In Re: I.M.R. ( 2023 )

J-A23044-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN RE: I.M.R., AN ALLEGED : IN THE SUPERIOR COURT OF
INCAPACITATED PERSON : PENNSYLVANIA
:
:
APPEAL OF: WILLIAM CARDWELL :
:
:
:
: No. 728 MDA 2022
Appeal from the Decree Entered April 8, 2022
In the Court of Common Pleas of Huntingdon County Orphans’ Court at
No(s): 2021-281
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: JUNE 7, 2023
William Cardwell appeals from the April 8, 2022 decree adjudicating
I.M.R. to be a totally incapacitated person and appointing Huntingdon-
Bedford-Fulton Area Agency on Aging (“the Agency”) as the permanent
plenary guardian of the person and estate of I.M.R. We affirm.
In a prior memorandum, we detailed the factual and procedural history
of this case as follows:
I.M.R. was born in November 1938. In 2014, I.M.R.
displayed symptoms of cognitive decline and memory loss that
would eventually be diagnosed as vascular dementia, a
progressive condition which impairs her ability to function
independently. Immediately prior to September 2021, she
resided with her adult son, Appellant, who exercised power of
attorney on her behalf. The agency became involved with the
family on September 13, 2021, after a stranger discovered I.M.R.
wandering alone, unable to state her name, and indicating that
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A23044-22
she did not want to live with her son. N.T., 12/20/21, at 24.
Appellant refused to cooperate fully with the Agency’s subsequent
investigation of the incident. Id. at 25-27.
On December 6, 2021, the Agency sought and received the
appointment of an emergency plenary guardian of both the person
and estate of I.M.R. Thereafter, on December 15, 2021, the
Agency filed a petition to adjudicate incapacity and to appoint a
permanent plenary guardian for the person and estate of I.M.R.
The petition alleged that I.M.R. needed daily care and supervision
to ensure her safety, and it averred that no alternative to the
appointment of a guardian had been considered.
Following four non-consecutive evidentiary hearings, the
orphans’ court entered the above-described decree adjudging
I.M.R. to be totally incapacitated and appointing the Agency as
the permanent plenary guardian of both the person and estate of
I.M.R. Appellant timely filed a notice of appeal, and the orphans’
court filed a Pa.R.A.P. 1925(b) order directing him to file and serve
a Rule 1925(b) statement within twenty-one days of the order.
In Re: I.M.R., 728 MDA 2022 (Pa.Super. filed March 16, 2023)
(nonprecedential memorandum at 1-2).
Appellant initially failed to file the statement within the allotted
period, and the orphans’ court found all issues waived and declined to
address the merits of any of the issues presented. Id. at 2-3. However,
this Court determined that, because the orphans’ court’s Rule 1925(b)
order was facially deficient, Appellant’s failure to strictly comply with
Rule 1925(b) did not render his claims waived on appeal. Id. at 7.
Hence, we remanded the matter for the preparation of a supplemental
orphans’ court opinion, which the orphans’ court filed on April 11, 2023.
-2-
J-A23044-22
Appellant presents five issues for our review.[1]
1. Did the orphans’ court abuse its discretion or make an error of
law when it granted the Huntingdon- Bedford- Fulton Area Agency
on Aging’s motion for access to records without giving [I.M.R.] or
William Cardwell an opportunity to respond?
2. Did the [orphans’] court abuse its discretion or make an error
of law when it granted emergency guardianship without a hearing
when there was no adequate proof of an actual emergency?
3. Did the [orphans’] court abuse its discretion or make an error
of law when it prohibited Shaun O’Toole, Esq., [I.M.R.’s] previous
attorney, from representing [her] . . . in this matter?
4. Did the [orphans’] court abuse its discretion or make an error
of law when it failed to appoint William Cardwell as guardian of
[I.M.R.’s] person despite no Area Agency on Aging observ[ations]
inside their home; only one caretaker witness who observed
William Cardwell and [I.M.R.] together inside the home over a
span of a few months; and [evidence that I.M.R.] walk[ed] away
from the home on one brief occasion three months before the
guardianship petition was filed?
5. Did the [orphans’] court abuse its discretion or make an error
of law when it failed to appoint William Cardwell as guardian of
[I.M.R.’s] estate in light of four witnesses and the estate planning
documents presented clearly stating [I.M.R.’s] desired intention
for William Cardwell to inherit everything from her and the ability
to make gifts to himself?
Appellant’s brief at 4-6 (cleaned up) (unnecessary capitalization omitted).
Appellant’s claims challenge the orphans’ court’s finding of incapacity
and subsequent appointment of a guardian, which we review for legal error or
____________________________________________
1 As we noted in our prior memorandum, we do not address the sixth issue
that Appellant raised in his statement of questions presented, concerning the
March 19, 2022 invalidation of a transfer of land, because Appellant failed to
appeal the order that is the genesis of that claim.
-3-
J-A23044-22
an abuse of discretion. In re Duran, 769 A.2d 497, 506 (Pa.Super. 2001).
As we have explained,
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.
Id. (cleaned up).
Pursuant to Chapter 55 of the Probate, Estates, and Fiduciaries Code
(“PEF Code”), an orphans’ court may appoint a guardian of the person and/or
estate upon clear and convincing evidence of incapacity. See 20 Pa.C.S.
§ 5511(a). The PEF Code defines incapacitated person 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.” 20 Pa.C.S. § 5501.
As to the orphans’ court’s determination of incapacity and appointment
of a guardian, the PEF Code further provides, in pertinent part, as follows:
(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.
-4-
J-A23044-22
(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.
20 Pa.C.S. § 5512.1.
For the following reasons, we discern no error or abuse of discretion on
the part of the orphans’ court. In the supplemental opinion, the orphans’ court
thoroughly distilled the relevant evidence concerning: (1) I.M.R.’s cognitive
impairment; (2) the effect of those impairments on I.M.R.’s ability to
communicate decisions, manage financial resources, and insure her physical
health and safety; (3) Appellant’s suspect care of I.M.R.’s physical and
financial needs, including the alleged misappropriation of the $250,000
-5-
J-A23044-22
proceeds from her late-husband’s life insurance policy; and (4) Appellant’s
persistent obstinacy, which not only frustrated the Agency’s ability to serve
I.M.R.’s needs, but also led to the suspension of Appellant’s visitation
privileges from the residential facility that cared for I.M.R. after she was
removed from Appellant’s home. As the learned President Judge George N.
Zanic concluded in the supplemental opinion filed in this case,
The focus of this case should be I.M.R. However, [Appellant]
has continuously attempted to make it about himself. Time and
time again he has shown that his true concern is maintaining
control over I.M.R. and her assets, rather than acting in her best
interest. I.M.R. is incapacitated and in need of a guardian. That
guardian needs to be someone other than [Appellant], so that he
can no longer exploit her.
See Orphans’ Court Supplemental Opinion, 4/11/23, at 61.
Thus, after reviewing the certified record, the parties’ briefs, and the
orphans’ court’s comprehensive sixty-one-page supplemental Rule 1925(a)
opinion addressing the identical issues that Appellant presented in his brief,
albeit in a slightly different order, we adopt the trial court’s rationale as our
own and for the reasons cogently explained in the supplemental opinion, we
affirm the April 8, 2022 decree adjudicating I.M.R. to be a totally incapacitated
person and appointing the Agency as the permanent plenary guardian of the
person and estate of I.M.R.2
____________________________________________
2 President Judge Zanic’s analysis of Appellant’s third issue, concerning the
denial of Appellant’s request to have Attorney O’Toole appointed as counsel
(Footnote Continued Next Page)
-6-
J-A23044-22
____________________________________________
for I.M.R., incorporated the court’s January 24,2022 order stating that
Attorney O’Toole was ineligible to serve as I.M.R.’s counsel in the
competency/guardianship matter due to both a conflict of interest between
Appellant and I.M.R. and the fact that Attorney O’Toole was a necessary
witness. Citing Pennsylvania Rules of Professional Conduct 1.7 and 3.7,
entitled “Conflict of Interests: Current Clients” and “Lawyer as Witness”,
respectively, the court provided the following rationale:
Attorney O’Toole represented [I.M.R.] with respect to estate
planning that occurred in or about 2018. That estate planning,
though, was done in coordination with [Appellant], and included
the power of attorney in favor of [Appellant] that is one of the
many matters at issue here. Given the significant level of
involvement in those affairs testified to by [Appellant], there was,
at minimum, a quasi (if not actual) attorney-client relationship
between Attorney O’Toole and [Appellant] at that time. This
finding is supported by the fact that when the emergency
guardianship was initiated the first person [Appellant] contacted
to contest it was Attorney O’Toole (meaning that while there may
not be a formal, current attorney-client relationship between
them, there is still arguably a quasi one). . . . Attorney O’Toole
cannot represent both [I.M.R.’s] interests and [Appellant’s]
interests, as they are not congruent. (For example, if it is in
[I.M.R.’s] best interest to have a guardian appointed, and to have
that guardian be someone other than [Appellant], that position is
diametrically opposed to [Appellant’s] interests in remaining the
caregiver and power of attorney for her.) This is a clear conflict
of interest that violates Rule 1.7.
....
[As to the likelihood of being a necessary witness, h]ere,
Attorney O’Toole drafted the power of attorney and other estate
planning documents that are at issue, as they establish what right,
power, and authority [Appellant] has with respect to [I.M.R.’s]
property—property that [Appellant] is alleged to have
misappropriated and converted to his own use. More significantly,
though,[Attorney O’Toole] is the only disinterested party with
knowledge of [I.M.R.’s] capacity both in 2018 and at the current
time (in light of his estate planning meetings with her in 2018 and
his recent meeting with her on January 10, 2022, regarding the
(Footnote Continued Next Page)
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J-A23044-22
Decree affirmed.
Judge McCaffery joins.
P.J.E. Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2023
____________________________________________
proposed Engagement Letter), and thus the changes, if any, in
her condition during that period.
Order, 1/24/22, at 3-5 (cleaned up). We adopt the foregoing analysis as well.
-8-
Circulated 05/31/2023 09:48 AM
IN THE COURT OF COMMON PLEAS OF HUNTINGDON COUNTY,
PENNSYLVANIA
ORPHANS' COURT DIVISION
IN RE: IVA M. ROUSH, CP-31-OC-281-2021
CP-31-00-281-2021
an incapacitated person 728 MDA 2022
AMENDED OPINION
AMENDED IN
OPINION IN SUPPORT OF ORDER
SUPPORT ORDER
PURSUANT
PURSUANT
TOTO Pa.R.A.P.
Pa.RA.P, 1925(a)
19256)
Petitioner William Cardwell, the son of incapacitated person Iva
lva M. Roush
("I.M.R."), appeals from the Final Decree entered by this Court on April 8, 2022,
("IM.R."),
which:
which: ((1)
1) adjudged I.M.R.
L.M.R. to be totally incapacitated; and
and (2)
(2) appointed the
Huntingdon- Bedford- Fulton Area Agency on Aging to be the plenary permanent
Huntingdon-Bedford-Fulton
guardian of both IM.R's
I.M.R.'s person and estate
estate.
This Court originally filed its Opinion in Support of Order Pursuant to
Pa.R.A.P.
Pa.R.AP. 1925(a)
1925(a) on March 27, 2022. Because Petitioner had not, either within the
established 21- day deadline or as of the filing of such opinion, fled
21-day filed aaStatement of
Errors Complained
Complained of On Appeal, this Court originally proceeded on the basis that
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ol xoglieW asnoq:ano:) Aq panaaS
he had waived all issues. Pursuant to the Superior Court's order of March 16,
2
a 2023, this Court hereby submits this Amended Opinion in Support of Order
g .0 g
d
%5 Pursuant to Pa.R.A.P.
Pa.R.A.P. 1925(a), which amends and supplements its original, and
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addresses Petitioner's late- filed Statement.
8 $ 50 late-filed
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z I. ISSUES RAISED
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8' On Appeal,
Petitioner's even-later-filed
Appeal, filed June 13, 2022,'
ISSUES RAISED
even-later- filed Amended Statement of Matters Complained of
2022, 1raises the following issues
issues (text
(text as in the original):
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1. The trial court abused its discretion and/or made an error of
law when it granted
Agency
granted the Huntingdon-
Agency on Aging's
Iva
Bedford- Fulton Area
Huntingdon-Bedford-Fulton
Aging's Motion for Access to Records without giving
an opportunity to respond.
rt va M. Roush
B
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•
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v
0 1Petitioner
petitioner filed his original statement of errors on May 31, 2022, followed by his his amended statement. The
5 Court makes no finding with regard to whether Petitioner's original late-filed
late- filed statement or his even-later-filed
•'+(De amended statement
amended statement should
should apply
apply here. Since they
here. Sin� they are
are largely
l•'l!•ly the same,
1hr .. me, the Court proettd<
th• Cou, � proceeds on
on the basis of
the basis of the
the
'
3
1+
amended statement.
aw«Mamo nu_tprjL N
LLg r
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CL
e
Kelsey Dunn Register of Mils
letsey Wills
v nd Clerk of the on#ans'
ts'dcenafte Orphans' co
Court
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{/ Huntingdon County, Pens/eanit
Huntington county. Pennsylvania
2.
Z. The
The trial court abused its discretion and/or made an error of
law when it granted the Huntingdon-Bedford-Fulton
Huntingdon- Bedford- Fulton Area
Agency on Aging's
Aging's Motion for Access to Records without giving
William Cardwell an opportunity to respond.
3. The trial court abused its discretion and/or made an error of
law when it granted Emergency Guardianship without a a
hearing
hearing when there was no adequate proof of an actual
emergency.
4.
4, The trial court abused its discretion and/or made an error of
law when it granted Emergency Guardianship without any
medical expert
expert testimony or any medical evidence showing aa
need for guardianship.
S.
5. The trial court abused its discretion and/or made an error of
law when it prohibited
prohibited Shaun O'Toole, Esq., Iva M. Roush's
previous
previous attorney, from representing Iva lva M.
M. Roush in this
matter.
matter
6. The trial court abused its discretion and/or made an error of
law when it failed to appoint William Cardwell as guardian of
lva M. Roush's person despite no Area Agency on Aging
Iva
observing
observing inside their home; only oneone ((1)
1) caretaker witness
who observed William Cardwell and Iva va M. Roush together
inside the home over aaspan of aa few months; and Iva M. Roush
walking away from the home on one one ((1)
1) brief occasion three
months before the guardianship petition was filed?
7. The trial court abused its discretion and/or made an error of
law when it failed to appoint William Cardwell as guardian of
Iva
lva M. Roush's estate in light of four (4)
(4) witnesses and the
estate planning
planning documents presented clearly stating Iva M.
Roush's desired intention for William Cardwell to inherit
everything
everything from her and the ability to make gifts to himself?
8.
8 The trial court abused its discretion and/or made an error of
law when it voided the deed signed by William Cardwell in
light
light of the fact that the Area Agency
Agency on Aging never requested
'I that William Cardwell be removed as power of attorney of Iva
M. Roush and the Court did not remove him prior to signing
the deed?
l'
II.
I. PROCEDURAL
PROCEDURAL HISTORY RELEVANT
HISTORY AND RELEVANT FACTS
FACTS
1. I.M.R. is currently 84 years old, having been born on November 27, 1938.
IM.R.is 1938
,',·
22
,:
2. This matter first came to the attention of the Court on September 22, 2021,
it
when
when the
the Huntingdon- Bedford- Fulton Area
Huntingdon-Bedford-Fulton Area Agency on Aging
Agency on Aging (the
(the "Agency")
"Agency")
filed aapetition
petition for access to I.M.R.'s
L.M.R's medical and financial records pursuant
to the Pennsylvania
Pennsylvania Older Adult Protective Services Act, 35P.S.
35 P.S. $$
§§
10225.101, et seq. (the "OAPSA"),
seq. (the OAPSA"), and the guardianship support agency
provisions of 20 Pa.
provisions C.S. ch. 55
Pa.CS. 55 (such
(such petition, the
the "Records
Records Petition.") The
The
Records Petition was granted
granted by
by this Court ex parte the same day.
On December 6, 2021, the Agency
3. 0n Agency filed a
a petition
petition to adjudicate incapacity
and to appoint
appoint an emergency I.M.R.'s person
emergency and permanent guardian of IM.R's
and estate
estate (the
(the "Emergency
Emergency Petition").
Petition"). The Emergency Petition was
supported by
supported by aasigned
signed statement provided
provided by I.M.R.'s
IM.R.'s treating physician,
Dr. Amy
Amy Sellers, who opined
opined that I.M.R.
LM.R. "should
should not be left alone,"
alone," "suffers
from
from mild-moderate
mild-moderate dementia && gets
gets confused easily," is "[n]ot capable of
is "[not
higher[-] level executive functioning," and
higher[-Jlevel and "needs
"needs care including help with
[activities of daily living]
[activities living] && monitoring so she does not wander off." The
granted the emergency guardianship ex parte the same day,
Court granted day. It
appointed the Agency
appointed Agency as the emergency guardian of I.M.R.'s
LM.R's person and
appointed Ray
estate, and appointed Ray A. Ghaner, Esq.,
Esq., to represent IM.R.
I.M.R.z
4. On December 7, 2021, the Agency filed aapetition to extend the emergency
guardianship. That
guardianship. That petition
petition was granted, and
was granted, and the
the emergency
emergency guardianship
guardianship
was 2021.
was extended until December 28, 2021
S.
5. On December 8, 2021, Shaun E. O'Toole, Esq., filed aapraecipe for entry of
appearance, seeking to represent LM.R.
appearance, I.M.R. in lieu of Attorney Ghaner.
6. On December 10, 2021, Roberto D. Ugarte, Esq., filed aapraecipe for entry of
appearance, representing
appearance, representing Petitioner.
This was done per
This
2 per the Court's standard practice,
practice, which is to appoint
appoint counsel for the alleged incapacitated
person in
person in all guardianship cases, unless they are already represented by counsel.
guardianship casts, counsel, The Court notes here that
Attorney
Attorney Ghaner did not have an opportunity to address the scope and nature of his meetings with his client,
I.M.R.,
LM.R., until much later in the case than usual.
usual, This is because of the unusual progression of this matter.
matter,
However,
However, Attorney
Attorney Ghaner did inform the Court that he had met with I.M.R.
IM.R. twice prior to the second hearing
in this matter on February 1, 2022, N.T.,
February1,2022. NT., February 1, 2022, Hearing, at 67
1 202Z, 67. Attorney Ghaner addressed the
matter of his meetings with I.M.R,
LM.R. in detail at the third hearing, 2022. See61,
hearing held on February 8, 2022. infra,
See ¶ 61, infra
3
3
11
On December 15, 2021, Attorney O'Toole filed a
7. 0n a petition for reconsideration
of the emergency
emergency guardianship, asserting, inter alia, that in 20181.M.R.
