J-S27031-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: J.L., AN INCAPACITATED 

PERSON

APPEAL OF: J.L.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 509 EDA 2022

Appeal from the Decree Entered January 19, 2022

In the Court of Common Pleas of Montgomery County 

Orphans' Court at No(s): 2021-X4914

BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED FEBRUARY 7, 2023

J.L. appeals from the Orphans’ Court’s incapacitation adjudication and

appointment of a plenary guardian of his person and estate. We affirm.

In November 2021, Sarah L. Maus, LCSW, ACSW, on behalf of Abington 

Hospital-Jefferson Health (“the hospital”) filed a petition for the appointment 

of a permanent plenary guardian of the person and estate of J.L., an alleged 

incapacitated person.

1

 The evidence presented at the January 2022 incapacity 

hearing was as follows:

J.L. is an eighty-year-old attorney who lived for decades by himself in a 

single-family home in Hatboro. See N.T., 1/19/22, at 42, 49. In October 

2021, he telephoned his sister, Maureen Lester (“Lester”), on five consecutive 

____________________________________________

1 J.L.’s sister, Maureen Lester (“Lester”), and her daughter and son, none of 

whom share J.L.’s last name, consented to, and joined in, the petition. See

N.T., 1/19/22, at 41.
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nights and said “nothing” when asked what was new. See id. at 40-41. J.L. 

and his sister were not particularly close and usually spoke only once every 

two weeks. Based on their conversations, Lester suspected something was 

seriously wrong with J.L. See id. During J.L.’s call on the fifth night, Lester

told him she would make the two-and-one-half-hour drive to his home the 

next morning. Lester immediately called the police in J.L.’s area and asked 

them to do a wellness check. The police observed J.L.’s house to be in a 

deplorable condition. J.L. declined their offer of an ambulance or the 

assistance of an EMT. See id. at 40-42, 49.

Lester and her daughter went to J.L.’s house. They found the door 

unlocked and J.L. sitting on the top step of the second-floor staircase. J.L. 

was very weak and unusually thin. See id. at 43. According to Lester, J.L. 

said he had fallen five days before and had a concussion but had not sought 

treatment. See id. J.L. declined Lester’s offers to take him to a doctor or 

summon an ambulance. See id. at 43-44. Lester’s daughter called for 

assistance. An ambulance arrived, as well as two police officers. See id. at 

44. They found J.L.’s home contaminated with mice feces and human waste; 

one of the police officers said under his breath, “We should call the EPA.” See 

id. at 44-45.

The ambulance took J.L. to the hospital. He was very weak and 

dehydrated and had not been treating his diabetes. See id. at 34-35. Lester 

later signed papers committing J.L. for treatment. See id. at 50-53.
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Approximately three weeks after J.L.’s initial hospitalization, Lester 

returned to his house to attempt to clean it. She found mice droppings, a 

five-inch stack of decades-old papers on the floor of J.L.’s home office, and

smeared feces and several-year-old legal papers on the seat of his car. 

Lester’s brother-in-law took a series of photographs that day depicting the 

state of the house, which had not changed since Lester had been there. See 

id. at 45-50, 62. When Lester took her children to visit J.L. at the hospital 

about one week later, J.L. insulted her, got out of bed, and chased the family 

down the hall yelling, “Get out. Get out.” See id.

Dr. Sam Carson (“Dr. Carson”), a psychiatrist at the hospital with a 

subspeciality in geriatric psychiatry and thirty years of work experience and 

training, evaluated J.L. in October and November 2021 at the hospital. See

N.T., 1/19/22, at 5-6.

2

 Dr. Carson diagnosed J.L. as having probable 

neurocognitive disorder/acute encephalopathy. See id. Dr. Carson 

determined that J.L. was totally impaired in his knowledge of and ability to 

understand his physical condition and medical problems,3 his ability to decide 

____________________________________________

2 Dr. Carson found J.L. to be hostile, generally uncooperative, and verbally 

abusive, which prevented Dr. Carson from conducting standardized testing. 

See N.T., 1/19/22, at 15-16, 23-26. Dr. Carson testified that he was 

nevertheless able to incorporate elements of standardized tests into his 

assessment, and thereby obtained “ample insight into [J.L.’s] capacity to 

participate in his medical decision-making.” See id. at 24.

