### J
- S06033
- 17

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE MATTER OF: EL IZABETH N. MCGUSTY, AN ALLEGED INCAPACITATED PERSON IN THE SUPERIOR COURT OF PENNSYLVANIA

APPEAL OF: ELIZABETH N. MCGUSTY No. 2699 EDA 2016

Appeal from the Order Entered July 20, 2016 in the Court of Common Pleas of Chester County Orphans’ Court at No(s): 1516

- 0113 BEFORE: MOULTON, RAN SOM, and FITZGERALD, * 

### JJ. MEMORANDUM BY FITZGERALD, J.: FILED JUNE 01, 2017 Appellant, Elizabeth N. McGusty, appeals from the order entered in the Chester County Court of Common Pleas appointing Appellant’s adult sons, Appellee, James C. McGusty, Jr., and Edwin A. McGusty plenary guardians of Appellant’s person an d Appellee as the sole plenary guardian of Appellant’s estate. Appellant contends that the trial court erred by failing to properly consider her testimony regarding her sons. We affirm. We adopt the facts and procedural history set forth by the trial co urt’s opinion. See Trial Ct. Op., 10/10/16, at 1

- 3. In this timely appeal, Appellant raises the following issue for review: “Did the trial court commit an abuse of discretion when it failed to properly account for or consider the testimony of Appellant a s it related to the appointment of her adult sons as

* 

### Former Justice specially assigned to the Superior Court.

### J
- S06033
- 17

- 2
-

plenary guardians of her person, and [Appellee] as guardian over the estate?” Appellant’s Brief at 9. Appellant argues that the trial court failed to properly consider her testimony regarding her “dist rust of and objection to the appointment of her

sons as co - guardians of her person and Appellant as plenary guardian of her estate.” Id. at 13. To this end, Appellant specifically points to her testimony regarding her sons purported lack of interest in c aring for her daily needs. Id. at 18. She also cites her previous refusal to grant her sons a durable power of attorney as evidence of her continual distrust. We conclude no relief is due. Our standard of review is well settled: The findings of a jud ge of the [O]rphans’ [C]ourt division, sitting without a jury, must be accorded the same weight and effect as the verdict of a jury, and will not be reversed by an appellate court in the absence of an abuse of discretion or a lack of evidentiary support. T his rule is particularly applicable to findings of fact which are predicated upon the credibility of the witnesses, whom the judge had the opportunity to hear and observe, and upon the weight given to their testimony. In reviewing the Orphans’ Court’s find ings, our task is to ensure that the record is free from legal error and to determine if the Orphans’ Court’s findings are supported by competent and adequate evidence and are not predicated upon capricious disbelief of competent and adequate evidence. How ever, we are not limited when we review the legal conclusions that the Orphans’ Court has derived from those facts. In re Estate of Cherwinski , 856 A.2d 165, 167 (Pa. Super. 2004) (quoting In re Estate of Schultheis , 747 A.2d 918, 922 (Pa. Super. 2000))

.

### J
- S06033
- 17

- 3
-

The appointment of a guardian lies within the sound discretion of the trial court. Estate of Haertsch , 649 A.2d 719, 720 (Pa. Super. 1994). “Discretion must be exercised on the foundation of reason. An abuse of discretion exists when the trial court h as rendered a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias, or ill will.” In re Duran , 769 A.2d 497, 506 (Pa. Super. 2001) (quoting Harman ex rel. Harman v . Borah , 756 A.2d 1116, 1123 (Pa. 2000)). The Pennsylvania Decedents, Estates and Fiduciaries Code provides: (f) Who may be appointed guardian. -- The court may appoint as guardian any qualified individual, a corporate fiduciary, a nonprofit corporation, a guardianship support agency under Subchapter F (relating to guardianship support) or a county agency. . . . If appropriate , the court shall give preference to a nominee of the incapacitated person. 20 Pa.C.S. § 5511(f) (emphasis added). If a guardianship nominee is also named in a durable power of attorney for an incapacitated person, that individual should receive particular consideration. In re Sylvester , 598 A.2d 76, 83

- 84 (Pa. Super. 1991). In the case sub judice , we note that Appellant had not executed a durable power of attorney in favor of anyone. Accordingly, the trial court did not err by failing to consider that Appellee was not pre viously named as Appellant’s agent. See id . Further, the trial court specifically noted its consideration of Appellant’s testimony:

