J-S06033-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF: ELIZABETH 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, RANSOM, 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 and 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 court’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 as it related to the appointment of her adult sons as 

 

*

Former Justice specially assigned to the Superior Court.
J-S06033-17

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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 “distrust 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 caring 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 judge 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. This 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 findings, 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. However, 

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

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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 has 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 previously named as 

Appellant’s agent. See id. Further, the trial court specifically noted its 

consideration of Appellant’s testimony:
J-S06033-17

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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 affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/1/2017
guardian of the person and estate. 

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 assisted 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., as 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, Elizabeth 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 PM 
2 

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 

The 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 observe 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 required plenary 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 Pennsylvania 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 guardian be 

made of Ms. McGusty. Dr. Carroll conducted his own interview 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"'--.' 

Mark L. Tunnell, J. 

Date: October 10, 2016 

BY THE COURT: 

limitation on her ability to hear. 

represented by competent counsel at both proceedings, 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 use 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