3 J.L. repeatedly and inaccurately told Dr. Carson that he had no medical or 

physical problems, and did not “go along with” the information on his medical 

(Footnote Continued Next Page)
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whether to accept medical treatments,4 his capacity to receive and evaluate 

information effectively, and to provide for his physical safety or respond to 

emergency situations. Dr. Carson also determined that J.L.’s condition would 

not improve. See id. at 5-10, 18-20, 31.

5

 Dr. Carson concluded that J.L. is 

totally incapacitated. See id. at 13, 17, 19-20, 28-29, 31; see also Dr. 

Carson’s Expert Report at 4. Because J.L. was totally impaired in these areas, 

Dr. Carson recommended that J.L. live in a skilled nursing facility. See id. at 

12-13, 17-19.

6

Maus tried to address guardianship issues with J.L. during his

hospitalization, but he declined to discuss the subject, or the guardianship 

hearing, with her and called her “a few choice words.” See N.T., 1/19/22, at 

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charts about his history of illnesses, which Dr. Carson believed was likely the 

result of denial or an inability to remember conversations with his medical 

team. See N.T., 1/19/22, at 27-28. In fact, J.L.’s medical conditions included 

hyperglycemia, hypokalemia, and pre-renal acute kidney injury. See Dr. 

Carson’s Expert Report at 2.

4 J.L. has refused lab tests and at times refused treatments. See N.T., 

1/19/22, at 15-16.

5 Dr. Carson also determined that J.L. needed some help with his short-term 

memory, which is dependent on his current health status which requires 

supervision, a condition that continued to be true at the time of the incapacity 

hearing. See id. at 5-11.

6 Dr. Carson reported that J.L.’s neglect of his bodily functions (including 

urinating and defecating in his hospital bed and lying in his own excrement), 

his denial of medical problems, and his lack of insight into the need for medical 

improvement could probably improve over time in a safe, supervised setting 

but would require future reassessment. See id. at 12-13, 26.
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32-33. She also testified that J.L.’s lack of cooperation prevented her from 

arranging to have a service clean out J.L.’s house to permit the possibility of 

his returning there. See id. at 70.

J.L. testified that the photographs of his home were unrecognizable, his 

house was in good order before he was admitted to the hospital, and Lester

broke into his home and betrayed him by using the police to abduct him when 

he had no medical conditions. See id. at 63-66. He denied having any 

bladder or bowel problems. See id. at 64. He said that Lester’s testimony he 

had told her he had a concussion was a “lie” and “preposterous,” and that he 

has no desire to keep in touch with Lester or her children. See id. at 66-67. 

J.L. declared that he was fully functional, a practicing attorney at the time of 

his admission to the hospital, and able to live on his own. See id. at 67. J.L. 

stated that he was restrained against his will and that Dr. Carson “just makes 

stuff up. There’s no basis for anything that he says.” See id. at 68.

At the conclusion of the hearing, the court told J.L. that it believed he 

needed help and that it was appropriate to appoint someone to assist him, 

although “[t]hat can always be changed. You always have the right to come 

back.” Id. at 70. The court found that J.L. was a totally incapacitated person

whose “acute metabolic encephalopathy, hyperglycemia, [and] prerenal acute 

kidney injury, [are] conditions that totally impair his capacity to receive and 

evaluate information effectively and to make and communicate decisions 

concerning management of his financial affairs or to meet essential 
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requirements for his physical health and safety.” Id. at 71. The court found 

that a guardian was medically necessary to protect and advocate for J.L.’s 

needs, welfare, and interests and that no less restrictive alternative to the 

appointment of a plenary guardian of J.L. and his estate existed. The court 

appointed Edythe Shapiro as plenary guardian of J.L. and his estate. See id.

at 71-73.

J.L. filed a timely notice of appeal. He and the trial court complied with 

Rule 1925.

On appeal, J.L. presents the following issues for our review:

1. Whether the [t]rial court abused its discretion and committed 

an error of law in finding that [J.L.] was a totally incapacitated 

person and in need of a plenary [g]uardian of the person and 

[g]uardian of the estate[?]