2018 I.M.R. had
11
executed aageneral
general power
power of attorney in favor of Petitioner
Petitioner (the
(the "Alleged
"Alleged
POA"),
POA"), and that Petitioner had been serving as I.M.R.'s
IM.RR's caregiver prior to the
emergency guardianship.
emergency That same
guardianship. That same day,
day, the
the Agency filed aapetition
Agency filed petition
seeking to have IM.R.
I.M.R. be adjudicated as fully incapacitated and to be
appointed as plenary I.M.R.'s person and estate
plenary guardian of IM.R's estate (the
(the
"Guardianship Petition").
8. On December 16, 2021, Attorney
Attorney Ugarte filed, on behalf of Petitioner, an
emergency petition
emergency petition to remove the Agency as guardian and to conduct aa
review hearing.
hearing. Petitioner asserted that he had full authority over I.M.R.'s
IM.R.'s
property
property and healthcare decisions pursuant to the Alleged POA, that he
served as I.M.R.'s caregiver, and then asserted aalitany of deficiencies with
IM.R.'s caregiver,
the Emergency Petition and the Agency's actions in general.
On December 20, 2021, the first hearing was held in this matter, addressing
9. 0n
the Emergency
Emergency Petition, Attorney O"Toole's
O'Toole's proposed representation of
I.M.R.,
L.M.R., and Petitioner's emergency petition to remove the Agency as
guardian (such
guardian (such hearing, the
the "First
First Hearing").
10. The Court first addressed Attorney O'Toole's
O"Toole's praecipe for entry of
appearance. The Court extensively queried Attorney O"Toole
appearance, O'Toole regarding
whether he had undertaken actions that might satisfy the requirements of
Pa.R.O.C.P.
Pa.R.O.C.P 14.4(b),
14.4(b), including whether he had aacurrent engagement letter
with I.M.R.
IM.R. regarding the guardianship proceeding and whether he had met
with I.M.R.
IM.R. Attorney
Attorney O'Toole represented
represented that he did not have aacurrent
engagement letter with I.M.R.,
LM.R., had not met with her since 2018 when he
prepared
prepared the Alleged
Alleged POA, and had minimal knowledge of the matter. He
had simply
simply been contacted by
by Petitioner, notified by him that I.M.R.
I.M.R. had
been "taken"
been "taken" by
by the Agency,
Agency, and requested by Petitioner to intervene.
Because Attorney O'Toole had not complied with Rule 14.4(b), as well as
Attorney 0"Toole
l had potential
potential conflicts arising from his preparation of the Alleged POA and
i contacts with
contaLts with Petitioner, the
the Court did not
not allow him
him to represent
represent I.M.R.
I.M R at
4
4
the First Hearing. It did, however, did allow him to be present so he was
aware of the proceedings. N.T., First Hearing, at 2-9,
proceedings. NT, 2-9. The Court further
directed the Agency to assist Attorney 0"Toole
O'Toole in arranging aameeting with
I.M.R. and ordered Attorney
Attorney O'Toole, if he was satisfied after such meeting
that I.M.R.
IM.R. wished to have him represent her, to comply with the
requirements of Rule 14.4(b).
14.4(b). N.T., First Hearing, at 104.
11. The first witness for the Agency was Bonnie Sue Parks.
a. Ms.
Ms. Parks primarily
primarily works at the Giant store in
in Smithfield Township,
Huntingdon
Huntingdon County,
County, but also makes additional income on the side as an
informal home health aide/caregiver. She met Petitioner through her
employment at Giant, and Petitioner made arrangements with her to
provide
provide care for I.M.R,
1.M.R. at his home in the James Creek area of
Huntingdon
Huntingdon County.
County.'3 She was initially
initially paid in
in cash, but was also later
paid in-kind (Petitioner
paid in-kind (Petitioner gave her aacar, and she
she "worked off" the
"worked off the value of
the car). Id,
Id. at 10-11, 17-18
10-11,17-18
b. Ms. Parks would go to the home two to three times aaweek, staying
anywhere from 45 minutes to two hours. Ms. Parks's primary task was
to give I.M.R.
I.M.R. showers, but she also assisted with many other tasks,
including
including laundry,
laundry, dressing, medication, changing bedclothes, and
preparing
preparing meals. The other residents of the home were Petitioner and
his mechanic, known to her only as
as "Bil"
Bill." Id,
Id. at 10-11, 13.
c. Per Ms. Parks, the condition of the home was quite poor.
Q: And so IIknow this will be difficult but I'd like
hike you to
describe the condition of the home va
Iva lives in.
A: The home is dirty.
Q:
0: Is
ls it fair to say that you've described it as aa quote,
unquote
unquote shit hole?
I' A: IIcan't say shit hole but it does---it
does— it is dirty.
l Q: There a
a lot of dog feces throughout the home?
specifically,
3 Tussey Lane in Lincoln Township,
Specifically, 3016 Tussey Township, Huntingdon County, with aamailing address of 3016
Tussey Lane, James Creek, PA 16657
Creek,PA 16657.
5
5
I'
A: Yes.
Q: Cats throughout the home?
A: There is only one cat.
Q: The kitchen, has that been described as aahog pen?
A: Ihave went out there, yes, and it has been very dirty.
Ihave dirty
Q:
Q: Is
ls that because there are aalot of dirty dishes?
A:
A: Dirty dishes. The floor is very dirty at times.
Q: How about spoiled food in crockpots, things like that?
A: Ihave seen that, yes,
Ihave yes.
Id. at 12
Id, 12 (testimony
(testimony of Ms. Parks on direct examination by the Agency's
counsel, Michael M. Kipphan, Esq.)
d. Ms. Parks further testified that I.M.R.
IM.R. did not have the level of care she
needed, and the level of care she did receive from Petitioner was poor.
Q: To your
your knowledge,
knowledge, Bonnie, have there been times when
va's been left alone?
Iva's
A:
A: Yes, there has been aafew times I
Yes,there I have went out there and
she has been alone.
Q:
Q: Does that concern you when you see that?
A: Yes, it does, because she =like IIsaid, she is not able to
she---hike
I' take care of herself and she f falls.
lls.
a She has no phone to
contact anybody with.
with
Q: Have you
you come to the home and found Iva covered in
feces before?
A:
A: I
I have come there and like
hike her diaper that she wears has
in it, yes
had feces in yes.
:, Q:
0: How are Iva's
lva's meds managed? You put them in aaseven
'I day box and
and [Petitioner]
[Petitioner] gives them to her?
I,
A:
A: He either gives them to her or sets them on the table
when she gets up in
in the morning. Then she gets them.
them
:Q• Would it be fair to say that Iva
lva can't take care of her own
meds?
A: Correct.
,11: 6
6
...
Q:
Q: How does lva
Iva get
get around? Does she need a
a walker?
A: She—yes she, does walls
She-yes walk sometimes without her walker
but she is very unstable.
Q:
Q: Based on your
your observations is she aafall risk?
A:
A. Yes.
Q: Has Iva
lva shared with you that she also hallucinates about
people
people in trees and things like that?
'I' A: Yes, she has.
has.
Q: And have you noticed that she has some cognitive
thinking disabilities?
A:
. ..
Yes.
THE COURT: Can I
I ask, ma'am, when was the last time you
saw Iva?
THE WITNESS: It would have been the day that they came to
get
get her which IIthink was December 6
6th.
THE COURT: Okay. And when you saw her was this one of
Okay.
the days
days when her diaper was full of feces?
THE WITNESS:
WITNESS No, no.
THE COURT: When was the last time that happened?
THE WITNESS: That's when
when she
she was
was sick and
and she was
was having
the diarrhea, so at times she couldn't get her
diaper down fast enough.
diaper enough
THE COURT: Okay.
Okay. When you're not there, do you know
who takes care of her?
I THE WITNESS:
WITNESS: [Petitioner]
[Petitioner] had told me that his mechanic Bill
has cleaned her upup.
I'
Id. at 12-14
Id, 12-14 (testimony
(testimony of Ms.
Ms. Parks on direct examination by Attorney
Kipphan,
Kipphan, with follow-up by the Court).
e. Upon
Upon examination by I.M.R.'s counsel, Attorney Ghaner, Ms. Parks gave
by IM.R.'s
I.M.R.'s cognitive issues and daily life.
further detail about IM.R's
77
I'
II
Q:
Q• Ms.
Ms. Parks, Mr.Mr Kipphan asked you about cognitive
disabilities. What sort of shortcomings do you see [va
Iva
having?
having?
A: She does not remember-you
remember—you know, you can say
something to her and within aa half hour she don't
remember what you've
you've told her. Very often she has said
about people
people out in the trees fighting. She had said about
people being there that I
people being I know that wasn't there. She's
very
very hallucinating.
Q: Can you
you have aanormal conversation with her like you
and I
I are having
having right now?
A: You can but then she steers off and she has no idea what
she's talking about.
Q:
Q: She gets confused?
A: Very easy,
easy.
Q:
Q: Does she forget
forget things
things during the conversation that
you—
you-
A: Yes.
Q:
Q: Does she forget
forget things
things like whether or not she's eaten
that day?
day
A: Yes, she has.
Q:
Q: Does she forget
forget whether or not she's had her medications
those days?
A: No.
No, She does remember she takes her medicine because
every time I've
every I've went out, I've asked her, have you taken
your
your medicine and she's always said yes.
yes. When I I woke
up, you know, it was on the table. I
up, you tools it. She always
I took
tells
tells you exactly
you exactly how
how many
many pills she took.
took.
Q:
0: Where was she residing
residing when you were providing care
for her?
l A: She lived inin the home
home with
with [Petitioner].
[Petitioner]. She had
had aa
il bedroom there. When IIwould go in, if she wasn't sitting
'
at the table, she was usually in her bed
Id. at 15-16
Id, 15-16.
11 f.f Cross-examination of Ms.
Ms. Parks by Petitioner's counsel did not reveal
additional significant
significant details. Ms. Parks did clarify that she had begun
8
8
working for Petitioner in March of 2021, had begun caring for L.M.R.
working I.M.R.
after I.M.R.
LM.R. had come from the hospital,
hospital, and that Petitioner had had
another person
person coming in to help I.M.R.
LM.R. for a
a short time after she first
came home from the hospital.
hospital, With regard
regard to the condition of the home,
Ms. Parks said that she had mentioned to Petitioner about cleaning the
house, and specifically
specifically the kitchen, on a
a few occasions, and in response
Petitioner had asked his mechanic to vacuum, and Ms.
Ms. Parks to wash the
dishes. Id,
dishes. Id. at 17-23
17-23.
9. At the outset of her testimony, Ms. Parks indicated that she was
g.
concerned about the potential for retaliation from Petitioner. Id,
Id. at 10.
10
Her demeanor reflected that.
12. Next to testify was Brenda Hughes, aaProtective Service Worker for the
12.
Agency.
Agency. Ms.
Ms. Hughes
Hughes testified that I.M.R. first came to the attention of the
agency via aareport from the Pennsylvania State Police on September 13,
2021, after an incident in which I.M.R.
1M.R. had been found wandering down the
road by aastranger and transported to the Huntingdon PSP station.
She was unable to state her name.
name. She was saying she did not
want to live with her son,
son. She also said she was headed to New
York. There were also concerns about, you know, home
conditions, exploitation, that she's alone for long periods of
time and the son would not go pick her up at the police station.
station
Id. at24.
Id, at 24. Eventually
Eventually arrangements were made that day for Ms. Parks to
pick
pick up
up I.M.R.,
IM.R., spend the day with her, and then take her home.
13. Ms.
Ms. Hughes when to Petitioner's home the next day to interview him and
and.
I.M.R.,
L.M.R. and to observe the conditions there. To say the visit was not
successful would
would be
be an
an understatement.
understatement
Q:
Q; What investigation did you undertake based on the
report
report of need?
A:
A: What investigation?
Q:
Q: Did you interview-
interview—
A: Idid aaface-to-face visit.
1did
Q:
Q: With Iva?
lva?
99
i
A:
A; Well,
Well, unfortunately
unfortunately II couldn't meet
meet with Iva alone.
with lva
Mr.
Mr. Cardwell would
would not
not allow that.
that.
Q: Did you ask to
Did you to meet
meet with Iva alone?
with lva
A: Yes,
Yes, I did.
I did.
Q:
0: Did Mr. Cardwell refuse that?
A:
A Yes,
Yes, he did.
he did
Q: Did he tell you why you were not allowed to meet with
her alone?
A: No.
No. He just said that's not going to happen.
Q: So when you met with her it was—
was-
A: With him.
Q: —with
0 with him.
him. And
And what
what was
was the outcome
outcome of that meeting?
meeting?
A:
A Well, she had acknowledged that she took aawalk the
other day, the day before, and she had said she was going
York. And then she also said that
to see her sister in New York
she was going to go to the hospital and I I asked was she
not feeling
feeling well and she said no, that she wants to go to aa
nursing
nursing facility because she can't take care of herself and
needs
needs help.
,, help
...
Q:
Q: Were you
you able to observe Ms.
Ms. Roush's ambulation?
A: No too much, no. I
I mean, she came out to the porch.
porch. She
was using her walker I believe.
I believe
Q: Did you also ask to see the home?
A: I
I can't say as I
I got that far.
far He was being so resistive, I
I
wasn't pushing it any further
further.
Q: Was he being intimidating?
A:
A: Yes, not only to me but also to Mrs. Roush.
THE COURT: What do you mean by that? Can you describe
I that? You say he was being
being intimidating to
Me. Roush.
Ms.
ii
THE WITNESS: Well, when she said about wanting to go to the
l
ii
11
nursing facility.
facility. He said, you don't want to go
10
to a
a nursing facility and you have no money.
You only get Social Security and who's going
to visit you in the nursing facility and you
don't know anyone in the nursing facility and
what about your cat?
Id. at 25-27.
Id,
14. With respect
14.With respect to Petitioner's statements to I.M.R.
IM.R. that she
she "has
"has no money,"
the Agency
Agency had conducted an investigation of I.M.R.'s
IM.R.'s financial situation as
it could with the records it had been able to access using the Records
best it
Petition. That investigation gave significant cause for concern regarding the
possible
possible dissipation
dissipation and misappropriation of IM.R.'s
I.M.R.'s assets by Petitioner.
Petitioner
Per Ms. Hughes's
Hughes's testimony,
testimony, I.M.R.
IM.R. had realized $$500,000
500,000 in income or
assets in September
September 2018, yet by October 2021 she had less than
than $$2,000
2,000 in
her bank account
account (which
(which was aajoint account with Petitioner).
Petitioner). That was the
same account that her monthly Social Security payments were directly
Id. at 27-28.
deposited into. Id,
15. Ms. Hughes had significant concerns regarding I.M.R.'s
15.Ms. IM.R's safety in the home,
based in part
part on the reports
reports from Ms. Parks, but also on statements made to
her by
by Petitioner. When she raised the issue of the walkaway incident,
incident, "[h]e
"[hJe
didn't seem to think it was aabig
big deal. He said she had aadestination in mind.
She was going to New York." Id,
Id. at 29. More concerning was the following:
Q;
Q: Following
Following the incident in which Ms. Roush wandered
from the home, did Mr. Cardwell tell you that his cure
was to lock her in the house when he was gone?
A:
A. Yes.
Yes
Id.
Id
16. In addition to her testimony
testimony regarding Petitioner's demeanor during her
I.M.R., Ms. Hughes
attempt to interview IM.R., Hughes testified regarding actions taken by
Petitioner to hamper
hamper her investigation
investigation into the matter generally
generally.
/ It's my understanding that Ms. Roush has aasister, is that
Q:
'1 right?
A: That's what I'm told, yes.
I
.!
l 11
'I
n
Q:
Q Did you ask
Did you Mr. Cardwell
ask Mr. Cardwell for
for the
the name and address
name and address and
and
phone number
phone number of the sister?
A:
A Yes.
Yes
Q:
Q: She would be entitled to notice of today's hearing,
hearing, isn't
that right?
A:
A: Well,
Well, as aasister, sure.
Q:
0: Did Mr.
Mr Cardwell give you that information or did he
refuse
refuse it?
A: He refused
refused.
Q:
0: Did you
you ask him on more than one occasion?
A:
A Yes.
Yes.
Q:
Q say you
On each occasion did he say you can't have it?
A:
A: Yes. And aa second time he told me it's none of my
business.
Q:
Q: Did
Did he
he also tell you not
tell you not to
to come back
back to
to the
the house?
A:
A: IIcan't say
say that but I
I certainly got that message.
Q:
Q Has Mr. Cardwell provided
provided you with any medical or, I'm
sorry,
sorry, financial information?
A: No.
No
Q:
Q: Now I I understand that there's a Iva Roush income
a trust, lva
only trust?
only trust?
A: Yes.
Yes.
Q.
Q: Have you
you been given aacopy of that?
'
,I A:
A: No.
No.
Q:
Q Are you
you asking
asking the Court today to direct that the Agency
receive aafully executed copy of that trust?
A:
A Yes.
Id. at 30-31
Id 30-31 (emphasis
(emphasis added).
17. I.M.R., along with the highly suspect
17 The lack of financial information for IM.R.,
nature involving her property, rendered
nature of transactions involving rendered her
her ineligible
ineligible at
11
12
12
il
l"
that time for medical assistance to pay for the care she needed. 'That
That
ineligibility
ineligibility could also extend for five years into the future.
Q: Why
Why was itit so difficult to get Ms. Roush approved for
medical assistance?
A: We still don't have her approved. It's so difficult because
property that was sold for $250,000
of the property $ 250,000 in January of
2020, so the County Assistance Office is going to look at
that as aasold asset and actually itit was sold under fair
market value. It's actually 280-something
280- something thousand
dollars and so because that's within the past five years,
going to have a
she's going aperiod
period of ineligibility.
Q:
Q, you're talking
So you're talking about the five year look back that
Medical employs to determine if you're
Medical Assistance employs you're
eligible for nursing care, is that right?
right
A: Yes.
Q: And as we stand here todaytoday she's not qualified because
of all the stuff that's gone?
A: More likely
likely than not, no. IIdon't have the official word
but I
I know that they have the five year look back and
she's got
she's got well
well over
over the
the $$8,000
8,000 limit
limit that
that is
is aacriteria
criteria for
for
their program.
Id. at 39-40.
Id,
18. Petitioner's cross-examination of Ms.
18. Ms. Hughes primarily focused on matters
such as the fact that the Agency was relying on Ms. Parks' testimony
regarding
regarding conditions inside the home, and that Ms.
