J-S35028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: PHYLLIS J. PROPERT, AN                 IN THE SUPERIOR COURT OF
ALLEGED INCAPACITATED PERSON                        PENNSYLVANIA

APPEAL OF: PHYLLIS J. PROPERT
                                                   No. 3428 EDA 2015


             Appeal from the Decree Entered October 9, 2015
           In the Court of Common Pleas of Montgomery County
                   Orphans' Court at No(s): 2015-X3127


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

MEMORANDUM BY BENDER, P.J.E.:                        FILED JUNE 14, 2016

     Phyllis J. Propert (Appellant), through legal counsel appointed by the

orphans’ court, appeals from the October 9, 2015 final decree that

adjudicated her to be a totally incapacitated person and appointed a plenary

permanent guardian of her person and estate. We affirm.

     On appeal, Appellant raises the following issues for our review:

     A. Whether the Montgomery County Orphans’ Court erred in
     failing to appoint counsel to represent Phyllis Propert in the
     Petition for the Appointment of a Plenary Guardian of her Person
     and of her Estate[?]

     B. Whether the Montgomery County Orphans’ Court erred in
     allowing medical testimony to be accepted by Written
     Interrogatories as allowed by Local Rules in uncontested
     matters[?]

     C. Whether the Montgomery County Orphans’ Court erred in
     adjudicating Phyllis Propert as an Incapacitated Person 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.
J-S35028-16


      D. Whether the Montgomery County Orphans’ Court erred in
      failing to consider whether Phyllis Propert could understand and
      execute a power of attorney[?] 20 Pa.C.S.A. § 5601.

      E. Whether the Montgomery County Orphans’ Court erred in
      failing to consider whether Phyllis Propert could execute an
      Advanced Directive for Healthcare or Living Will[?] 20 Pa.C.S.A.
      § 5422.

      F. Whether the Montgomery County Orphans’ Court erred in
      failing to consider whether Phyllis Propert could execute a
      Healthcare Power of Attorney[?] 20 Pa.C.S.A. § 5452.

Appellant’s brief at 2.

      In our review of this matter, we are guided by the following:
      When an appellant challenges a decree entered by the Orphans’
      Court, our standard of review “requires that we be deferential to
      the findings of the Orphans’ Court.” In re Estate of Miller, 18
      A.3d 1163, 1169 (Pa. Super. 2011) (en banc).

            [We] must determine whether the record is free from
            legal error and the court's factual findings are
            supported by the evidence. Because the Orphans'
            Court sits as the fact-finder, it determines the
            credibility of the witnesses and, on review, we will
            not reverse its credibility determinations absent an
            abuse of that discretion.      However, we are not
            constrained to give the same deference to any
            resulting legal conclusions. Where the rules of law
            on which the court relied are palpably wrong or
            clearly inapplicable, we will reverse the court's
            decree.

      Id. (alterations and citation omitted).

In re Estate of Brown, 30 A.3d 1200, 1206 (Pa. Super. 2011).

      We have reviewed the certified record, the briefs of the parties, the

applicable law, and the thorough, well-crafted opinion of the Honorable

Stanley R. Ott of the Court of Common Pleas of Montgomery County, dated


                                     -2-
J-S35028-16



December 16, 2015.          We conclude that Judge Ott’s well-reasoned opinion

properly disposes of the issues presented by Appellant on appeal and we

discern no abuse of discretion or error of law. Accordingly, we adopt Judge

Ott’s opinion as our own and affirm the October 9, 2015 decree on that

basis.

         Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2016




                                        -3-
                                                                                               Circulated 05/20/2016 02:17 PM




              IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
                                   ORPHANS' COURT DIVISION

                                                                NO. 2015-X3127

                                                      TN TH',   PHYLLIS J. PROPERT
        1111    l:~t~~~~-11 II,                                 \n Incapacitated Person
          2015-X3127.    l.4.::U        FilingID: 1786557
    .                      l 925(a) Opinion
Receipt c;. Z213600                      Fee S0.00
         D. Bruce Hanes. Esq. - MontCo Resister of Wills
12 16 2015 1:00:37 PM - PROPERT. PHYL1.JS J
                                                                 O p IN I O N


            OTT, J.                                                                        December 16, 2015



                        Phyllis J. Propert ("Ms. Propert") has appealed this Court's adjudication determining her

           to be an incapacitated person

                                                            PROCEDURAL HISTORY



                        On September 10, 2015, Elaine C. Priestley of Exeter, New Hampshire, the twin sister of

           Ms. Propert filed a petition seeking to have Ms. Propert adjudicated an incapacitated person.