2. Whether the [t]rial [c]ourt abused its discretion by failing to 

properly weigh the testimony of Dr. Sam Carson in its 

determination that [J.L.] was a totally incapacitated person in 

need of a [g]uardian of the person and of the estate, by failing 

to fully consider Dr. Carson’s testimony that his diagnosis of 

neurocognitive disorder status post[-]acute encephalopathy

was only “probable”, and that the condition of [J.L.] has 

modestly improved since his admission to the hospital[?]

3. Whether the [t]rial [c]ourt abused its discretion by failing to 

properly weigh the testimony of Dr. Sam Carson in its 

determination that [J.L.] was a totally incapacitated person 

and in need of a [g]uardian of the person and of the estate; 

specifically, by failing to consider Dr. Carson’s admission that 

the only testing given by him to [J. L.] was a chart review, a 

mental status exam in a face-to-face interview and that the 

Expert Report prepared by and testified to by Dr. Carson and 

admitted into evidence stated [J.L.] was unimpaired as to 

communicating decisions and as to long-term memory and 

that Dr. Carson did not have information to assess the ability 
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of [J.L.] to manage his finances and his ability to resist 

scams[?]

4. Whether the [t]rial [c]ourt abused its discretion by failing to 

properly weigh the testimony of [J.L.] in its determination that 

he was a totally incapacitated person in need of a guardian of 

the estate and guardian of the person; specifically, by failing 

to adequately weigh the testimony of [J.L.] to include that he 

had lived in and maintained his own single-family residence 

for twenty-eight years, that all of [J.L.]’s bills and expenses 

had been paid until he was taken to the hospital, and that he 

was still practicing law as a licensed attorney in Pennsylvania

and was current in his Continuing Legal Education 

requirements, that [J.L.] disagreed with his sister’s testimony 

that [J.L.] told her he had fallen and sustained a concussion 

and where no medical testimony was submitted regarding the 

existence of a concussion having occurred, and that [J.L.] was 

able to walk without difficulty, feed himself and communicate 

without difficulty[?]

See J.L.’s Brief at 12-14 (reordered).

J.L. challenges the Orphans’ Court’s finding that he is a totally 

incapacitated person in need of a plenary guardian of the person and guardian 

of the estate and asserts that the court failed to properly weigh Dr. Carson’s 

testimony and his own. We address J.L.’s issues together because they are 

related.

Our standard of review of a determination of the Orphans’ Court requires 

us to:

determine whether the record is free from legal error and the 

court’s factual findings are supported by the record. Because the 

Orphans’ Court sits as the fact-finder, it determines the credibility 

of witnesses and, on review, we will not reverse its credibility 

decisions absent an abuse of discretion. However, we are not 

constrained to give the same deference to any resulting legal 

conclusions. Where the rules of law on which the court relied are 
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palpably wrong or clearly inapplicable, we will reverse the court’s 

decree.

Interest of M.A., 284 A.3d 1202, 1210 (Pa. Super. 2022) (internal citation 

omitted).

Under the Probate, Estates, and Fiduciary Code, a person may be 

adjudicated incapacitated, and a guardian of the person and the estate 

appointed, if the petitioner seeking the adjudication shows by clear and 

convincing evidence that the person’s:

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. 

See 20 Pa.C.S.A. § 5501; see also 20 Pa.C.S.A. §§ 5511(a), 5512.1(b). The 

petitioner must present testimony:

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.

See 20 Pa.C.S.A. § 5518. In determining incapacity, the Orphans’ Court is 

required to make findings of fact concerning:

(1) The nature of any condition or disability which impairs the 

individual’s capacity to make and communication 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 and in light of the 
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existence, if any, of advance directives such as durable powers of 

attorney or trusts.

(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.

(5) The duration of the guardianship.

20 Pa.C.S.A. § 5512.1. The law states a preference for limited guardianship. 

See 20 Pa.C.S.A. § 5512.1(6); see also Gavin v. Loeffelbein, 205 A.3d 

1209, 1222 (Pa. 2019) (when a person is only partially incapacitated, the court

shall appoint a limited guardian). A court may appoint a plenary guardian of 

the person and/or the estate only upon a finding that the person is totally 

incapacitated and in need of plenary guardianship services. See 20 Pa.C.S.A. 

§ 5512.1(c), (e). Accord Interest of M.A., 284 A.3d at 1213 (stating that 

the court’s actions are to be guided by “a scrupulous adherence to the 

principles of protecting the incapacitated person by the least restrictive means 

possible”).

