J-A04038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF: NANCY S. KEEGAN, 

AN ALLEGED INCAPACITATED PERSON,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

APPEAL OF: KATHLEEN A. GALLAGHER

No. 496 WDA 2015

Appeal from the Order February 18, 2015

In the Court of Common Pleas of Butler County

Orphans' Court at No(s): O.C. NO. 2015-00005

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM BY SHOGAN, J.: FILED MAY 10, 2016

Appellant, Kathleen A. Gallagher, appeals from the order that 

appointed Appellant and Attorney Dorothy J. Petrancosta (“Attorney 

Petrancosta”) as permanent plenary co-guardians of the person and for the 

estate of Nancy S. Keegan (“Mother”).1 We affirm.

____________________________________________

1

In addition, Appellant has filed an application to strike the supplemental 

record submitted sua sponte by the trial court. Instantly, after the filing of 

this appeal and the transmittal of the certified record to this Court, the trial 

court held ancillary proceedings unrelated to the appointment of Appellant 

and Attorney Petrancosta as co-guardians and drafted a supplemental 

Pa.R.A.P. 1925(a) opinion that buttressed its decision currently on appeal. 

Thereafter, the trial court sua sponte transmitted a supplemental record to 

this Court. The trial court’s sua sponte action precipitated Appellant’s 

application to strike.

(Footnote Continued Next Page)
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The trial court summarized the history of this case as follows:

Counsel for the Appellant filed a Petition for the Appointment of 

Plenary Guardian of the Estate and Person of an Incapacitated 

Person Under 20 Pa. C.S.A. 5511 Et Seq. (hereinafter “Petition 

for Guardianship”) on or about January 7, 2015, initiating this 

action. Pursuant to the Preliminary Order of Court under date of 

January 7, 2015, the Court scheduled a hearing on said Petition 

for February 17, 2015, at 11:00 o’clock A.M. in Courtroom #3 of 

the Butler County Government Center.

[Mother] is a widow with five living children[: Appellant], 

Marian S. Keegan, Terence M. Keegan, Kevin M. Keegan, and 

Robert F. Keegan. Terence M. Keegan and Robert F. Keegan 

each filed a Consent of Heir shortly after the Petition for 

Guardianship was filed by Appellant.

At the time and place set for hearing on the Petition for 

Guardianship, Appellant appeared along with her counsel, 

Elizabeth A. Smith, Esquire. Lynn M. Patterson, Esquire, court 

appointed counsel, appeared on behalf of the adjudicated 

incapacitated person, [Mother]. Marian S. Keegan and Kevin M. 

Keegan also appeared to both contest the adjudication of 

[Mother] as incapacitated, and to protest to the appointment of 

(Footnote Continued) _______________________

Pa.R.A.P. 1926 addresses the correction and modification of the 

certified record. However, Pa.R.A.P. 1926 does not allow for the 

introduction of new evidence at the appellate level. Rather, Pa.R.A.P. 1926 

permits the correction or modification of the existing certified record when 

“anything material to either party is omitted from the record by error or 

accident or is misstated therein[.]” “Material” in this sense means 

evidentiary items that were considered by the trial court but, for some error, 

were not included in the formal certified record. Rae v. Pa. Funeral Dir’s 

Ass’n, 925 A.2d 197, 204 (Pa. Cmwlth. 2007) (vacated on other grounds) 

(citing Gulentz v. Schanno Transp., Inc., 513 A.2d 440 (Pa. Super. 

