In Re: L.J.J., Appeal of: H.A.E. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: L.J.J., AN ALLEGED : IN THE SUPERIOR COURT OF
INCAPACITATED PERSON : PENNSYLVANIA
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:
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APPEAL OF: H.A.E., ESQUIRE : No. 223 WDA 2021
Appeal from the Order Entered January 21, 2021
In the Court of Common Pleas of Allegheny County Orphans’ Court at
No(s): No. 02-20-01558
BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: OCTOBER 20, 2021
H.A.E., Esquire (Appellant), appeals from the order entered in the
Allegheny County Court of Common Pleas, Orphans’ Court, granting a
demurrer and denying his emergency petition to adjudicate L.J.J. an
incapacitated person and to appoint a guardian for her estate. Appellant
argues the orphans’ court abused its discretion by: improperly weighing the
evidence presented by L.J.J.’s own expert witness; failing to direct the
guardian ad litem to evaluate L.J.J.; and failing to order an independent
evaluation of L.J.J. We affirm.
I. Facts & Procedural History
Appellant, an attorney, began performing estate planning for L.J.J. and
her husband in 2012. N.T., 9/11/20, at 8. The coupled lived in a house they
owned, valued at $250,000, in Pittsburgh. Id. at 17, 27-28. They also owned
a second house, “one street over,” valued at $150,000, occupied by their
daughter, J., who received Social Security disability income. Id. at 11, 15,
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17. J., in turn, has two adult children, R. and M. (L.J.J.’s granddaughters).
L.J.J.’s husband died in December of 2016. R. was granted financial and
medical power of attorney over L.J.J. in September of 2018. Additionally, R.
moved into L.J.J.’s home in September or October of 2019 and became her
sole caregiver.1 Id. at 27.
On March 13, 2020, Appellant filed, pro se, the underlying emergency
petition to adjudicate L.J.J. incapacitated, to freeze her assets, and to appoint
a guardian of her estate. At this time, L.J.J. was 92 years old. The emergency
petition alleged: (1) L.J.J. was suffering from “lack of judgment and insight,”
the inability to manage her financial affairs, and manipulation by family
members; (2) R. unduly influenced L.J.J. to transfer or withdraw
approximately $221,000 and $168,000 from two checking accounts, which
were jointly titled in L.J.J.’s and both granddaughters’ names; and (3) R.
influenced L.J.J. to transfer ownership of both houses to R. individually.2 L.J.J.
did not file any response to Appellant’s petition.
The orphans’ court conducted a hearing on March 17, 2020, at which
Appellant appeared pro se and L.J.J. with court-appointed counsel. Appellant
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1 At some point, R.’s boyfriend also moved into L.J.J.’s home. N.T., 3/17/20,
at 28.
2 L.J.J. also had an IRA in the amount of $56,000 and a “small miscellaneous
account of $5,000.” N.T., 9/11/20, at 17. Together with the real properties
and bank accounts, L.J.J.’s total assets were worth $900,000 to $1 million.
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argued that over 7½ years of discussions and four updated wills, L.J.J. and
her husband’s consistent intention was to leave their estate equally to the two
granddaughters. N.T., 3/17/20, at 9. However, under R.’s “confidential
relationship and power of attorney,” there was now “a vast switch[, in which]
everything is to go to” R instead. Id. at 9-10. L.J.J. acknowledged that her
will would have given her house to her granddaughters equally, but, she
testified, she has changed her mind. Id. at 21-22. L.J.J. stated, “I want it to
go to my granddaughter [R.] who is the only person that I can trust in my
family. The only one.” Id. at 23. L.J.J. stated she “not leaving any money
to” her other granddaughter M., who “is not trustworthy because she is under
the influence of her husband,” “had written herself a $28,000 check,” and hid
“a camera and a speaker” behind a lamp by her seat in the family room. Id.
at 29, 33. Furthermore, L.J.J. did not trust her daughter, J., who “had the
Ross Township police come to [her] house at least two or three times and
accuse [her] of being crazy[.]” Id. at 31.
The orphans’ court continued the proceedings and appointed a guardian
ad litem for L.J.J., former Judge Robert Gallo, Esquire (GAL) — whom the
parties had agreed upon should the court appoint a GAL. See N.T., 3/17/20,
at 36; Order, 3/18/20.
Both parties filed expert reports. L.J.J.’s expert, Tod Marion, Ph.D.,
evaluated L.J.J. on July 29, 2020, at her home. His report opined that L.J.J.
was not incapacitated, she did not require an emergency guardian, she
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“scored in the normal range of intellectual ability,” she “is capable of managing
her own finances,” and “the most appropriate, least restrictive living situation
for” L.J.J. was to live at home with a part-time home health aide. Tod Marion,
Ph.D.’s Expert Report, 9/9/20, at 2, 4.
