J-A12013-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF ROSE PHILLIPS, AN 

ALLEGED INCAPACITED PERSON

APPEAL OF: PHILADELPHIA 

CORPORATION FOR AGING

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2331 EDA 2017

Appeal from the Decree June 23, 2017

In the Court of Common Pleas of Philadelphia County Orphans' Court at 

No(s): 539 AI of 2017

BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 14, 2018

The Philadelphia Corporation for Aging (“PCA”) filed this appeal from the 

June 23, 2017 decree denying a petition for adjudication of incapacity and 

appointment of a plenary guardian for the person and estate of Rose Phillips, 

an alleged incapacitated person. We affirm.

During October 2016, Ms. Phillips was discharged from a physical

rehabilitation facility and returned to the home she owns at 5038 Market 

Street, Philadelphia. She was a seventy-five-year-old diabetic who was

convalescing from the lingering effects of a stroke. Soon after her return 

home, PCA sent Jennifer Mathews, a nurse investigator, to check on her 

status. The agency had received reports that Ms. Phillips was in an imminent 

risk of harm because she was not eating or taking her medication. Ms. 

Matthews found Ms. Phillips, who had answered the door with the assistance 
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of a walker, sitting without underwear on a soiled chuck pad that is used to 

collect human waste. Ms. Phillips possessed underclothing but complained 

that they did not fit properly. Although Ms. Phillips resided by herself, she 

indicated that her son, Shannon Phillips, assisted with her care. 

Unfortunately, Ms. Phillips was unable to provide any information regarding 

the schedules of her son or any of her caretakers. PCA initiated temporary 

personal care services so that Ms. Phillips could remain in her home.

On March 29, 2017, and June 19, 2017, Wendy Michelle Spencer, Psy.D,

a psychologist employed by PCA, twice visited Ms. Phillips to perform clinical 

face-to-face evaluations and to administer the Saint Louis University Mental 

Status Exam. Ms. Phillips cooperated during the initial visit but declined to

participate on the latter occasion. Dr. Spencer testified that Ms. Phillips’s 

score on the one mental status examination that she performed was 

consistent with cognitive impairment. Moreover, based upon her two 

exchanges with Ms. Phillips, who demonstrated varying degrees of 

cooperation, Dr. Spencer diagnosed Ms. Phillips with neurocognitive disorder. 

Significantly, however, Dr. Spencer did not request a blood test, review any 

of Ms. Phillips’s medical records associated with the recent stroke, or consider 

any other physiological reasons for Ms. Phillips’s low score on the mental 

status examination. Similarly, she neglected to perform any alternative 

mental status examinations or speak with Ms. Phillips’s son and caregivers. 
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Indeed, Dr. Spencer was unaware that Ms. Phillips was accompanied by a 

personal aid for six or seven hours per day. 

On April 24, 2017, nearly two weeks prior to Dr. Spencer’s second 

examination of Ms. Phillips, PCA instituted the instant guardianship 

proceedings pursuant to § 5512.1 of the Pennsylvania Probate, Estates and 

Fiduciaries Code (“PEF Code”). 20 Pa.CS. § 5501-5555. The agency 

contended that Ms. Phillips was totally incapacitated due to a moderate degree 

of unspecified neurocognitive disorder and required guardianship services. 

The orphans’ court issued a citation to show cause why the petition should not 

be granted, and held an evidentiary hearing on June 22, 2017. PCA presented 

the testimony of Dr. Spencer and Nurse Matthews, and also called to the stand 

a proposed guardian, Steve McClosky, the principal of JMS Guardianship 

Services, Inc. 

Ms. Phillips countered by testifying on her own behalf and presenting 

the testimony of her son and Charlotta Bryan, her personal aid. The agency’s 

testimony was consistent with the foregoing recitation of the facts. Ms. 

Phillips’s evidence established that Shannon Phillips visits twice per day, 

purchases groceries, manages medication, and maintains her finances. Ms. 

Phillips also adduced evidence to establish that her son is her power of 

attorney, and she confirmed her understanding of the decision to confer that 
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authority to her son as opposed to a third party.1 Specifically, she explained

to the orphans’ court, “Well, like I said before, if there’s anybody that’s going 

to handle my finances and do things for me, I want it to be my son.” N.T., 

6/22/17, at 65. 