1986)). Here, the items in the supplemental record transmitted sua sponte

by the trial court were not material to its consideration of the current order 

on appeal. Accordingly, Pa.R.A.P. 1926 cannot be utilized as a vehicle to 

introduce these new items. Rae, 925 A.2d at 204. Hence, we grant 

Appellant’s application and strike the supplemental record. In reaching our 

decision in this matter we have not considered any items contained in the 

supplemental record.
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the Appellant as [Mother’s] Permanent Plenary Guardian. Dr. Ira 

S. Handler, M.D., a recognized expert in geriatric psychiatry, 

testified that, after having met with and examining [Mother], his 

diagnosis of her was Dementia, Not Otherwise Specified. He 

further offered that this condition will not improve, but is likely 

to worsen, and specifically that her ability to consider abstract 

concepts has decreased even since his treatment of [Mother] 

began in 2001. Dr. Handler testified that no medication exists to 

cure [Mother’s] Dementia, and that without her late husband to 

care for her, he believes her to have a difficult time performing 

daily tasks. It was Dr. Handler’s opinion that because [Mother] 

has simplistic and unrealistic thoughts as well as executive 

function deficiency, she requires supervision in the least 

restrictive form of a Permanent Plenary Guardian. Additionally, 

it was made known to Dr. Handler, and he testified to [Mother] 

being very upset because of the disagreement amongst her 

children regarding this Guardianship.

Further testimony in this case revealed a strong discord 

between three of the siblings. Appellant testified that after her 

father’s death she moved [Mother] to New Haven Residential 

Assisted Living on December 12, 2014. Appellant further 

testified that she has handled [Mother’s] finances, and has made 

medical decisions for her mother since the death of her father, 

Terence J. Keegan [(“Father”)]. Appellant identified for the 

Court a Power of Attorney dated November 15, 1996, signed by 

[Mother], appointing [Father], and alternatively, [Appellant], as 

[Mother’s] Power of Attorney. Appellant further identified a 

Health Care Declaration and Health Care Power of Attorney 

dated March 2, 1999, signed by [Mother], appointing only 

[Father] as her surrogate with no successor. [Father] was 

identified as [Mother’s] late husband. When asked why the 

proceedings were instituted if Appellant was already vested as 

[Mother’s] Power of Attorney, Appellant explained that she was 

having difficulty exercising her Power of Attorney due to her 

brother and sister, Marian S. Keegan and Kevin M. Keegan, 

having contacted New Haven Residential Assisted Living in an 

effort to obviate the authority of Appellant to make medical 

decisions for [Mother]. Lastly, Appellant stated that, in her 

opinion, a Co-Guardianship with her siblings would not work.

Both Kevin M. Keegan and Marian S. Keegan strongly 

objected to the appointment of a Guardian, and specifically to 

the appointment of [Appellant] as the Guardian of [Mother]. 
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Kevin M. Keegan and Marian S. Keegan both stated in open court 

that they believe Appellant to be exerting control over [Mother]. 

In so claiming, both siblings used Appellant’s move of [Mother] 

from her condo into New Haven Residential Assisted Living as an 

example of said control. Marian S. Keegan testified that 

[Mother] had expressed to Marian an interest in participating in 

the Meals on Wheels program, and a desire to remain in her 

condo, both of which, she claimed, Appellant did nothing to 

facilitate. Marian S. Keegan expressed her shock that [Mother] 

had been moved out of the condo only two months after the 

death of [Father]. Marian S. Keegan further stated that she 

believed Appellant to be “commandeering” [Mother’s] assets in 

an effort to alienate Marian S. Keegan and Kevin M. Keegan from 

[Mother].

Trial Court Opinion, 4/9/15, at 1-4 (citations omitted).

On February 18, 2015, the trial court entered an order declaring 

Mother to be an incapacitated person2and appointed Appellant and Attorney 

Petrancosta, an unassociated third party, to act as permanent plenary coguardians of Mother. This appeal followed. Both Appellant and the trial 

court have complied with Pa.R.A.P. 1925.