### J
- S06033
- 17

- 4
- As the record of the proceedings reflects, the court has taken great care to consider the needs and desires of [Appellant] . By way of example, the court took care to: appoint counsel for [Appellant], allow [Appellant] additional time to obtain an “independent” evaluation of her capacity, and receive into evidence the direct testimony of [Appellant] at both of the proceedings . As the court told [Appellant] directly at the close of the second hearing, although it was required under the law to rule as it did, “I do understand you. I understand what you are saying and I respect your views.” Trial Ct. Op. at 5. We conclude that the trial court aptly considered the evidence presented, including Appellant’s testimony. See In re Estate of Cherwinski , 856 A.2d at 167. Therefore, we hold that the trial court did not abuse its discretion by naming Appellee and Edwin A. McGusty as the plenary co

- guardians of Appellant’s person and Appellee as the sole plenary guardian of Appellant’s estate. See Estate of Haertsch , 649 A.2d at 720; In re Duran , 769 A.2d at 506. Accordingly, we affirm the trial court’s order. Order affi rmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 6/1/2017guardian of the person and est a te. estate for Ms. McGusty. His brother, Edwin McGusty, consented to James' appointment as McGusty's sons, James C. McGusty, Jr., who sought to become guardian of the person and County, Pennsylvania. This matter came before the court on the petition of one of Ms. Ms. McGusty has resided at Sunrise of Westtown, an assi s ted living facility in Chester Ms. McGusty is eighty-three (83) years old. Since approximately November, 2015, 

### Case Riston' of her estate

. The court 

### will address each of the alleged errors below. guardians guardians of her person and her son, James C. McGusty, Jr., a s plenary guardian and appointed her sons, James C. McGusty, Jr. and Edwin A. McGusty, as plenary coit's order dated and entered July 20, 2016 

### it adjudicated her to be an incapacitated person Appellant, Eli z abeth McGusty, alleges the court conunitted five (5) errors when in 

### OPINION Pursuant to Pa. R.A.P. 1925(a) Nancy Pine, Esquire, Attorney for Petitioner Douglas Tf( Of

shin, Esquire, Attorney for Elizabeth Mctlusty AN ALLEGED INCAPACITATED PERSON No. 1516-0113 IN THE MA TIER OF: ELIZABETH 

### N. MCGUSTY THE COURT OF COMMON PLEAS , CHESTER COUNTY , PENNSYLVANIA ORPHANS' COURT DIVISION Circulated 05 / 05 / 2017 05:26 PM2 On March 22, 2016 , the court held a hearing on the petition to appoint a guardian. At that time , Ms. McGusty was represented by counsel , Susan Potts, Esq.. The court was advised at the hearing that Ms. McGusty wished to have an independent evaluation of her competency completed by a person of her choosing. The court agreed to allow Ms. McGusty time to do so. 

### It, however, proceeded that day to take testimony from the parties and witnesses present, including Ms. McGusty. Upon the conclusion of the hearing and after consideration of the evidence , the court entered an order appointing James McGusty as the temporary guardian of the estate and the person of his mother. The court's order specifically provided Mr. McGusty with the power to "pay for the cost of the independent evaluation requested by Ms. McGusty." A review hearing eventually was set for July 20, 2016. At that time, the court again took testimony from James McGusty and Ms. McGusty. At the conclusion of the review hearing, the court appointed both sons , James and Edwin , as co-guardians of the person. Edwin McGusty had requested to take a more active role in the care of his mother following the first proceedings. James McGusty was appointed sole guardian of the estate. 

### Error 1-3 Ms. McGusty's first three (3) errors center upon what Ms. McGusty believes was the court's failure to consider the "pecuniary interest" of her sons in having her adjudicated incapacitated. According to Ms. McGusty , their "pecuniary interest" influenced the opinions of the doctor's that testified and upon whom the court relied when reaching its decision.3 Following his evaluation, 

### Dr. Carroll concluded that Ms. McGusty suffers from dementia conducted an evaluation of Ms. McGusty that lasted approximately ninety (90) minutes. into evidence at the hearing and was attached to the Petition at Exhibit B. Dr. Carroll Carolina. His full credentials are detailed in his 

### curriculum vitae, which the court received (Ex. P-1.) Dr. Carroll holds a Ph.D. in Clinical Psychology from the University of South The court first received the doctor's deposition and report of Dr. Kenneth Carroll, To 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 petitioner

... Section 5518 of the same statute provides: guardian of the person and estate. choosing at her request. Both doctors concluded that Ms. McGusty was in need of a McGusty in order to assess her capacity, one of which was conducted by a doctor of her Likewise, the court had the benefit of two medical evaluations conducted of Ms. were appropriate persons to be appointed as her guardians. (4) years serving as an orphans' court judge, the court determined that Ms. McGusty's sons estate. Nonetheless, after thirty four (34) years of practicing in the orphans' court and four sons' challenging her capacity. The court also is well aware of the value of Ms. McGusty's evidence. 

