J-S06033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF: ELIZABETH N.                    IN THE SUPERIOR COURT OF
MCGUSTY, AN ALLEGED                                     PENNSYLVANIA
INCAPACITATED PERSON

APPEAL OF: ELIZABETH N. MCGUSTY
                                                      No. 2699 EDA 2016


                  Appeal from the Order Entered July 20, 2016
        in the Court of Common Pleas of Chester County Orphans’ Court
                             at No(s): 1516-0113

BEFORE: MOULTON, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 01, 2017

        Appellant, Elizabeth N. McGusty, appeals from the order entered in the

Chester County Court of Common Pleas appointing Appellant’s adult sons,

Appellee, James C. McGusty, Jr., and Edwin A. McGusty plenary guardians of

Appellant’s person and Appellee as the sole plenary guardian of Appellant’s

estate. Appellant contends that the trial court erred by failing to properly

consider her testimony regarding her sons. We affirm.

        We adopt the facts and procedural history set forth by the trial court’s

opinion.     See Trial Ct. Op., 10/10/16, at 1-3.       In this timely appeal,

Appellant raises the following issue for review: “Did the trial court commit an

abuse of discretion when it failed to properly account for or consider the

testimony of Appellant as it related to the appointment of her adult sons as



*
    Former Justice specially assigned to the Superior Court.
J-S06033-17


plenary guardians of her person, and [Appellee] as guardian over the

estate?” Appellant’s Brief at 9.

      Appellant argues that the trial court failed to properly consider her

testimony regarding her “distrust of and objection to the appointment of her

sons as co-guardians of her person and Appellant as plenary guardian of her

estate.”    Id. at 13.       To this end, Appellant specifically points to her

testimony regarding her sons purported lack of interest in caring for her

daily needs. Id. at 18. She also cites her previous refusal to grant her sons

a durable power of attorney as evidence of her continual distrust.         We

conclude no relief is due.

      Our standard of review is well settled:

           The findings of a judge of the [O]rphans’ [C]ourt division,
           sitting without a jury, must be accorded the same weight
           and effect as the verdict of a jury, and will not be reversed
           by an appellate court in the absence of an abuse of
           discretion or a lack of evidentiary support. This rule is
           particularly applicable to findings of fact which are
           predicated upon the credibility of the witnesses, whom the
           judge had the opportunity to hear and observe, and upon
           the weight given to their testimony. In reviewing the
           Orphans’ Court’s findings, our task is to ensure that the
           record is free from legal error and to determine if the
           Orphans’ Court’s findings are supported by competent and
           adequate evidence and are not predicated upon capricious
           disbelief of competent and adequate evidence. However,
           we are not limited when we review the legal conclusions
           that the Orphans’ Court has derived from those facts.

In re Estate of Cherwinski, 856 A.2d 165, 167 (Pa. Super. 2004) (quoting

In re Estate of Schultheis, 747 A.2d 918, 922 (Pa. Super. 2000)).




                                       -2-
J-S06033-17


      The appointment of a guardian lies within the sound discretion of the

trial court.   Estate of Haertsch, 649 A.2d 719, 720 (Pa. Super. 1994).

“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) (quoting Harman ex rel. Harman v.

Borah, 756 A.2d 1116, 1123 (Pa. 2000)).

      The Pennsylvania Decedents, Estates and Fiduciaries Code provides:

         (f) Who may be appointed guardian.--The court may
         appoint as guardian any qualified individual, a corporate
         fiduciary, a nonprofit corporation, a guardianship support
         agency under Subchapter F (relating to guardianship
         support) or a county agency. . . . If appropriate, the
         court shall give preference to a nominee of the
         incapacitated person.

20 Pa.C.S. § 5511(f) (emphasis added).

      If a guardianship nominee is also named in a durable power of

attorney for an incapacitated person, that individual should receive particular

consideration. In re Sylvester, 598 A.2d 76, 83-84 (Pa. Super. 1991).

      In the case sub judice, we note that Appellant had not executed a

durable power of attorney in favor of anyone. Accordingly, the trial court did

not err by failing to consider that Appellee was not previously named as

Appellant’s agent.   See id.   Further, the trial court specifically noted its

consideration of Appellant’s testimony:



                                     -3-
J-S06033-17


         As the record of the proceedings reflects, the court has
         taken great care to consider the needs and desires of
         [Appellant]. By way of example, the court took care to:
         appoint counsel for [Appellant], allow [Appellant]
         additional time to obtain an “independent” evaluation of
         her capacity, and receive into evidence the direct
         testimony of [Appellant] at both of the proceedings. As
         the court told [Appellant] directly at the close of the
         second hearing, although it was required under the law to
         rule as it did, “I do understand you. I understand what
         you are saying and I respect your views.”