Appellant presents the following issue for our review:

Did the Orphans’ Court abuse its discretion when it appointed an 

attorney as a “third party” Co-Guardian in addition to the 

Appellant, Kathleen A. Gallagher, daughter of the incapacitated 

person, where the incapacitated person previously declared in a 

signed and notarized Power of Attorney that she nominated 

Appellant as her sole Power of Attorney, where the evidence 

established Appellant to be trustworthy, where the evidence also 

____________________________________________

2 The term “incapacitated person” is defined pursuant to 20 Pa.C.S. § 5501 

as “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.”
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established that the incapacitated person placed great trust in 

Appellant, and where the incapacitated person, through her 

Court appointed attorney, neither sought out nor requested a 

court appointed “third party” Co-Guardian.

Appellant’s Brief at 9.

In her sole issue, Appellant argues that the trial court abused its 

discretion in appointing Attorney Petrancosta to serve as co-guardian along 

with Appellant. Appellant’s Brief at 15-18. Appellant claims that the trial 

court did not give substantial weight to Mother’s original intent in signing the 

power of attorney dated November 15, 1996. Appellant contends the trial 

court abused its discretion by speculating that the appointment of a coguardian with Appellant would minimize the discord between the siblings. In 

essence, Appellant asks to be the permanent sole and plenary guardian.

We have long stated that 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)).

Our Supreme Court has explained that pursuant to the guardianship 

statute, which is a provision of the Pennsylvania Decedents, Estates and 

Fiduciaries Code, “[a] guardian is appointed only upon a finding that the 
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person is partially incapacitated and in need of guardianship services, or 

upon a finding that the person is totally incapacitated and in need of plenary 

guardianship services.” In re Peery, 727 A.2d 539, 541 (Pa. 1999) 

(internal quotations marks and citations omitted) (emphasis in original).

In addition, this Court has stated the following:

Any person interested in the alleged incapacitated person’s 

welfare may petition the court for a judicial determination that 

the person is indeed incapacitated and for the appointment of a 

guardian. However, a person is presumed to be mentally 

competent, and the burden is on the petitioner to prove 

incapacity by clear and convincing evidence.

In re Hyman, 811 A.2d 605, 607-608 (Pa. Super. 2002) (citations and 

quotation marks omitted).

To establish incapacity, a petitioner must comply with the 

requirements set forth in section 5518 of the guardianship statute. In 

addition, section 5512.1 of the guardianship statute stipulates a list of items 

for the trial court to consider in making a determination of incapacity.

Following a determination of incapacity, the guardianship statute 

provides the following statutory authority for a trial court to appoint a 

guardian for the incapacitated person:

§ 5511. Petition and hearing; independent evaluation

(a) Resident.--The court, upon petition and hearing and upon 

the presentation of clear and convincing evidence, may find a 

person domiciled in the Commonwealth to be incapacitated and 

appoint a guardian or guardians of his person or estate. The 

petitioner may be any person interested in the alleged 

incapacitated person’s welfare. . . .
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* * *

(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(a) and (f) (emphases added).

Section 5511 must be read in conjunction with section 5604(c)(2),3

which directs the court to give preference to the nominee of the now 

incapacitated person. The statute provides, in pertinent part, as follows:

§ 5604. Durable powers of attorney

(a) Definition.--A durable power of attorney is a power of 

attorney by which a principal designates another his agent in 

writing. The authority conferred shall be exercisable 

notwithstanding the principal’s subsequent disability or 

incapacity. . . .

* * *

(c) Relation of agent to court-appointed guardian.--

* * *

(2) A principal may nominate, by a durable power of 

attorney, the guardian of his estate or of his person 

for consideration by the court if incapacity 

proceedings for the principal’s estate or person are 

thereafter commenced. The court shall make its 

appointment in accordance with the principal’s most 

recent nomination in a durable power of attorney

except for good cause or disqualification.

____________________________________________

3 Chapter 56 of Pennsylvania Decedents, Estates and Fiduciaries Code 

addresses powers of attorney. 20 Pa.C.S. §§ 5601-5611.
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20 Pa.C.S. § 5604(a), (c)(2) (emphases added).