Appellant’s expert, Bruce Wright, M.D., did not examine L.J.J., as either
L.J.J. refused to meet with him or L.J.J.’s counsel denied permission for such
an evaluation. N.T., 9/11/20, at 47-48. However, Dr. Wright met with
Appellant and reviewed L.J.J.’s medical records of the past eight years, Dr.
Marion’s expert report, and Appellant’s emergency petition. Dr. Wright
opined, inter alia, that based on the available information, L.J.J. “has cognitive
impairment,” but absent an examination, he could not “determine a precise
diagnosis.” Bruce Wright, M.D.’s Expert Report, 9/8/20, at 2.
The orphans’ court conducted a second hearing on September 11, 2020,
at which both parties now appeared with counsel.3 L.J.J.’s counsel argued
that Appellant “should [start] with [a] presentation of . . . medical evidence,”
as the case may not “need[ ] to go any further once that’s presented.” N.T.,
9/11/20, at 5. However, L.J.J.’s counsel later conceded that L.J.J. refused to
meet with Appellant’s expert. Id. at 47-48 (in response to Appellant’s claim
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3 L.J.J. appeared at the September 11, 2020, hearing with a different, privately
retained attorney.
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that L.J.J.’s counsel refused permission for such an evaluation). It is not
disputed that Appellant did not present any medical evidence concerning L.J.J.
The sole witness was Appellant, who testified to the following. From
2012 through 2018, he “tweaked” L.J.J. and her husband’s estate planning
several times, but their intent was consistently as follows: to provide funds
and the second house for J. to live in during her life, and ultimately to leave
the two houses and remaining estate equally to the granddaughters. N.T.,
9/11/20, at 9, 11-12, 14. Following her husband’s death, L.J.J. owned both
homes in her name only. Id. at 16. By November of 2019, L.J.J.’s bank
accounts were jointly titled in her and both granddaughters’ names. Id. at
26.
As stated above, R. had obtained medical and financial power of
attorney over J.L.L in September of 2018. In September or October of the
following year, R. moved into L.J.J.’s home.4 N.T., 9/11/20, at 27. Around
the same time, M.’s mother-in-law provided in-home care for L.J.J. Id. at 26.
However, “[t]hey did not get along,” the mother-in-law was discharged, and
R. became the sole caregiver. Id. at 27. Meanwhile, L.J.J. gave $10,000 to
M. so that she and her husband could buy a home. Id. (closing on the home
was to be held in January of 2020). As late as November of 2019, L.J.J.
expressed to Appellant her continued desire for the second house to be placed
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4 R.’s boyfriend also lived in L.J.J.’s home. N.T., 3/17/20, at 28.
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in a “special needs trust” for J. to use during her lifetime, with the remainder
of L.J.J.’s estate to go to the two granddaughters equally. Id. at 14, 26.
On January 3, 2020, however, L.J.J. told Appellant for “the first time . . .
that she wanted to transfer her main house to” R. N.T., 9/11/20, at 27.
Appellant informed the other granddaughter, M., who “was surprised,” but
responded “if that’s grandma’s desire, then so be it. I won’t interfere[.]” Id.
at 28, 29. On January 21st, Appellant met L.J.J. at her home for one hour.
Id. at 30. L.J.J. understood that she was transferring title to R. Id. at 30.
Appellant completed the deed transfer, from L.J.J. individually to L.J.J. and R.
as joint tenants with right of survivorship. Id. at 53. According to Appellant,
neither granddaughter, nor the daughter J., knew about this meeting or deed
transfer. Id.
On February 4, 2020, L.J.J. left a voice message for Appellant,
requesting he “prepare a quitclaim deed to transfer her house into [R.’s]
name.” N.T., 9/11/20, at 30-31. Appellant believed “something was wrong.
[He] couldn’t understand how [L.J.J.] had completely forgotten [that] two
weeks prior,” he visited her house and she executed the deed. Id. at 31.
Appellant did not believe L.J.J. “had any comprehension that it had been
completed.” Id. This call was made on R.’s cell phone, and Appellant believed
“it sounded as if [L.J.J.] was reading a script.” Id. at 33. Subsequently, both
houses — L.J.J.’s home and her daughter’s home — were transferred to R. as
sole owner by quitclaim deed, prepared by another attorney. Id. at 44.
