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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

: No. 304 MDA 2014 Appeal from the entered on Order of February 8, 201 4, 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 fr om the Order adjudicating her an incapacitated person, and confirmin g the appointment of Brian D. Brooks, d/b/a Pennsylvania Guardianship Asso ciation (“Brooks”), as guardian for the person and estate of Bender. We aff irm. In its Opinion, the Orphans’ Court set forth t he relevant history underlying the instant appeal, which we incorporate h erein 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 e xpressed by a mentally competent adult to either refuse, forgo or ignore a medical treatment regimen, even if that refusal or fo rbearance may lead to her further injury or death? Brief of Appellant at 2.J-S46032- 14

- 2 -

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 personal ly managing her disease, or whether the court has the power to take awa y 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 t o 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 administ er 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, an d 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; incapaci ty 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 standar d, recognizing,J-S46032- 14

- 3 -

of course, that the trial court had the opportunity to observe all of the witnesses, including, as here, the allegedly incapacitate d person.” Id. “A finding of mental incompetency is not to be sustained sim ply if there is any evidence of such incompetency[,] but only where the evi dence is preponderating and points unerringly to mental incom petency.” Id. Once an individual has been found incapacitated and in need of guardianship services, it then becomes the court’s responsibility to appo int 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 evide nce 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

a ppointment of Brooks as guardian, and the Orphans’ Co urt’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 conc lusions are sound. Accordingly, we affirm on the ba sis 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

- 4 -

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 8/20/2014Circulated 07/25/2014 02:48 PMCirculated 07/25/2014 02:48 PMCirculated 07/25/2014 02:48 PMCirculated 07/25/2014 02:48 PMCirculated 07/25/2014 02:48 PM