On the basis of the foregoing evidence, the orphans’ court denied PCA’s 

petition for adjudication of incapacity and appointment of a plenary guardian, 

finding that Rose Phillips was not in need of a guardian. This appeal followed.

Appellant raises two issues for our review:

1. Did the Orphans’ Court abuse its discretion by disregarding the 

uncontradicted and unrebutted evidence of incapacity offered by 

Philadelphia Corporation for Aging's expert, who testified pursuant 

to [§] 20 Pa.C.S.A. § 5518?

2. Was it against the weight of the evidence for the Orphans’ Court 

not to grant Philadelphia Corporation for Aging's petition where 

the hearing evidence unequivocally demonstrated both incapacity 

and the need for guardianship services?

Appellant’s brief at 2-3. We address these issues collectively. 

We employ a deferential standard when reviewing an orphans’ court 

decree. In re Estate of Smaling, 80 A.3d 485 (Pa.Super. 2013). We must 

ensure, however, that the court’s decision is free from legal error. In re 

Estate of Rosengarten, 871 A.2d 1249, 1253 (Pa.Super. 2005). Our

Supreme Court reiterated this principle in In re Peery, 727 A.2d 539, 540 

(Pa. 1999) (quoting Lawner v. Engelbach, 249 A.2d 295 (Pa. 1969)), 

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1 The written power of attorney was not introduced during the hearing or 

included in the certified record. 
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wherein it stated that reviewing courts are “bound by the trial judge’s findings 

of fact unless those findings are not based on competent evidence. 

Conclusions of law, however, are not binding on an appellate court whose duty 

it is to determine whether there was a proper application of law to fact by the 

lower court.” 

We are mindful of the purpose of the PEF Code’s provisions relating to 

incapacitated persons, 20 Pa.C.S. §§ 5501-5555. In this vein, § 5502 

recognizes that “every individual has unique needs and differing abilities.” The 

purpose of the statute is to establish “a system which permits incapacitated 

persons to participate as fully as possible in all decisions which affect them 

. . . and which accomplishes these objectives through the use of the least 

restrictive alternative.” 20 Pa.C.S. § 5502. 

The definition of an incapacitated person is as follows: 

“Incapacitated person” means an adult whose ability to receive

and evaluate information effectively and communicate decisions 

in any way is impaired to such a significant extent that he is 

partially or totally unable to manage his financial resources or to 

meet essential requirements for his physical health and safety.

20 Pa.C.S. § 5501.

Instantly, PCA argues that the orphans’ court’s findings are not 

supported by competent evidence. The statute governing determinations of 

incapacity is found at 20 Pa.C.S. § 5512.1, and provides in pertinent part:

(a) Determination of incapacity – In all cases, the court shall 

consider and make specific findings of fact concerning:
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(1) The nature of any condition or disability which impairs the 

individual to make and communicate decisions.

(2) The extent of the individual’s capacity to make and 

communicate decisions.

(3) The need for guardianship services, if any, in light of such 

factors as the availability of family, friends and other supports 

to assist the individual in making decisions. . . .

(4) The type of guardian, limited or plenary, of the person or 

estate needed based on the nature of any condition or disability 

and the capacity to make and communicate decisions. . . .

. . . .

(c) Plenary guardian of the person – The court may appoint a 

plenary guardian of the person only upon a finding that the person 

is totally incapacitated and in need of plenary guardianship 

services.

20 Pa.C.S. § 5512.1.(a) and (c).

Herein, PCA had the burden of proving the statutory grounds to appoint 

a plenary guardian under § 5512.1(c), i.e., that the person is totally 

incapacitated and in need of such services. Pursuant to § 5518,

[t]o 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 the petitioner, which 

establishes the nature and extent of the alleged incapacities and 

disabilities and the person’s mental, emotional and physical 

condition, adaptive behavior and social skills. The petition must 

also present evidence regarding the services being utilized to meet 

essential requirements for the alleged incapacitated person’s 

physical health and safety, to manage the person’s financial

resources or to develop or regain the person’s abilities; evidence 

regarding the types of assistance required by the person and as 

to why no less restrictive alternatives would be appropriate; and 
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evidence regarding the probability that the extent of the person’s 

incapacities may significantly lessen or change. 

