### J

- S35028

- 16

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN RE: PHYLLIS J. P ROPERT, AN ALLEGED INCAPACITATE D 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 Pro pert 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

- 2

-

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 fa iling 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 th e 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 disc retion. 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 c itation 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 Com mon Pleas of Montgomery County, dated

### J

- S35028

- 16

- 3

-

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 Judg e 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: 6/14/2016w as sa id t o b e ne ce ss ar y b e c a u se fo ll o win g a h osp it a li z at i on i n J u ne o f 2 0 15 , Ms

. P r o p e rt

2 01 5 , was appo int ed M s
. Pro p e rt 's age nt u nd e r a g e n era l durabl e p owe r of atto rn e y
. Th e p e t i t i on S ol u ti o n s, In c
. M s
. K l ock wa s i n it ia ll y hir ed p urs u a nt t o a w ritt e n co ntract a n d, in Mar ch of b e e n handl ed sin ce M ar c h 29 , 2 0 0 7 b y D e bora h 

### L. KJoc k, R.N, ofDLK M a n age d Car e h a d l o n g s u ffere d fr o m p ara noi a w hi c h w as mod era t e a nd pro g r es s iv e , a nd t h at h e r a ffai rs h a d and a nie ce, a ll o f wh o m co n se n ted to t h e p et i t i o n
. T h e pe titi o n fu rth e r a ll ege d th a t M s
. Pro p e rt th a t M s
. Prope rt was s in g l e and th a t th e p e titi o n e r w a s h er n e x t-of -kin a l o n g w i th t wo n ep h ews · r e s id e nti a l fa cilit y in Hatbo ro, Montgom ery C oun ty , sin c e Mar c h o f 2 01 5

. T h e p e titi o n n o t e d T h e pe tition a ll eg ed th at M s
. Prop e rt h a d b e e n livin g at W es l ey Enh a n ce d Livin g, a s eni o r M s. P ro p e rt fil e d a p e t i ti o n seek in g t o h ave M s
. P rope rt adj udi c a te d a n in cap acitat e d pe r s o n. On Se ptemb e r 10, 20 15, E l a in e C

. P ri e stl ey o f Exe t er , New Ham p s hi re, the t win s i ste r of 

### PROCEDURAL HIS T ORY t o be a n in capacit a t e d p e r so n Ph y lli s J. Pro pert ( " Ms. P r ope rt " ) h as app ea l e d thi s Co ur t's a dju d i ca ti o n de t e r m i ni n g h e r 

### OTT, J. December 16 , 2015 2 0 1 5

- X 3 1 27

. l.4

. ::U Fi lin gID : 1 7 8655 7

. l 9 2 5 ( a) Opi ni o n R eceipt c;. Z2 13 60 0 F ee S0.00

D. Bru ce Hane s. Es q
. - M on t C o Re sis t er of Will s 

### O p IN I O N 12 1 6 20 15 1 :00:3 7 PM - P ROP E R T

. PHYL 1.JS J TN TH' , 

### PHYLLIS J. PROPERT 

# 1 111 

# l:~t~~~~ -1 1 II, \n Incapacitated Person

NO

. 2015-X3127 IN TH E C OUR T OF COMMON P LEA S OF MONTGOMERY C O UNT Y , P ENN S YL V AN I A ORPHA N S' COURT DI V ISION Circulated 05/20/2016 02:17 PM2 I This Jetter was faxed to the undersign e d on the evening of O c tober 7 , 2015, in violation ofthe statute. Nevertheless , because it was suggested that the appointment of counsel was unnecessary, no prejudice result e d. 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 abou t Ms. Klock's actions and thwarted her efforts of3 2 The c o urt's s ummarization of Dr. Poulshock's testim o ny appears at pp. I 0 -12 of the note s 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 pe r sonal 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

