J-A12013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 ESTATE OF ROSE PHILLIPS, AN             :    IN THE SUPERIOR COURT OF
 ALLEGED INCAPACITED PERSON              :         PENNSYLVANIA
                                         :
                                         :
 APPEAL OF: PHILADELPHIA                 :
 CORPORATION FOR AGING                   :
                                         :
                                         :
                                         :    No. 2331 EDA 2017

                   Appeal from the Decree June 23, 2017
  In the Court of Common Pleas of Philadelphia County Orphans' Court at
                           No(s): 539 AI of 2017


BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                       FILED NOVEMBER 14, 2018

      The Philadelphia Corporation for Aging (“PCA”) filed this appeal from the

June 23, 2017 decree denying a petition for adjudication of incapacity and

appointment of a plenary guardian for the person and estate of Rose Phillips,

an alleged incapacitated person. We affirm.

      During October 2016, Ms. Phillips was discharged from a physical

rehabilitation facility and returned to the home she owns at 5038 Market

Street, Philadelphia.   She was a seventy-five-year-old diabetic who was

convalescing from the lingering effects of a stroke.    Soon after her return

home, PCA sent Jennifer Mathews, a nurse investigator, to check on her

status. The agency had received reports that Ms. Phillips was in an imminent

risk of harm because she was not eating or taking her medication.          Ms.

Matthews found Ms. Phillips, who had answered the door with the assistance
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of a walker, sitting without underwear on a soiled chuck pad that is used to

collect human waste. Ms. Phillips possessed underclothing but complained

that they did not fit properly. Although Ms. Phillips resided by herself, she

indicated   that    her    son,   Shannon     Phillips,   assisted   with    her   care.

Unfortunately, Ms. Phillips was unable to provide any information regarding

the schedules of her son or any of her caretakers. PCA initiated temporary

personal care services so that Ms. Phillips could remain in her home.

      On March 29, 2017, and June 19, 2017, Wendy Michelle Spencer, Psy.D,

a psychologist employed by PCA, twice visited Ms. Phillips to perform clinical

face-to-face evaluations and to administer the Saint Louis University Mental

Status Exam. Ms. Phillips cooperated during the initial visit but declined to

participate on the latter occasion.       Dr. Spencer testified that Ms. Phillips’s

score on the one mental status examination that she performed was

consistent with cognitive impairment.            Moreover, based upon her two

exchanges    with    Ms.    Phillips,   who   demonstrated     varying      degrees   of

cooperation, Dr. Spencer diagnosed Ms. Phillips with neurocognitive disorder.

Significantly, however, Dr. Spencer did not request a blood test, review any

of Ms. Phillips’s medical records associated with the recent stroke, or consider

any other physiological reasons for Ms. Phillips’s low score on the mental

status examination.        Similarly, she neglected to perform any alternative

mental status examinations or speak with Ms. Phillips’s son and caregivers.




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Indeed, Dr. Spencer was unaware that Ms. Phillips was accompanied by a

personal aid for six or seven hours per day.

      On April 24, 2017, nearly two weeks prior to Dr. Spencer’s second

examination of    Ms. Phillips,   PCA   instituted   the   instant   guardianship

proceedings pursuant to § 5512.1 of the Pennsylvania Probate, Estates and

Fiduciaries Code (“PEF Code”).      20 Pa.CS. § 5501-5555.           The agency

contended that Ms. Phillips was totally incapacitated due to a moderate degree

of unspecified neurocognitive disorder and required guardianship services.

The orphans’ court issued a citation to show cause why the petition should not

be granted, and held an evidentiary hearing on June 22, 2017. PCA presented

the testimony of Dr. Spencer and Nurse Matthews, and also called to the stand

a proposed guardian, Steve McClosky, the principal of JMS Guardianship

Services, Inc.

      Ms. Phillips countered by testifying on her own behalf and presenting

the testimony of her son and Charlotta Bryan, her personal aid. The agency’s

testimony was consistent with the foregoing recitation of the facts.         Ms.

Phillips’s evidence established that Shannon Phillips visits twice per day,

purchases groceries, manages medication, and maintains her finances. Ms.

