Estate of Richard Brezenski ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: THE ESTATE OF RICHARD : IN THE SUPERIOR COURT OF
BREZENSKI, AN INCAPACITATED : PENNSYLVANIA
PERSON :
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APPEAL OF: RICHARD BREZENSKI :
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: No. 1187 WDA 2020
Appeal from the Order Entered October 5, 2020
In the Court of Common Pleas of Washington County Orphans' Court at
No(s): 63-20-0395
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED: January 13, 2022
Richard Brezenski appeals from the October 5, 2020 order that decreed
him an incapacitated person and appointed a plenary guardian of his person
and estate. We affirm.
This action was initiated when Mr. Brezenski’s wife, Sandra Brezenski,
filed a petition for adjudication of incapacity and appointment of guardian
pursuant to 20 Pa.C.S. § 5511. The orphans’ court held several days of
hearings on the petition. In addition to her own testimony, Mrs. Brezenski
presented the testimony of Mark Mamros, M.D., Mr. Brezenski’s primary care
physician, and Evgeniy Shchelchkov, M.D., a neurologist who treated Mr.
Brezenski. At the second hearing, Mr. Brezenski presented the testimony of
Richard Ajayi, M.D., a psychiatrist who treated Mr. Brezenski, and Eric
Weisman, M.D., a neurologist who examined Mr. Brezenski. At the third
* Retired Senior Judge assigned to the Superior Court.
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hearing, Mrs. Brezenski presented rebuttal testimony from Dr. Mamros and
Connie McCord, Mr. and Mrs. Brezenski’s daughter. At the fourth hearing, Mr.
Brezenski testified. During the pendency of the hearings, the orphans’ court
ordered Mrs. McCord appointed as an emergency guardian for Mr. Brezenski.
Mrs. Brezenski testified that at the time of the hearing, she had been
married to Mr. Brezenski for almost fifty years. N.T., 6/1/20, at 82. In 2018,
Mr. Brezenski became forgetful, hostile, and demeaning, and he lost interest
in his tinkering hobbies. Id. at 82-85. After being in the hospital in March
2019, he grew disoriented, angrier, and more aggressive. Id. at 87-88. He
twice asked Mrs. Brezenski to bring him a gun to shoot the nurses and security
guards at the hospital, and thereafter requested a gun to shoot the nurses at
the nursing facility where he was moved. Id. at 88-89, 92. He also asked
the nurses to go into the shower with him and flirted inappropriately with one
of the nurses. Id. at 89-90.
Once Mr. Brezenski returned home, he remained forgetful, made
inappropriate sexual comments towards Mrs. Brezenski, had to be reminded
to shower and change his clothes, lost interest in things he had done before,
would discard many of his medications instead of taking them, and began to
search online for child pornography. Id. at 99-104. In early 2020, he choked
Mrs. Brezenski. Id. at 106. Thereafter, in February 2020, he assaulted Mrs.
Brezenski to prevent her from leaving the home with their joint checking
account checkbook, chased her to her car, pounded his fist on the vehicle, and
threatened to kill Mrs. Brezenski and her cat. The next day, Mrs. Brezenski
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returned to the house with Mrs. McCord to get some personal items and her
cat. As they were returning to their car, Mr. Brezenski arrived and blocked
them in the driveway with his vehicle. After Mrs. Brezenski called the police,
he moved his vehicle and she returned to Mrs. McCord’s house. Shortly
thereafter, Mr. Brezenski attempted to enter Mrs. McCord’s house, threatened
to kill them, and brandished what Mrs. Brezenski believed was a gun. Again,
she called the police, who ultimately arrested Mr. Brezenski. Id. at 107-15.
Mrs. Brezenski explained that she filed the petition for adjudication of
incapacity in order to get her husband the help he needs and to transfer him
to a memory care facility. Id. at 123-24.
Dr. Mamros testified as an expert, as well as Mr. Brezenski’s primary
care physician for the at least the past twenty-five years. Id. at 22. In Dr.
Mamros’s opinion, sometime within the prior two years, Mr. Brezenski was no
longer able to make his own decisions and handle his own affairs as a result
of suffering from frontal temporal lobe dementia, as well as several episodes
of acute metabolic encephalopathy. Id. at 23, 25. As explained by Dr.
Mamros, frontal temporal lobe dementia is a permanent, regressive disease
with a slow progression involving “impulsivity and . . . a lack of judgment[.]”