Ms. Hughes had only been
out to the home twice
twice (on September 13
[on September 13th and December 6).
6th). Pertinent
matters that came out during her cross-examination were that the Agency
had been trying
trying to obtain bed space
space for I.M.R.
IM.R. since the September incident,
hampered initially by Petitioner's refusal to provide financial
but had been hampered
records, and then by the fact that on paper, it appeared that I.M.R.
IM.R. should
have significant
significant assets
assets (meaning
[meaning that medical assistance funding was not
available to pay care). 4 Overall, Petitioner's cross-examination
pay for her care).'
Petitioner's counsel raised an allegation that Petitioner had asked the Agency for help in March 2021, but
4 petitioner's
4
had been refused, insinuating that they would not help when asked, but then turned around and went after
11
13
amounted solely
amounted solely to an attack
to an attack on
on how
how the Agency proceeded.
the Agency It raised
proceeded. It raised no
no
matters that contradicted the evidence presented or weakened it
it to an
Id. at 31-40
appreciable degree. Id, 31-40.
19. To follow-up
19.To follow-up on Ms.
Ms. Hughes's
Hughes's testimony regarding I.M.R.'s
IM.R.'s finances,
finances, the
Agency
Agency presented the testimony
testimony of Caroline Burnell, an expert witness in
the field of financial fraud examination. Based on the records that the
Agency had been able to obtain using the Records Petition, as well as
publicly
publicly available land records, it
it was Ms. Burnell's preliminary
preliminary opinion
that: (i)
(1) there was at least $200,000
$ 200,000 0f
of I.M.R's
I.M.R.'s funds not accounted for; and
(ii) the records showed potential financial exploitation of IM.R.
I.M.R. of between
and $
$200,000 and 500,000. Id,
$500,000. Id. at 40-43.
40-43
Ms. Burnell further opined that, based on the information she had at that
20. Ms.
I' point, I.M.R. had been aavictim of financial exploitation. She based this
point, IM.R.
primarily
primarily on her findings with respect
respect to two joint bank accounts held by
I.M.R. Petitioner. [d.
L.M.R. and Petitioner Id. at 44-45.
a. The first was a
a checking account with M&T
M&T Bank. It was opened in
March 2018 and closed in November 2018,
2018. Reviewing the transaction
history, the withdrawals attributable to Petitioner exceeded the
deposited by
amounts deposited about $$61,000.
by him by about 61,000. Even taking into account
roughly
roughly $$6,000
6,000 of deposits that could not be directly attributed to either
account holder, the excess amount taken by Petitioner was
was $$55,000.
55,000.
b. When the M&T
M&'T Bank account was closed in November 2018 it had aa
balance of $180,000.
balance of $ 180,000. That amount, which
which was
was all
all the
the proceeds of aalife
insurance policy
policy that paid out to IM.R.
I.M.R. after her husband passed away,
was
was deposited
deposited into
into aanew
new account
account at
at Members
Members First
First Federal Credit
Federal Credit
Petitioner. Petitioner later raised this allegation multiple times in his own testimony in an attempt to cast the
Petitioner
Agency
Agency in aapoor
poor light. Pet Ms
Ms. Hughes's testimony, what actually happened was that when IM.R.
I.M.R. was released
from the hospital, the Agency was tasked with performing an evaluation to see what care she might need. need. This
elderly persons similarly situated in the Agency's service area.
is done for all elderly area. However, the actual investigation
eligibility determination are performed by a
and eligibility abroker working on contract funded by the Pennsylvania
Aging. This meant that once the Agency obtained the initial information, the matter was out of
Department of Aging
its hands. llL
Its Id. at 34-35
34-35. The Agency therefore had no information about whatwhat might
might have transpired between
between
II Petitioner ad
and the broker
broker,
,
14
Union the same month. By
By the end of February 2019 the balance of the
account had been depleted to $27,000
$ 27,000.
21. Ms. Burnell made clear that her report was preliminary,
21.Ms. preliminary, and that it was
based on the limited information that the Agency had been able to obtain.
"If a
If areport
report is needed for aafinal guardianship hearing, then I
I will obviously
do additional work"
work." Id. at 46.
22. Petitioner's cross-examination of Ms.
Ms. Burnell proceed in a
a similar fashion as
for Ms.
Ms. Hughes.
Hughes. Petitioner's counsel questioned Ms.
Ms. Burnell's methods,
reliance on incomplete data and information
information (i.e.,
(i.e. less than the full and
complete bank records, which Petitioner had impeded access to), and
reliance on information from the Agency,
Agency, but raised no issues that
contradicted Ms. Burnell's conclusions or appreciably weakened the
strength of her testimony. Id,
Id. at 46-50
46-50.
23.
23. The final witness for the Agency
Agency was Lori Heaton, Service Director.
Ms. Heaton's testimony focused on:
on: (i) Petitioner's conduct in impeding the
Agency's investigation of IM.R.'s
I.M.R.'s case and preventing access to IM.R.;
I.M.R.; and
(ii) Petitioner's conduct in harassing and intimidating the Agency and its
(ii)
employees. Id,
employees. Id. at 51-57. She also discussed the steps taken by the Agency
try to obtain appropriate care for IM.R.,
to try I.M.R., which were met with resistance
by Petitioner. Id,
Id. at 53-54.
24. Ms. Heaton became directly
directly involved in the matter on December 2, 2021,
when she accompanied another Agency employee on an attempt to visit
I.M.R.
I,Mg and interview her at Petitioner's home.
home, The
The visit itself was
uneventful; however, Petitioner's actions afterward were troubling, to say
the least.
Q:
Q: Can you
you give
give us some details about the [level
[level of
Petitioner's] cooperation
cooperation [in
[in the case]?
A: Yes. Again
Again all during the case IIhad been hearing about
the difficulties and cooperation by Mr. Cardwell but on
December 2nd I I went out to the home along with Belinda
Black to try
try to see lva
Iva and she was not home. We did
,,
' speak with his mechanic, Mr. Cardwell's mechanic, Bill.
'
15
,.
l
I'
I,I He
He tried to reach
reach Mr.
Mr. Cardwell but was
returned to the office.
was unable
unable to.
to. So we
we
l
When
WhenIreturned to the office
office Ihad a
avery angry voicemail
'I·
%
message
message from Mr. Cardwell telling us that we had no
Ii business stopping
stopping by the home and to never do it
and that if we wanted to-anything
it again
to— anything from him, we were
to mail itit in writing to aa Chambersburg address address.
Subsequently he then called the office again and IIspoke
with him over the phone
phone and again he was very angry,
threatening
threatening me that we should never come back to the
home again; that it
it was not necessary. IItold him that we
just wanted to visit Mrs. Roush, discuss the case further,
just
talk
talk about any
any needs that
that she had
had and
and he said that it was
that it was
not necessary.
Q:
Q: Is anything you
ls there anything you would
would like
like to add about
cooperation
cooperation with Mr.
Mr. Cardwell?
A: Just
Just that there has been several instances of phone calls
from him demanding to know the worker's full names.
You know,
know,itit just seems to serve no other purpose but to
harass, be menacing.
menacing. He's accused they did not have
their proper
proper ID, which is not true, and-
and—
Q:
Q: After the emergency guardianship was filed, did Mr.
Cardwell file aaright
right to know demand?
A: Yes.
Q:
Q: Listing dozens
Listing dozens and dozens of requests
requests for
for information?
A: Yes, yes.
Q:
Q: Do you
you believe that was in retaliation for your
actions?
A:
A. Yes, Ido.
Yes,I
Id. at S2, S4 (emphasis
52, 54 (emphasis added).
2S. On cross-examination, I.M.R.'s
25. L.M.R's counsel obtained clarification about the
right-to- know requests,
right-to-know requests, which included five
five (or
[or more)
more] years' worth of
records pertaining
pertaining to how many people the Agency had removed from their
homes, the salaries of all Agency employees, all complaints that have been
filed against the Agency, drug testing and criminal background check
16
H
!I
results for all Agency employees, sources of funding for the Agency, and
Agency employees,
what legal authority
what legal authority the Agency
Agency has
has to
to do emergency guardianships. Id. at
56. Ms.
56, Ms. Heaton also provided
provided further information regarding her
communications with Petitioner.
Q: How many times have you interacted with Mr.
Mr Cardwell?
A: Five to six times actually verbally over the phone and
then we had several email exchanges.
I
'
I Q:
Q
A:
Have you-maybe
you— maybe close to ten times?
Yes, or more.
more
Q:
Q• You have been doing this [work]
[work] for almost 30 years.
Those ten times you interacted with him, how many of
those was he helpful?
A: Less than half.
Q:
Q: How many of those was he focused on what was best
for his mother?
A: In my opinion none. He did verbalize that he was
concerned that she belonged with him and not in aa
nursing
nursing facility.
facility. In fairness I
I will say the one time
that I
I did feel that he had aatrue concern was that he
wanted to make sure that her healthcare directives
were followed.
Id. at 57
57 (emphasis added).
26. Clarification questions
questions from the Court revealed the extreme nature of
Petitioner's actions toward the Agency.
THE COURT: Ms.
Ms. Heaton, were you
you able to
to get into
into the
the home
home
or were you allowed access to Ms.
Ms. Roush?
THE WITNESS: No, we weren't.
weren't
THE COURT:
THE COURT: What had to happen to get access to
Ms.
Ms. Roush.
Roush.
THE WITNESS: We had to get aaCourt Order.
,,' THE COURT:
THE COURT: Typically
Typically in these
these situations
situations when you
you come
to me with an emergency, an Order is signed
and then you do what you have to do?
THE WITNESS:
WITNESS Yes.
17
17
THE COURT: Was this different from most situations?
THE WITNESS:
WITNESS. Yes.
Yes.
THE COURT: Why?
THE WITNESS: We were very concerned about the safety of
our
our workers, so we
workers, so had to
we had to ask
ask the
the police
police to
to
accompany us.
THE COURT
THE COURT: And that accomplished what you needed to
accomplish?
THE WITNESS: Yes, it did.
Id. at 55
Id, 55.
27. Petitioner offered the testimony of himself in
in rebuttal of the evidence
presented
presented by
by the Agency.
Agency. Due to the allegations
allegations of financial exploitation
that were raised, as well as the presence of representatives of the
Huntingdon
Huntingdon County District Attorney's Office and two criminal investigators
from the Pennsylvania State Police in the courtroom, the Court gave
Petitioner the opportunity to meet with counsel to discuss whether to
testify,
testify, and then conducted aabrief colloquy on the record to confirm that
Petitioner both understood his Fifth Amendment rights and that the
testimony he gave could be used against him in acriminal prosecution.
in a
Petitioner confirmed that he understood his rights
rights and the possible risks
involved, and that
that he
he still
still wanted to testify. Id. at
at 64-66.
28. Petitioner's testimony on direct examination was troubling, and, at times,
28.
bizarre.
29. Petitioner had been caring for I.M.R.
IM.R. for ten years. He originally was caring
for both his parents, and they were living at their f
farm
a in Dauphin County.
rm
His father
father (I.M.R.'s
(IM.R.'s husband) passed away in 2018, and at some point after
that, he had moved IM.R.
I.M.R. in with him at his home in
in Huntingdon County.
I.M.R. had been living with him for between two and one-half and three
.M.R.
years. Petitioner and I.M.R.
years. IM.R. met with Attorney O'Toole, and she signed the
Alleged died. Id,
Alleged POA, after Petitioner's father died. Id. at 6
67-68.
7-68
'
I
,:
n
18
I.M.R. had only recently been prescribed medication
30. Petitioner claimed that IM.R.
for Alzheimer's, which he then clarified as being
being "aacouple of years." He did
not believe that her condition had deteriorated that far.
far He characterized
having "good
her as having days and bad days." He confirmed that she at times has
"good days
trouble recognizing
recognizing people.
people. He described aagood day as I.M.R.
IM.R. having aa
conversation with him and telling him the
the "years and dates of her sisters-
sisters—
she had 13 brothers and sisters." Id,
Id. at 68-69. He described a "bad day" as
follows:
A:
A: Bad day,
day. She has fits where she sees aanaked person
' outside the house.
house. Then you have to explain to her
there's no naked people
people hanging outside your house and
I she's okay.
okay. Might
Might argue with you some but she's okay.
Q: Would you acknowledge what was testified to earlier
about her visions of people in the trees?
A: Yeah, that's— normally it happens with she gets aaurinary
that's-normally
tract infection is when it
it happens most of the time.
dI. at
ld, 69.
at69
31. Per Petitioner, I.M.R.
I.M.R. had been hospitalized at the beginning of the year for
about
about aaweek,
week, and when
when she
she was
was discharged he
he tried
tried to
to get her
her into
into aa
nursing
nursing home in Carlisle. That did not happen
happen "because
"because we had something
with the insurance where we were in the wrong county or something. I
don't know." dI.
Id, at 70. The hospital did set up someone to come to the
home three times aaweek for skilled care.
care. He claimed that this continued for
many
many months,
months, until
until mid- summer, and
mid-summer, and that
that he
he had
had brought
brought in
in Ms.
Ms. Parks
Parks to
to
supplement
supplement the skilled care providers. Id. When the skilled care ended it
providers. Id,
was only
only himself, his mechanic, and Ms. Parks who were providing
providing care. He
confirmed that Ms. Parks came to the home three days aaweek, her primary
duty was to bathe I.M.R.,
duty IM.R. and that he had her take care of IM.R.'s
I.M.R.'s other
needs.
needs. Petitioner was very
very hands-off with respect to Ms. Parks's care for
I.M.R. "She
"She was never given aaschedule. She was told to come out there
three times aaweek,
week, make sure mom got
got aabath and if there was anything
19
19
I
else that mom needed, let her do it.
it. I
I mean, that's what IIwas paying her
for." at 72.
for." Id. at 72
32. Petitioner's description of the daily routine was that I.M.R. would get up on
her own, give
give herself aasponge bath, and then come out to the table for
breakfast. He would make her something to eat and giver her her
medications.
medications. If she'd been incontinent of herself overnight, he would clean
her up.
up. She would typically
typically spend the rest of the day napping and playing
with the dogs or her cat. She had previously spent a
alot of time watching
television, but that had tapered off. She did not know how to turn the
Id. at 72.73
television on herself. Id, 72-73.
33. Petitioner claimed that I.M.R. was rarely left alone in the house.
house. Either he
or his mechanic would be in the house with her.
her, But there were times that
he had to go pick up aacar or car parts and I.M.R.
IM.R. had been left on her own
own.
days he would have Ms.
One those days Ms. Parks come twice or have aafriend check
in
in on her. Jd.
Id. at 73-74.
34. Petitioner also claimed that he often took I.M.R.
IM.R. on errands and trips with
him
him to
to buy
buy car parts.
parts. He
He also would take
take her
her out to
to get her hair
hair done or her
her
nails done.
done. Id,
Id. at 73--74.
73-74.
35. Petitioner's description of
Petitioner's description of the
the events
events of
of September
September 6,
6th, when
when I.M.R.
IM.R. walked
walked
away and was picked up
away up by
by PSP, was as follows:
A: She was mad at me because she wanted to go to New
York.
York
Q: What's in New York?
A: That's
That's where
where our our family
family isis from.
from. MomMom likes to
likes to
gamble,
gamble, so we go go up there to this place way up north.
IIgot
got to think what the hell it is. is, It's a
a reservation
casino thing up there she goes to. She'll spend eight
hours sitting at a atable. IIactually have to tell the lady
at the table to shut it down so she'll eat but she likes
to gambling. So we
to do the gambling. just had one of her
we just her brothers
brothers
or sisters passed away, so she wanted to go up north, so
I· we went up up north but before I I could do that she got mad
because I I told her
her IIcouldn't do itit that day. She
that day. got—
She got-
climbed a a little fence. Started walking down the road.
n
20
I
I
'
ii
Q: What little fence is that? Inside the house?
A:
A: We got afence so we can let the dogs out and they don't
got afence
run off. So you
you can't come in the house that way. There's
a fence like two foot, three foot high.
a high
Q: Okay.
Okay.
A:
A: So mom crawled over the fence, decided to walk down
the road. When she walked down the road, somebody
picked
picked her up.
up. We only live on James Creek Road. We
see maybe
maybe five cars aaday down there
there.
Q: Were you home at the time?
A:
A: No.
No. I was getting groceries. Bill [Petitioner's mechanic]
Iwas
was home. Bill's the one that called me, said Bill, your
mom walked off,off. Well, you know what happened. She
walked down the road, somebody picked her up and
dropped her off at the State Police. I
dropped I call the State Police,
Police,
alerted them before she even got there. She wasn't even
there
there when
when II called them. While II was talking to him, she
walked into the police station. Well, I I was in
in Altoona. I I
called Bonnie
Bonnie [Parks].
[Parks]. Bonnie went and picked her up
brought her
and brought her back home. Then
back home, Then the next
next day that lady
lady
[pointing at Ms. Hughes] showed up
[pointing up.
Id. at75-76.
Id, at 75-76.
36. Much of Petitioner's testimony regarding his interactions with Ms. Hughes
and the Agency
Agency focused on what he alleged were illegal or impermissible
actions by
by them
them (matters
(matters which the Court ruled were not relevant to the
question of the emergency
question emergency guardianship). It did confirm, however, that he
took posture with
took an adversarial posture with the Agency from
the Agency from the
the very start.
very start
Q: And do you
you recall at that time whether Ms.
Ms. Hughes asked
you to take a
a look around the house or to meet with your
mom?
mom?
A:
A: No, The conversation went pretty much like
No. hike this.
this. She
come up on the porch. She said she'd like to talk to
come up on the porch. She said she'd like to talk to mom.
mom.
I
I went and got
got mom, put
put her on the porch and she had aa
conversation, two minute conversation, with my mom
and turned around and told me my mom needs to be in a a
nursing
nursing home. Then I I asked her, II said, who are you to
tell me in aatwo minute conversation with my mother she
belongs
belongs in aanursing home? What qualifications do you
,,'
21
21
l
I
II
have? In fact, I
I said to her where's your identification
because she by law-
THE COURT
THE COURT: Let's move on. I'm not concerned with that.
Id. at 77; see also generally id. at 77-78.
77-78
37. Petitioner claimed that he had no further interaction with the Agency until
they
they showed up
up with the State Police on December 6th
6 to take custody of
I.M.R. Id. at 78. He addressed the financial issues in aasuperficial manner;
I.M.R. Id,
0:Q• There's been some allegations about misappropriation of
mom's funds. Is there anything that we[sic] to have to
say about that here today?
A:
A: There's no misappropriation of mom's funds. Whenever
mom or dad died, they were renting the farm out to
$13,000.
$13,000. When I I rented the farm out, she made
made $$25,000.
