J-S35028-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: PHYLLIS J. PROPERT, AN 

ALLEGED INCAPACITATED PERSON

IN THE SUPERIOR COURT OF

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

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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 
J-S35028-16

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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
was said to be necessary because following a hospitalization in June of 2015, Ms. Propert 

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

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

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

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

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

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

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

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

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

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

PROCEDURAL HISTORY 

to be an incapacitated person 

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

OTT, J. December 16, 2015 

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 O p IN I O N 

12 16 2015 1:00:37 PM - PROPERT. PHYL1.JS J 

TN TH', PHYLLIS J. PROPERT 

1111 l:~t~~~~-11 II, \n Incapacitated Person 

NO. 2015-X3127 

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA 

ORPHANS' COURT DIVISION 

Circulated 05/20/2016 02:17 PM
2 

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. 

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

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

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

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

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

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

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

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

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

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

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

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

on September 19, 2015. 

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

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

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

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

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

became suspicious and paranoid about Ms. Klock's actions and thwarted her efforts of 
3 

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

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 

testified that: 

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 

"intermittent" and explained: 

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

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

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

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

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

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

incapacities will increase as her dementia progresses. 2 

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

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

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

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

He explained that Ms. Propert was unable to answer simple questions and was confused and 
4 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

manner until Ms. Propert revoked the power. 

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

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

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." 
5 

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 

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. 

DISCUSSION 

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. 

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

timely filed the instant appeal. 
6 

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." 

her. The final decree should be affirmed. 

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

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

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

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

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

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

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

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

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

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

care facility providing her with 24/7 care. 

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

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

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

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

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

impeaching the validity of his conclusions. 

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

incapacities. Moreover, the court's ability to observe Ms. Propert and test her abilities with 
7 

Copy of the above mailed 

December 16, 2015, to: 

Mary E. Podlogar, Esquire 

Linda M. Hee, Esquire 

Deborah L. Klock, R.N.