J.L. does not articulate the basis for his issue that the court erred in 

finding that he is a totally incapacitated person in need of a plenary guardian 

of the person and estate. Instead, he argues that the Orphans’ Court failed 

to properly weigh Dr. Carson’s testimony that: (1) he had contacts with J.L. 

twelve times but the expert report lists only three contact dates; (2) he 

administered no standardized testing; (3) J.L.’s condition improved while in 

the hospital; (4) his diagnosis of J.L.’s condition was only “probable”, (5) his

expert report concluded that J.L.’s long-term memory and ability to 
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communicate decisions were not impaired; and (6) there was not enough 

information to assess J.L.’s ability to manage his finances. J.L. also asserts 

that the Orphans’ Court failed to weigh his own testimony that he: (1) denied 

telling his sister that he fell or had a concussion; and (2) is functional, 

attentive to all his financial matters, is able to maintain the house where he 

has lived for twenty-eight years and wants his freedom of action restored. 

See J.L.’s Brief at 24-32.7

The Orphans’ Court credited the testimony of Dr. Carson, Lester, Maus, 

and documentary evidence including Dr. Carson’s expert report and the 

“appalling condition of [J.L.]’s home,” and found clear and convincing evidence 

that J.L. is a totally incapacitated person. See Orphans’ Court Opinion, 

5/2/22, at 12. The court found that J.L. was not as credible as the testimony 

of the witnesses and the documentary evidence. See id.

8

 The court found 

that J.L. has a series of physical conditions that totally impair his capacity to 

receive and evaluate information effectively and to make and communicate 

decisions concerning management of his financial affairs or to meet essential 

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7 J.L. asserts the Orphans’ Court failed to properly weigh Dr. Carson’s

testimony and his own. Because J.L.’s challenges related to the weighing of 

the testimony are directed to whether there was clear and convincing evidence 

of his total incapacity, we consider them in assessing whether the record 

supports the Orphans’ Court’s determination that he is a totally incapacitated 

person who requires plenary guardianship.

8 The Orphans’ Court noted that neither substantive evidence nor the 

corroborative testimony of other witnesses supported J.L.’s testimony about 

the infringement of his rights. See Orphans’ Court Opinion, 5/2/22, at 12.
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requirements for his physical health and safety. The court found that there 

was no less restrictive alternative to the appointment of a plenary guardian of 

the estate and of the person, which was medically necessary to protect and 

advocate for J.L.’s needs, welfare, and interests. See N.T., 1/19/22, at 70-

73; Orphans’ Court Opinion, 5/2/22, at 11-12.

Having reviewed the record and the orphans’ court’s opinion, we 

conclude that the record amply support’s the orphans’ court’s finding that J.L. 

is totally impaired in his ability to meet essential requirements for his physical 

health and safety, and that the court properly determined that J.L.’s total 

incapacity was proved by clear and convincing evidence. See 20 Pa.C.S.A. 

§§ 5501, 5511(a), 5512.1(b).9 J.L. has an array of debilitating physical 

conditions and, more important, adamantly continues to deny those conditions 

despite the contrary evidence from his medical charts, the unsanitary and 

disordered nature of his house and car, the weakened condition his sister 

found him in, and his inattentiveness to his inability to control his bladder or 

____________________________________________

9 The evidence concerning J.L.’s financial impairment is less clearcut. J.L. 

testified that he was current with his bills when he was hospitalized. See N.T., 

1/19/22, at 66. No other witness had intimate knowledge of his finances at 

that time, and Dr. Carson did not testify that J.L. was totally incapacitated

because he could not manage his financial affairs. However, because the 

evidence supports the Orphans’ Court’s finding of total incapacity based on 

J.L.’s inability to meet essential requirements for his physical health and 

safety, there is a proper record basis to affirm the Orphans’ Court’s finding 

that J.L. was completely incapacitated. See Lynn v. Nationwide Ins. Co., 

70 A.3d 814, 823 (Pa. Super. 2013) (holding that this Court may affirm a 

lower court’s ruling on any basis supported by the record on appeal).
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bowels and to treat his diabetes. All of these factors supported Dr. Carson’s 

testimony, which the orphans’ court credited, that J.L. is totally unable to meet 

essential requirements for his physical health and safety. Thus, the orphans’

court did not err in finding J.L. totally incapacitated and in need of a plenary 

guardian of the person and estate. See Pa.C.S.A. §§ 5501, 5511(a), 5512.1, 

5518.