Phillips also adduced evidence to establish that her son is her power of

attorney, and she confirmed her understanding of the decision to confer that




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authority to her son as opposed to a third party.1 Specifically, she explained

to the orphans’ court, “Well, like I said before, if there’s anybody that’s going

to handle my finances and do things for me, I want it to be my son.” N.T.,

6/22/17, at 65.

       On the basis of the foregoing evidence, the orphans’ court denied PCA’s

petition for adjudication of incapacity and appointment of a plenary guardian,

finding that Rose Phillips was not in need of a guardian. This appeal followed.

       Appellant raises two issues for our review:

       1. Did the Orphans’ Court abuse its discretion by disregarding the
       uncontradicted and unrebutted evidence of incapacity offered by
       Philadelphia Corporation for Aging's expert, who testified pursuant
       to [§] 20 Pa.C.S.A. § 5518?

       2. Was it against the weight of the evidence for the Orphans’ Court
       not to grant Philadelphia Corporation for Aging's petition where
       the hearing evidence unequivocally demonstrated both incapacity
       and the need for guardianship services?

Appellant’s brief at 2-3. We address these issues collectively.

       We employ a deferential standard when reviewing an orphans’ court

decree. In re Estate of Smaling, 80 A.3d 485 (Pa.Super. 2013). We must

ensure, however, that the court’s decision is free from legal error.         In re

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

Supreme Court reiterated this principle in In re Peery, 727 A.2d 539, 540

(Pa. 1999) (quoting Lawner v. Engelbach, 249 A.2d 295 (Pa. 1969)),


____________________________________________


1 The written power of attorney was not introduced during the hearing or
included in the certified record.

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wherein it stated that reviewing courts are “bound by the trial judge’s findings

of fact unless those findings are not based on competent evidence.

Conclusions of law, however, are not binding on an appellate court whose duty

it is to determine whether there was a proper application of law to fact by the

lower court.”

      We are mindful of the purpose of the PEF Code’s provisions relating to

incapacitated persons, 20 Pa.C.S. §§ 5501-5555.          In this vein, § 5502

recognizes that “every individual has unique needs and differing abilities.” The

purpose of the statute is to establish “a system which permits incapacitated

persons to participate as fully as possible in all decisions which affect them

. . . and which accomplishes these objectives through the use of the least

restrictive alternative.” 20 Pa.C.S. § 5502.

      The definition of an incapacitated person is as follows:

      “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. § 5501.

      Instantly, PCA argues that the orphans’ court’s findings are not

supported by competent evidence. The statute governing determinations of

incapacity is found at 20 Pa.C.S. § 5512.1, and provides in pertinent part:


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



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        (1) The nature of any condition or disability which impairs the
        individual 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. . . .


        (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. . . .

           ....

     (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.

20 Pa.C.S. § 5512.1.(a) and (c).

     Herein, PCA had the burden of proving the statutory grounds to appoint

a plenary guardian under § 5512.1(c), i.e., that the person is totally

incapacitated and in need of such services. Pursuant to § 5518,

     [t]o establish incapacity, the petitioner must present
     testimony, in person or by deposition from individuals qualified
     by training and experience in evaluating individuals with
     incapacities of the type alleged by the petitioner, which
     establishes the nature and extent of the alleged incapacities and
     disabilities and the person’s mental, emotional and physical
     condition, adaptive behavior and social skills. The petition must
     also present evidence regarding the services being utilized to meet
     essential requirements for the alleged incapacitated person’s
     physical health and safety, to manage the person’s financial
     resources or to develop or regain the person’s abilities; evidence
     regarding the types of assistance required by the person and as
     to why no less restrictive alternatives would be appropriate; and


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       evidence regarding the probability that the extent of the person’s
       incapacities may significantly lessen or change.