           The petition alleged that Ms. Propert had been living at Wesley Enhanced Living, a senior

           residential facility in Hatboro, Montgomery County, since March of 2015.        The petition noted

          that Ms. Propert was single and that the petitioner was her next-of-kin along with two nephews·

          and a niece, all of whom consented to the petition. The petition further alleged that Ms. Propert

          had long suffered from paranoia which was moderate and progressive, and that her affairs had

          been handled since March 29, 2007 by Deborah L. KJock, R.N, ofDLK Managed Care

          Solutions, Inc. Ms. Klock was initially hired pursuant to a written contract and, in March of

          2015, was appointed Ms. Propert's agent under a general durable power of attorney. The petition

          was said to be necessary because following a hospitalization in June of 2015, Ms. Propert
      became suspicious and paranoid about Ms. Klock's actions and thwarted her efforts of

     assistance. A hearing was scheduled before the undersigned for October 9, 2015.




             Petitioner's seven-day letter sent pursuant to 20 Pa.C.S.A. §551 l(a) advised that Ms.

     Propert would be present for the hearing and "that it may serve no useful purpose for the

     appointment of independent counsel. "1 The proof of service of the citation, filed on October 6,

     2015, reflected personal service by petitioner's counsel on Ms. Propert at her residential facility

     on September 19, 2015.




            The hearing proceeded as scheduled on October 9, 20 I 5. At the outset, the undersigned

    introduced himself to Ms. Propert and then asked her if she knew why she was there. She

    responded it was for the purpose of naming her power of attorney. When questioned who that

    was, she replied "Sam Glantz," her deceased father. (N.T. 3-4). When the court followed up

    with questions about her father, she advised he was still alive, living in Rydal, and she had last

    seen him approximately three months prior in Abington when he simply appeared while she was

    eating. (N.T. 6-7).




           Medical testimony in the form of sworn answers to interrogatories was provided by

    Andrew S. Paulshock, D.O., a physician licensed for 25 years. He confirmed that Ms. Propert

was born December 8, 1934 and was then 80 years of age. He testified he had examined her on

five occasions between March and August of 2015, and was her current physician. Her

diagnoses included: dementia, end-stage renal disease (ESRD) and diabetes mellitus (NIDDM).


I
 This Jetter was faxed to the undersigned on the evening of October 7, 2015, in violation ofthe statute.
Nevertheless, because it was suggested that the appointment of counsel was unnecessary, no prejudice resulted.

                                                         2
      He explained that Ms. Propert was unable to answer simple questions and was confused and

      paranoid. He said she becomes easily agitated, unrealistic and unable to relate to the real world.

      He confirmed that Ms. Propert was then living in a personal care facility where everything is

     supervised; and he stated that neurology and psychiatric consultations were pending. Ultimately,

     he concluded that Ms. Propert was unable to make reasonable realistic decisions and that her

                                                                    2
     incapacities will increase as her dementia progresses.




              Deborah L. Klock then testified. Ms. Klock is the principal of DLK Managed Care

     Solutions, Inc., which provides care management services to disabled and elderly individuals,

     including professional guardianship and agency services pursuant to powers of attorney. She is

     well known to the Montgomery County Orphans' Court as she presently serves as guardian in

    approximately 25 cases here. Ms. Klock became involved with Ms. Propert in 2007 at the behest

    of the instant petitioner. Ms. Klock testified that her relationship with Ms. Propert was

    "intermittent" and explained:


            Periodically, [Ms. Propert] would feel that she did not need my services, and I would
            honor that and, essentially, would periodically hear from her sister if there was a
            concern ... The sister would report ifthere was a particular incident that had happened,
            could I go and check on Ms. Propert. So I would pop in to see her intermittently."

    (N.T. 18-19.) As to how she came to be agent under Ms. Propert's power of attorney, she

    testified that:


            Ms. Propert's home environment would periodically require extensive cleaning, and
            they'd have to bring in individuals to exterminate, and this continued to happen over a
            period of time. I don't know how long the facility had been dealing with it, several years
            was my impression. But they had finally reached a point where they were going to evict
            her. At that time, the sister, Ms. Priestley, called me and said can you investigate and
            figure out what we can do for Phyllis so that she can remain there. And it was the

2
    The court's summarization of Dr. Poulshock's testimony appears at pp. I 0-12 of the notes of testimony.

                                                            3
             impression of the Wesley Enhanced Living ... unless she were to move to their personal
             care community, they would not allow her to remain in the independent apartment."

  (N.T. 20-21). Ms. Klock became Ms. Propert's authorized representative           in dealings with the

 residential     facility and used her power of attorney to handle her finances.    She acted in that

 manner until Ms. Propert revoked the power.


             Ms. Klock stated that, as of the date of the hearing, Ms. Propert's outstanding     bills totaled

 $18,783.29.      Ms. Klock said she is satisfied and very impressed     with the care that Ms. Propert is

 receiving at Wesley Enhanced Living.         She opined that this is a good placement for Ms. Propert

 because Wesley also has a skilled nursing facility should Ms. Propert require that level of care.