25,000.
I
l put
put that in a
a trust fund and that goes into her money or
into our bank account along with both of our social
securities goes into the same bank account. We have the
same bank account.
Id. at 79.
Id,
38. As far as his income, Petitioner claimed that he was retired or
38.As or "semi-
semi-
retired," due to having
having suffered some unspecified injury in 1991. He last
worked in 2012. Id,
Id. at 68. He also claimed to be an expert in
in in-home care
and the investigation of elder abuse.
Q: Mr.
Mr Cardwell, prior
prior to your retirement and/or disability,
do you have any work history in the field of in-home
care?
A: Absolutely.
Q: What is that?
A: Iused to be acontractor
Fused acontractor for the Office of Aging.
Aging. I
I covered
eight counties.
Q:
Q; When you say aacontractor, what do you mean?
A: We did in-home care. IIhad aahundred girls working for
Il me, so I'm
l'm very
very much aware of what's going on here.
Q• How long
long did you
you work in that capacity?
I
l
I
::
22
11
ii
A: Six years I
I think it was.
was. In those six years I
I had two
counties investigated and basically the Federal
government came in and shut them down.
Id. at 80
Id, 80.
39.
39, When Petitioner was asked by his own counsel about how I.M.R.
I.M.R. was doing
since having been placed in a
a nursing home
home (he
(he had visited her the previous
day),
day), he had trouble focusing on his mother's overall condition, and focused
instead on supposed shortcomings with both what the Agency had done
and the quality of the home they selected. Id,
Id. at 80-82.
Q:
Q• Has she-do
she— do you know whether or not she's taking her
medications or is receiving any kind of medical
treatment that she may need?
A: Well, I— when I
I-when I got to the nursing home— on the way to
home--on
the nursing come I I call the other Area of Aging and asked
them the story on the nursing home. They told me they
have Covid[sic] in the nursing home and they told me it
was aathe worst nursing in in the county. They told me it
had aa one star rating and they're seriously understaffed.
understaffed
Iasked lady[sic] at the nursing home or the Area of Aging
asked
would you put your mom there. She said absolutely not.
I.I
Q:
Q Has your— how is your mom's condition?
las your-how When's the
last time you saw your mom?
A: Yesterday.
Yesterday
Q: How is her condition?
A: Good.
Q:
Q• Did she have any kind of, you know, infections or any
kind of conditions? In good condition or no?
A:
A. When I I finally got to see my mom aaweek later, her nose
looked like it was falling off her face.
face. So I I got the
administrator and IIasked them, what's this thing on her
face and they
they told me it was aastaph infection.
infection. She didn't
have aastaph infection when she left me but sure got one
now. So—
So-
Id. at 81-82
Id, 81-82.
I
,.
n
l
23
40. Cross-examination of Petitioner
40.Cross-examination by the Agency's
Petitioner by Agency's counsel revealed
revealed more
more
bizarre claims and information that was much more concerning than what
came out in direct examination.
a.a. Petitioner claimed to be unaware that IM.R's
I.M.R.'s physician, Dr. Sellers, had
diagnosed I.M.R.
diagnosed IM.R. with dementia in 2014 and had prescribed medication
for the condition at that time. (This
(This despite supposedly having been to
every I.M.R.'s medical appointments
every one of LM.R.'s appointments since he began taking care of
her in 2012.) Id,
in 2012.) Id. at
at 84-85.
b. He could not provide
provide aafull name for IM.R.'s
I.M.R.'s sister, as he only knew her
as
as "Aunt Suzy." He could not provide her address despite having been to
her house "a
her house "a hundred times."
times." "Don't
Don't ask me where
where she
she lives.
lives. IIcan only
drive there." [d,
Id. at 83-84.
83--84
c. He did not dispute Ms. Parks's description of the interior of his home.
cleaning freak." Id. at 86.
He did, however, claim that she was a "cleaning
He (unintentionally)
d. He [unintentionally) confirmed that I.M.R.'s
LM.R.'s cat could be used as aa
source of leverage over her.
her,
I'
Q
Q: When your
your mom expressed
expressed some concern-strike
concern— strike that.
your mom
Was your mom worried
worried about
about what
what was
was going to
to happen
to her cat if she went to a
a nursing home?
A: My
My mom's always worried about what happens to
that cat. Everyday
Everyday she wakes up IIget a
a story about
this cat.
Q: Did you tell
Did you tell her,
her, quote, you should have fucking thought
quote, you thought
you
about that before you took off down the road and to the
State Police?
State Police?
A: No.
No
Q: You never said that?
A: No.
Id. (emphasis added)
added).
e. He admitted that his claim that the infection on I.M.R.'s
IM.R.'s nose was staph
was false. He also
also (again,
(again, unintentionally)
unintentionally) confirmed that his focus was
I.M.R., and not
on control of LM.R., not what was best her.
best for her
24
Q;
Q• The staph infection that you indicated your mom has on
nose.
her nose
A: Yes.
Q:
Q: Isn't it true that the doctor there said it was cellulitis?
Isn'tit
A: They
They told me it
it was a
a staph infection. I I have not heard
the terminology
terminology cellulitis until yesterday.
Q: Who did you
you hear it from yesterday
yesterday?
A: The nurse.
Te
Q:
Q: At the nursing
nursing home?
A:
A: At the nursing home.
home
Q: So yesterday you were told it was cellulitis?
A: Yes.
Q: But today you're testifying it was aastaph infection?
A: That's what I
I was told.
Q:
Q By whom?
A: The coordinator up at the nursing home. When I I got to
the nursing
nursing home, the first thing I
thing I did was went to the
coordinator and he got the director of nursing and I I
handed them the power of attorney that I I had which
basically states everything my mom wants done. I I
told them Huntingdon doesn'doesn'ttrecognize this power
of attorney but everybody in the country does. I I said
if IIwas you, I
I would get
get my
my mom evaluated because you
just told me that this happened outside of your area.
Id. at 90
ld, 90 (emphasis
(emphasis added).
f.f, Petitioner confirmed that the copy of the Alleged POA that he had
provided
provided to his attorney and that had been filed with the Court, the
same document he had represented
represented to the Agency as giving him
I.M.R.'s person and property, had not been
absolute authority over IM.R.'s
,,'
effective. Id
executed by him as required for it to be effective. Id. at 90-91. The
Court left open the possibility
possibility of Petitioner locating an executed copy.
Id.
Id.
25
,I 41. With respect
41.With respect to the misappropriation
misappropriation issue, Petitioner initially refused to
I any specifics
discuss any specifics regarding finances without having bank records with
him, claiming
claiming that he could not remember the details. For example, he
,, initially claimed he didn't recall that I.M.R. received
received $$250,000
250,000 from aalife
insurance policy
policy after her husband died in 2018.
2018. [Id,
Id. at 92.
92. He then said
that he was
was "aware
aware of it." Id. His testimony was similar regarding
it." Id, regarding $$250,000
250,000
that
that I.M.R.
IM.R. had
had received
received from
from the
the sale
sale of
of aaproperty.
property. He
He then
then went on to
went on to
testify
testify that he did not know how the money had been spent or where it was.
was
He also
also (inadvertently)
[inadvertently) testified once again to the degree of control he had
over I.M.R.
LM.R.
Q:
Q: Well,
Well, you do know or you
you doknow you don't know.
know. As your [sic] power
As your[sic]
of attorney
attorney I
I would assume you would be on top of those
things.
A: asking me. She's got it. If she got it, it's probably
You're asking
in the bank account and II probably either tools
took it out for
something
something or did something with it but she okayed
everything that I've done.
everything
Q:
Q: So it's still somewhere?
A:
A: Probably.
Probably
Q:
Q: Are you handling her finances?
A: Ipaid her bills.
Q:
Q: You don't know where her money is?
A:
A: Ipay
pay her taxes. I I pay the bills and it comes out of my
They [I.M.R.
account and her account. They [IM.R. and her husband]
had separate
separate accounts when they were married of when
dad died. When all that took place, there was 60-some
60- some
thousand dollars missing
missing out of one of dad's accounts. It
is what it is.
is, I
I didn't have control over dad's accounts
either.
,, THE
THE COURT: When did your dad pass away?
THE WITNESS: was-]I want to say it's in the
]I think it was—
September
September range 2018. He died at the
range of 2018
house.
26
'I
THE COURT: Was
Was that before or after
after the
the power
power of
attorney?
THE WITNESS: After— no, I'm
After -no, I'm sorry. No, No. Yeah, it was
after because before dad died I I tried to get
her to do aa power of attorney on dad and I I
don't think she did.
did . I
I don't think she did
but at some point we had mom's name put
on everything and at some point dad tried
to get her to sign off on it and I
I told her no.
And then when dad died, she ended up with
everything
everything and then she told the attorneys
that she wants to give me everything now
while she's still alive.
THE COURT: When was that?
THE WITNESS: Back in 2018. That's when IIput everything in
a trust fund so that we
a we— the income coming in
-the in
from the house shows up as income and that's
what's on the taxes every single year.
year
Id. at 93-94
93-94 (emphasis
(emphasis added).
42. Petitioner further revealed that his recordkeeping with regard to his joint
account with I.M.R. was woefully inadequate, and that he considered all of
her assets to be his,
his.
Q:
0: So right now she gets her Social Security?
A: Yes.
0:
Q: And
And $$25,000
25,000 aayear, is that right?
A:
A Yes.
Q: She get any other income?
A: No.
Q:
Q• And her money
money goes
goes into a
a joint bank account with yo,
you,
is that
that right?
A:
A Yes.
Q
Q• It would be safe to say that the balance of you account at
least in October would have been aa couple thousand
bucks?
27
I A: I
l have no idea what my
my balance its. I'm 60 years old and
I I've
I've never reconciled aachecking account since then
then.
I Q:
Q Would you
you know if it
it was a
a couple thousand versus aa
,I million?
A: Probably
Probably because I I get notifications that I
I got more than
aathousand in my bank account. I I don't keep money in
the bank. II pull money in and out of banks all the time
time.
Q:
Q: Do you keep your mom's money in the bank?
A: I
I pull money out all the time. Our money— it's our
money-it's
money. It is not my mom's money. If mom needs
something,
something, IIbuy my mom whatever she needs. My
mom's not wanting for anything.
anything."
95-96 (emphasis
Id. at 95-96 (emphasis added).
43. Petitioner
43. Petitioner confirmed that there were ten
ten dogs in the home. Id. at 96
home. Id, 96.
44. Petitioner confirmed that he contacted Attorney O'Toole for help with
44.
getting I.M.R.
IM.R. out of the Agency's custody as soon as she was removed from
his home, specifically
specifically focusing on the Alleged POAS
POA. 5 Id,
Id. at 98
98.
45. At the close of the hearing the Court denied the petitions to remove the
Agency I.M.R.'s person
Agency as guardian of IM.R.'s person and estate and to reconsider the
appointment of the
appointment Agency as emergency
the Agency emergency guardian,
guardian. The Court also stated
on the record its limited reasons for denying the petitions, and that it
believed I.M.R.'s
IM.R's dementia and need for care were sufficient to support the
guardianship.
emergency guardianship
THE COURT: I
l appreciate
appreciate the argument.
argument. However, under
the circumstances based on the testimony that
IIheard I I think there's more than enough to
deny the emergency petition to to remove the
the
current guardian.
guardian. II believe that Ms.
Ms. Roush is
at risk
risk based
based on the
the testimony.
testimony. II believe
believe she
has been at risk.
Again,
Again, IIwould imagine that the testimony will
be developed further but IIdon't think there's
any
any question
question that she has dementia.
dementia. She's in a
a
SThe Court notes that it did not allow further questioning or testimony on this issue given the possibility of
Te
privileged being revealed.
privileged information being revealed, The fact that Petitioner did contact Attorney"Toole
Attorney O'Toole is relevant,
however, to question of
to the question of whether
whether he
he should have been
been permitted to represent
permitted to I.M.R.
represent IM.R
28
I
l
I dementia
dementia unitunit now
now which
which I think
think is
►1
appropriate based on the testimony. It sounds
as if she needs round the clock care. There's
no evidence that round the clock care has
been
been provided
provided under
under the circumstances.****
the circumstances.
Id. at
Id, 102-103.
at 102-103
46. The Court further ordered Petitioner to provided fully executed trust
46,
documents within ten days. Id,
Id. at 103.
47. Following
Following the First Hearing, aafull hearing on the Guardianship Petition was
scheduled for February 1, 2022.
48.
48. On January 13,
0n January 13, 2022, Attorney
Attorney O'Toole filed an emergency petition
petition for
for leave
leave
to serve as legal I.M.R. That petition was incomplete, as it
legal counsel for IM.R. it did
not include an engagement
engagement letter as required by Pa.R.0.C.P.
Pa.R.O.C.P. 14.4(b).
14.4(b). The
following
following day, the Court entered an order directing Attorney O'Toole to file
acopy of the engagement
acopy engagement letter as aaconfidential document and giving the
other parties
parties until January
January 21, 2022, to file any written responses to
Attorney O'Toole's petition. After review of the then-existing
Attorney O"Toole's then- existing record, the
petition,
petition, and the response
response filed by Attorney Ghaner, the Court denied
Attorney O'Toole's petition on January 24, 2022.
49. The second hearing
49, hearing in this matter
matter (the
(the "Second
Second Hearing") occurred as
scheduled on February 1, 2022.
50,
50. The Agency
Agency presented the testimony of Dr. Brandon Michael Roscoe,
Dr.
Dr. Amy
Amy Sellers, Brittany
Brittany Bacher,
Bacher, and
and Carissa Beish.
51. Dr. Roscoe
51.Dr Roscoe is aaprimary
primary care physician
physician who specializes in geriatrics. He is
is
an attending physician at Mountain
attending physician Mountain6 Laurel
Laurel Healthcare and Rehabilitation
Rehabilitation
facility at
Center in Clearfield, PA, the facility at which I.M.R. was
which IM.R. was placed
placed after being
being
removed from Petitioner's home.
home. N.T.,
N.T., Second Hearing, at 6-7
6-7. He
examined I.M.R.
IM.R. in that capacity upon her admission to the f
facility,
cility,
a and
reviewed her medical records from before that time and those generated by
I.M.R.'s
L.M.R.'s treatment
treatment by
by other staff at the Id. at 7,
the facility after admission. Id, 9-10.
7, 9-10
I!: -,.-,-,-,
, --"-"-,-,-,-,-m-
" ,-.- , --.,-. .,r�rs to
, "-,-0-,
The hearing transcript continually refers to "Mount t..urel, • but
Mount Laurel," but "Moun!•1n
Mountain Laurel"is
Laurel" is correct
correct.
.,
6
I
29
II
He
He concurred with Dr. Id. at
Dr. Seller's diagnosis of vascular dementia. Id, at 7. In
In
his opinion,
opinion, it "completely
" completely impairs her ability to function independently,"
rendering
rendering her in need of round-the-clock skilled care. Id,
Id. at 8. When asked
specific activities he
about specific opined that
he opined that she would
would not
not be
be able to negotiate
negotiate
contracts, handle her own checkbook, administer he own medicines, cook
cools
her own meals, or regularly
regularly use the bathroom on her own. Id,at
Id.at 8, 10--11,
10-11.
On cross-examination by
by Petitioner's counsel, Dr. Roscoe specifically
referenced I.M.R.'s
LM.R'S BIMS score. BIMS is aaneurologic
BRIMS score, neurologic assessment tool used
by
by the nursing
nursing facility,
facility, scored 0-15; 13-15 is normal, 8-12 is moderate
cognitive impairment, and anything less than 7
cognitive 7 is severe cognitive
impairment.
impairment, I.M.R.'s
LM.R's score was 6. Dr. Roscoe characterized this as
as "aa
profound Id. at 11. He further testified that the prognosis for
profound deficit." Id,
I.M.R.'s vascular dementia is poor, with the condition expected to be
I.M.R's
progressive
progressive and worsening. Id,
Id. at •
9.
52. Dr. Sellers is aaphysician in private practice in Harrisburg, PA, specializing
family medicine. She began
in family began treating
treating I.M.R.
IM.R. in 2014 and continued as
I.M.R.'s primary
I.M.R's primary care physician
physician until she was placed in the Mountain Laurel
facility. Dr. Sellers first saw I.M.R. for
facility. for "difficulty
difficulty with her memory" after aa
fall. Id. at 14-15. Dr. Sellers first prescribed medication to treat her
"memory difficulties" in December 2014, and, with, some changes in
medication, she has been treated with medication for cognitive issues ever
since that time. Id,
Id. at 15, 20--21.
20-21. Although Dr. Sellers prescribed
I.M.R. in 2014, she did not diagnose her with vascular
medication for IM.R.
dementia at time;
time; "The
"The official diagnosis was made aabit later but it was
mild cognitive impairment
impairment at that point
point that we were using the
[medication]
[medication] to treat." Id. at 20,
treat" Id, 20. Dr. Sellers confirmed that she personally
prepared
prepared the form M-851 Physician's Statement Regarding Patient's
Medical Condition and
Medical Condition and Capacity
Capacity that
that was attached to
was attached to the Emergency
the Emergency
Petition. d.
Id. at 27-28.
27-28. She confirmed that I.M.R.
I.M.R. needs round-the-clock
nursing
nursing care, cannot live independently, and can only complete basic tasks
such as getting food and going to the bathroom with assistance. Id,
Id. at 15-
30
,",
l
I
n 16, 23-24. On cross-examination by
16,23-24. by Petitioner's counsel, Dr. Sellers
characterized I.M.R.'s
LM.R.'s impairment
impairment as being milder than opined by
Dr. Roscoe, repeating
repeating her
her "mild to moderate" characterization from the
Id. at 23, 27. Dr. Sellers also noted, however, that in addition
form M-851. Id,
to her baseline dementia, I.M.R.
IM.R. had suffered several instances in which
"things flared" and she suffered
"things suffered "acute
acute mental status changes." This was
attributed to urinary
urinary tract infections and instances of T[As
TIAs or
or "mini-
mini-
Id. at 29. The TIAs contributed to her vascular dementia.
strokes." Id, dementia. Id,
Id.
Upon
Upon further questioning, Dr. Sellers noted that the acute mental status
changes had led to multiple emergency room visits for IM.R.,
changes I.M.R., and had been
occurring "frequently."
occurring frequently." Id,
Id. at 30. She agreed with Dr. Roscoe that L.M.R's
I.M.R.'s
prognosis is poor and progressive. Id,
prognosis Id. at 16.
16
53. With specific respect to her knowledge of Petitioner and his relationship
with I.M.R., Dr. Sellers first met him in 2017, when he began taking I.M.R.