20 Pa.C.S. § 5518 (emphasis added). 

At the outset, we reject the agency’s bullet-point list of assertions that 

we should grant relief because Ms. Phillips did not: (1) present an expert to 

testify about her intellectual capacity; (2) dispute Dr. Spencer’s qualifications;

or (3) challenge the credibility of Dr. Spencer’s testimony. See Appellants 

brief at 10. Stated plainly, as outlined in § 5518, PCA had the burden of 

demonstrating the need for guardianship by clear and convincing evidence. 

That is, to prevail on its petition, the agency was obligated to present the

testimony of a qualified expert. In contrast, Ms. Phillips was not required to 

produce any evidence, much less countervailing expert testimony.2 

Moreover, PCA’s references to Dr. Spencer’s qualifications and the

credibility of her testimony are unavailing as neither is implicated in this case. 

Pointedly, the orphans’ court did not assess Dr. Spencer’s credibility. Instead, 

it examined Dr. Spencer’s attention to detail in rendering her conclusion that 

Ms. Phillips was incapacitated despite the numerous facts that she admittedly 

neglected to consider in forming her opinion. Accordingly, we reject the 

assortment of preliminary arguments that PCA outlines in its brief. 

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2 To the extent that PCA invokes Pa.R.E. 701 to challenge the admissibility of 

lay testimony regarding Ms. Phillips’s capacity, that claim is waived because 

the agency failed to level that objection during the hearing. 
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Likewise, we find unpersuasive PCA’s chief arguments that (1) the 

orphans’ court was bound by Dr. Spencer’s expert testimony under the 

circumstances presented in this case, and (2) the orphans’ court’s contrary 

determination was against the weight of the evidence. It is beyond 

peradventure that a trial court commits an abuse of discretion by dismissing

uncontradicted expert testimony as unpersuasive M.A.T. v. G.S.T., 989 A.2d 

11, 19-20 (Pa.Super. 2010). Nevertheless, as the ultimate arbiter of fact, the 

orphans’ court is not required to adopt even an uncontradicted expert opinion 

where competent evidence of record supports the court’s independent 

determination. See Nomland v. Nomland, 813 A.2d 850, 854 (Pa.Super.

2002) (“So long as the trial court's conclusions are founded in the record, the 

lower court was not obligated to accept the conclusions of the experts.”);

Murphey v. Hatala, 504 A.2d 917 (Pa.Super. 1986) (“[T]he trier of fact is 

not bound by the testimony of any expert witness and is under no obligation 

to accept the conclusions of an expert witness.”).

Ignoring the evidence that Ms. Phillips presented to demonstrate both 

her current intellect and existing support system, PCA asserts that the 

orphans’ court’s decision to deny the petition for guardianship was against the 

weight of the evidence. Relatedly, as a preliminary matter, PCA asserts that 

the orphans’ court erred in weighing the evidence in favor of Ms. Phillips when 

“it is unclear from the record whether Shannon Phillips . . . has her power of 

attorney.” Appellant’s reply brief at 1. While PCA is preoccupied with the fact 
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that the power of attorney was not introduced during the hearing or included 

in the certified record, both Ms. Phillips and her son confirmed the document’s 

existence. N.T., 6/22/17, at 50-51, 61. Indeed, Shannon Phillips testified 

that his mother recently executed a new power of attorney at the request of 

a local credit union. Id. at 51. As the orphans’ court accepted the foregoing 

testimony as credible, it is competent evidence that the document exists 

regardless of whether PCA reviewed it. Phrased differently, mindful that PCA 

did not challenge the specific terms of the power of attorney, once the 

orphans’ court deemed the relevant testimony about the document credible, 

the record supported its finding that the document did, in fact, exist.

For the following reasons, we find that the certified record sustains the 

orphans’ court’s independent determination that PCA did not satisfy its 

statutory burden to prove that Ms. Phillips had a mental, emotional, or

physical incapacity that required guardianship services. First, Dr. Spencer’s

evaluation failed to account for the fact that Ms. Phillips was still recovering 

from a stroke and physical rehabilitation when Dr. Spencer performed the 

mental status examination on March 29, 2017, and Dr. Spencer did not review 

any relevant medical records or images related to the stroke. Id., 13, 24, 28. 