Appellant argues that pursuant to our decision in In re Sylvester, 598 

A.2d 76 (Pa. Super. 1991), Mother’s nomination of Appellant as the 

successor to Father in Mother’s durable power of attorney should be given 

great deference and that Appellant should have been appointed the sole 

guardian. We disagree.

As we explained in Sylvester, generally there is no need to appoint an 

independent guardian of the person and the estate where the incapacitated 

person has executed a durable power of attorney to handle his finances. 

Sylvester, 598 at 83-84. In Sylvester, an emergency guardian was 

appointed based on allegations that the attorneys-in-fact had isolated the 

incapacitated person and misused his funds. At the hearing, despite the lack 

of proof regarding any wrongdoing by the attorneys-in-fact, the court 

appointed different guardians. On appeal, this Court reversed, finding that 

the trial court ignored the dictates of section 5604(c)(2) and we held that, 

“[i]n the absence of proof of good cause or disqualification based on 

competent evidence at the guardianship hearing, there was no need to 

appoint an independent party as permanent guardian.’’ Id. at 83-84. 

However, the facts of the instant case are distinguishable from Sylvester in 

that the trial court did not ignore Mother’s election of Appellant as the 

successor in the durable power of attorney. Here, the trial court appointed 

Appellant to serve as a co-guardian, along with Attorney Petrancosta.
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The trial court offered the following reasoning for its decision to 

appoint an independent third party to serve as Mother’s co-guardian along 

with Appellant:

It was apparent to this Court that based on the facts and 

testimony presented, there continues to be serious disagreement 

between Appellant and her siblings, Kevin M. Keegan and Marian 

S. Keegan, regarding the treatment of [Mother]. Testimony 

indicated that these issues will not be resolved in the near 

future, but would only increase if Appellant were granted sole 

and exclusive guardianship authority of [Mother]. Therefore, 

this Court weighed all facts and testimony presented concerning 

the assists and supports available to [Mother], and utilized its 

inherent judicial powers in law and equity to appoint a thirdparty as Co-Guardian, to serve with Appellant, in an effort to 

prevent further disagreements relative to [Mother’s] care and 

future financial expenditures on her behalf. Such an 

appointment is well within this Court’s legal and equitable 

powers to administer justice.

Trial Court Opinion, 4/9/15, at 5.

Based upon our review of the record, we discern no abuse of discretion 

in the trial court’s appointment of co-guardians in this matter. The three 

siblings herein each offered testimony to the trial court that supported the 

conclusion there is serious discord among the family members and complete 

disagreement regarding the well-being and appropriate treatment of Mother. 

N.T., 2/17/15, at 50, 52, 61, 71-73, 74-87. In addition, it is undisputed that 

Appellant was listed on the 1996 durable power of attorney as the successor 

to Father in the event that Father was unable to serve. Id. at 31-32. 

Interestingly though, Appellant was not named as the successor to Father on 

the 1999 healthcare power of attorney executed by Mother. Id. at 37-38. 
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In addition, Dr. Handler testified that Mother is vulnerable to unscrupulous 

and designing persons. Id. at 12. Appellant’s sister, Marian Keegan, 

testified regarding concerns that Appellant was manipulating Mother and has 

commandeered Mother’s assets. Id. at 82-86. The evidence before the trial 

court was sufficient good cause as to why Appellant’s appointment as the 

sole guardian of either Mother’s person or estate was not appropriate.

Accordingly, we conclude that the trial court followed the proper 

statutory authority when it considered and appointed Appellant, the named 

successor in Mother’s durable power of attorney, as a co-guardian in this 

matter. Likewise, we conclude that the trial court was acting within its 

discretion in choosing to appoint Attorney Petrancosta as an independent coguardian to serve along with Appellant. Thus, because the trial court 

considered the necessity of an independent co-guardian and articulated a 

sound evidentiary basis for its decision, we discern no abuse of discretion in 

the decision of the trial court. Estate of Haertsch, 649 A.2d 719.

Order affirmed. Application to strike supplemental record granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/10/2016