IM.R., Dr IM.R. to
her medical appointments. Id,
Id. at 22. She characterized I.M.R.
IM.R. as always
being dressed appropriately and not appearing malnourished or neglected.
Id. at 22-23. She noted that she had had discussions with I.M.R.
Id IM.R. and
Petitioner sometime after I.M.R.'s
IL.M.R's husband died about the fact that I.M.R.
IM.R.
could no longer
longer live alone, after which I.M.R.
IM.R. moved in with Petitioner. Id,
Id.
at 16.
16, She had also
also discussed with Petitioner
Petitioner more
more recently
recently that I.M.R.
I.M.R. was
was
Id. at 17-18. Notably, at aavisit in
now in need of round-the-clock care. Id
April 20187
April 2018 7 Petitioner asked Dr. Sellers about becoming a
apower- of-
power-of-
attorney for I.M.R.
LM.R. Id. at 18, 22.
54. Brittany
54. Brittany Bacher is the Director of the Alzheimer's Unit at Mountain Laurel.
I.M.R.
L.M.R. was housed in that unit. Id,
Id. at 46. Ms. Bacher's testimony only briefly
addressed I.M.R.,
IM.R. whom she characterized as having taken some time to
adjust to the transition before showing improvement,
improvement, but generally doing
I adjust
Id. at 47. The focus of Ms. Bacher's testimony was on Petitioner's
well. Id,
' behavior
behavior at visits and
and his
his actions afterward. Petitioner's
Petitioner's harassment
harassment and
I
7 Dr. Sellers first testified that this occurred in April 2019, but then consistently referred to it as occurring in
'Dre
April
April 2018 inin all later testimony, See
later testimony. See id. at 18, 19,22.
id. 19, 22,
31
intimidation
intimidation of Mountain
Mountain Laurel's
Laurel's staff matched that
that he had
had committed
11
against the Agency. He had repeatedly photographed and videoed staff,
continuing to do so after being
being directed to stop.
stop, He was loud and disruptive
during
during visits, to the point that he upset other patients. He repeatedly
threatened to sue Mountain Laurel and its staff. He subjected multiple staff
members to questioning and caused aascene if any of them answered
others. He claimed that the Alleged POA trumped the
differently than the others.
orders of this Court. He told Ms. Bacher that he was placing pennies on the
floor to see if the facility
facility was being cleaned, and then the next day reported
Mountain Laurel to the Department of Health. (The
(The resulting investigation
was returned
returned "unfounded.")
"unfounded.") Petitioner complained that he had taken the
wedding ring off IM.R.'s
I.M.R.'s finger and no staff members had noticed.
noticed. Ms.
Bacher personally
personally witnessed Petitioner eating food off of IM.R's
I.M.R.'s tray and
had to "redirect" him not to do so.
so, And she had witnessed him intimidating
I.M.R., pressuring her to change her drink selection
selection ("[H]e
("[HJe told her no. You
don't drink that.
that. You drink the other one.") Id,
Id. at 48-50. These actions had
led the Agency to suspend Petitioner's visits with I.M.R. Id. at 48.
IM.R. Id
55. Carissa Beish is the Director of Nursing Services at Mountain Laurel.
55. Laurel. She
was familiar with IM.R.
I.M.R. and, similar to Ms. Bacher, characterized I.M.R.
IM.R. as
having
having adjusted to the transition and doing well. Id. at 57-58. Also as with
well. Id,
Ms. Bacher, the focus of Ms. Beish's testimony was Petitioner's behavior at
the facility.
facility
Q: Do you recall an event at your facility during which
Mr. Cardwell was yelling in in Iva's room and Iva's lva's
roommate pleaded
pleaded for the yelling and fighting to stop?
A: Yes.
Q:
Q: Is
ls it fair to say
say that your facility isn't equipped
your facility equipped to
to handle
that kind of behavior by visitors?
A:
A. Correct.
Correct
58.
Id. at 58
,, 32
32
,,
11
56. On cross-examination by Petitioner's counsel, Ms.
56.On Ms. Beish testified that she
had been made aware of Petitioner photographing staff, including while
staff was providing
providing care to IM.R.
I.M.R. in her room, and that Petitioner had made
and "frequent"
"numerous" and frequent" complaints regarding the cleanliness of the
facility alleged noncompliance with €OVID-19
facility and alleged COVID-19 infection management
protocols. Id,
Id. at 59-63.
57. Petitioner presented
presented the testimony of Dr. William Kauffman.
Kauffman. Dr. Kauffman
practices in the hospice
hospice and nursing home setting, and was previously
engaged in family practice. Id,
engaged Id. at 35. He was originally presented to the
having been aatreating physician for IM.R.
Court as having I.M.R. He was accepted as aa
witness on that basis, and not as an expert. Id,
Id. at 36. However, it soon
became apparent that I.M.R.
[.M.R. had never been aapatient of Dr. Kauffman
Kauffman (he
(he
characterized it as
as "[n]ot officially aapatient"). Id,
Id. at 36, 43.
43. Instead,
Dr. Kauffman knew Petitioner as both aapatient and aafriend. In fact, they
had known each other for 30 years.
years. Id,
Id. at 36, 44. Dr. Kauffman had been
contacted by Petitioner, given Petitioner's version of events, and was
testifying
testifying as aafavor to him. Id
Id. at 44.8
44. 8 Dr. Kauffman had last seen I.M.R.
LM.R. in
March 2021 when she was hospitalized in Carlisle, and presumably had
checked in on her as a
a favor to Petitioner. Id
Id. at 37.
37 The primary thrust of
Dr. Kauffman's testimony was to dispute the severity of I.M.R.'s
IM.R.'s cognitive
impairment
impairment as characterized by Dr. Roscoe. Dr. Kauffman was skeptical of
the BIMS score, which he alleged could vary day-by-day, and the fact that
Dr. Roscoe did not evaluate IM.R.
I.M.R. multiple times, because her level of
eSee id
See id. (cross-examination by the Agency's counsel).
Agency's counsel)
Q
Q: ***And your attendance here today, is that as aafavor to Mr. Cardwell? Are yo
And so, Doctor, your you
being paid to be here today? ls
being paid Is it
it an accommodation? Can you help me do that?
I' A; Iam not being paid.
paid
Q; Okay, sorry
Okay sorry.
' Q
A;
A: No, that's okay,
No,that's okay. So he and I talk—we
I talk -we get together maybe four times aayear because we have
a hobby
a common, so we get together for dinner about four times a
hobby in common, ayear and so when he
told me what had happened and it it did not make aalot of sense to me, IIsaid IIwas happy to
help
help out if I
I could.
could
33
11
I,
it
cognitive impairment
cognitive impairment could also vary
vary day-to-day and would have been
exacerbated by
by the move into the nursing home. Id,
Id. at 39-40.
39-40. However, he
also confirmed that beyond
beyond the BIMS score, he had no reason to disbelieve
Dr. Roscoe's findings
findings regarding
regarding I.M.R.
IM.R. nor Dr. Roscoe's ultimate conclusion
that she was incapacitated. Id. at 40-41.
incapacitated. [d,
58.
58. Due to time constraints, the Second Hearing was adjourned, with the
remainder of the testimony to be presented on February 8, 2022. Id. at 67.
59. Two days
59.Two days after
after the
the Second
Second Hearing
Hearing (February 3, 2022)
(February 3, 2022) Petitioner
Petitioner filed
filed aa
motion in limine seeking to have all medical and financial records obtained
by
by the Agency
Agency excluded from evidence,
evidence. The basis for the motion was that
the Records Petition had been wrongfully
wrongfully granted ex parte, without notice
to I.M.R. Petitioner. In essence, Petitioner was making a "fruit
IM.R. and Petitioner, fruit of the
poisonous
poisonous tree" argument,
argument, claiming that the alleged impropriety with
respect to the information obtained via the Records Petition extended
across the entirety of the Agency's case, and significantly prejudiced both
I.M.R.
IM.R. and Petitioner.
Petitioner
60. The final hearing was held as scheduled on February 8, 2022
60, 2022 (the
(the "Third
Hearing"). The Court began
Hearing"). 'The began by
by hearing argument from counsel for all of the
parties
parties regarding
regarding the motion in limine. N.T., Third Hearing, at 1-9. While
the Court agreed
agreed with Petitioner's counsel that the Records Petition should
the Interest of
not have been granted ex parte, citing In the of M.B.,
MB, 686 A.2d 877(Pa. CmnwIth.
(Pa. Cmnwlth. 1996), it did not agree that significant prejudice had
occurred, nor that the proper resolution was to exclude all of the Agency's
evidence. Rather, the Court denied the motion, citing the facts that: (i)
() even
without
without the
the evidence obtained
obtained using
using the
the Records
Records Petition, the
the remaining
evidence in the possession
possession of the Agency
Agency at the time the Emergency Petition
was filed grant the emergency guardianship;
fled was sufficient to grant guardianship; (ii)
[ii] the
the
Agency
Agency would have obtained all of the records at issue as aaresult of the
emergency guardianship
emergency guardianship (i.e.,
(ie., inevitable discovery); and
and (iii)
(iii) Petitioner did
not have an interest in protecting the records, as that interest belonged to
I.M.R.
L.M.R. N.T., Third Hearing, at 10-11
10-11.
11
11
34
61. Petitioner's
Petitioner's counsel specifically
specifically raised
raised the
the question of why
why Attorney
Attorney
Ghaner, as counsel for I.M.R.,
IM.R., had not joined in the motion in himine
limine in order
to protect
protect I.M.R.'s Id. at2.
LM.R's rights. Id at 2. Attorney Ghaner first noted his concern
that the motion in Aimine
limine appeared to be an attempt by Petitioner to use
I.M.R.'s rights
rights as aashield to protect himself. Attorney Ghaner then
explained his reasoning for not joining
explained joining the motion in limine
imine as follows:
Moreover, Your Honor, and factually specific to this, I
I have met
with my client two times at length because of the controversial
nature of this specific guardianship. I I spent an extended
amount of time with her. And on neither of those occasions did
she present
she as somebody
present as somebody whowho I I believe
believe would
would have the
have the
capacity to understand the argument that is being made and
capacity
the records that
that were
were taken.
taken
So with that, I
I conducted some research and am led by Rule of
Professional Conduct 1.14
1.14 which
which directs that
that aalawyer when
when
dealing
dealing with a
a client of diminished capacity, shall, as far as
reasonably possible, maintain aa normal client/lawyer
relationship.
relationship
That rule goes on to state that if the lawyer reasonably believes
that the client is of diminished capacity and at aasubstantial
risk
risk of physical,
physical, financial,
financial, or other harm,
harm, then
then the
the lawyer
lawyer can
can
seek
seek the
the appointment
appointment of aaguardian.
guardian
exactly why we are here. For the appointment of aa
That is exactly
guardian.
guardian. There is emergency guardian
is an emergency guardian in
in place,
place, which
which I
I
believe is proper.
proper. And IIwill tell you whenever I'm called upon,
that based on lengthy discussions with Iva,
lva, that a
a guardian is
needed.
Id. at 8, 9.
Id,
62. The Agency
Agency presented
presented further testimony from Ms.
Ms. Burnell and Ms. Heaton
Heaton.
63. Ms. Burnell's testimony was in follow-up to her original testimony
63.Ms.
regarding I.M.R. by Petitioner from the First
regarding financial exploitation of IM.R.
Hearing,
Hearing, as she had been able to review
review "many
"many hundreds of pages of bank
I, documents" as well as other items in the intervening time and had prepared
' aafinal report. Id. at 14-16. Although Ms. Burnell did not provide aafinal
report. Id,
number for the amount of misappropriated assets, she noted aanumber of
transactions and occurrences that totaled hundreds of thousands of dollars,
35
and
and which led her
her to
to the
the conclusion that financial
financial exploitation had been
substantiated. Id. at 23.
substantiated. 23. These included:
a.a. The assets that were to have been transferred into the income-only
income- only trust
for I.M.R.
IM.R. were not the properties
properties actually transferred into it.
it. The
properties that had been transferred into it
properties it were sold in January 202O,
2020,
with no indication of what happened to the proceeds. Although it
it
appeared
appeared that they
they had
had been
been placed
placed in the joint account
the joint account between I.M.R.
between LM.R.
and Petitioner
and at Members
Petitioner at Members First
First Bank,
Bank, there
there was,
was, at
at most, only $103,000
most, only $ 103,000
of those assets remaining. Id,
Id. at 17.
b. Also with respect
respect to the Members First account, in November 2018
of IM.R.'s
$180,000 0f I.M.R.'s money had been transferred into that account. By
March 2019 very little of those funds were left. The funds were spent in
aaway
way that both violated the Multiple Parties Account Act and that would
penalize I.M.R. in terms of eligibility for medical assistance, including
penalize IM.R.
$ 41,000 paid to vendors who were
$81,000 that was withdrawn in cash, $41,000
not identified or who could not be identified in terms of the services
they
they provided, and
and $$18,000
18,000 paid to vendors dealing in automotive
repair
repair and restoration, including painting Id. at 18.
painting and transportation. Id,
Payments that were received from aaDarren M.
c. Payments M. Weaver/Weaver
Weaver/Weaver Family
Farm, which appeared to be ground rent paid for the use of property
owned by I.M.R.
IM.R. and payment for property of I.M.R.
IM.R. that was sold to
Mr. Weaver, had been made via check payable to Petitioner and
deposited in
deposited in the joint account, rather
the joint rather than
than the trust.
trust. The ground
ground rent
rent
payment
payment was for $24,800
$ 24,800 and the other check, the purpose of which
1'
could not be definitively
definitively identified, was for $363,700,
$ 363,700. Id,
Id. at 20-21.
d. Because
Because the
the property
property that had been held
held in
in the
the trust was sold to
I Mr. Weaver for $250,000,
$ 250,000, the $ 363,700 check raised the possibility that
the $363,700
Petitioner had arranged
arranged some sort of installment sale of the farm still
,. owned by
by I.M.R.
IM.R. to Mr. Weaver. That farm had aavalue of approximately
Mr Weaver,
I
$800,000, and was the only significant asset I.M.R.
IM.R. had remaining. Id. at
,I 21-22.
21-22
I
36
64. In addition to the bank and land records, Ms.
64. Ms. Burnell had reviewed the
Alleged
Alleged POA and the trust document for the Iva
lva M. Roush Income-Only
Income- Only
Trust. The Alleged
Alleged POA included
included aaprovision that I.M.R.
IM.R. has
has an interest in
receiving medical assistance; the trust document includes aasimilar
provision.
provision. These provisions
provisions both authorized the holder of the property or
power
power to undertake actions that would hasten or facilitate such eligibility
for I.M.R.
IM.R. However, even if the transactions undertaken by Petitioner were
claimed to be a "spend
spend down" of assets so as to hasten such eligibility, none
of them had that effect.
effect. In fact, they had just the opposite effect, potentially
rendering
rendering I.M.R. ineligible for up to five years into the future. Id,
Id. at 16-17,
18,19-20.
18,19-20
65. On cross-examination by IM.R's
I.M.R.'s counsel, Ms. Burnell confirmed that the
copy of the Alleged
copy Alleged POA she had received had not been signed by Petitioner.
She also confirmed that it contained language requiring Petitioner to act in
I.M.R.'s best interests. Id,
L.M.R.'s Id. at 40-42
40-42.
66. Ms.
66. Ms. Heaton's testimony
testimony was limited to the issues regarding Petitioner's
visits to I.M.R.
I.M.R. at the Mountain Laurel facility that had been raised at the
Hearing, and specifically
Second Hearing, specifically with respect to the Agency's suspension of
Petitioner's visiting privileges.
a. Not long
long after IM.R.
I.M.R. was removed from Petitioner's home he contacted
Ms. Heaton asking her where I.M.R. was and requesting to visit IM.R.
Ms. I.M.R.
Ms. agreed to
Ms. Heaton agreed to provide
provide this
this information and allow visits
visits so long
as Petitioner agreed
agreed to comply with rules established by the Agency for
visitation.
visitation, Those rules
rules were
were laid
laid out in an email Ms.
Ms. Heaton
Heaton sent
Petitioner
Petitioner on December
December 10, 2021. The rules
rules included
included that
that Petitioner
Petitioner
would follow the rules and protocols
protocols of the facility regarding
regarding COVID-19;
that he understood that he was not to remove or attempt to remove
I.M.R.
L.M.R. from the facility; that he would not
not "engage
engage in contentious
staff; and that he would
behavior with facility staff"; would "not
"not speak with
Mrs. Roush in an intimidating tone or upset Mrs. Roush in any way
I. during the
during the visit." Id. at 45-46.
visit." Id 45-46. After
After some back
back and forth regarding
regarding
37
visiting
visiting hours, Petitioner agreed to the rules via email on December 13th.
13,
Id. at 46.
Id,
b. Problems with Petitioner's behavior at Mountain Laurel began almost
immediately.
immediately. On December 15th,
15t, the Agency received its first call from
the facility regarding
regarding Petitioner's behavior there. Between December
15, 2021, and
and January
January 13, 2022,
2022, Ms. Heaton
Heaton received
received 11 separate
reports
reports from the facility regarding Petitioner's behavior and actions
actions.
The issue was significant enough that the Agency was in danger of losing
the placement
placement for I.M.R.,
IM.R., as the facility was prepared to discharge I.M:R.
IM.R.
if the behavior continued.
continued. As a
a result the Agency, both of its own
I
volition and on the request
request of the facility, suspended Petitioner's visiting
,,
privileges. Id,
privileges. Id. at 47-48. Ms.
Ms. Heaton noted that before this action
occurred, she had communicated with Petitioner's counsel regarding
the issue, but that no change in
in Petitioner's behavior and actions
dI. at 48.
resulted. Id,
c. Ms. Heaton further testified that in her roughly 30 years of working for
the Agency,
Agency, she could only recall suspending visits for family members
in two or three cases. She concurred that it was a "pretty severe action"
to get to that point. Id,
Id. at 48-49.
48--49.
67. Cross-examination of Ms. Burnell and Ms. Heaton by Petitioner's counsel
67,Cross-examination
mirrored what occurred at the First Hearing. Ms. Burnell was repeatedly
questioned about the sufficiency of her methods and the information she
questioned
reviewed as well as her conclusions that the Alleged POA and trust
document did not permit Petitioner to make unfettered use of1.MR.'s
of I.M.R.'s assets
for his own benefit. Id,
Id. at 24-38. Ms. Heaton was questioned regarding the
sufficiency
sufficiency of the Agency's
Agency's communications with Petitioner prior to the
f removal of I.M.R.,
LM.R, the sufficiency
sufficiency of its actions with respect to suspending
visits and not providing
providing alternatives such as video calls, the quality of the
I Mountain Laurel facility,
facility, and the timeliness of aanotification to Petitioner
regarding
regarding a "lump" that had been discovered on I.M.R.'s Id. at 59.