20 Pa.C.S. § 5518 (emphasis added).

       At the outset, we reject the agency’s bullet-point list of assertions that

we should grant relief because Ms. Phillips did not: (1) present an expert to

testify about her intellectual capacity; (2) dispute Dr. Spencer’s qualifications;

or (3) challenge the credibility of Dr. Spencer’s testimony. See Appellants

brief at 10.    Stated plainly, as outlined in § 5518, PCA had the burden of

demonstrating the need for guardianship by clear and convincing evidence.

That is, to prevail on its petition, the agency was obligated to present the

testimony of a qualified expert. In contrast, Ms. Phillips was not required to

produce any evidence, much less countervailing expert testimony.2

       Moreover, PCA’s references to Dr. Spencer’s qualifications and the

credibility of her testimony are unavailing as neither is implicated in this case.

Pointedly, the orphans’ court did not assess Dr. Spencer’s credibility. Instead,

it examined Dr. Spencer’s attention to detail in rendering her conclusion that

Ms. Phillips was incapacitated despite the numerous facts that she admittedly

neglected to consider in forming her opinion.       Accordingly, we reject the

assortment of preliminary arguments that PCA outlines in its brief.




____________________________________________


2 To the extent that PCA invokes Pa.R.E. 701 to challenge the admissibility of
lay testimony regarding Ms. Phillips’s capacity, that claim is waived because
the agency failed to level that objection during the hearing.

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      Likewise, we find unpersuasive PCA’s chief arguments that (1) the

orphans’ court was bound by Dr. Spencer’s expert testimony under the

circumstances presented in this case, and (2) the orphans’ court’s contrary

determination was against the weight of the evidence.            It is beyond

peradventure that a trial court commits an abuse of discretion by dismissing

uncontradicted expert testimony as unpersuasive M.A.T. v. G.S.T., 989 A.2d

11, 19-20 (Pa.Super. 2010). Nevertheless, as the ultimate arbiter of fact, the

orphans’ court is not required to adopt even an uncontradicted expert opinion

where competent evidence of record supports the court’s independent

determination. See Nomland v. Nomland, 813 A.2d 850, 854 (Pa.Super.

2002) (“So long as the trial court's conclusions are founded in the record, the

lower court was not obligated to accept the conclusions of the experts.”);

Murphey v. Hatala, 504 A.2d 917 (Pa.Super. 1986) (“[T]he trier of fact is

not bound by the testimony of any expert witness and is under no obligation

to accept the conclusions of an expert witness.”).

      Ignoring the evidence that Ms. Phillips presented to demonstrate both

her current intellect and existing support system, PCA asserts that the

orphans’ court’s decision to deny the petition for guardianship was against the

weight of the evidence. Relatedly, as a preliminary matter, PCA asserts that

the orphans’ court erred in weighing the evidence in favor of Ms. Phillips when

“it is unclear from the record whether Shannon Phillips . . . has her power of

attorney.” Appellant’s reply brief at 1. While PCA is preoccupied with the fact


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that the power of attorney was not introduced during the hearing or included

in the certified record, both Ms. Phillips and her son confirmed the document’s

existence. N.T., 6/22/17, at 50-51, 61. Indeed, Shannon Phillips testified

that his mother recently executed a new power of attorney at the request of

a local credit union. Id. at 51. As the orphans’ court accepted the foregoing

testimony as credible, it is competent evidence that the document exists

regardless of whether PCA reviewed it. Phrased differently, mindful that PCA

did not challenge the specific terms of the power of attorney, once the

orphans’ court deemed the relevant testimony about the document credible,

the record supported its finding that the document did, in fact, exist.

      For the following reasons, we find that the certified record sustains the

orphans’ court’s independent determination that PCA did not satisfy its

statutory burden to prove that Ms. Phillips had a mental, emotional, or

physical incapacity that required guardianship services. First, Dr. Spencer’s

evaluation failed to account for the fact that Ms. Phillips was still recovering

from a stroke and physical rehabilitation when Dr. Spencer performed the

mental status examination on March 29, 2017, and Dr. Spencer did not review

any relevant medical records or images related to the stroke. Id., 13, 24, 28.

Similarly, Dr. Spencer declined to order a blood test to consider whether a

physiological reason existed for Ms. Phillips’s apparent condition, administer

any other type of mental status examination, or interview Ms. Phillips’s son or




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fulltime care giver, who works with Ms. Phillips approximately forty-seven

hours per week. Id. at 19-20, 25, 58.

