J. A18009/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ERIKA BAILEY, 

A/K/A ERICKA BAILEY, AN ALLEGED 

INCAPACITATED PERSON

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

APPEAL OF: JAMES BAILEY, SR., : No. 2 MDA 2015

:

 Appellant :

Appeal from the Decree, October 21, 2014,

in the Court of Common Pleas of Huntingdon County

Orphans’ Court Division at No. 2014-184

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 31, 2015

Appellant, James Bailey, Sr. (“Husband”), appeals the final decree 

declaring Erika Bailey (“Wife”) incapacitated and appointing two of his adult 

children as co-guardians for Wife’s person and estate. We affirm.

Husband and Wife, age 71, resided together in their home in 

Mill Creek, Huntingdon County, until September of 2014. In response to 

reports of need received by appellee, Huntingdon/Bedford/Fulton Area 

Agency on Aging (“the Agency”), an emergency petition for incapacity and 

the appointment of guardians was filed on September 9, 2014. The 

Orphans’ Court Division of the Court of Common Pleas of Huntingdon County 

issued an order on September 9, 2014, appointing the Agency as the 

emergency guardian of the person and estate of Wife, and appointed a 

guardian ad litem as well as counsel. On September 10, 2014, another 
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order was entered extending the appointment of the Agency until 

September 28, 2014.

A hearing was held on October 10, 2014. On October 21, 2014, the 

Orphans’ Court issued Findings of Fact and a Final Decree declaring Wife to 

be totally incapacitated and appointing two of Wife’s children, Nicole Hicks 

and John Bailey, as plenary permanent co-guardians of her person and 

estate. Husband filed exceptions to the Final Decree on November 10, 2014. 

The exceptions to the Final Decree were denied on December 8, 2014.

On December 23, 2014, Husband filed a notice of appeal. On 

December 29, 2014, the Orphans’ Court ordered Husband to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); 

Husband timely complied and raises the following two issues for our review:

Whether the Trial Court’s Findings of Fact are 

supported by the record?

Whether the Trial Court erred and/or abused its 

discretion by concluding that [Husband] was 

incapable of serving as [Wife]’s Guardian?

Husband’s brief at 6.

Our standard of review is as follows:

[T]he Court is 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.

In re Peery, 727 A.2d 539, 540 (Pa. 1999).
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An incapacitated person is:

[A]n 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.A. § 5501. “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.” 20 Pa.C.S.A. § 5511(a).

In making a determination of incapacity, the Orphans’ Court is 

required to make findings of fact:

In all cases, the court shall consider and make 

specific findings of fact concerning:

(1) The nature of any condition or disability 

which impairs the individual’s capacity 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 and in light of the 

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 
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and the capacity to make and 

communicate decisions. 

(5) The duration of the guardianship. 

(6) The court shall prefer limited 

guardianship.

20 Pa.C.S.A. § 5512.1(a).

Additionally:

Once an individual has been found 

incapacitated within the meaning of 20 Pa.C.S. 

§ 5501, Meaning of incapacitated person, and in 

need of guardianship services, it then becomes the 

court’s responsibility to appoint an individual to 

serve, granting limited or plenary powers consistent 

with the incapacitated person’s needs. When making 

the decision who shall so serve, the court may 

consider, in addition to all the evidence before it, the 

preference of the party. Id., § 5511. The selection 

of a guardian for a person adjudicated incapacitated 

lies within the discretion of the trial court whose 

decision will not be reversed absent an abuse of 

discretion.

Estate of Haertsch, 649 A.2d 719, 720 (Pa.Super. 1994).

Instantly, Husband argues that many of the Orphans’ Court’s findings 

of fact are not supported by the evidence that was introduced at the 

October 10, 2014 hearing. The 23 findings of fact are as follows:

1. Erika Bailey, a/k/a Ericka Bailey (hereinafter 

referred to as “Mrs. Bailey”) has stage 

three (3) dementia. N.T. at 3.