IM.R's armpit. Id,
I',
Nothing raised on cross-examination weakened the Agency's evidence, and
11
38
38
I
ii at times it strengthened it (including
[including with respect to the unreasonableness
of Petitioner's demands and behavior).
behavior].
68.
68. Petitioner
Petitioner presented
presented the testimony
testimony of Terry Lynn
Lynn Lumbard-Monnat,
Lumbard-Monnat, Valerie
Valerie
Scott, and himself
himself.
69. Ms. Lumbard-Monnat is LM.R's
69,Ms. I.M.R.'s niece and Petitioner's first cousin,
cousin. She lives
in New York state and has a
a cottage in Black Lake, New York. Her testimony
I.M.R.'s cognitive capacity, the relationship between IM.R.
focused on IM.R.'s I.M.R. and
Petitioner, and IM.R.'s
I.M.R.'s condition while in Petitioner's care. She had last
seen I.M.R. in September
September 2021 when they
they came to her cottage for aa
weeklong
weeklong visit. She characterized IM.R.
I.M.R. as having dementia but being able
to care for herself, dressing
dressing herself and using
using the bathroom unassisted. Id.
unassisted. Id,
at 61, 62-63. Per Ms.
61,62-63, Ms. Lumbard-Monnat, I.M.R.'s
IM.R's mind is still sharp when it
comes to playing games, and she and Ms. Lumbard-Monnat played games
nightly.
nightly, Ms. Lumbard-Monnat noted multiple times that I.M.R.
IM.R. likes to
gamble and go to the casino.
casino. Id,
Id. at 61, 63, 65. She also discussed the extent
to which I,M.R.
I.M.R. and Petitioner would gamble,
gamble.
Q: You said that Iva
lva likes to gamble.
gamble. Was that always at the
house or would you go to casinos?
A: We would frequent a a casino when we were together.
together,
We have been to The Turning Stone,Stone. We have been to
Akwesasne. I I wouldn't stay as long because Iva and
Bill like to gamble.
gamble. My aunt more so than him. She
would sit there for hours and hours and hours. IIalso
work for the federal government,
government, so I I didn't spend
money
money the way
way they
they did. I
I would limit myself to maybe
$500. They would
$500. They would bring
bring in
in thousands.
thousands.
Id. at 65
Id, 65 (emphasis added).
(emphasis added)
70. Ms. Lumbard-Monnat characterized the relationship between Petitioner
70,Ms.
I.M.R. as
and IM.R. as "very
"very good," and his care of her as
as "exceptional."
exceptional."
Ms. Lumbard-Monnat emphasized that I.M.R.
Ms. I.M.R. always had her hair done, her
nails done, had on nice clothes, and that Petitioner took
tools her out to eat and
out shopping
shopping all the time. Id. at 64, 65. When questioned further about
time. ld,
I.M.R.'s
I.M.R's mental capacity, though, Ms.
Ms, Lumbard-Monnat noted that aalot of
39
II
I{ I.M.R.'s childhood and
their conversations focused on past events, such as IM.R.'s
family. Id,
Id. at 61, 63.
Q:
Q• How was her conversation? Could she hold aa
conversation and understand what you were saying,
make sense?
A: Her conversation is limited. My aunt likes to talk about
her childhood upbringing. Bill and her
her. We would talk
about going to the casino. Not aanormal conversation you
would have about what is going
going on, you know, in the
world, no.
Id. at 63.
71. Valarie Scott is another of1.MR.'s
71.Valarie of I.M.R.'s nieces, first cousin to Petitioner, and also
lives in New York. Her testimony was largely irrelevant. The
'The relevant
portions,
portions, though,
though, mirrored Ms. Lumbard-Monnat's. Specifically, Ms.
Ms. Scott
lives jn
in New York, had last seen I.M.R.
I.M.R. when she and Petitioner visited in
in
September 2021, downplayed the degree of I.M.R.'s
IM.R's cognitive impairment,
believed that I.M.R.
IM.R. could largely take care of herself, and noted how close
Petitioner and I.M.R.
IM.R. had always
always been. Id,
Id. at 68--69,
68-69, 70-72,75-76.
70-72, 75-76. She also
I.M.R.'s skill at card games
noted IM.R.'s games.
Q:
0: Tell me aalittle bit about her demeanor, her well-being
well-being?
A: She was fine. She doesn't change,
change. I'm the one who calls
her on aaregular basis. I
I have always done that.
that She has
always been with us.us. She slowed down like anybody
does at her age, but she is still able to walk around and
join everybody, and she is aawhiz at cards. She is pretty
sharp.
Id. at 71.
Id,
72. After discussion with his counsel over the lunch break, Petitioner once
again elected to testify. Id,
Id. at 77--79.
77-79. Much of his testimony on direct
examination was aarepeat
repeat of his testimony at the First Hearing, at times
with more detail and at times with less, but with the same tone and
demeanor. He did make, however, yet more troubling admissions regarding
I.M.R.'s
his handling of LM.R.'s finances.
40
a. Petitioner confirmed that he, I.M.R.,
IM.R., and his mechanic lived in the home
at 3916 Tussey Lane in the James Creek area of Huntingdon County.
However, he also claimed that they did not have aamailbox there as they
considered it
it a "cabin,"
cabin," and not aaresidence. He maintained that I.M.R.'s
L.M.R.'s
residence was at the farm in Dauphin County (4206
Dauphin County (4206 Roush Road), and
he consistently gave aaFranklin County mailing address for himself,
which he later admitted was nothing
nothing more than aaUPS box. Id,
Id. at 80, 85-
86, 129-130. He faulted the Agency for attempting to send notices to
the
the home in
in Huntingdon County, as
Huntingdon County, opposed to
as opposed to the out- of- county
the out-of-county
addresses. Id,
addresses. Id. at 85.
b. Petitioner once again railed about the Agency, accusing it and its staff of
wrongdoings. Id,
multiple wrongdoings. Id. at 84--91.
84-91.
c. Petitioner testified that he had done extensive work to his home since
I.M.R. had been removed to make it handicapped accessible for her, and
that such work had been planned
planned prior to the removal
removal (this
[this was also
raised at the First Hearing).
Hearing). He believed this made his home an entirely
appropriate and safe place for I.M.R.
appropriate Id. at 92--95.
IM.R. Id, 92-95.
d. He made extensive allegations
allegations of poor conditions and neglectful care at
the Mountain Laurel facility. Id. at 95-102.
facility. Id, 95-102. Yet he also confirmed that
he began
began making
making complaints to the facility administrator right away,
focused excessively on the cleanliness of the floors, and had been taking
pictures in the facility. Id,
Id. at 97, 99-100, 102-103. This testimony also
confirmed his absolute disregard for authority.
Q:
Q• After you were told to leave the facility and that you were
longer welcome back, did anybody reach out to you to
no longer
I try
try to arrange
arrange any
telephone
any other form of communication like
telephone or video?
', A: No. That's when II told you to get aahold of somebody
II because they
they can't stop
stop me from seeing my mom. I I
' don't care who they are.
11 ld.
l Id. at 103
103 (emphasis
(emphasis added).
"1''
41
I.M.R.'s only sources of income were rental
e. Petitioner confirmed that IM.R's
from the farm in the amount of
of $25,000
$ 25,000 annually and Social Security
$ 1,375 monthly. Id. at 106.
of $1,375
payments of
f. I.M.R.'s husband died in
After LM.R.'s in 2018, her land assets included the core
farm ((128
family farm 128 acres in Dauphin County) and an unspecified number
of properties in the surrounding area. Petitioner testified that at that
I.M.R. gave him all of the properties.
point IM.R. properties. Id,
Id. at 107.
107, He then sold all of
properties other than the farm, because the farm was generating
the properties
income, and claimed that he had put the farm into the income- only trust
income-only
I.M.R. He claimed that doing this allowed himself and I.M.R.
for LM.R. IM.R. to avoid
paying $$375,000
paying 375,000 in
in taxes. Id,
Id. at 107-108.
g.g. Petitioner confirmed that Darren Weaver was the person who was
leasing the farm and who had purchased all of the other properties. Id.
at 109.
h. Petitioner's testimony took aamarked turn when he addressed the funds
from the Members First Bank joint account.
Q:
Q: From the—
the-IIbelieve it was just the Member's[sic] First
bank account. What do you you have to say in response to
any of that
that [Ms.
[Ms. Burrell's testimony] as far as any kind of
explanation?
"' A: Well, there is no explanation to it.
it.All
All that money was
put in that account belonged to me.
me. My mom gave me
all of that.
that. That'
That'sswhy it's in there.
there, The only income
my mom has is $1357
$1357 in social security, and she has
the $ 25 ,
000 coming in from the farm.
the $25,000
Q: If
[f there ever was a
a time mom needed long-term care and
was unable to afford it—
it--
A: Never will my mom not afford anything. If she needs
something, IIprovide for it.
Q:
Q• Was there ever aatime that mom was hospitalized and
couldn't pay a
a hospital bill?
A:
A. No.
No
Q: Was there ever a a time that you didn't have enough
money to pay for food or medicine or anything else?
42
"I'
,,
A: No. I
I have
have $40,000 in food at my house right now. I'm
$40,000
a preparer.
a preparer. I
I have got aa building buried
underground
underground full of food
food..There is no way we're ever
going
going to be without anything.
L Id
i. Id. at 110-111
110-111 (emphasis added).
(emphasis added)
j.j. Per Petitioner, when I.M.R.
IM.R. received the $ 250,000 check from her
the $250,000
husband's life insurance policy,
policy, she simply signed it over to him and
gave him. Id. at 112. Petitioner testified that he put the funds into
gave it to him.
the joint bank account, put I.M.R.'s
L.M.R.'s name on the property in Huntingdon
County, and then used the funds to build aa50x80x16 shop building and
automotive paint
paint booth on the property. He also testified that he put an
addition on the house that doubled its size, but then clarified that this
L.M.R. had been removed. Id. at 113.
occurred after I.M.R.
k. Petitioner believed that the additions greatly improved the value of the
property in Huntingdon County, and that it could be sold
property sold (along
[along with
other property
property he owns) if he ever needed funds to pay for IM.R.'
I.M.R.'s
s long-
term care. Id,
Id. at 114.
114
I.1. Petitioner closed his direct testimony with the following troubling
admissions:
admissions
Q:
Q: Anything
Anything in relation to mom's finances that we didn't
cover here today that you want to make sure?
A: No.
No. Mom's finances are very simple,simple. It's
It's $1357
$ 1357 and
$25,000 for farm rental,
rental. That's her finances. So when
they
they are confused about the money
money coming in and
account,it's very simple,
out of the account, simple .The money going
into the account is mine. The money coming out of the
$ 25,000 and
account is $25,000 and $$1357,
1357, which those are for her
hair, to do her nails, doctor appointments. Whatever she
needed is covered.
Q:
Q• Is it true that mom liked
Isit lilted to
to gamble as well?
A: Oh absolutely. I take $
I would take 10,000 out of the bank,
$10,000
and we would go to the casinos. That's why there is
cash withdrawals all over the place.
place
Id. at 117
117 (emphasis added).
(emphasis added].
43
73. On cross-examination by the Agency's counsel, Petitioner exhibited aa
73.0n
significant degree of confusion regarding what property was in
in the trust for
I.M.R., swearing
swearing that he thought the farm was in it, but also claiming he had
not transferred title to it. Id,
Id. at 119, 120.
120. He claimed that he was given no
explanation as to how the Alleged
Alleged POA was supposed to work, and could
not recall if he had ever signed it as I.M.R.'s
IM.R's agent. Petitioner went so far as
to attempt
attempt to have his counsel answer whether there existed aasigned copy
of the Alleged
Alleged POA. Id,
Id. at 120-122. He was unaware of any of the
requirements
requirements for exercising aafinancial power of attorney, such as keeping
l separate accounts
separate accounts for his own and I.M.R.'s property,
and IM.R's property, keeping
keeping records
records of all
transactions, and fiduciary duties generally. Id,
Id. at 122-123
122-123.
74. Petitioner confirmed that the $$360,000
74. 360,000 deposited from Mr. Weaver was a
a
loan to him, stating
stating "IIborrow money off of Weaver any time IIwant to." He
claimed that there was no full agreement for Mr
Mr. Weaver to buy the farm,
but that there was an option to buy in
in the lease agreement and
and "Weaver
"Weaver will
probably
probably end up
up with the farm because he bought
bought all the rest of it." Id,
Id. at
126-127. Petitioner further confirmed that he believed the farm was in the
126-127,
trust, even though
though it was still held in the name of I.M.R.
IM.R. and her deceased
husband. Id,
Id. at 128.
75. Cross-examination by I.M.R.'s
75.Cross-examination LM.R.'s counsel largely affirmed the testimony
Petitioner provided the Agency's counsel. He once again confirmed that he
did not have aacopy of the Alleged POA that he had signed, this time
claiming that he would have to call Attorney O"Toole.
claiming O'Toole. Id,
Id. at 131-133. He
further claimed that he had done everything according to her wishes or in
her best interest before providing the following testimony regarding the
improvements to the Huntingdon County property.
Q:
Q: You testified that you built a
a 50 by 80 by 16 building?
A:
A. Yes.
Yes
Q: On the property?
A: Yes.
44
44
11
Q: It has aapaint
Ithas paint booth in
in the back?
A: Yes.
Yes
Q:
Q: paint booth is for refurbishing cars, for painting
That paint
cars?
A:
A. Yes.
Q: Does your mom paint cars?
A: My mom? No.
Q: But you have used money from her to build that building?
i' A: No.
No. I used my money that my mom gave me to build the
]used
build the garage and put the big addition on the house.
That's when II put my mom on the property
Q:
Q: How was that building
building benefitting your mom?
A: It doesn't have to benefit mom,mom. Everything in that
building
building is sellable stuff,
stuff. If mom needs any kind of
care, that is how I I make money. That's how—set
how--set up
for me to make money. It has nothing to do with my
mom. Other than mom lives there. IIasked mom what
were we gonna
gonna do.
do. She said you have got the money; use
it. And that's what II did.
Id. at 133-134
Id, 133-134 (emphasis
(emphasis added).
76. On re-
76.0n direct, Petitioner alleged that he had
re-direct, had $ 250,000 worth of cars in the
$250,000
building
building that could be sold
sold "within two weeks" to raise money to fund care
for I.M.R. Id. at 134.
LM.R. Id 134
77. Finally, follow-up questions from the Court revealed that Petitioner had not
77Finally,
filed aafederal income tax return since at least 2015
2015 ("
("IIdon't file a
a tax return
l because I'm disabled.
disabled. I
I stopped doing that."),
that.") had not notified the IRS that
,1
he had received significant funds from I.M.R., and likely had not even
accounted for income from the sale of IM.R's
I.M.R.'s properties appropriately for
tax Id. at 137-138.
tax purposes. Id,
78.
78. The Court ordered that transcripts be prepared of all of the hearings, and
allowed the parties
parties 30 days
days after the filing of the transcript for the Third
Hearing
Hearing to file proposed
proposed findings of fact and conclusions of law. The
,1'
u
I
45
transcript
transcript was filed on February 28, 2022, meaning the parties had until
March 30, 2022, to make their filings.
filings.
79. On March 30, 2022, the Agency filed an emergency petition for relief,
79,0n
seeking to set aside and vacate an alleged transfer by Petitioner of the farm
seeking
.",
from I.M.R.
IM.R. to the trust. The transfer was evidenced by aadeed executed by
Petitioner on March 16, 2022, allegedly acting as power of attorney for
I.M.R., and recorded in the Dauphin County land records on March 18, 2022.
20Z2.
80. A
A hearing
hearing was
was held
held on the
the emergency
emergency petition
petition on April 2022 (the
April 7, 2022 (the "Fourth
Fourth
Hearing").
Hearing"). The Agency
Agency presented the testimony of Ms. Hughes,
Hughes, and
Petitioner presented the
Petitioner presented the testimony
testimony of
of himself.
himself
81. Per Ms. Hughes, the Agency learned of the transfer from the Huntingdon
County
County Assistance Office, which was evaluating
evaluating I.M.R.'s
IM.R.'s eligibility
eligibility for
medical assistance. As of the date just prior to the transfer, I.M.R.
IM.R. had aa
of $748.269.60,
"penalty" of $ 748.269.60, which would mean she was not eligible for
:I medical assistance for 4.24 years. The transfer made by Petitioner added
11
I $699,660 to the penalty amount, and extended the period of ineligibility to
eight years. N.T., Fourth Hearing, at 1-3.
82. After claiming that he had made the transfer solely to address the matter of
the farm not being in the trust that was raised at the Third Hearing,
Petitioner
Petitioner testified
testified that
that he
he had
had searched through
through I.M.R.'s
IM.R's documents and
found not one but two prior powers of attorney.
attorney, The first was from 2008
and the second was from 2016. Both had been signed by him. Id,
Id. at 10-12.
He was able to locate it in aapile of papers
papers "in
"in my truck" which apparently
also included I.M.R.'s
IM.R's will. [d,
Id. at 12, 13. After further examination by
counsel for all parties regarding
regarding matters surrounding the execution and
notarization of the powers
powers of attorney, and hearing legal argument from
counsel for the Agency and for I.M.R.,
IM.R., the Court took aa15- minute recess to
15-minute
perform legal research. Id,
perform Id. at 13-28. Upon return from recess, Petitioner's
counsel submitted to the court an executed copy of the Alleged POA, which
Petitioner claimed he had also found in the pile of documents in his truck.
Id. at 28.
28. After making clear on the record that it was not making any
46
determinations regarding
regarding the validity or invalidity of any of the three
powers
powers of attorney that had been presented
presented (including
[including the Alleged POA),
the Court set aside and vacated the transfer of the farm due to the alleged
agent's failure to act in good
good faith and failure to act loyally for the
principal's benefit. Id. at 28-29. This was set forth in aawritten order
principal's benefit.
entered day.
entered the same day
On the following day, April 8, 2022, the Court entered the order appealed
83. 0n
from, finding
finding I.M.R.
IM.R. totally
totally incapacitated
incapacitated and appointing
appointing the Agency as
guardian of her person and estate.
III.
