In Re: Bailey, E. Appeal of: Bailey, Sr., J. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ERIKA BAILEY, : IN THE SUPERIOR COURT OF
A/K/A ERICKA BAILEY, AN ALLEGED : PENNSYLVANIA
INCAPACITATED PERSON :
:
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” 2 or 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. Healthcare-
wise 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
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