Id. at 23-24, 26, 40. During that time, Mr. Brezenski’s normal baseline
personality became very different: his language became hypersexual towards
the hospital staff and, after suffering an episode of acute metabolic
encephalopathy, his hypersexuality continued and he also became angry and
paranoid. Id. at 25-26. As part of his paranoia, he had “typical delusions” of
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his wife and daughter plotting against him and his wife cheating on him. Id.
at 26. Based upon this diagnosis, Dr. Mamros believed that Mr. Brezenski
required “some level of care where he can be assisted in [the] instrumental
activities of daily living, [i.e.] . . . making sure he gets his medication, . . .
help him with finances and shopping.” Id. at 28.
Dr. Shchelchkov testified that he saw Mr. Brezenski five times. Id. at
57. Over the course of those visits, Dr. Shchelchkov came to the conclusion
that Mr. Brezenski “probably suffer[ed] from early Alzheimer’s disease.” Id.
at 59. Based upon Mr. Brezenski’s behavioral issues and signs of mental
status regression, Dr. Shchelchkov recommended that Dr. Mamros implement
specific medications for the treatment of dementia and advised Mrs. Brezenski
to confiscate his firearms. Id. at 62, 69. Unfortunately, because of other
medical conditions, Dr. Shchelchkov was unable to evaluate whether Mr.
Brezenski suffered from frontal temporal lobe dementia or another form of
dementia. Id. at 63-65. Dr. Shchelchkov ultimately referred Mr. Brezenski
to the Memory Clinic in the hope of identifying Mr. Brezenski’s exact diagnosis.
Id. at 71. Nonetheless, based on his evaluations, his “working diagnosis [wa]s
. . . early onset dementia with behavioral problems.” Id. at 73.
Dr. Ajayi testified as an expert, as well as a treating psychiatrist. Mr.
Brezenski became a patient in his practice in February 2020, and Dr. Ajayi
saw him five times between February and July 2020. N.T., 7/10/20, at 4-5,
7, 18-21. In his opinion, Mr. Brezenski does not have dementia, Alzheimer’s,
or diminished cognitive function, and he discontinued one of Mr. Brezenski’s
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medications. Id. at 15-16. In rebuttal, Dr. Mamros clarified that Dr. Ajayi
relayed to him that he could not make an accurate assessment based solely
on behaviors he observed on a “good day” during “the few minutes he got to
spend with [Mr. Brezenski] during his evaluation.” N.T., 7/24/20, at 7-9.
Dr. Weisman testified via telephone as an expert, as well as an
examining neurologist. Dr. Shchelchkov referred Mr. Brezenski to Dr.
Weisman to determine from what type of dementia Mr. Brezenski was
suffering. N.T., 7/10/20, at 57. He conducted a single neurological
examination of Mr. Brezenski on June 18, 2020, and later reviewed some of
Mr. Brezenski’s medical records. Id. at 54, 58, 65, 71-72. Based upon his
examination and accompanying assessments, he concluded that Mr. Brezenski
was not cognitively impaired. Id. at 61. As with Dr. Ajayi, he recommended
removing some of Mr. Brezenski’s current medications, including
dextroamphetamine, which he referred to as “speed” and he blamed for Mr.
Brezenski’s homicidal and suicidal ideations. Id. at 63, 93. In the midst of
cross-examination, Dr. Weisman abruptly terminated the telephone call and
did not answer when the court attempted to call him. Id. at 98, 100-01.
In rebuttal, Dr. Mamros testified that Dr. Weisman’s “one-time visit” did
not change Dr. Mamros’s opinion as to Mr. Brezenski’s incapacity because it
was only a “snapshot” with “his whole source of information [coming from]
Mr. Brezenski himself.” N.T., 7/24/20, at 12. He also disagreed with Dr.
Weisman’s conclusion that Mr. Brezenski’s dextroamphetamine prescription,
or Adderall, caused any violent behavior as he has been continuously taking
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that medication to treat narcolepsy for over thirty years and therefore it could
not be an explanation for a change in behavior. Id. at 32-36.
Mrs. McCord testified as to her efforts to address Mr. Brezenski’s
financial and health affairs since being appointed as his emergency guardian.
N.T., 7/24/20, at 40-77. She also testified to threats that Mr. Brezenski made
against his own life and that of her family in response to her attempts to carry
out her emergency guardianship duties. Id. at 75-76.
Finally, Mr. Brezenski testified to his ability to manage his own financial
and health affairs, as well as to his own version of some of the
abovementioned events. N.T., 8/13/20, at 4-80.
After the hearings, the orphans’ court took the matter under
advisement. The orphans’ court ultimately did not find the testimony of either
Dr. Ajayi nor Dr. Weisman to be persuasive or credible. Orphans’ Court
Opinion, 5/28/21, at 5. By order filed October 5, 2020, the court found clear
and convincing evidence that Mr. Brezenski suffers from frontal temporal lobe
dementia and is incapable of caring for himself and making decisions regarding
his daily living activities and affairs. Order, 10/5/20, at 1-2. Therefore, the
court appointed Mrs. McCord as plenary guardian of Mr. Brezenski’s person
and estate.