### It was clear to the court then, as it is now, that Ms. McGusty takes issue with her McGusty herself. The court carefully considered and evaluated all such testimony and from both of the proposed guardians, Ms. McGusty's sons, as well as the testimony of Ms. Over the course of two (2) hearings, the court had the opportunity to hear testimony

### 4 Th e court sees no error in the conclusions it reached. 

### (Ex. P-3, at 1.) Mrs. McGusty was emphatic in prohibiting me from reviewing the previous evaluation or 

### communicating with her son concerning specific observations of her daily functioning. Nor could she provide me with the name of any third party who could provide credible information. Consequently, 

### my evaluation is limited to what I was actually able to observ e and assess

... follows: influenced by any "pecuniary interest" on her son's part. Dr. Mapes in his 

### report noted as son concerning her mental state. Thus , his conclusions cannot be said to have been for her person and her estate. Unlike Dr. 

### Carroll, Dr. Mapes did not communicate with her McGusty was incapacitated within the meaning of the statute and r e quired pl e nary guardians known to all members of the bench in this County. He, like Dr. 

### Carroll, concluded that Ms. Dr. Mapes, like Dr. Carroll , is a practitioner with years of experience and both are well E. Mapes , Ph.D. Dr. Mapes received his Ph.D. from the University of P e nnsylvania in 1974. At Ms. McGusty's request, the court also received into evidence the report of Bruce role. appointed for her , Dr. Carroll took no position as to whom the court should appoint for that his 

### own questions to her. 

### Furthermore, although he 

### recommended that a g uardian be made of Ms. McGusty. Dr. Carroll conducted his own intervi e w of Ms. McGusty and posed 

### with James McGusty , Dr. 

### Carroll 's report details the results of the evaluation he personally Although 

### part of Dr. Carroll's "History " included the substance of conversations he had which limits her ability to manage her health and safety as well as her financial resources.

### 5 Error No. 4 Ms. McGusty also alleges that the court "failed to properly credit and consider her testimony when making its decision." The court disagrees. As the record of the proceedings reflects, the court has taken great care to consider the needs and desires of Ms. McGusty. By ,vay of example, the court took care to; appoint counsel for Ms. McGusty , allow Ms. McGusty additional time to obtain an "independent" evaluation of her capacity, and receive into evidence the direct testimony of Ms. McGusty at both of the proceedings. As the court told Ms. McGusty directly at the close of the second hearing, although it was required under the law to rule as it did, "I do understand you. I understand what you are saying and I respect your views." (N.T. 7/20/16, at 25-26.) Error No. 5 In her final error, Ms. MsGusty alleges that she was "unduly prejudiced due to her inability to actively participate in her defense due to inadequate hearing devices provided by the court." The record reflects otherwise. During the first hearing in this matter, the court began the proceedings by asking Ms. McGusty if she could hear the court. She responded , "[ n Jot too well" at which time the court provided Ms. McGusty with earphones to assist her in hearing the proceedings. Thereafter, when asked by the court if she could hear, she responded "Yes." (N 

### .T. 3/22/16, at 3.) Ms. McGusty later testified during the proceedings and was able to hear and answer the questions asked of her counsel. (N.T. 3/22/16, at 27-31.) During one such exchange when asked by her counsel if heard her son's testimony that he was willing to look at other living facilities, Ms. Mc Gusty responded " [ w ]ell, I heard it. I hope it comes true."6 i"'

- -.' J. Mark 

### L. Tunnell, Date: October 10, 2016 BY THE COURT: limitation on her ability to hear. represented b y competent counsel at both proceedin g s , was in any way prejudiced by a questions of her own. There is no indication in the record that Ms. McGusty, who was without difficulty all of the questions posed by the court and her counsel and interposing remainder of the proceedings Ms. McGusty provided testimony to the court and answered and the court had no indication that such was the case. To the contrary, through the Ms. McGusty did not otherwise notify the court of any difficulty in hearing the proceedings her son during his testimony, the answer was repeated for Ms. Mc Gusty. (Id. at 10-1 

### l.) one point Ms. McGusty stated that she could not hear the answer to a question she posed to advise the court "if you can't hear any of us" and she answered "yes." (Id.) Although at 7.) She declined the court ' s offer to u s e headphones. The court instructed Ms. McGusty to hearing, Ms. McGusty stated that her "hearing aid was not working well." (N.T. 7/20/16 , at Ms. McGusty also was present at the second hearing. At the beginning on the