P ro p e r t a n i n c ap ac itat e d p e r s on , s h e w rot e t o th e und e r si g n e d stat i ng t h a t s h e wi s h ed t o a ppea l. A ft er t h e Oc t ober 9, 2 0 1 5 , proc ee di n g and th e e n tr y of t h e c o urt ' s d e c r ee fi n din g M s
. Gl a nt z , h e r d e c e a se d fath e r , wa s her c h oic e to be ag e n t u n der her p o we r o f att o rn ey
. (N

. T

. 3 6 )

. (N.T. 35)

. A s th e proce e dings w e r e draw in g t o a close, M s
. P r op e rt a ga i n s ugg e st e d th at S a m h er pe titi on in g s i s t er c ares abou t h e r a lo t, Ms

. Prope rt respo nd ed "S h e's tr y i n g t o murder me
. " h er , s h e r es p o n d e d : 

### " It h e l ps to know t h at yo u tru s t h er." (N

. T

. 34)

. W h e n i t was s u gg e st e d th at Wh e n th e un d er signe d t o l d M s
. P r ope r t t h a t h e had know n Ms. K l oc k for a l o n g time and trusted a nd po i s on e d a can of Coke, a n d by d ri nking it , she exp e rienced kid n ey fa il u r e
. (N

. T

. 3 2- 3 3)

. up s et th a t h e w as wa lkin g fr e e a n d n e ver arre st e d

. S h e in s i s t ed h e h ad com e t o h e r h o u se a t ni ght i nt e r e s t s. M s
. Pr ope rt in s i s t e d th a t s h e h ad b ee n po i so n ed by h e r c o u s i n, Wa y n e , and s he was Klock h a d h e l ped h er i n th e pas t b u t d e n i e d th at s h e wa s p r e se n tly l ook i n g after he r be s t T h e Co u rt then r e- e n gaged M s
. Prope r t in conv e r s a tion. S h e acknow l ed g ed t h at Ms

. p ro p ose d ro le as guar di a n
. (N

. T

. 28, 3 0 )

. M s
. K loc k sta ted s h e pe rce i v ed n o es sen t i a l diff e r en c e betwe e n h e r fo r m e r ro le a s a g ent a nd he r b eca us e We s le y a l s o h as a s kill e d nur s in g fac ili ty s houl d Ms

. P ro pe rt require t h at l evel of ca r e. r eceiv in g at Wes l e y E nh ance d Liv in g
. S h e o pi ned t h a t th i s i s a g o o d pl ac e m e n t for Ms. P r opert $ 1 8, 783 .29

. M s
. Kloc k said s h e i s sa ti sfied a nd ve ry im p r e s se d with t he care th at M s. Prop er t i s M s
. Klock s tated that , as of t he date of t h e h earin g, M s. Prop ert ' s o ut s t an d i n g bill s t ot a l ed ma nner until M s
. P ropert re vok ed the po we r. r e s i d ent ia l fac ilit y a nd u sed h e r p owe r of a tt o rn e y to h a ndl e h e r fi n anc es
. Sh e acted in that (N.T

. 20-2 1 ). M s
. K l ock became Ms

. P rope rt 's a u t hor i ze d r epre se n t a ti ve in d ealings with t h e imp r ess i o n o f th e Wes l ey E nh a n c e d Li v i n g
.. . u nl ess s h e were t o move t o t h e ir p e r so n al
c ar e community, th e y w o uld not a llow h e r to rem a in in t h e ind ep e n d e nt ap artm en t. "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 s ix separate paragraphs raising the following issues: 1.) The cour t 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 incapacitat e d persons' statute provides: "It shall be the duty of the guardian of the person to assert the rights and best interests o f the incapacitated person. Expressed wishes and preferences of the incapacitated person shall be respected to the greatest possibl e e xtent." 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 o r 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 with7

Copy of the above mailed Dec e mber 1 6 , 201 5 , to : Mary E

. Podlogar, Esquir e Lind a M. H ee , E s quire Deborah 

### L. Klock, R.N.