Similarly, Dr. Spencer declined to order a blood test to consider whether a 

physiological reason existed for Ms. Phillips’s apparent condition, administer 

any other type of mental status examination, or interview Ms. Phillips’s son or 
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fulltime care giver, who works with Ms. Phillips approximately forty-seven

hours per week. Id. at 19-20, 25, 58. 

Furthermore, contrary to PCA’s allegations of incapacity, during the 

hearing, Ms. Phillips explained her understanding of the power of attorney that 

she previously executed and stated her preference for her son to continue to 

handle her personal affairs. Importantly, she noted with disapproval her 

awareness that PCA intended to give someone else authority over her 

finances. Id. at 62. She testified, “if anybody does it, it should be my son. 

[Why] do I need somebody else?” Id. She was adamant about her aversion 

to outside meddling and reiterated the point while being examined by the 

orphan’s court. She stated, “Well, like I said before, if there's anybody that’s 

going to handle my finances and do things for me, I want it to be my son.”

Id. at 65. In addition, Ms. Phillips testified about her mental capacity. She 

stated, “I’m not crazy either. I was sick [when PCA intervened]. I had a 

stroke. I fell. And I’m [still] sick. But there’s a lot of things that I can do 

now that I couldn’t do before.” Id. at 62. She continued that she executed 

the power of attorney so that her son could be of assistance, but she added, 

“I could pretty much help myself as far as that goes[.]” Id. at 63. For 

example, Ms. Phillips explained how she relayed her burial arrangements to 

her son and “I've told him where certain things are that he needs to look at, 

too.” Id. 
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In addition to Ms. Phillips’s testimony about her intellectual capacity,

she presented evidence that her son visits her twice a day to check her blood 

sugar levels, feed her, and help administer medication, although Ms. Phillips 

is able to administer insulin independently. Id. at 45, 49, 51. He maintains 

his mother’s finances and purchases supplies and food, which is prepared by

Ms. Bryan. Id. at 45-46, 61. In addition to her son and Ms. Bryan, Ms. Phillips

is visited throughout the week by various family members. Id. at 49. When 

asked about his mother’s mental capacity during their daily interactions, 

Shannon Phillips testified, “I see her every day and there's nothing . . . that I 

see that she's mentally incapacitated like [PCA asserts].” Id. at 46. 

In In re Peery, supra at 541, our High Court held that “a person cannot 

be deemed incapacitated if his impairment is counterbalanced by friends or 

family or other support.” Instantly, Ms. Phillips stated her preference to 

continue her current support structure and the record reveals that those

supports offset any of Ms. Phillips’s impairments. As noted, Shannon Phillips 

has demonstrated great concern for his Mother. He visits frequently and 

assumed an active role in her financial welfare and home health care, including 

utilizing the power of attorney and hiring an aid to care for his mother in his 

absence. He testified that he intends to have his mother reside with him and 

his family, where his wife can help him provide care. N.T., 6/22/17, at 50, 

55. He also plans to increase the amount of services his mother currently 

receives, including extending Ms. Bryan to fulltime care. Id. at 54-58. Ms. 
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Phillips also has the support of additional family members who visit her several 

times per week. Accordingly, based upon the competent evidence in the 

certified record, we discern no abuse of discretion in the orphans’ court’s 

findings that these facts demonstrate that a less restrictive alternative to 

guardianship is both reasonable and appropriate. Stated plainly, all of the 

foregoing evidence supports the orphans’ court’s determination that PCA failed 

to demonstrate clear and convincing evidence that Ms. Phillips was a totally 

incapacitated person in need of plenary guardianship services. Thus, 

notwithstanding Dr. Spencer’s expert testimony, the orphans’ court did not 

err in denying PCA’s petition for the appointment of a plenary guardian. 

Finally, we observe that, while we rule against PCA in this appeal, we 

applaud the agency for interceding with this family. The agency’s intervention 

provided immediate services to Ms. Phillips, and its ensuing investigation likely

provided the initiative for her son to assume a proactive role in his mother’s 

care and to fashion the framework of support that rendered the appointment 

of a plenary guardian unnecessary at this juncture. In this vein, should the 

existing supports falter, we continue to look to PCA to intervene on Ms. Phillip’s 

behalf and take the necessary steps, including refiling a guardianship petition, 

to assure that her needs are being appropriately met.

Decree affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/14/18