to his

finances. Id. at ¶ 7. Further, WellSpan Health averred that Mr. Riley is unable

to make responsible decisions about, or communicate his needs concerning,

his person, health, welfare, and safety. Id. at ¶¶ 15-16. WellSpan Health

contended   that   there   were   no   less-restrictive   alternatives   than   the
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appointment of a guardian, and proposed professional guardian Gary L. Landis

because Appellant had no suitable and interested family members.          Id. at

¶¶ 3, 9, 11, 18, 20.

      The orphans court issued a preliminary decree that, inter alia, appointed

counsel to represent Mr. Riley and scheduled a hearing on the petition. At the

hearing, WellSpan Health presented the testimony of Stephen L. Diltz, M.D.,

and Ashlyn Vorhees. Dr. Diltz, who became familiar with Mr. Riley at York

Hospital and whose qualifications were stipulated to by Mr. Riley, testified that

Mr. Riley is “severely impaired.” N.T. Hearing, 2/15/19, at 6. Although Mr.

Riley has a long-standing diagnosis of schizophrenia, he was no longer on

specific medication for that condition and had not been “hallucinatory or

delusional.”   Id.   Rather, Dr. Diltz indicated that Mr. Riley “has presented

mostly cognitively impaired” such that his abilities to make decisions regarding

his health, safety, welfare, and personal finances are “severely impaired.” Id.

at 6-7. Mr. Riley cannot process information properly and keep his thinking

organized. Id. at 11-12. Mr. Riley’s scores on cognitive assessment tests

given on December 18, 2018, and December 26, 2018, were fifteen out of

thirty and zero out of thirty, respectively. Id. at 10. Dr. Diltz opined that Mr.

Riley is not capable of managing and administering his medications, and

instead requires twenty-four-hour supervision. Id. at 7.

      Ms. Vorhees is a trauma social worker at York Hospital who assesses

patients’ mental health, housing situations, community supports, and


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discharge planning. Id. at 14. She was involved in WellSpan Health’s decision

to pursue a guardianship for Mr. Riley. Ms. Vorhees testified that Mr. Riley is

cognitively impaired, with disorganized thinking. Id. Mr. Riley is a long-time

alcoholic whose daily drinking “impairs his ability to be safe and to make his

food and be independent.” Id. at 18. For example, Mr. Riley “caught himself

on fire” while drinking, and was admitted to York Hospital with rib fractures

after he jumped out of the way of a truck that nearly hit him because he “was

intoxicated and was in the street.”    Id. at 15-16.   Furthermore, Mr. Riley

absconded from the hospital at one point, and remains “an elopement risk

from any facility[.]” Id. at 15.

      Ms. Vorhees stated that Mr. Riley lives with a roommate, and has a

landlord who “is very supportive.” Id. at 14. However, Mr. Riley had no one

to pick him up from his last hospitalization or assist in a safe discharge plan.

Id. at 15. Ms. Vorhees believes that Mr. Riley’s placement in a controlled-

care setting with a formal guardianship is “absolutely” necessary. Id. The

therapists at York Hospital recommended a skilled nursing facility; however,

Mr. Riley’s status as a lifetime sex offender registrant “presents a challenge

relative to placement[.]” Id. Ms. Vorhees acknowledged, however, that Mr.

Riley had been well fed while living with his roommate, that he is able to walk

and tend to his own personal hygiene, and that his landlord serves as a

representative payee to receive Mr. Riley’s checks. Id. at 18-19.




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      Mr. Riley testified in opposition to the finding of incapacity. However, in

so doing Mr. Riley unintentionally corroborated the allegations against his

capacity. Mr. Riley accurately stated his date of birth, but offered an age that

was off by several years. Id. at 21-22. He admitted that a “frying pan went

off on me and exploded” when he had tried to cook for himself while he

watched television.   Id. at 22.   Since then, his roommate does all of the

cooking, but the roommate is gone every day for work between 7:00 and

4:00. Id. at 22, 26. In describing how his landlord helps with his finances,

Mr. Riley indicated that he had become nearly $11,000 in debt upon managing

his own money, but was no longer in debt because the landlord paid it for him.

Id. at 23.