2. Based upon the fact that she has stage 

three (3) dementia, Mrs. Bailey is unable to 

provide any of her own medical history, unable 

to keep her own checkbook, and unable to 
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make any decisions concerning her physical 

health and safety. N.T. at 3.

3. Mrs. Bailey is dependent on others for her 

basic needs. N.T. at 4.

4. The dementia that Mrs. Bailey suffers from is 

progressive. There is no medicine or course of 

treatment that will correct or improve her 

condition. N.T. at 4.

5. In 2011, Mrs. Bailey’s dementia started to 

progress, and she began wandering from her 

home. N.T. at 19.

6. On September 8th, 2014, the Area Agency on 

Aging received a report of need stating that 

Mrs. Bailey was in danger and her 

nutritional/hygiene needs were not being met, 

despite the presence of the twenty-four (24) 

hour aide service. N.T. at 20.

7. The Area Agency on Aging and Dr. Mary Etta 

Hadley Donohue (Geriatrics doctor) determined 

Mrs. Bailey required a locked dementia unit 

due to the progression of her dementia and her 

behavioral issues. N.T. at 21.

8. The closest facility that could manage 

Mrs. Bailey’s care and condition is in Berlin, PA. 

This facility has a locked dementia unit, 

specifically dedicated to the care and 

treatment of dementia patients. N.T. at 22.

9. Mrs. Bailey’s dementia, coupled with her 

requirement of several psychotropic drugs to 

control her behavioral issues would be difficult 

to manage at home. N.T. at 25-26.

10. Mrs. Bailey’s husband (hereinafter referred to 

as “Mr. Bailey”) requires a high level of care. 

N.T. at 24.
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11. Mr. Bailey’s sugar levels go up and down and 

as a result, his cognitive status fluctuates. 

N.T. at 24.

12. Mr. Bailey has required care at the 

Meadowview facility when visiting his wife. 

N.T. 24-25.

13. Mr. Bailey lacks the ability to understand 

Mrs. Bailey’s dementia and her disease would 

make it difficult for him to make appropriate 

care choices for her. N.T. at 25.

14. Nicole Hicks is the daughter of Mr. Bailey and 

Mrs. Bailey. N.T. at 42.

15. Nicole Hicks visits Mrs. Bailey at the 

Meadowview facility every week, sometimes 

twice a week. N.T. at 44.

16. Nicole Hicks has bought Mrs. Bailey almost all 

of the clothing she owns. N.T. at 44.

17. Nicole Hicks believes, based upon her weekly 

visits to Berlin, PA, that her mother, 

Mrs. Bailey, is receiving appropriate care at the 

nursing facility. N.T. at 45.

18. Nicole Hicks is willing to serve as co-guardian 

of Mrs. Bailey, along with her brother, 

John Bailey. N.T. at 46.

19. John Bailey is the son of Mr. Bailey and 

Mrs. Bailey. N.T. at 48.

20. John Bailey prefers that Mrs. Bailey be at a 

nursing facility rather than at home. N.T. at 

50.

21. John Bailey is willing to serve as a co-guardian 

of Mrs. Bailey. N.T. at 50.
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22. All of the children of Mr. Bailey and Mrs. Bailey 

agree that Mr. Bailey should not be a guardian 

of Mrs. Bailey.

23. Mr. Bailey’s health condition and behavior 

make it impossible for him to provide the level 

of care necessary for Mrs. Bailey in the home.

Findings of fact, 10/21/14 at 1-6.

Basically, the crux of Husband’s argument is that the Orphans’ Court’s 

conclusion that Wife needed to be placed outside her home is not supported 

by competent evidence. According to Husband, the first four findings of fact 

are taken from the expert testimony of Dr. Mary Etta Hadley Donohue who 

testified that Wife suffers from an incurable dementia which places her 

completely dependent on others for her care. However, Husband claims the 

Orphans’ Court neglected that portion of Dr. Donohue’s testimony that Wife 

could be maintained in her home by the team of caregivers currently in place 

and she saw no reason why Husband would be incapable of serving as Wife’s 

guardian. (Appellant’s brief at 10.)

