J-S41034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: MARK A. HOWARD, AN              :   IN THE SUPERIOR COURT OF
INCAPACITATED PERSON                   :        PENNSYLVANIA
                                       :
                                       :
APPEAL OF: SHARON L. GRAY, ESQ.,       :
FORMER COURT-APPOINTED                 :
GUARDIAN                               :        No. 1428 MDA 2016

               Appeal from the Decree Entered July 28, 2016
               In the Court of Common Pleas of Berks County
                      Orphans’ Court at No(s): 83489


BEFORE:      GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                 FILED SEPTEMBER 15, 2017

     Appellant, Sharon L. Gray, Esq., former court-appointed guardian,

appeals from the decree entered in the Berks County Court of Common

Pleas, which suspended her guardianship of Mark A. Howard (“Mr. Howard”).

We affirm.

     The relevant facts and procedural history of this case are as follows.

Mr. Howard suffers from a seizure disorder and various other health

problems.    After a fall resulted in traumatic brain injury and cognitive

deficiencies, Appellant moved into Spruce Manor Nursing & Rehabilitation

Center (“Spruce Manor”).    On December 16, 2013, Spruce Manor filed a

petition for appointment of a guardian for Mr. Howard due to his significant

cognitive defects. The court held a hearing on the petition on January 30,

2014, and appointed Appellant as Mr. Howard’s guardian on March 5, 2014.

In 2015, due to his dissatisfaction with the restrictive nature of Spruce
_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S41034-17


Manor, Appellant arranged for Mr. Howard to receive treatment at Acadia,

Inc. (“Acadia”). At Acadia, Appellant receives daily treatment and therapy to

help improve his cognitive deficiencies.

      On June 9, 2016, Acadia filed a petition for a review of Appellant’s

status as Mr. Howard’s guardian. In the petition, Acadia asked the court to

remove Appellant as guardian because Mr. Howard’s condition had improved

to the point that he no longer needed a guardian. Alternatively, the petition

asked the court to remove Appellant as guardian and appoint a new

guardian because Appellant was not acting in Mr. Howard’s best interests.

The court held a hearing on July 13, 2016, where Appellant presented the

testimony of Dr. Gary Chaplin, an expert in clinical psychiatry. Dr. Chaplin

stated he had examined Mr. Howard for about an hour.           Based on his

observations, Dr. Chaplin opined that Mr. Howard remained incapacitated

and still required a guardian. In response, Acadia presented the testimony

Mr. Howard’s cognitive rehabilitation therapist at Acadia, Margaret Hackman.

Ms. Hackman testified that she works with Mr. Howard on his memory

retention and language three to four times per week. Ms. Hackman stated

she has witnessed a drastic improvement in Mr. Howard’s cognitive abilities

during his time at Acadia. She also opined that Mr. Howard could make his

own decisions with respect to his finances and medical issues as long as he

remained in a supportive environment like Acadia.       The parties did not

address or discuss at the hearing whether Appellant had been acting in Mr.


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J-S41034-17


Howard’s best interest.

      On July 28, 2016, the court suspended Appellant’s guardianship of Mr.

Howard based on its determination that Mr. Howard had regained sufficient

capacity. Appellant timely filed a notice of appeal on August 26, 2016. On

September 6, 2016, the court ordered Appellant to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and

Appellant timely complied on September 20, 2016.

      Appellant raises the following issues for our review:

         WHETHER THE ORPHANS’ COURT ERRED BY ENTERING A
         COURT   ORDER    SUSPENDING    MR.   HOWARD’S
         GUARDIANSHIP?

         DID COUNSEL FOR ACADIA HAVE STANDING TO FILE A
         PETITION   FOR    REVIEW    OF   GUARDIANSHIP
         PROCEEDINGS?

         WHETHER THE ORPHANS’ COURT ERRED BY FAILING TO
         REQUIRE A GUARDIAN TO REPRESENT MR. HOWARD AT
         HIS COURT APPOINTED GUARDIAN REVIEW HEARING?

         DID THE ORPHANS’ COURT ERR BY REMOVING
         [APPELLANT] IN A BIFURCATED HEARING WHEN CLEAR
         AND CONVINCING EVIDENCE WAS ABSENT THAT MR.
         HOWARD COULD MANAGE HIS OWN FINANCES, AND NO
         TESTIMONY OR EVIDENCE OF THEFT [BY] [APPELLANT]
         WAS PRESENTED?