      Furthermore, contrary to PCA’s allegations of incapacity, during the

hearing, Ms. Phillips explained her understanding of the power of attorney that

she previously executed and stated her preference for her son to continue to

handle her personal affairs.     Importantly, she noted with disapproval her

awareness that PCA intended to give someone else authority over her

finances. Id. at 62. She testified, “if anybody does it, it should be my son.

[Why] do I need somebody else?” Id. She was adamant about her aversion

to outside meddling and reiterated the point while being examined by the

orphan’s court. She stated, “Well, like I said before, if there's anybody that’s

going to handle my finances and do things for me, I want it to be my son.”

Id. at 65. In addition, Ms. Phillips testified about her mental capacity. She

stated, “I’m not crazy either.    I was sick [when PCA intervened]. I had a

stroke. I fell. And I’m [still] sick. But there’s a lot of things that I can do

now that I couldn’t do before.” Id. at 62. She continued that she executed

the power of attorney so that her son could be of assistance, but she added,

“I could pretty much help myself as far as that goes[.]”       Id. at 63.   For

example, Ms. Phillips explained how she relayed her burial arrangements to

her son and “I've told him where certain things are that he needs to look at,

too.” Id.




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      In addition to Ms. Phillips’s testimony about her intellectual capacity,

she presented evidence that her son visits her twice a day to check her blood

sugar levels, feed her, and help administer medication, although Ms. Phillips

is able to administer insulin independently. Id. at 45, 49, 51. He maintains

his mother’s finances and purchases supplies and food, which is prepared by

Ms. Bryan. Id. at 45-46, 61. In addition to her son and Ms. Bryan, Ms. Phillips

is visited throughout the week by various family members. Id. at 49. When

asked about his mother’s mental capacity during their daily interactions,

Shannon Phillips testified, “I see her every day and there's nothing . . . that I

see that she's mentally incapacitated like [PCA asserts].” Id. at 46.

      In In re Peery, supra at 541, our High Court held that “a person cannot

be deemed incapacitated if his impairment is counterbalanced by friends or

family or other support.”    Instantly, Ms. Phillips stated her preference to

continue her current support structure and the record reveals that those

supports offset any of Ms. Phillips’s impairments. As noted, Shannon Phillips

has demonstrated great concern for his Mother.        He visits frequently and

assumed an active role in her financial welfare and home health care, including

utilizing the power of attorney and hiring an aid to care for his mother in his

absence. He testified that he intends to have his mother reside with him and

his family, where his wife can help him provide care. N.T., 6/22/17, at 50,

55. He also plans to increase the amount of services his mother currently

receives, including extending Ms. Bryan to fulltime care. Id. at 54-58. Ms.


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Phillips also has the support of additional family members who visit her several

times per week.     Accordingly, based upon the competent evidence in the

certified record, we discern no abuse of discretion in the orphans’ court’s

findings that these facts demonstrate that a less restrictive alternative to

guardianship is both reasonable and appropriate. Stated plainly, all of the

foregoing evidence supports the orphans’ court’s determination that PCA failed

to demonstrate clear and convincing evidence that Ms. Phillips was a totally

incapacitated person in need of plenary guardianship services.              Thus,

notwithstanding Dr. Spencer’s expert testimony, the orphans’ court did not

err in denying PCA’s petition for the appointment of a plenary guardian.

      Finally, we observe that, while we rule against PCA in this appeal, we

applaud the agency for interceding with this family. The agency’s intervention

provided immediate services to Ms. Phillips, and its ensuing investigation likely

provided the initiative for her son to assume a proactive role in his mother’s

care and to fashion the framework of support that rendered the appointment

of a plenary guardian unnecessary at this juncture. In this vein, should the

existing supports falter, we continue to look to PCA to intervene on Ms. Phillip’s

behalf and take the necessary steps, including refiling a guardianship petition,

to assure that her needs are being appropriately met.

      Decree affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/18




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