Husband takes issue with finding of fact no. 7 that, according to 

Dr. Donohue and the Agency, Wife needed to be placed in a locked dementia 

unit due to the progression of her dementia and behavioral issues. Husband 

suggests that Dr. Donohue made no such recommendation. (Id. at 10-11.)

Husband disputes findings 10 through 13 regarding Wife’s medical 

condition. Husband argues that during her testimony Jackie Hummel, a 

supervisor with the Agency, was expressing the reports of others and had no 
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first-hand observations to report. Furthermore, Husband asserts that 

Ms. Hummel was not qualified to make an assessment of his health and his 

ability to care for his wife. (Id. at 11-12.)

We begin by addressing Husband’s argument regarding the first four 

findings of fact and the testimony of Dr. Donohue. Husband is correct that 

Dr. Donohue testified that Wife’s needs were being met while she was in her 

home. (Notes of testimony, 10/10/14 at 6.) The doctor also testified Wife 

requires 24-hour care, and needs a guardian of her person and estate to 

make decisions for her. Additionally, the doctor stated Husband has health 

limitations that limit his ability to care for Wife. (Id. at 7-9.)

While the doctor did state that Wife’s needs were being met, there is 

evidence in the record that Dr. Donohue assisted in placing Wife in a nursing 

care facility. Ms. Hummel testified the Agency was working with Dr. 

Donohue after the Agency filed the emergency guardianship:

[Attorney for Husband:] What steps did you take 

once you filed the emergency guardianship 

concerning [Wife’s] care?

[Ms. Hummel:] We worked with Dr. Donohue to 

determine what kind of -- if they felt she needed 

nursing facility care. Due to the progression of her 

dementia and her behavioral issues and when I say 

that issue is reluctan[ance] to care at times she 

could become aggressive. She could wander. They 

felt she needed a locked dementia unit. So I 

proceeded to start close and span out to different 

facilities to try to find a facility that could manage 

her care and Berlin, PA was the closest appropriate 

facility that was able to accept her.
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Q. What makes that facility appropriate?

A. They have a locked dementia unit. So it’s 

nursing facility level of care. They have a unit 

that is specifically for dementia patients. The 

staff on that unit has special training in how to 

handle Alzheimer’s patients.

Id. at 21-22.

The above testimony seems to indicate that Dr. Donohue was working 

with the Agency to place Mrs. Bailey in a facility with skilled nursing care. 

Additionally, on cross-examination, Ms. Hummel was further questioned 

regarding Dr. Donohue’s involvement in having Mrs. Bailey moved out of 

Husband’s home.

[Attorney for Wife:] You said that when the decision 

was made to move her there was a form that would 

have been filled out by Dr. Donohue.

[Ms. Hummel:] Yes.

Q. And at that point she [the doctor] felt that it 

was necessary for her to be in a locked 

dementia unit?

A. No. She felt she needed nursing facility level 

of care. Due to the wandering the assessor 

felt that she needed a locked unit.

Id. at 27.

Based on the above, contrary to Dr. Donohue’s statement that 

Mrs. Bailey’s needs were being met at home, it is clear that there is support 

in the record that she needed nursing facility skilled care. Additionally, we 

observe that Juna Marie Rose, Wife’s in-home caregiver for five years, 
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testified that her knowledge of personal in-home care came from practical 

experience; she was not a nurse and had no specialized training working 

with dementia patients. (Id. at 59, 63.)

As to Husband’s claim that Wife did not need to be in a secured 

dementia unit, the record reflects Wife was assessed and it was determined 

that she needed to be placed in a secured unit. (Id. at 21.) In fact, 

Ms. Hummel testified that in 2011, Wife’s dementia started to progress. At 

that time, the Agency was working with Husband to help him understand 

what Wife’s care issues were and what her limitations were because she was 

needing more care and more supervision. (Id. at 19.) Ms. Hummel further 

stated, in 2011, “[Wife] had started to wander from the home, we had 

gotten reports from State Police and others where she had wandered from 

the home and had to be brought back.” (Id.) Clearly, the record supports 

Wife’s need to be placed in a locked dementia unit for her own safety to 

prevent her from wandering off.