This timely appeal followed. Both Mr. Brezenski and the orphans’ court
have complied with Pa.R.A.P. 1925. On appeal, Mr. Brezenski raises the
following issues:
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1. Whether the trial court abused its discretion and committed an
error of law in determining that Appellant is incapacitated and
that a guardian must be appointed.
2. Whether the trial court abused its discretion by failing to
consider the expert witness testimony presented by Appellant
and the testimony of the Appellant that he was able to evaluate
information effectively and communicate decisions in any way
so as to be able to manage his financial resources and meet
the essential requirements for his physical health and safety.
3. Whether the trial court abused its discretion and committed an
error of law in finding that Appellant suffered from a mental
illness or condition requiring the appointment of a guardian.
Mr. Brezenski’s brief at 3 (unnecessary capitalization omitted).
Mr. Brezenski’s claims challenge the orphans’ court’s finding of
incapacity and subsequent appointment of a guardian.
The appointment of a guardian lies within the discretion of the
trial court and will be overturned only upon an abuse of discretion.
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) (cleaned up).
Our legislature has provided that, upon clear and convincing evidence
of incapacity, an orphans’ court may appoint a guardian of the person and/or
estate. See 20 Pa.C.S. § 5511(a). An incapacitated person is “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.” 20 Pa.C.S. § 5501.
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The legislature has enumerated the following specific considerations and
findings necessary to the resolution of a guardianship petition by an orphans’
court:
(a) Determination of incapacity.--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 and the capacity to make and communicate
decisions.
(5) The duration of the guardianship.
(6) The court shall prefer limited guardianship.
....
(c) Plenary guardian of the person.--The court may appoint a
plenary guardian of the person only upon a finding that the person
is totally incapacitated and in need of plenary guardianship
services.
....
(e) Plenary guardian of the estate.--A court may appoint a
plenary guardian of the estate only upon a finding that the person
is totally incapacitated and in need of plenary guardianship
services.
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20 Pa.C.S. § 5512.1.
After reviewing the certified record and the parties’ briefs, we discern
no error or abuse of discretion on the part of the orphans’ court as to the
issues raised by Mr. Brezenski. Specifically, the orphans’ court noted that:
(1) the court found Mr. Brezenski was suffering from a decline in his mental
health that rendered him incapacitated based on the testimony of Dr. Mamros,
Dr. Shchelchkov, and Mrs. Brezenski; (2) the court reviewed all the evidence
and transcripts of the proceedings, considered the testimony of all the experts
and Mr. Brezenski, and, as the fact-finder, concluded that “Dr. Mamros and
Shchelchkov provided significant testimony that Mr. Brezenski was suffering
from frontal lobe dementia and early onset Alzheimer’s and that he was
incapacitated, necessitating the appointment of a guardian[,]” Dr. Mamros
was the most familiar with Mr. Brezenski and was unequivocal in his medical
opinion, and Dr. Ajayi’s testimony, Dr. Weisman’s testimony, and Mr.
Brezenski’s testimony were not persuasive or sufficient to overcome the
expert findings of Dr. Mamros and Dr. Shchelchkov;1 and (3) the court found
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1 Specifically, the orphans’ court found Dr. Ajayi’s opinion that Mr. Brezenski
was not suffering from dementia “was discredited when he admitted that Mr.
Brezenski’s paranoia regarding his family could be related to a disease process
such as dementia” and he was unaware of Mr. Brezenski’s suicidal and
homicidal ideations and behavioral changes, and therefore could not opine on
whether those behaviors were related to dementia. Orphans’ Court Opinion,
5/28/21, at 11. Likewise, the court found Dr. Weisman’s opinion that Mr.
Brezenski was not suffering from dementia was discredited for multiple
reasons, including failing to conduct a complete assessment or review all
information necessary to complete an accurate assessment, accepting as fact
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that Mr. Brezenski’s third allegation was nearly identical to his first, and that
based upon the testimony of Dr. Mamros and Dr. Shchelchkov, Mr. Brezenski
was incapacitated and in need of a guardian. See Orphans’ Court Opinion,
5/28/21, at 9-16. Accordingly, we affirm the order on the basis of the cogent
and well-reasoned opinion that Honorable John F. DiSalle entered on May 28,
2021.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/13/2022
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Mr. Brezenski’s medical statements but failing to investigate the claims
regarding his personality and disregarding them in his evaluation, failing to
notice Mr. Brezenski was suffering from cellulitis to the degree that he was
hospitalized immediately after the appointment, despite conducting a general
examination and being with Mr. Brezenski for over an hour, and “act[ing] in
an unprofessional manner during his telephone testimony[.]” Id. at 11-13.
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