It. ANALYSIS
A. Standard of
of Review and Pertinent Statutes
• Here, the bulk of Petitioner's claims of error, though characterized as issues
of law, are actually attacks upon this Court's determinations regarding the
credibility of witnesses and the weight given to their testimony. This means he has
a
a very
very high
high bar to overcome.
overcome. The findings of an orphans' court judge, sitting
without aajury, a jury. In
jury, are accorded the same weight and effect as the verdict of a In
re: Jackson, 174 A.3d 14, 23
re; 23 (Pa. (citing and quoting In re:
2017) (citing
(Pa. Super. 2017) re: Paxson
Trust
Trust1,I, 893 A.2d 99, 112-13
112-13 (Pa. 2006). They cannot be reversed by an
(Pa. Super. 2006).
appellate court in the
appellate the absence of an abuse of discretion or lack
lack of evidentiary
Id. This rule is of particular
support. Id, particular importance when applied to findings of fact
predicated on the credibility of witnesses and the weight
predicated weight to be given to their
testimony. Id. It is not sufficient for an appellant to persuade the higher court that
testimony.
it might
might have reached a
a different conclusion on the evidence than the one reached
I
by
by the orphans' court, as an abuse of discretion is not merely an error in judgment.
Id. Rather, to establish an abuse of discretion the appellant must establish:
Id, establish: (i)
(1) that
the orphans'
orphans' court overrode or misapplied the law;
law; (ii)
[ii) the determination of the
orphans' court is manifestly unreasonable; or
or (iii)
[iii) the orphans' court acted based
on partiality, prejudice, bias, or
partiality, prejudice, or ill-will, as shown by
by the
the evidence of record.
record. Id.The orphans' court's findings will be upheld if they are supported by competent
47
11
and adequate evidence, and will be overruled only if they are predicated upon
I capnc1ou� d1�bel1ef of competent and credible evidence kl.
capricious disbelief of competent and credible evidence. Id.Under 20 Pa. C.S. $§ 5601(d), aapower of attorney, other than one that is
Under20Pa.CS.
limited to making
making decisions regarding
regarding health care or mental health care, is valid
I only if accompanied
accompanied by an acknowledgment signed by the agent using the form
specified in the statute. 9
,:
"~"..do-otoo
Under 20 Pa. C.S. § 5601.3(a), an agent who has accepted appointment
under
under a
a power attorney (other
power of attorney (other than
than one that
that is limited to malting
making decisions
regarding
regarding health care or mental health care) shall do the following, regardless of
any provisions in the power
power of attorney to the contrary:
(1) Act in accordance with the principal's reasonable expectations to
(1)Act
the extent actually known by the agent and, otherwise, in the
principal's
principal's best interest.
interest
(2) Act in
(2) good faith.
in good
(3) Act only within the scope of authority granted in the power of
attorney.
attorney
I' !JI.
Id.
B. Granting of
of the Records Petition Without Notice and Opportunity to Respond
Petitioner's first and second claims of error address the issue of the Court
granting the Records Petition ex parte. Although Petitioner takes aaslightly
granting
different tack here, these are the same claims he raised in his February 3, 2022,
9 See id.
(d) Acknowledgment executed by agent-An
(d)Acknowledgment agent.--An agent shall have no authority to act as agent under
power of attorney unless the agent has first executed and affixed to the power of attorney
the power
an acknowledgment inin substantially the following form;
form
I, , have read the attached power of attorney and am
l. ...,have am the person
identified as the agent for the principal,
principal. I
I hereby acknowledge that when I
agent;
act as agent
IIshall act in
in accordance with the principal's reasonable expectations to the
extent actually known by me and, otherwise,
otherwise, in the principal's best interest,
act in good
good faith and act only within the scope of authority granted to me by
the principal in the power of attorney.
attorney
(Agent) (Date)
48
motion in limine. In the motion, Petitioner sought relief in the form of exclusion of
all of the evidence obtained as aaresult of the Records Petition. Here, Petitioner
proffers
proffers no solution, but makes the bare claim that the granting of the Records
Petition was
was "an
"an abuse of discretion and/or an error of law." The Court believes
that appropriate and thorough discussion of the issues raised, and explanation of
' its reasons for denyrng
denying the
Lhe motion, occurred in open court at the beginning of the
Hearing. See N.T., Third Hearing, at 1-11. However, aabrief treatment is
Third Hearing.
appropriate here
here.
As stated at the Third Hearing, the Court agrees with Petitioner that the
Records Petition should not have been granted ex parte without notice and
opportunity to respond for I.M.R.
LM.R.IO10 This holding is based on In the of M.B
the Interest of M.B.,
A.2d 877
686 A.24 877 (Pa. Cmnwlth. 1996).
(Pa. Cmnwth. 1996). The Court does not, however, agree that
Petitioner himself had aaright to notice and opportunity to respond. Despite being
I.M.R.'s son!'
IM.R's son 11 and despite allegedly having aapower of attorney to manage her
affairs, he did not have aadirect interest in preventing disclosure of LM.R.'s
I.M.R.'s records
to the Agency.
Agency, First, the fact that an individual has aapower of attorney does not
mean that they
they are automatically substituted for their principal in all legal matters.
Rather, it only permits the holder to act on the principal's behalf. Second, and
more significantly,
significantly, the simple fact that Petitioner is I.M.R.'s
IM.R.'s son does not give him aa
direct interest in protecting her records.
Having established that the Records Petition should not have been granted
without notice to I.M.R.,
IM.R., the question turns to the appropriate resolution.
resolution
Petitioner would have the entirety of the evidence thrown out, the matter
dismissed, and I.M.R. dropped off on his doorstep. This is nowhere close to
appropriate. Such drastic action does not even occur in criminal matters without
appropriate.
careful consideration and analysis. Here, the Court, after finding no controlling
I• caselaw, looked to
to the
the nature
nature of the
the error and
and the impact it case. The
it had on the case
I ·,- ,Th-,-�-�--,-ro-�-•-.-., -,-,.-=- r
•• corrected this error lo
to The Court has procedure for records
in pl'O«dn.., "!"•st•
r,rords requests und,r
under th•
the DAl'M In future matters, and
OAPSA in
does not take the issue lightly,
lightly
11 Because the records request
request falls under the 0AP'SA,
OAPSA, and not
not §$5511
SS 11 of the Probate, Estates and Fiduciaries
Code (the
Code (the "PE
PEF Code;
Code"; 20 Pa, C.S. §§ 101,
Pa.CS.$8 etseq.),
101 et seq.) the expanded standing provision of $§ 5511(a)
SS11(a) does not apply
to the Records Petition
Petition.
49
most reasonable approach was to place the Agency
Agency in the position it would have
been at the time of the filing of the Emergency Petition had the Records Petition
not been granted,
granted, and then determine whether the remaining evidence was
sufficient to support the emergency
emergency guardianship. This would mean that the
Agency would have the testimony of Ms. Parks
Parks (conditions
(conditions inside the home, I.M.R.'s
IM.R.'s
care needs and cognitive impairment, and lack of round-the-clock care), Ms.
Hughes
Hughes (report
(report of walkaway incident from PSP,
SP, denial of access to I.M.R.
IM.R. by
Petitioner, intimidating and aggressive behavior by Petitioner at the home), and
Ms. Heaton
Heaton (attempts
[attempts by Petitioner to intimidate the Agency into backing down,
, retaliatory
retaliatory actions against the Agency
Agency by Petitioner). These were more than
I.M.R. was incapacitated and in need of an emergency
sufficient to establish that IM.R.
° guardian of both her person
guardian person and her estate. As soon as the Agency was appointed
as emergency guardian,
guardian, it had
had full
full right
right and authority
authority to access the
the records
records at
issue. As aaresult, it was inevitable that the medical and financial records in
ii question
question would have been discovered by the Agency and entered as evidence in
would have been discovered by the Agency and entered as evidence in
this matter. The error was therefore harmless.
this matter, The error was therefore harmless.
,. It must be noted that there are equitable considerations at play here. As
noted by both counsel for the Agency and counsel for I.M.R.,
IM.R., the motion in limine
ultimately
ultimately amounted to the
the "alleged
alleged perpetrator
perpetrator...• of financial exploitation asking
that the Court enforce the victim's rights so that he doesn't get in trouble for what
he did to the victim." NT.,
N.T., Third Hearing, at 6-7
6-7 (argument
(argument of Attorney Kipphan);
see al
$Re so id.
also 8-10 (argument
id, at 8-10 (argument of Attorney Ghaner).
Ghaner). The focus of this matter is
I.M.R., and not Petitioner. Allowing him to enforce her rights to shield himself so
that he may
may continue his abusive behavior toward her and her property would
amount to an abuse of the law and of the courts.
C. Granting of the Emergency
Granting of Emergency Petition
Petitioner's third and fourth claims of error pertain
pertain to the granting of the
Emergency
Emergency Petition. The third claim is that the Court erred in granting the
Emergency
Emergency Petition without aahearing
hearing "when
"when there was no adequate proof of an
actual emergency." The fourth claim pertains
pertains to the granting of the Petition
so
50
"without any medical expert testimony or any medical evidence showing aaneed
for guardianship."
The Court has reviewed the extensive record and filings in this matter, and
has not found aapoint at which Petitioner has raised these specific issues before.
This means that they
they have been waived.
waived. However, in the event that the Superior
Court finds that they have not been waived or are non-waivable, the Court
addresses them here
here.
As an initial matter, it must be noted that while
while §$ 5513 of the PEF Code
incorporates the requirements for full guardianship proceedings under
under §$ 5511, it
also provides
provides an exception for those requirements in situations where
where "the
"the court
has found that it is not feasible in the circumstances" to satisfy them prior to
granting the emergency guardianship. See.&.g
See, e.g., In re:
re; Sylvester, 598 A.2d 76, 78,
82 (Pa. Super. 1991)
/ 82(Pa. 199 1) (orphans' court properly dispensed with
with §$ 5511 notice to the
• appellants, both holders of powers of attorney executed by the incapacitated
person
person and both executors under his will, under the exception set forth in $§ 5513;
appellants were alleged to have been isolating the incapacitated person from his
friends, disposing of his assets against his wishes, and misappropriating his assets
for their own benefit; notice to the appellants under such circumstances would
have provided them with time to take additional harmful actions toward to the
incapacitated person
person and hide assets so they could not be recovered).
recovered).A?
12 Thus,
there are situations in which the requirements of
of 8§ 5511 may be waived.
waived.13
Turning to the analysis of Petitioner's third and fourth claims, these claims
of error present aaquestion that is somewhat convoluted, but ultimately easily
' resolved. Specifically, Petitioner is arguing from aaposition that assumes his late-
Ii
'------
Seealso
1zSee also hare: Estate of
In re; Estate of Dorone, 517 Pa.
Doro4, Pa. 3,7,
7, 9
9 (1987)
(1987) (The
(The orphans' court properly disposed of notice to the
Incapacitated person's parents and conducted aabrief hearing via telephone with the administrator and
incapacitated
surgeon
surgeon for the
the hospital
hospital where
where the incapacitated
incapacitated person
person was
was aapatient
patient before granting
granting the
the emergency petition
to appoint
appoint aa temporary
temporary guardian
guardian to consent to medical procedures; the incapacitated person had been
seriously injured in an accident, was unconscious, needed emergency surgery, was lying on the operating table
at the time of the telephone
telephone hearing, and his parents refused to give permission for aablood transfusion
necessary for the surgery
surgery to occur
occur; the orphans' court's actions were reasonable under the circumstances]
circumstances).
The Court
13The Court notes it recognizes
notes that it recognizes and respects the need to follow
follow the
the requirements § 5511 in regard
requirements of 65511in regard to
to
emergency guardianships
emergency guardianships in the absence of circumstances that render such compliance not feasible. Involving
feasible. Invoking
this exception is not the standard practice of the Court, and the issue should have been noted clearly n in the
order granting the Emergency
Emergency Petition.
Petition
51
filed motion in limine precludes any consideration of the information the Agency
obtained using the records request.
request. This is significant because the Agency
Agency based
the Emergency Petition exclusively on the medical information obtained from Dr.
Sellers, and did not include any of the information obtained from Ms. Parks or by
Ms. Hughes's
Hughes's and Ms. Heaton's interactions
and Ms. interactions with
with I.M.R.
IM.R. and Petitioner.
Petitioner.
1. Analysis of the Emergency Petition as filed.
The Court believes that the equities of this situation, including the facts that
the motion in limine was filed late in the action and that the Agency's
unprecedented difficulty in obtaining records and information regarding IM.R.
I.M.R.
II was
w.1� due to Petitioner's
Petitioner'� own actions, do not merit excluding the information from
Dr. Sellers in analyzing the Emergency Petition. Moving forward on this basis
basis (i.e.,
(i.e.
on the information the Court was actually presented with at the time the
Emergency Petition was filed), Petitioner's claims have no merit. The Emergency
Petition clearly alleged that I.M.R.
l.M.R. was in
in immediate need of round-the-clock
round-the-dock care,
did not have such care, and could not provide for her own care and safety due to
her cognitive impairment. That is an emergency situation by any objective
measure, and thus the Court appropriately moved forward prior to conducting aa
hearing so that appropriate housing
housing and care could be provided for I.M.R.
IM.R.
immediately. This addresses Petitioner's third claim. As for his fourth claim, the
immediately.
j: Emergency
Emergenly Petition was supported
supported by the statement from Dr. Sellers, which is
sufficient to meet the requirements of
of $§ 5518 of the PEF Code.
2. Analysis in the absence of information obtained using the Records
Petition.
Assuming, arguendo, that Petitioner's position is correct, and that the
Emergency
Emergency Petition must be evaluated without the benefit of information obtained
using the Records Petition, the only fair and equitable way to address the situation
is to evaluate the position the Agency would have been in without the Records
Petition, and therefore what information it could have included in the Emergency
52
Petition. 14 Even proceeding on this basis, Petitioner's third and fourth claims of
Petition.IM
error fail.
fail
As noted above, Ms.
Ms. Parks provided significant, credible testimony
regarding
regarding the degree of I.M.R.'s cognitive impairment, her need for constant
monitoring and care, the failure of Petitioner to provide such constant monitoring
and care, and the deplorable living conditions in Petitioner's home. Ms.
Ms. Hughes
provided credible testimony regarding Petitioner's tight control over IM.R.,
I.M.R., his
intimidation of I.M.R.,
LM.R., his attempts to intimidate Ms. Hughes, his refusal to allow
I.M.R. to be interviewed separately, his refusal to allow anyone from the Agency
inside the home, and his refusal to provide any information regarding IM.R.'s
I.M.R.'s
medical condition and financial resources. Ms.
Ms. Hughes's testimony was supported
by the testimony of Ms. Heaton, which further included Petitioner's attempts
attempts to
harass and intimidate the Agency into dropping its investigation. Finally, there
was the highly concerning nature of the walkaway that occurred in September
2021. This information is more than sufficient to establish that IM.R.
2021. I.M.R. was at risk
and an emergency situation existed, such that she needed to be removed from the
home prior to aahearing being held. This negates Petitioner's third claim.
With respect to Petitioner's fourth claim, Petitioner's assertion that the
Agency was
Agency was required
required to
to present
present the
the Court
Court with
with medical
medical expert
expert testimony
testimony and
and
I'i medical
medical evidence showing aneed for an emergency guardianship is false as a
evidence showing a need for an emergency guardianship is false as a
matter of law.
matter of law.
Medical testimony is of great significance since it assists the trial court
in determining the nature, severity, and consequences of an alleged
incompetent's disability,
disability. The Pennsylvania Supreme Court has stated
in dicta that
that "[e]xpert
"[e]xpert testimony is needed when transactions fall
within the penumbra between competence and incompetence, when
the light
light of reason may may come andand go
go unbidden." Hagopian
Hagopian v v.
Eskandarian, 396 Pa. 404,153
Pa. 401, 404, 899 ( 1959),cert
153 A.2d 897, 899(1959) cent. denied,
361 U.S.
0.S. 938, 80 S.Ct. 381, 4 4 L.Ed.2d
LEd.2d 358 ((1960).
1960). However, the
appellate courts have never adopted aa rule of evidence which would
require
require the use of expert testimony in in all incompetency
incompetency proceedings
proceedings
without exception. The testimony of lay witnesses who have
observed the alleged incompetent is admissible and highlyhighly probative
probative
To do
4To
14 do otherwise
otherwise would
would reward
reward Petitioner
Petitioner for
for his behavior in
his behavior in stonewalling
stonewalling the Agency and
the Agency and ignore the
ignore the
overwhelming evidence of I.M.R.'s
IM.R's incapacity and need for aaguardian of both her person and her estate
estate.
53
since "[o]ne's
"[o]ne's mental capacity is best determined by his spoken
words, his acts, and his conduct." Urquhart Estate, 431 Pa. 134, 142,
245 A.2d
A2d 141, 146146 ((1968).
1968). See also Weir
Weir by
by Gasper v.v. Ciao, 364
Pa.Super.
Pa.Super, 490, 494-495, 528 A.2d 619-620 ((1987)
A2d 616, 619-620 1987) (court
(court may
base finding of competency on evidence provided
provided by
by lay
lay witness).
witness].
Although
Although the introduction of expert testimony from psychiatrists,
psychiatrists,
psychiatric nurses, and other health care professionals is to be
encouraged, we cannot say that lay testimony alone can never be
sufficient to meet the heavy burden of establishing
establishing incompetency.
In re:
ln re; Estate of Wood,
Wood, 533 A.2d
A.24 772, 774 (Pa.
772,774 (Pa. Super. 1987)
1987) (internal
(internal quotations
quotations
and citations as in the original).
Here, the core allegations of the Emergency Petition were that I.M.R. was an
83 year- old woman who suffered from debilitating cognitive impairment, was in
year-old in
immediate need of round-the-clock care, and was not receiving that care.
care. The
Agency was in possession of, and presented to the Court at the First Hearing,
evidence in support of those allegations from:
from: ((1)
1) Ms. Parks, a
a lay witness with
direct and extensive knowledge of I.M.R.'s
LM.R's day-to-day care needs, mental condition,
and
Ad living situation; and
and ((2)
2) Ms. Hughes,
Hughes, a
a lay witnesses experienced in the field of
I cider care, who had personally seen the nature of the interactions between l.M.R.
elder care, who had personally seen the nature of the interactions between I.M.R.
and Petitioner; and
and (3)
(3) Ms. Heaton, aalay witness experienced in the field of elder
I• care who has investigated countless cases of elder abuse and neglect, who
personally interacted with Petitioner and observed his actions in response to the
Agency's attempts to investigate the situation and determine if LM.R.'
I.M.R.'s
s needs were
being met.
met. That evidence is
is sufficient both
both to
to meet
meet the requirements
requirements of $§ 5518 and
!I
to establish that I.M.R.
LM.R. was in need of an emergency guardian.
guardian.
I
D. ofAttorney O'Toole's Petition to Represent LM.R
D. Denial of I.M.R.
Petitioner's fifth claim of error arises from his first avenue of attack against
against
the guardianship proceedings, which was to attempt to have Attorney 0"Toole
O'Toole
appointed as counsel for I.M.R.