Husband next takes issue with the Orphans’ Court’s findings of fact 

regarding his own medical condition, as well as Ms. Hummel’s opinion of his 

medical condition. Our review of the record indicates Dr. Donohue testified 

she is Husband’s primary care physician. (Id. at 7.) The doctor did not 

address specific medical conditions, but only stated Husband would 

“probably be overly fatigued if he provided all of the care [for his wife].” 

(Id.)
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Cathy Procelli, who was employed by Helpmates, an agency that 

provided in-home services, such as, cooking, cleaning, and helping with 

baths, testified that the Veterans Administration (“VA”) would come into the 

home to give Husband a bath, like she did for Wife. (Id. at 13, 15.) 

John Bailey, appellant’s son, testified his father suffers from diabetes, 

macular degenerative disease, such that he has to have someone do any 

driving for him, and he has a disability with his back, such that he needs 

someone to help him bathe. (Id. at 52-53.) Ms. Rose, the in-home 

caregiver, testified that she has assisted Husband in putting bandages on his 

legs when needed, and she also helps him write checks because of his poor 

eyesight. (Id. at 65-66.)

Jerry Bailey, one of Husband and Wife’s children, testified that for the 

last six months, he was at the family home between three and five days a 

week. (Id. at 29-30.) He testified that his father is not able to take care of 

his mother. (Id. at 32.) He stated, “It’s the caregivers that tend her.” 

(Id.)

Even without Ms. Hummel’s testimony regarding her opinion of 

Husband’s medical condition, there is sufficient testimony from other 

witnesses regarding the state of Husband’s health. The record is replete 

with testimony that Husband requires outside help to take care of himself as 

well as his wife. 
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In his second issue, Husband argues he should have been appointed 

guardian of his Wife’s person and estate. A guardian of the person is 

responsible for all of an incapacitated person’s care and custody. In re 

Estate of Border, 68 A.3d 946, 956 (Pa.Super. 2013), citing 20 Pa.C.S.A. 

§ 5521. The selection of a guardian for an incapacitated person lies within 

the trial court’s discretion. Estate of Haertsch, 649 A.2d at 720-2721. 

The Probate, Estates and Fiduciary Code1 gives the trial court broad 

discretion to appoint as guardian “any qualified individual”2or agency, 

20 Pa.C.S. § 5511, but the court should select the guardian based on the 

best interests of the incapacitated person. In re Duran, 769 A.2d 497, 506 

(Pa.Super. 2001), citing In re Estate of Dorone, 535 A.2d 452, 454 (Pa. 

1987). 

Husband contends it was Dr. Donohue’s opinion that he was capable of 

serving as his wife’s guardian, and as such, the trial court should have 

appointed him his wife’s guardian. In explaining its decision, the Orphans’ 

Court opined:

Mr. Bailey was very clear in his testimony. 

Had we acquiesced to his wishes and appointed him 

as his wife’s guardian, he would have removed his 

wife from the secure dementia unit where she is 

currently a patient. Mrs. Bailey’s quality of life would 

be extremely diminished if forced to return to her 

 

1 20 Pa.C.S.A. § 101 et seq.

2 The term “any qualified individual” is not defined by statute, and the 

relevant statutory provisions do not delineate a set of factors a court must 

consider in appointing a guardian.
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home, especially when compared to the exceptional 

care she receives at the Meadow View personal care 

home in Berlin, Pennsylvania. While at Meadow 

View, Mrs. Bailey is maintained in a facility designed 

to treat and care for patients suffering from 

dementia. Quite frankly, the desire of Mr. Bailey to 

have his wife removed from the dementia unit is 

evidence of the lack of judgment that would prevail if 

we had appointed Mr. Bailey as his wife’s guardian.