Regarding J.L.’s assertion of evidence the orphans’ court allegedly failed 

to properly weigh, we note the following: (1) concerning the alleged 

discrepancy in Dr. Carson’s testimony about the number of times he and J.L. 

met, Dr. Carson testified that they met three times before he prepared his 

expert report in November 2021, but that they continued to meet and met as 

recently as January 18, 2022, see N.T., 1/19/22, at 6; (2) concerning the 

adequacy of his testing, Dr. Carson testified that he was able to ask some of 

the questions that constitute part of one standardized test; that another test 

was of limited utility but that much of the factors in that test are encapsulated 

in the mental status evaluation in the expert report; and that the interview 

Dr. Carson was able to conduct “provided ample insight into [J.L.’s] capacity 

to participate in medical decision-making,” see id. at 23-26; Orphans’ Court 

Opinion, 5/2/22, at 9; (3) concerning J.L.’s modest improvement while 

hospitalized, Dr. Carson testified that J.L.’s orientation as to time and place 

had improved, not his diagnosis of neurocognitive disorder, and further Dr. 

Carson was concerned that if J.L. were returned to the community, he would
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return to neglecting his healthcare needs “as he seemed to do throughout his 

hospital stay, and from the history gleaned,” see N.T., 1/19/22, at 6-7, 28-

29; Orphans’ Court Opinion, 5/2/22, at 9-10; (4) concerning Dr. Carson’s 

assertion that J.L.’s diagnosis of “acute metabolic encephalopathy was 

‘probable,’ Dr. Carson testified without equivocation that J.L.’s condition 

totally impaired his ability to manage his healthcare, provide for his physical 

safety, and respond to emergency situations, see N.T., 1/19/22, at 10; (5)

concerning Dr. Carson’s initial conclusion that J.L. was not impaired in 

communicating his decisions or long-term memory, Dr. Carson subsequently 

concluded that J.L.’s long-term memory was partially impaired, see N.T., 

1/19/22, at 13, and (6) concerning the lack of evidence about J.L’s financial 

ability, the only testimony on that question came from J.L, whom the orphans’ 

court was generally disinclined to find credible.

With regard to J.L.’s testimony that he did not tell his sister that he fell 

or had a concussion and that he is functional and able to attend to his financial 

affairs and his house, the trial court emphatically rejected those assertions in 

reliance on the testimony and evidence of other witnesses it heard and found 

credible:

[J.L.] would have us believe, simply because he says so and 

denies the allegations of his sister [Lester], Ms. Maus, and Dr. 

Carson that [he] had been living in squalor, in dangerously poor 

health and in denial of his multiple medical conditions, that he is 

capable of independent living and can adequately care for himself. 

[J.L.] presented no evidence, just his adamant denial, to refute 

these factual conclusions made by multiple witnesses and 

bolstered by photographic evidence. Nor did this Court find 
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credible [J.L.]’s exhortations as to his ongoing law practice, the 

excellent condition of his home, his “abduction” by his family 

members against his will, with the assistance of police, and his 

general physical, mental and fiscal wellbeing. While [this Court] 

is sympathetic to [J.L.]’s wishes to live independently and 

acknowledges his lifetime of success doing so until recently, we 

found the other witnesses to be far more compelling and 

concluded that [J.L.] does not have a clear understanding of his 

current mental and physical conditions and is no longer able to 

maintain that independence. In reaching these conclusions, we 

were mindful of the longstanding holding in Pennsylvania that the 

testimony of lay witnesses who have observed the alleged 

incompetent [sic] person is admissible and highly probative since 

“one’s mental capacity is best determined by his spoken words, 

his acts, and his conduct.” In re Estate of Wood, [533 A.3d 

772, 774 (Pa. Super. 1987) (citation omitted)].

See Orphans’ Court Opinion, 5/2/22, at 11.

Thus, contrary to J.L.’s issues there was ample support for the orphans’ 

court’s credibility findings, and we discern no abuse of discretion in the court’s 

weighing of the evidence when finding that J.L. is totally incapacitated nor that 

it was error of law to appoint a plenary guardian of the person and the estate.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/7/2023