(Appellant’s Brief at 3).

      “Our review of the [Orphans’] court’s determination in a competency

case is based on an abuse of discretion standard, recognizing…the

[Orphans’] court had the opportunity to observe all of the witnesses,

including…the allegedly incapacitated person.” In re Hyman, 811 A.2d 605,

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J-S41034-17


608 (Pa.Super. 2002).     “The Orphans’ court’s factual findings receive the

same deference accorded factual findings of a jury, but we ensure that the

decision of the court is free from legal error.”           In re Estate of

Rosengarten, 871 A.2d 1249, 1253 (Pa.Super. 2005).

      “Chapter 55 of the [Decedents, Estates and Fiduciaries] Code

addresses treatment of incapacitated persons, including the appointment

and removal of guardians.”     In re Estate of Border, 68 A.3d 946, 959

(Pa.Super. 2013), appeal denied, 621 Pa. 690, 77 A.3d 637 (2013).

“‘Incapacitated 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.A. § 5501. “Chapter 55 must be interpreted and the

courts’ actions guided by a scrupulous adherence to the principles of

protecting the incapacitated person by the least restrictive means possible.”

In re Estate of Rosengarten, supra at 1255.

      Section 5512.2 governs guardianship review hearings as follows:

         § 5512.2. Review hearing

         (a) Time of hearing.—The court may set a date for a
         review hearing in its order establishing the guardianship or
         hold a review hearing at any time it shall direct. The court
         shall conduct a review hearing promptly if the
         incapacitated person, guardian or any interested party
         petitions the court for a hearing for reason of a significant
         change in the person’s capacity, a change in the need for
         guardianship services or the guardian’s failure to perform

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J-S41034-17


         his duties in accordance with the law or to act in the best
         interest of the incapacitated person.       The court may
         dismiss a petition for review hearing if it determines that
         the petition is frivolous.

         (b) Burden of proof and rights.—The incapacitated
         person shall have all of the rights enumerated in this
         chapter. Except when the hearing is held to appoint a
         successor guardian, the burden of proof, by clear and
         convincing evidence, shall be on the party advocating
         continuation of guardianship or expansion of areas of
         incapacity.

20 Pa.C.S.A. § 5512.2. After a guardianship review hearing, the Orphans’

court “may order that a person previously adjudged incapacitated is no

longer incapacitated or the court may find that the incapacitated person has

regained or lost capacity in certain areas in which case the court shall modify

the existing guardianship order.” 20 Pa.C.S.A. § 5517.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Peter W.

Schmehl, we conclude Appellant’s issues on appeal warrant no relief.       The

Orphans’ court opinion comprehensively discusses and properly disposes of

the questions presented.   (See Orphans’ Court Opinion, filed December 6,

2016, at 1-3) (finding: (1) Appellant failed to prove by clear and convincing

evidence that Mr. Howard remained incapacitated; additionally, Acadia

presented ample evidence to demonstrate Mr. Howard has regained his

mental capacity; specifically, Acadia established Mr. Howard is able to make

his own decisions and perform daily living tasks; Acadia also demonstrated

Mr. Howard has support of Acadia staff to assist with decision-making and

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J-S41034-17


performance of daily living tasks if necessary; under these circumstances,

court properly determined Mr. Howard has regained sufficient mental

capacity and ended Appellant’s guardianship; (2) any interested party may

petition court for guardianship review hearing, based on change in capacity

or guardian’s failure to perform her duties; as Mr. Howard’s treatment

provider, Acadia is interested party; additionally, Acadia believed Mr.

Howard’s capacity had changed, and Appellant had failed to perform her

duties; thus, Acadia had standing to file petition for guardianship review

hearing; (3) Appellant was Mr. Howard’s court-appointed guardian at time

of hearing; because Appellant was present at hearing, Mr. Howard had

benefit of guardian during proceedings; thus, Appellant’s claim that court

should have appointed additional guardian for guardianship review hearing

fails;1 (4) court’s discharge of Appellant as guardian was based on proper

determination that Mr. Howard no longer needed services of any guardian;

thus, Appellant’s claim that court erred when it removed her as guardian

without evidence of theft from Mr. Howard’s assets has no merit).

Accordingly, we affirm on the basis of the Orphans’ court opinion.