 Ms. Klock stated she perceived no essential difference between her former role as agent and her

 proposed role as guardian.      (N.T. 28, 30).


             The Court then re-engaged   Ms. Propert in conversation.     She acknowledged     that Ms.

 Klock had helped her in the past but denied that she was presently looking after her best

interests.     Ms. Propert insisted that she had been poisoned by her cousin, Wayne, and she was

upset that he was walking free and never arrested.        She insisted   he had come to her house at night

and poisoned a can of Coke, and by drinking it, she experienced          kidney failure.   (N.T. 32-33).

When the undersigned        told Ms. Propert that he had known Ms. Klock for a long time and trusted

her, she responded:      "It helps to know that you trust her." (N.T. 34). When it was suggested that

her petitioning sister cares about her a lot, Ms. Propert responded "She's trying to murder me."

(N.T. 35). As the proceedings were drawing to a close, Ms. Propert again suggested that Sam

Glantz, her deceased father, was her choice to be agent under her power of attorney. (N.T. 36).


        After the October 9, 2015, proceeding and the entry of the court's decree finding Ms.

Propert an incapacitated person, she wrote to the undersigned stating that she wished to appeal.


                                                      4
 Accordingly,   on October 30, 2015, Linda M. Hee, Esquire, was appointed as her counsel and

 timely filed the instant appeal.


         The statement of matters complaint   of filed pursuant to Pennsylvania     Rule of Appellate

 Procedure   1925(b) contains six separate paragraphs   raising the following   issues:   1.) The court

 erred by failing to appoint counsel for Ms. Propert; 2.) The court   erred by permitting medical

testimony to be provided in a written format; 3.) The court erred because it issued an

adjudication without having received evidence as to whether a less restrictive alternative to

plenary guardianship was available; 4.) The court erred by failing to consider whether Ms.

Propert could understand and execute and power of attorney; 5.) The court erred in failing to

consider whether Ms. Propert could execute an advanced directive for health care or living will;

and 6.) the court erred in failing to consider whether Ms. Propert could execute a health care

power of attorney.


                                               DISCUSSION


        Regarding the criticism of the failure to appoint counsel, there was no indication prior to

the hearing that counsel was necessary. At the hearing, Ms. Propert said nothing remotely

suggesting she wanted counsel. She ultimately conceded that she needed the assistance of an

agent under a power of attorney. Although it was clear she preferred her deceased father to be

her agent, that fact, standing alone, did not turn the proceeding into a contest and thus require the

appointment of counsel.


        The use of written medical testimony in guardianship proceedings is expressly authorized

by Section 5518 of the PEF Code. Dr. Poulshock's verified answers to written interrogatories

were the equivalent of a deposition and provided comprehensive detail as to Ms. Propert's


                                                  5
      incapacities. Moreover, the court's ability to observe Ms. Propert and test her abilities with

      questions revealed no inconsistencies with the doctor's testimony and provided no basis for

      impeaching the validity of his conclusions.


             Regarding the lack of inquiry into a less restrictive alternative to guardianship, the court

     heard testimony that the power of attorney given to Deborah Klock was revoked as a result of

     Ms. Propert's paranoia. It appeared unlikely that Ms. Propert had sufficient capacity at the time

     of the hearing to execute another valid power of attorney and, even if she had, her history of

     revoking such documents, if repeated, would have jeopardized her ability to stay in the personal

     care facility providing her with 24/7 care.


            The last two issues which criticized the court's failure to consider whether Ms. Propert

    could execute a living will or health care power of attorney are of no practical consequence. As

    long as Ms. Propert is capable of giving voice to her wishes regarding end-of- life decisions, the

    guardian must honor thenr'. Moreover, it is customary for a guardian to consult any interested

    family members prior to making significant medical decisions, and here, where Ms. Propert's

    twin has long looked out for her best interests, that safeguard is in place.


           Sadly, this is a case of an 81 year-old woman no longer capable of making her own

    decisions to meet essential requirements for her physical health and safety or the management of

    her financial circumstances. The well-regarded and experienced professional guardian, Deborah

Klock, is the unanimous choice of Ms. Propert's family, all of whom want only what is best for

her. The final decree should be affirmed.



3
  Section 5521 of the incapacitated persons' statute provides: "It shall be the duty of the guardian of the person to
assert the rights and best interests of the incapacitated person. Expressed wishes and preferences of the
incapacitated person shall be respected to the greatest possible extent."

                                                           6
Copy of the above mailed
December 16, 2015, to:
Mary E. Podlogar, Esquire
Linda M. Hee, Esquire
Deborah L. Klock, R.N.




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