Trial Ct. Op. at 5.

      We conclude that the trial court aptly considered the evidence

presented,   including    Appellant’s   testimony.    See   In   re   Estate   of

Cherwinski, 856 A.2d at 167. Therefore, we hold that the trial court did

not abuse its discretion by naming Appellee and Edwin A. McGusty as the

plenary co-guardians of Appellant’s person and Appellee as the sole plenary

guardian of Appellant’s estate. See Estate of Haertsch, 649 A.2d at 720;

In re Duran, 769 A.2d at 506.           Accordingly, we affirm the trial court’s

order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/1/2017




                                        -4-
                                                                      Circulated 05/05/2017   05:26 PM




       THE COURT OF COMMON PLEAS, CHESTER COUNTY, PENNSYLVANIA
                       ORPHANS' COURT DIVISION


  IN THE MA TIER OF:
  ELIZABETH N. MCGUSTY                                  No. 1516-0113

 AN ALLEGED INCAPACITATED PERSON




 Nancy Pine, Esquire, Attorney for Petitioner
 Douglas Tf( Of shin, Esquire, Attorney for Elizabeth Mctlusty


                                          OPINION
                                Pursuant to Pa. R.A.P. 1925(a)


        Appellant, Elizabeth McGusty, alleges the court conunitted five (5) errors when in

 it's order dated and entered July 20, 2016 it adjudicated her to be an incapacitated person

 and appointed her sons, James C. McGusty, Jr. and Edwin A. McGusty, as plenary co-

guardians guardians of her person and her son, James C. McGusty, Jr., as plenary guardian

of her estate. The court will address each of the alleged errors below.

        Case Riston'

        Ms. McGusty is eighty-three (83) years old. Since approximately November, 2015,

Ms. McGusty has resided at Sunrise of Westtown, an assisted living facility in Chester

County, Pennsylvania.     This matter came before the court on the petition of one of Ms.

McGusty's sons, James C. McGusty, Jr., who sought to become guardian of the person and

estate for Ms. McGusty. His brother, Edwin McGusty, consented to James' appointment as

guardian of the person and estate.
             On March 22, 2016, the court held a hearing on the petition to appoint a guardian.

  At that time, Ms. McGusty was represented by counsel, Susan Potts, Esq.. The court was

  advised at the hearing that Ms. McGusty wished to have an independent evaluation of her

  competency completed by a person of her choosing.            The court agreed to allow Ms.

  McGusty time to do so. It, however, proceeded that day to take testimony from the parties

 and witnesses present, including Ms. McGusty.         Upon the conclusion of the hearing and

 after consideration of the evidence, the court entered an order appointing James McGusty as

 the temporary guardian of the estate and the person of his mother.           The court's order

 specifically provided Mr. McGusty with the power to "pay for the cost of the independent

 evaluation requested by Ms. McGusty."

            A review hearing eventually was set for July 20, 2016. At that time, the court again

 took testimony from James McGusty and Ms. McGusty.            At the conclusion of the review

hearing, the court appointed both sons, James and Edwin, as co-guardians of the person.

Edwin McGusty had requested to take a more active role in the care of his mother following

the first proceedings. James McGusty was appointed sole guardian of the estate.

        Error1-3

        Ms. McGusty's first three (3) errors center upon what Ms. McGusty believes was the

court's failure to consider the "pecuniary interest" of her sons in having her adjudicated

incapacitated.      According to Ms. McGusty, their "pecuniary        interest" influenced   the

opinions of the doctor's that testified and upon whom the court relied when reaching its

decision.




                                                2
          Over the course of two (2) hearings, the court had the opportunity to hear testimony

  from both of the proposed guardians, Ms. McGusty's sons, as well as the testimony of Ms.

  McGusty herself.    The court carefully considered and evaluated all such testimony and

  evidence. It was clear to the court then, as it is now, that Ms. McGusty takes issue with her

 sons' challenging her capacity. The court also is well aware of the value of Ms. McGusty's

 estate. Nonetheless, after thirty four (34) years of practicing in the orphans' court and four

 (4) years serving as an orphans' court judge, the court determined that Ms. McGusty's sons

 were appropriate persons to be appointed as her guardians.

         Likewise, the court had the benefit of two medical evaluations conducted of Ms.

 McGusty in order to assess her capacity, one of which was conducted by a doctor of her

 choosing at her request.    Both doctors concluded that Ms. McGusty was in need of a

 guardian of the person and estate.

        Section 5518 of the same statute provides:

               To 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 petitioner ...