      At the conclusion of the hearing, the orphans’ court indicated that it

found clear and convincing evidence that Mr. Riley suffers from a cognitive

disorder and “is incapacitated to a significant extent[.]” Id. at 30. The court

accordingly appointed Mr. Landis, WellSpan Health’s proposed guardian, to

whose qualifications Mr. Riley stipulated. Id. at 20, 31. Mr. Riley immediately

expressed on the record his desire to challenge the decision of the orphans’

court, and this timely appeal followed.

      Mr. Riley presents one question for our consideration: “Whether the

[orphans’ c]ourt improperly found there was sufficient evidence to support the

adjudication of incapacity as to [Mr. Riley]?” Appellant’s brief at 4.

      We begin with a review of the applicable legal principles.


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            The appointment of a guardian lies within the discretion of
      the trial court and will be overturned only upon an abuse of
      discretion. 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) (cleaned up).

      Our legislature has provided that, upon clear and convincing evidence

of incapacity, an orphans’ court may appoint a guardian of the person and/or

estate. See 20 Pa.C.S. § 5511(a). An incapacitated person is “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.

      The legislature has enumerated the following specific considerations and

findings necessary to the resolution of a guardianship petition by the orphans’

court:

      (a) Determination of incapacity.--In all cases, the court shall
      consider and make specific findings of fact concerning:

         (1) The nature of any condition or disability which impairs the
         individual’s capacity to make and communicate decisions.

         (2) The extent of the individual’s capacity to make and
         communicate decisions.

         (3) The need for guardianship services, if any, in light of such
         factors as the availability of family, friends and other supports
         to assist the individual in making decisions and in light of the
         existence, if any, of advance directives such as durable powers
         of attorney or trusts.

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        (4) The type of guardian, limited or plenary, of the person or
        estate needed based on the nature of any condition or disability
        and the capacity to make and communicate decisions.

        (5) The duration of the guardianship.

        (6) The court shall prefer limited guardianship.

     (b) Limited guardian of the person.--Upon a finding that the
     person is partially incapacitated and in need of guardianship
     services, the court shall enter an order appointing a limited
     guardian of the person with powers consistent with the court’s
     findings of limitations, which may include:

        (1) General care, maintenance and custody of the incapacitated
        person.

        (2) Designating the place for the incapacitated person to live.

        (3) Assuring that the incapacitated person receives such
        training, education, medical and psychological services and
        social and vocational opportunities, as appropriate, as well as
        assisting the incapacitated person in the development of
        maximum self-reliance and independence.

        (4) Providing required consents or approvals on behalf of the
        incapacitated person.

     (c) Plenary guardian of the person.--The court may appoint a
     plenary guardian of the person only upon a finding that the person
     is totally incapacitated and in need of plenary guardianship
     services.

     (d) Limited guardian of the estate.--Upon a finding that the
     person is partially incapacitated and in need of guardianship
     services, the court shall enter an order appointing a limited
     guardian of the estate with powers consistent with the court’s
     finding of limitations, which shall specify the portion of assets or
     income over which the guardian of the estate is assigned powers
     and duties.

     (e) Plenary guardian of the estate.--A court may appoint a
     plenary guardian of the estate only upon a finding that the person

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      is totally incapacitated and in need of plenary guardianship
      services.

20 Pa.C.S. § 5512.1.

      We now consider Mr. Riley’s arguments in light of the above law. Mr.

Riley contends that the orphans’ court entered its order appointing plenary

guardians of both his estate and person upon insufficient evidence.

Appellant’s brief at 10-11. He maintains that the mere diagnoses of conditions

does not automatically warrant a finding of incapacity, and notes that Dr. Diltz

acknowledged that Mr. Riley’s schizophrenia is managed without medication.

Id. at 10. Mr. Riley suggests that the record evidences his ability to make

and communicate decisions. Id. at 11. He further argues that the orphans’

court should have considered his community supports in determining that

plenary guardianship was warranted. Id.