       Decree affirmed.
____________________________________________


1
  With respect to the third issue, Appellant challenges the court’s failure to
appoint an additional guardian to represent Mr. Howard at the guardianship
review hearing. Nevertheless, this claim belongs to Mr. Howard, not to
Appellant.  Because Mr. Howard made no objection to how the court
conducted the guardianship review hearing, we decline to address this issue
further.



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J-S41034-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2017




                          -7-
                                                                                  Circulated 08/10/2017 09:38 AM




INRE:                                            IN THE COURT OF COMMON PLEAS
MARK.A.HOWARD,                                   OF BERKS COUNTY, PENNSYLVANIA
An incapacitated person                          ORPHANS' COURT DIVISION

                                                 No. 83489
                                                 Assigned to: Peter W. Schmehl, S.J.


Scott Alan Mitchell, Esq., Attorney for Acadia, Inc., Petitioner/ Appellee
Sharon Leigh Gray, Esq., Guardian of Mark A. Howard, Respondent/ Appellant

Rule 1925 Statement of Reasons to Support Order on Appeal              Dated: December     0 , 2016
       This guardianship matter began on December 16, 2013, when Spruce Manor Nursing &

Rehabilitation Center filed a petition to adjudicate Mark A. Howard ("Howard") as in

incapacitated person due to his suffering a traumatic brain injury. "After hearing, on March 5,

2014, the Court entered a Final Decree adjudicating Howard partially incapacitated and

appointing Sharon Gray, Esq. ("Gray") as limited guardian of Howard's person and estate.

Gray's efforts led to Howard's receiving care, treatment, and residential services from Acadia,

Inc.

       As Howard's care and treatment provider, and therefore an interested party in Howard's

life, Acadia filed a Petition for Review Hearing on June 9, 2016. After hearing, the Court

entered a Final Decree on July 28, 2016 finding Howard to have regained capacity, suspending

the order declaring Howard to be incapacitated, and removing Gray as guardian. The Decree

directed Gray to deliver all of Howard's assets and account statements to Howard or Acadia's

counsel and to file a final report. In ending the guardianship, the Court put in place protective

provisions requiring a six-month review of this matter and notice to the Court if Howard should



                                                  1
leave Acadia for independent living. Gray appealed, filed a Concise Statement of Errors as

ordered, but did not procure a transcript of the hearing.

       Gray complains the Court erred by suspending the guardianship. As the Court recalls,

without the benefit of a transcript, Acadia presented evidence that treatment has been successful

and that Howard has regained his mental capacity, at least sufficiently so as to make decisions

and perform tasks of daily living with assistance as needed from Acadia staff. Contrary to

Gray's complaint that "clear and convincing evidence was absent that Mr. Howard could manage

his own finances," 20 Pa.C.S.A. § 5512.2(b) states "the burden of proof, by clear and convincing

evidence, shall be on the party advocating continuation of the guardianship." Gray, not Acadia,

bore the burden of showing that Howard continued to be incapacitated to such a degree as to

require a guardian.

       Gray also complains that Acadia did not have standing to petition for a review hearing.

Section 5512.2(a) states the court shall conduct a review hearing if"any interested party petitions

the court for a hearing for reason of significant change in the person's capacity, ... or the

guardian's failure to perform his duties." Acadia, as Howard's treatment provider, believed that

a petition was appropriate on both of these grounds. As such Acadia had standing.

       As for Gray's complaint that the Court did not appoint a guardian to represent Howard at

the review hearing, Gray was already appointed as Howard's guardian and was present for the

hearing.

       Finally, Gray complains that she was removed as guardian even though there was no

evidence that she committed any theft ofHoward's assets. Gray was removed simply because

the Court found that Howard was no longer incapacitated and no longer required the services of a

guardian.



                                                  2
         For the foregoing reasons, the Court respectfully suggests that its Final Decree of July 28,

2016 should be affirmed.




                \8-~                          , Certified
      Copy of _St  ~fu.sp()S_                  issued to
      Counsel of Rif_?rd a,ndJor Unrepresented
      part,ies being~      l isti be,,~-_--~- . _.,,
      bJ first class mail by .£!,~fo1rJter of Willa.
                               ~'.Jr2.1,/a,~A-C,



 Distribution:   Clerk of Orphans' Court; Scott Alan Mitchell, Esq.; Sharon Leigh Gray, Esq.; Mark A. Howard




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