IM.R. The Court addressed this issue at length in its
order and opinion filed January
January 24, 2022,
2OZ2, and incorporates that order and opinion
by reference here. The Court will not provide further analysis of the issue here.
However, it is appropriate to note that Attorney O'Toole's petition, which was
54
requested and directed by Petitioner, is aarather bold attempt by Petitioner to take
control of
control of the
the proceedings and, ultimately,
proceedings and, ultimately, retain control over
retain control over I.M.R. and her
LM.R. and her assets
assets.
E. Failure
Failure to Appoint
Appoint Petitioner
Petitioner as Guardian Based on Alleged
Alleged Weaknesses in the
l Agency's
Agency's Evidence
Evidence
" Petitioner's sixth claim of error contains aanumber of issues, and thus bears
] repeating here.
11
The trial court abused its discretion and/or made an error of law
when it failed to appoint William Cardwell as guardian of Iva lva M.
' Roush's person despite no Area Agency on Aging observing inside
,I their home; only oneone ((1)
1) caretaker witness who observed William
Cardwell and Iva
lva M. Roush together inside the home over aaspan of aa
I
few months; and Ivalva M. Roush walking away from the home on one
(1) brief occasion three months before the guardianship petition
(1)brief petition was
filed?
The first item of note is that this claim of error contains an implicit
implicit
admission—that IM.R.
admission--that I.M.R. is incapacitated and in need of a guardian. This admission
a guardian.
alone should be sufficient to negate
negate the previous
previous four claims of error raised by
by
Petitioner, because he is attempting to argue out of both sides of his mouth.
mouth. On the
one hand, he argues that this Court erred in
in finding I.M.R.
IM.R. incapacitated and in
in
need of aaguardian based on the overwhelming evidence presented. On the other
hand, he now says that the Court rightfully
rightfully found I.M.R.
IM.R. to be incapacitated
incapacitated and
erred only with respect
respect to its judgment as to who should be her guardian. Only
under the application of the most twisted and disingenuous pretzel logic can these
two positions
positions be reconciled.
Turning to the claim itself, what Petitioner is really challenging is this
Court's determinations regarding
regarding the
the credibility of the
the witnesses and the
the weight
weight to
to
be given to their testimony. The Court found Ms. Parks to be credible, and her
testimony alone is sufficient to find that Petitioner was not providing I.M.R.
IM.R. with
the care she needs. 'The
The Court found Ms. Hughes and Ms. Heaton to be credible as
well, and their testimony regarding Petitioner's behavior and actions only
bolstered the Agency's argument that Petitioner is not aafit caretaker and guardian
for IM.R,
I.M.R. 'To
To the extent that Petitioner claims this evidence is weak because
55
neither Ms. Hughes nor Ms. Heaton ever entered the home, he has only himself to
blame. He blocked all of their attempts at entry.
entry. Finally,
Finally, it is both troubling
troubling and
telling that Petitioner continues to attempt to downplay IM.R's
I.M.R.'s walkaway in
September 2021 as aaminor event
event. His 83 year-old
year- old mother, aawoman who must use
aawalker to get
get around, cannot perform tasks of daily living as simple
simple as preparing
preparing
food for herself, has significant cognitive impairment, and has serious
hallucinatory episodes, left the home, walked an unspecified distance along busy
busy
roads
roads+15 until someone stopped to help
help her, and wound up being transported
transported to the
Huntingdon PSP station. It is only by the grace of God that I.M.R.
IM.R. did not end up hit
by a
a car or lost in the woods surrounding the area.
While Petitioner does not specifically mention the witnesses who testified
in his favor regarding his care for I.M.R.,
IM.R., he will undoubtedly tout their testimony
testimony
in his brief. The Court found the testimony of Petitioner's cousins, Terry Lynn
Lynn
Lumbard-Monnat and Valerie Scott, to be generally credible, but of little weight.
They each certainly believed that Petitioner took good and appropriate
appropriate care of
I.M.R., but they did not have enough awareness of her day-to-day needs and the
situation in Petitioner's home to provide significant testimony on those matters.
They I.M.R.'s cognitive decline, focusing primarily
They also downplayed the extent of I.M.R's primarily on
what she can still do as opposed to how her limitations affect her ability
ability to make
decisions and take care of herself. With respect to the testimony
testimony of Dr. William
Kauffman, the Court found it to be largely irrelevant and worthy of little weight.
1: Dr.
Dr. Kauffman
Kauffman has
has never treated I.M.R,
never tre.ited I.M.R., h.i�
has not evaluated her, has only "read
has only •read her
charts" occasionally when she was in the hospital,
hospital, and the primary
primary thrust of his
testimony
testimony was an attempt to weaken the findings
findings of Dr. Roscoe, I.M.R.'s
LM.R's current
I treating physician
treating physician.
,I There remains, of course, Petitioner's own testimony
testimony regarding
regarding the care he
'! provided for IM.R.
I.M.R. Petitioner certainly appeared to believe his repeated,
repeated, self-
'
serving, and conclusory statements that he tools
took excellent care of I.M.R.,
IM.R., gave her
isThe
The Court takes judicial notice
notice of fact that while
of the fact while Tussey
Tussey Lane,
Lane, the
the road that
that Petitioner's home is
is located
on, maybe low-trattic road, it leads to State Route 26.
may be aalow-traffic 26. State Route 26 is the major north-south route on the
western side of Raystown Lake,
Lake, the only route that leads from Petitioner's home to the Huntingdon PSp PSP
station, has
has a
a prevailing
prevailing speed definitely "high-traffic."
speed limit of 55 MPH, and is definitely high-traffie."
56
exactly what she needed, and that she
she "wanted
"wanted for nothing." Yet his testimony
testimony also
j showed that he is not cogmz,rnt
cognizant of I.M.R.'s
L.M.R.'s care needs, did not provide
provide round-the-
clock care, left her on her own in the house often
often (regardless of the fact that he or
his mechanic were elsewhere on the property), and downplayed
downplayed the very
very real risks
to her safety. And all the while, he was reducing
reducing her net worth by hundreds of
thousands of dollars, significantly benefiting himself and harming
h.1rmmg her best interest.
interest
II
On these facts it is unquestionable that Petitioner is not an appropriate guardian
guardian
for
for I.M.R.
i IM.R
F. Failure
Failure to Appoint
Appoint Petitioner
Petitioner as Guardian Based
Based on the
the Claim that I.M.R.
LM.R. Desired
of Her Assets to Petitioner and that He had Authority
to Give All of Authority to Do
Do With Them
as He Pleased
As with Petitioner's sixth claim of error, his seventh claim of error contains
aanumber of issues, and bears repeating here.
here
The trial court abused its discretion and/or made an error of law
when it failed to appoint William Cardwell as guardian of Iva va M.
Roush's estate in light of four
four (4) witnesses and the estate planning
documents presented clearly stating lva
Iva M. Roush's desired intention
for William Cardwell to inherit everything from her and the ability
ability to
make gifts to himself?
It is axiomatic that the law recognizes the right of a
a competent person to do
as they wish with their assets, even if they spend or distribute those assets to the
point of insolvency, and whether they
they take such action while alive or in aa
testamentary capacity after death. And, the law establishes a
a strong preference
preference for
choices made by individuals prior
prior to incapacity
incapacity when appointing
appointing guardians.
guardians. 20 Pa.
C.S. $5511(f)("If
CS. § 5511(f) (" If appropriate, the court shall give preference
preference to aanominee of the
incapacitated person. "). However, the law does not recognize: (i)
person."). [i) aaright
right for agents
acting under aapower of attorney to take actions that are both against an
,I incapacitated person's best interests and contrary to their previously
previously expressed
expressed
wishes; (ii)
wishes; (ii) aaright
right for heirs
heirs having control of an incapacitated
incapacitated person's
person's property
property to
to
take their inheritance prior
prior to
to the incapacitated
incapacitated person's or (iii)
person's death; or (iii) a
a right
right for
trustees to take trust property and use it as their own. Yet all of these actions
occurred in
in this case
case.
57
As aapreliminary matter, the Court notes that Petitioner's count of witnesses
11
for this claim of error is incorrect. Presumably the four witnesses to which he
refers
refers are
are himself, his
his cousins
cousins Terry
Terry Lynn
Lynn Lumbard-Monnat
Lumbard-Monnat and Valerie
Valerie Scott,
Scott, and
' Attorney 0'Toole.
O'Toole. However, Attorney O'Toole never testified as aawitness, and his
comments and filings regarding I.M.R.'s
IM.R.'s actions and intent were purely
purely in the form
of allegations and argument intended to support
support his petition
petition to represent I.M.R.
represent IM.R.
Petitioner attempted to testify as to what I.M.R.
IM.R. told him her wishes were, but that
I evidence was not admitted because it is hearsay. See, e.g., N.T.,
See.&.g. N.T, Third Hearing, at
l
ii 106, 111. Even if admissible, such testimony has little weight, not only
106,111. only because of
Petitioner's own self-interest
self-interest (his
[his interests with respect
respect to the financial issues are
'I adverse to IM.R.'s),
I.M.R.'s), but also because:
because: (i)
[i) there is aavast difference between the
statement "IIwant you to have everything" and the alleged implication
general statement implication "II
want you to take everything I
I have now, use it for your own benefit, and leave me
with minimal income and no eligibility for medical assistance despite
despite my
my
progressively worsening condition"; and
and (ii)
(ii) the competency of I.M.R.
LM.R. when she
made the statements is highly suspect, particularly
particularly since she had already
already been
suffering from dementia for four years when her husband died and Petitioner took
control of her life and property.
property
As
As such, there were only two witnesses— Ms. Lumbard-Monnat and
witnesses-Ms.
Ms. Scott--who
Scott—who provided testimony
testimony to the effect that I.M.R. had expressed
expressed aadesire
to
to give
give all
all of her property
of her property to Petitioner. However,
to Petitioner. However, their testimony on
their testimony on this point has
this point has
only nominal weight. First, aside from the matter of self-interest, their testimony
testimony
Ii suffers from the same issues as identified for Petitioner's testimony
testimony above.
Second, their primary interactions with I.M.R.
LM.R. have been short, periodic
periodic visits, and
the time period covered by their testimony is well after I.M.R.
I.M.R was diagnosed
diagnosed with
dementia and began
began suffering cognitive impairment.
impairment.
Turning to the core of Petitioner's seventh claim of error, that the Court
erred in not appointing him as guardian of LM.R's
I.M.R.'s estate, the issues raised by
by
Petitioner are largely irrelevant. This is because the preference
preference for the
incapacitated person's chosen agent or guardian is strong, but not absolute.
58
When a a patient has executed a [durable
[durable power of attorney]
attorney] and
named a a personal representative, that choice is given paramount
paramount
importance. In Re Sylvester, 409 Pa.Super,
Pa.Super. 439, 598 A.2d 76, 83
(1991). Under these circumstances, Section 5604(0)(2),
5604(c)(2), regulating
regulating
durable powers of attorney, must be read in conjunction with Section
5511. Id. Read together, these Sections require the court to give
effect to the patient's selection of aa guardian,
guardian, except for good
good
Id.cause or disqualification. Id
In re:
re: Duran, 769 A.2d 497, 506
506 (Pa.
(Pa. Super. 2001)
2001) (internal
(internal citations as in the
added).
original; emphasis added)].
Assuming, arguendo, that I.M.R.
IM.R. clearly competently expressed
dearly and competently expressed an
intent for Petitioner to take the
the $$250,000
250,000 life insurance payment
payment as aagift,
gift, and for
him to be able to make other gifts of her property to himself via aavalid power
power of
attorney, his actions were so noncompliant
noncom pliant with the Alleged POA, trust document,
and controlling law as to be nearly unfathomable.
Petitioner maintained no separation between his own funds and I.M.R.'s.
IM.R.'s.
He stated many times that her assets were his, and that she had no assets other
than her income from the farm rent and social security. He spent hundreds of
thousands of dollars of her money to buy
buy things
things that benefitted only
only himself.
I The Alleged POA and the trust document contain clear provisions regarding
regarding
I,
the importance to IM.R.
I.M.R. of obtaining and maintaining eligibility for medical
maintaining eligibility
assistance benefits. Yet, Petitioner's actions led to an ineligibility
ineligibility period
period of over
years (which
four years [which would have been extended to eight if the transfer of the farm
had been upheld). Nothing in the trust document or the Alleged
Alleged POA authorized
Petitioner
Petitioner to
to avoid placing
placing any
any of
of the real
real estate properties
properties transferred
transferred to
to I.M.R.
IM.R
l
I after her husband's death into the trust, and even if Petitioner actually
actually believed the
'
i farm had been transferred into the trust, nothing
nothing authorized him to sell the
remaining properties
properties in the trust and keep
keep the proceeds
proceeds for himself
himself.
Finally, even if it is true that Petitioner undertook the above actions
actions (and
(and
others) based on the innocent belief that I.M.R.
LM.R. wanted him and had authorized
him to do so, the testimony established that he is singularly
singularly unfit to manage
manage her
financial affairs. He had no awareness of the medical assistance eligibility
eligibility issue, no
idea about his recordkeeping obligations, no awareness of the risk of converting
converting
59
assets (land)
appreciating assets (land) into depreciating assets
assets (cars,
(cars, building,
building, paint
paint shop),
shop), and
no awareness of the fact that was a
a poor idea to allow an 83 year- old dementia
year-old
'ppatient
atient in need of long term care to spend hours at aatime sitting
sitting in a
a casino losing
losing
I
$10,000 aavisit. He also likely created significant federal income tax risk for
himself and I.M.R.
LM.R. by failing to properly report the alleged gift transfers and failing
alleged gift failing
' to file income tax returns.
The sum total of all of these issues is that it is beyond
beyond aareasonable doubt
that there is good cause to override I.M.R.'s
IM.R.'s selection of Petitioner as her agent
agent
with respect to her estate, and that he should be disqualified from serving
serving in
in that
capacity.
capacity.
G. The Court's Order Vacating and Setting Aside Petitioner's Attempt
Attempt to Transfer
Transfer the
Farm Into the Trust
The Court
Court first notes
notes that, as identified by
by the Superior
Superior Court in
in its
its March
March
16, 2020 opinion remanding the case to this Court for the entry
entry of aafull Rule 1925
opinion, Petitioner did not file aatimely appeal from the separate order regarding
regarding
the property transfer, and that issue has therefore been waived. See Superior
Superior
Court Opinion, Docket No. 728 MDA 2022, March 16, 2023, at 3-4 n. 1.
3-4n.
In a
a separate order, the orphans' court invalidated aaMarch 18, 2022
transfer of land stating that
that "if there was aavalid power of attorney,
attorney,
the alleged agent has failed to act in
in good faith and failed to act loyally
loyally
for the principal's benefit." Orphans' Court Order, 4/7/22.
for the principal's benefit." Orphans' Court Order, 4/7/22. As As
Appellant failed to appeal that order, this Court will not address it or
the propriety of the deed referenced in Appellant's
Appellant's statement of
questions presented.
Should the Superior Court decide, upon further reflection, to take up
up this
issue, Petitioner's eighth claim of error is meritless.
meritless. As stated, he bases it on there
being no request from the Agency to remove Petitioner as power
power of attorney
attorney and
no
no order
order from
from this
this Court removing
removing him
him as
as power
power of attorney prior
of attorney prior to
to him signing
him signing
the
the deed on
on March 16, 2022.
March 16, 2022. This is
is a
a red
red herring.
herring. The
The Court made
made no
no
determination regarding whether Petitioner had aavalid power
power of attorney
attorney on
March 16, 2022.
2022. Instead, the Court, as noted in
in the order, found that if there was a
a
valid power of attorney, Petitioner had failed to act in good faith and loyally
in good loyally for
60
60
I,
i'
I.M.R.'s benefit. 16 His act of transferring
L.M.R's benefit.Io transferring the farm into the trust was clearly
clearly an
attempt to wrest control of IM.R.'s
I.M.R.'s sole remaining away from the
remaining significant asset away
Agency, and to prevent the Agency from potentially using it to pay
using it pay for IM.R's
I.M.R.'s care,
as Petitioner is
is the sole trustee
trustee of the trust
trust and admitted that he already taken
he had already
out loans from
from Darren Weaver
Weaver in
in anticipation
anticipation of selling
selling the
the farm
farm to him in
in the
the
future. Further, this act risked nearly doubling
doubling IM.R's
I.M.R.'s period ineligibility for
period of ineligibility
medical
medical assistance to eight any objective
eight years. By any objective measure,
measure, Petitioner's
Petitioner's transfer
of the
the farm
farm was
was neither
neither in good faith
in good faith nor I.M.R.'s benefit.
nor done for L.M.R's benefit.
Finally, Petitioner's argument regarding his alleged removal as power
power of
attorney has aafatal flaw in its logic.
logic. Petitioner did not submit aasigned
signed copy
copy of the
Alleged
Alleged POA, or
or any power
power of attorney, to
to the
the Court prior
prior to attempting to transfer
to attempting transfer
farm. Therefore, neither the Agency nor the Court would have had any
the farm. any reason
r to address Petitioner's removal. Petitioner's actions were a complete surprise to
to address Petitioner's removal. Petitioner's actions were acomplete surprise to
11 the
the Agency, I.M.R.'s
IM.R's counsel, and the
the Court, as was
was his alleged location
his alleged one,
location of not one,
but three, signed powers of attorney behind the seat of his truck.
truck 17 Petitioner
I cannot fault the Court and the Agency for failing to anticipate his unannounced and
surprise attempt to make an end run around the emergency
emergency guardianship.
guardianship.
IV. CONCLUSION
I.
The focus of this
this case should be I.M.R.
IM.R. However,
However, Petitioner
Petitioner has
continuously attempted
continuously attempted to
to make
make it about himself,
it about himself. 'Time
Time and
and time again he
time again he has
has
shown that his true concern is maintaining control over I.M.R.
IM.R. and her assets,
rather than acting in her best interest. I.M.R.
LM.R. is incapacitated
incapacitated and in need of aa
guardian. 'That
guardian. That guardian needs to be someone other than Petitioner, so that he can
·I no longer exploit
no longer exploit her.
her
!
BY THE COURT:
As required by 20 Pa.CS.$
As
16 Pa. C.S. § 5601.3(a)
5601,3(a).
George
;;2�,,
Geo"rge N, •
eu
N. Zanic, ••
Zanic, President
President Judge
Judge
The Court
Te
17 Court notes
notes its
its high degree of
high degree of skepticism
skepticism regarding
regarding the validity of
the validity of the
the "discovered"
discovered" powers of attore
powers of attorney.
61