      Upon review of the record, we conclude that the orphans’ court has not

provided us with sufficient information to permit appropriate review.        As

outlined above, § 5512.1 requires the orphans’ court to favor limited

guardianship, mandates the making of specific factual findings regarding

partial or total incapacity, and allows the appointment of plenary guardians

only when the court finds by clear and convincing evidence that the person is

totally incapacitated. Id. at § 5512.1(a)(6), (c), (e). The analysis of the

orphans’ court appears to acknowledge on the one hand that Mr. Riley is not

totally incapacitated, but nonetheless concluded that, for his safety,




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appointment of plenary guardians was in his best interests.            The stated

reasoning of the orphans’ court is as follows:1

       In this matter, obviously, the court has to make a determination
       by clear and convincing evidence. We did hear from Mr. Riley who
       testified.   His thoughts were somewhat rambling.           He was
       impulsive in trying to get his point across, which, frankly, is not
       particularly unusual in this setting. The court sees that a lot from
       individuals who are before the court.

              ....

              In a vacuum, the court certainly would not conclude that Mr.
       Riley’s testimony or the nature in which it was given today would
       support determination that he’s incapacitated; however, with the
       background provided by Dr. Diltz, the mental testing, the
       diagnosis, we can conclude by clear and convincing evidence that
       Mr. Riley is incapacitated to a significant extent, that he would be
       partially or totally be unable to manage his financial resources.

             We do note that he appears to be able to provide for his
       physical well-being, however, that would go more to the nature
       of any placement that may occur and not necessarily to our
       decision regarding his capacity. We, therefore, conclude by clear
       and convincing evidence that Mr. Riley does suffer from major
       cognitive disorder. As we indicated, we do believe that he would
       have difficulty in managing his finances, and, in fact, Mr. Riley just
       admitted that he had some difficulty in the past managing
       finances.

              ....

              If Mr. Riley had 24-hour care at his residence, we would feel
       a lot more comfortable in determining that even though he may
       be incapacitated, he might be able to -- we may be able to
       appoint someone else other than Mr. Landis as a guardian,
       however, the incident with a frying pan, the fact that he’s


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1 The orphans’ court did not author an opinion detailing its findings and
reasoning, instead referring us to the transcript of the guardianship hearing.
See Rule 1925(a) Statement, 4/22/19 (citing N.T. 2/15/19, at 28-31).

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      absconded from the hospital causes the court significant concern
      about allowing him to return to his present housing situation.

N.T., 2/15/19, at 28-31 (unnecessary capitalization omitted; emphases

added).

      “[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.”   In re Hyman, 811 A.2d 605, 608 (Pa.Super. 2002) (internal

quotation marks omitted). Consequently, “[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. (internal quotation marks omitted). Moreover, a court

considering a guardianship must be “guided by a scrupulous adherence to the

principles of protecting the incapacitated person by the least restrictive means

possible.” In re Estate of Rosengarten, 871 A.2d 1249, 1255 (Pa.Super.

2005). The law is clear that “the intentions of the incapacitated person are to

be honored to the fullest extent possible.” Id.

      Mindful of the applicable law, we cannot affirm the complete stripping

of Mr. Riley’s agency as to his person and his finances upon such an equivocal

statement by the orphans’ court as to the extent of Mr. Riley’s incapacity. See

20 Pa.C.S. § 5512.1(c) and (e) (permitting the appointment of plenary

guardians of the person and estate, respectively, “only upon a finding that the

person is totally incapacitated and in need of plenary guardianship services”).




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      Furthermore, the orphans’ court has not identified for this Court its

specific findings as to the six factors enumerated in § 5512.1(a). Of particular

import is the court’s discussion of § 5512(a)(3) (requiring the court to consider

the availability of friends and other supports) in light of the evidence

concerning the friends who are supporting Mr. Riley, such as his landlord to

whom Mr. Riley had recently given a power of attorney to allow him to assist

with finances.

      Accordingly, we remand for the orphans’ court to author an opinion that

addresses each of the six § 5512.1(a) considerations, states an unequivocal

finding as to nature and extent of Mr. Riley’s incapacity, and explains its

reasons for concluding that only a plenary guardianship is sufficient to meet

Mr. Riley’s needs, rather than a limited guardianship as is expressly preferred

by § 5512(a)(6).

      Case remanded with instructions. Panel jurisdiction retained.

      Judge Dubow joins the memorandum.

      Judge Lazarus concurs in result.




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