Our decision not to consider Mr. Bailey as a 

guardian of his wife was required when considering 

Mr. Bailey’s own medical history, his vision issues 

and his general confusion in the courtroom. A return 

home for Mrs. Bailey would equate to a recipe for 

failure. While her treating physician did testify that 

Mrs. Bailey could be maintained in her home, that 

testimony was not developed to explain how 

nonprofessional care givers would be able to manage 

that task. Certainly, it is possible to maintain any 

patient in the home when battling a serious illness. 

The question, however, is whether there are the 

resources and care givers in place to do so. The 

very person charged with the daily care of 

Mrs. Bailey, prior to her removal from the home, 

testified that she took care of Mrs. Bailey “to the 

best of my ability . . . I’m not trained.” (Testimony 

of Juna Marie Rose N.T. 59.) Although he is well 

intentioned, Mr. Bailey is not able [sic] of providing 

appropriate care and making proper decisions for his 

wife. We have chosen the option of superior, 

licensed and professional care as opposed to having 

Mrs. Bailey “maintained” in her home.

Orphans’ Court opinion, 2/10/15 at 2-3.

The Orphans’ Court appointed two of Husband and Wife’s children, 

Nicole Hicks and John Bailey, as co-guardians of Wife’s person and estate. 

Nicole Hicks, who is a registered nurse, testified she visits her mother every 

week and sometimes twice a week. (Notes of testimony, 10/15/14 at 43-
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44.) She described the difference in her mother the first time she visited 

her at the nursing facility as, “She was kempt. She was dressed well, not in 

just, you know, diapers. [M]y mother was always cold and, she was in 

warm clothing and stuff like that. And we [my husband and I] were just 

totally surprised by the transformation.” (Id.) When asked if she would be 

in favor of moving her mother back to her father’s house, she replied, 

“No way.” (Id. at 45-46.)

John Bailey testified that before his mother was placed in the nursing 

facility, he was worried about her. He testified:

In the last few months[,] my dad has changed and 

the stress that has changed him has changed the 

way they live. My mother no longer sleeps in her 

bedroom. She sleeps in another room. Healthcarewise we do -- the toenails. I’ve seen moldy food in 

the kitchen.

But as far as mom’s physical condition, it’s 

declining and at a point that when I talked to the 

healthcare workers and I asked them specifically --

Juna and Peggy I had talked to before -- about, you 

know, there would be a point that will come to or a 

line that we’ve got to say[,] is this beyond us and I 

think we were at that point[,] not just for my mom’s 

sake but for my dad’s sake too. The stress and --

could the healthcare be better? I don’t know 

whether it could be or not. Mom became so 

belligerent and angry at points where, you know, she 

wouldn’t let anybody touch her, so I don’t fault the 

healthcare for that. I fault the training of the 

healthcare. I think my mother is to a point where 

she needs trained professional people to deal with 

these situations. I seen [sic] her at the [nursing] 

home. She looks better. She looks healthy.

Id. at 48-49.
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John Bailey was asked if he thought his father should be appointed 

guardian. He answered:

I don’t think my dad -- my dad’s living with this and 

he doesn’t see what it’s doing and if you look from 

the outside [in], anybody in this courtroom that 

knows my dad to where my dad was a year ago or 

six months ago to where he is today, the stress and 

the care and everything[,] I don’t think he’s capable 

of. I think he’s capable of supplying help but I don’t 

think that help is the appropriate help but I don’t 

think he’s capable of being a guardian.

Id. at 50.

The Orphans’ Court found Nicole Hicks and John Bailey would serve 

their Mother’s best interests by keeping her in the nursing facility. This 

decision by the Orphans’ Court, in light of all the evidence before it, was 

reasonable and supported by the record. We discern no error. Accordingly, 

we affirm the final decree of the Orphans’ Court.

Decree affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/31/2015