        The court first received the doctor's deposition and report of Dr. Kenneth Carroll,

(Ex. P-1.) Dr. Carroll holds a Ph.D. in Clinical Psychology from the University of South

Carolina. His full credentials are detailed in his curriculum vitae, which the court received

into evidence at the hearing and was attached to the Petition at Exhibit B. Dr. Carroll

conducted an evaluation of Ms. McGusty that lasted approximately ninety (90) minutes.

Following his evaluation, Dr. Carroll concluded that Ms. McGusty suffers from dementia




                                             3
  which limits her ability to manage her health and safety as well as her financial resources.

  Although part of Dr. Carroll's "History" included the substance of conversations he had

  with James McGusty, Dr. Carroll 's report details the results of the evaluation he personally

  made of Ms. McGusty. Dr. Carroll conducted his own interview of Ms. McGusty and posed

  his own questions to her.       Furthermore, although he recommended that a guardian be

 appointed for her, Dr. Carroll took no position as to whom the court should appoint for that

 role.

           At Ms. McGusty's request, the court also received into evidence the report of Bruce

 E. Mapes, Ph.D. Dr. Mapes received his Ph.D. from the University of Pennsylvania in 1974.

 Dr. Mapes, like Dr. Carroll, is a practitioner with years of experience and both are well

 known to all members of the bench in this County. He, like Dr. Carroll, concluded that Ms.

 McGusty was incapacitated within the meaning of the statute and required plenary guardians

 for her person and her estate. Unlike Dr. Carroll, Dr. Mapes did not communicate with her

son concerning her mental state.         Thus, his conclusions cannot be said to have been

influenced by any "pecuniary interest" on her son's part. Dr. Mapes in his report noted as

follows:

         Mrs. McGusty was emphatic in prohibiting me from reviewing the previous
         evaluation or communicating with her son concerning specific observations of her
         daily functioning. Nor could she provide me with the name of any third party who
         could provide credible information. Consequently, my evaluation is limited to what
         I was actually able to observe and assess ...

(Ex. P-3, at 1.)

         The court sees no error in the conclusions it reached.




                                                4
          Error No. 4

          Ms. McGusty also alleges that the court "failed to properly credit and consider her

  testimony when making its decision." The court disagrees.

          As the record of the proceedings reflects, the court has taken great care to consider

  the needs and desires of Ms. McGusty. By ,vay of example, the court took care to; appoint

 counsel for Ms. McGusty, allow Ms. McGusty additional time to obtain an "independent"

 evaluation of her capacity, and receive into evidence the direct testimony of Ms. McGusty at

 both of the proceedings. As the court told Ms. McGusty directly at the close of the second

 hearing, although it was required under the law to rule as it did, "I do understand you. I

 understand what you are saying and I respect your views." (N.T. 7/20/16, at 25-26.)

         Error No. 5

         In her final error, Ms. MsGusty alleges that she was "unduly prejudiced due to her

 inability to actively participate in her defense due to inadequate hearing devices provided by

the court." The record reflects otherwise.

        During the first hearing in this matter, the court began the proceedings by asking Ms.

McGusty if she could hear the court.        She responded, "[ nJot too well" at which time the

court provided Ms. McGusty with earphones to assist her in hearing the proceedings.

Thereafter, when asked by the court if she could hear, she responded "Yes." (N .T. 3/22/16,

at 3.) Ms. McGusty later testified during the proceedings and was able to hear and answer

the questions asked of her counsel.      (N.T. 3/22/16, at 27-31.) During one such exchange

when asked by her counsel if heard her son's testimony that he was willing to look at other

living facilities, Ms. Mc Gusty responded " [ w ]ell, I heard it. I hope it comes true."




                                                 5
          Ms. McGusty also was present at the second hearing.       At the beginning on the

 hearing, Ms. McGusty stated that her "hearing aid was not working well." (N.T. 7/20/16, at

 7.) She declined the court's offer to use headphones. The court instructed Ms. McGusty to

 advise the court "if you can't hear any of us" and she answered "yes."    (Id.) Although at

 one point Ms. McGusty stated that she could not hear the answer to a question she posed to

 her son during his testimony, the answer was repeated for Ms. Mc Gusty.      (Id. at 10-1 l.)

 Ms. McGusty did not otherwise notify the court of any difficulty in hearing the proceedings

 and the court had no indication that such was the case.       To the contrary, through the

 remainder of the proceedings Ms. McGusty provided testimony to the court and answered

without difficulty all of the questions posed by the court and her counsel and interposing

questions of her own. There is no indication in the record that Ms. McGusty, who was

represented by competent counsel at both proceedings, was in any way prejudiced by a

limitation on her ability to hear.


                                            BY THE COURT:



Date:   October 10, 2016
                                            Mark L. Tunnell,                     J.
                                                                                        i"'--.'




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