J-S46032-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

IN RE: ELSIE M. BENDER 

Petition for the Appointment of a 

Guardian of the Person and Estate 

Of Elsie M. Bender, an Alleged 

Incapacitated Person 

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

: No. 304 MDA 2014 

Appeal from the entered on Order of February 8, 2014, 

in the Court of Common Pleas of Lebanon County 

Orphans’ Court Division, No: 2012-517

BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ: 

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 20, 2014 

Elsie M. Bender (“Bender”) (d.o.b. 3/25/42) appeals from the Order 

adjudicating her an incapacitated person, and confirming the appointment of 

Brian D. Brooks, d/b/a Pennsylvania Guardianship Association (“Brooks”), as 

guardian for the person and estate of Bender. We affirm. 

In its Opinion, the Orphans’ Court set forth the relevant history 

underlying the instant appeal, which we incorporate herein by reference. 

Orphans’ Court Opinion, 4/21/14, at 2-5. 

 On appeal, Bender presents the following claims for our review: 

May the [Orphans’ Court] usurp the freedom of choice expressed 

by a mentally competent adult to either refuse, forgo or ignore a 

medical treatment regimen, even if that refusal or forbearance 

may lead to her further injury or death? 

Brief of Appellant at 2. 
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Bender challenges the trial court’s adjudication of her as an 

incapacitated person. Id. at 7-8. Bender asserts that this case is about 

“whether [] Bender has the right to decide for herself, as a mentally 

competent adult, whether to assume the risk of personally managing her 

disease, or whether the court has the power to take away that right and 

make that decision for her.” Id. at 8. Bender argues that, contrary to the 

trial court’s Opinion, she is “refusing” treatment. Id. (emphasis omitted). 

Citing In Re: Estate of Border, 68 A.3d 946 (Pa. Super. 2013), Bender 

claims that a competent adult has the absolute right to refuse treatment. 

Brief of Appellant at 9. 

According to Bender, the “treatment” she is refusing is not the 

administration of insulin, but being forced to administer insulin under the 

direction and control of others. Id. at 10. She objects to nurses having 

control over decisions regarding the amount and timing of her insulin 

injections. Id. at 10-11. Bender states that she has no dependents, and 

her right to self-determination is not outweighed by the interest of the state 

in preserving her life. Id. at 14. Finally, Bender advises that she has no 

intention of committing suicide. Id. at 15. 

 A person is presumed to be mentally competent; incapacity must be 

proven by clear and convincing evidence. In re Hyman, 811 A.2d 605, 608 

(Pa. Super. 2002). “Our review of the trial court’s determination in a 

competency case is based on an abuse of discretion standard, recognizing, 
J-S46032-14

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of course, that the trial court had the opportunity to observe all of the 

witnesses, including, as here, the allegedly incapacitated person.” Id. “A 

finding of mental incompetency is not to be sustained simply if there is any 

evidence of such incompetency[,] but only where the evidence is 

preponderating and points unerringly to mental incompetency.” Id. Once 

an individual has been found incapacitated and in need of guardianship 

services, it then becomes the court’s responsibility to appoint an individual 

to serve, granting limited or plenary powers consistent with the 

incapacitated person’s needs. Estate of Haertsch, 649 A.2d 719, 720 (Pa. 

Super. 1994). 

In its Opinion, the Orphans’ Court set forth the evidence underlying its 

adjudication, which is supported in the record. Orphans’ Court Opinion, 

4/21/14, at 3-5. In particular, the Orphans Court observed Bender’s

multiple hospitalizations resulting from her diabetes, her diagnosis of nonspecific dementia affecting short-term memory, her sons’ consent to the 

appointment of Brooks as guardian, and the Orphans’ Court’s finding that 

Bender is not refusing treatment. See id. at 3-5, 6. The Orphans’ Court’s 

findings are supported in the record, and its legal conclusions are sound. 

Accordingly, we affirm on the basis of the Orphans’ Court’s Opinion with 

regard to the claim raised by Bender. 

Order affirmed. 

Lazarus, J., concurs in the result. 
J-S46032-14

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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/20/2014 
Circulated 07/25/2014 02:48 PM
Circulated 07/25/2014 02:48 PM
Circulated 07/25/2014 02:48 PM
Circulated 07/25/2014 02:48 PM
Circulated 07/25/2014 02:48 PM