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Shortly thereafter, on February 18, 2020, Appellant learned the
following. L.J.J., R., and R.’s boyfriend went to First National Bank and
withdrew approximately $168,000 — “essentially all of [the] funds from the
three-way account” jointly owned by L.J.J., R., and M. N.T., 9/11/20, at 34,
37. Appellant believes this money was placed “into another account” that did
not include M. See id. at 38. On the same day, L.J.J., R. and R.’s boyfriend
also went to a PNC Bank and attempted to withdraw funds from a joint account
there. Id. M. was at the bank and called Appellant.5 At Appellant’s request,
M., as a joint owner of the account, withdrew $221,041.79, and PNC Bank
executed a check payable to Appellant’s solo law firm, so that he could deposit
the money to his attorney IOLTA account. Id. at 39-40. As of the September
11, 2020, hearing, this money remained in Appellant’s IOLTA account. Id. at
40.
Appellant then requested the Ross Township Police Department to
conduct a “Health & Comfort inspection” and accompany him to visit L.J.J.
N.T., 9/11/20, at 40-41. A police officer thus escorted Appellant to L.J.J.’s
home on February 19, 2020, the day after the bank withdrawals. Id. at 41.
L.J.J. told Appellant she had signed a deed on February 17th. Id. When
Appellant reminded L.J.J., “[W]e had already transferred the house[,]” L.J.J.
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5 The notes of testimony do no indicate when or how M. came to be at the
PNC Bank. See N.T., 9/11/20, at 38.
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had “no recollection of” signing the deed one month earlier. Id. As stated
above, at some point, L.J.J. also transferred ownership of the second house
— in which her daughter J. lived — to R. individually. Id. at 44. Appellant
filed the pro se emergency petition on March 13th.
Throughout the above testimony, L.J.J.’s counsel argued that Appellant
had not presented any evidence of L.J.J.’s incapacity, and instead Appellant’s
testimony went to a will contest, not the issue of guardianship. N.T., 9/11/20,
at 9, 13, 40, 47. L.J.J.’s counsel further argued that Appellant’s expert’s
report was “void because the doctor never examined” L.J.J. and thus “cannot
speak or address [L.J.J.’s] functions [or] ability.” Id. at 51. L.J.J.’s counsel
further pointed out that Appellant’s expert was not provided with L.J.J.’s
testimony at the March 17, 2020, hearing. Id.
Appellant responded, inter alia, that L.J.J.’s own expert’s report, by Dr.
Marion, recommended that L.J.J. “needs someone independent [and separate
from her granddaughters] to manage her finances,” and “essentially asks for
the [GAL] to act as an independent guardian to oversee her affairs to establish
what . . . she wants[.]”6 N.T., 9/11/20, at 55-56. L.J.J.’s counsel responded
this characterization of the report was “absolutely false,” and instead, Dr.
Marion found L.J.J. was not incapacitated and “[t]he only assistance that
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6 Appellant presents the same argument on appeal, which we address infra.
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[L.J.J.] needs is some physical assistance and daily activities in the home.”
Id. at 56.
L.J.J.’s counsel thus made an oral motion for demurrer and dismissal,
which the orphans’ court granted in open court. N.T., 9/11/20, at 54, 59. The
court reasoned that Appellant provided no medical testimony, nor any
evidence of incapacity. Id. at 46, 58. The court agreed that Appellants’
evidence and arguments related to a will contest, not guardianship. Id. When
Appellant’s counsel denied this matter was a will contest, the court reasoned,
“That’s where it’s going to go. You know that as well as I do.” Id. at 59.
The orphans’ court also executed the proposed written order, submitted
by L.J.J.7 Pertinently, the court struck the last sentence in L.J.J.’s draft order:
“[Appellant] shall immediately return the amount of $221,041.79 to [L.J.J.],”
meaning the court did not order such return. See Order, 9/18/20.
On October 16, 2020, Appellant filed a motion for reconsideration,
requesting the court to direct the GAL “to engage in the evaluation and
counseling recommended by” L.J.J.’s expert. Appellant’s Mot. for
Reconsideration, 10/16/20, at 5. On October 20th, the orphans’ court granted
reconsideration and directed the GAL to meet with L.J.J. and “assess her
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7 The text of this order states the date September 11, 2020, but the order is
stamped as “filed” on September 18th. The electronic certified record on
appeal does not include any official trial docket, but rather only an “index,”
which likewise shows the order was “filed” on September 18, 2020. For
citation purposes, we use this September 18th date.
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judgment, insight, memory, and overall capacity, and shall, as suggested by
[Dr. Marion’s report,] assess her susceptibility to influence by her
granddaughters or any other person.” Order, 10/20/20. On October 23rd,
L.J.J. filed a motion to stay the reconsideration order.
The orphans’ court conducted a hearing on January 14, 2021. L.J.J.’s
counsel argued that where Appellant’s emergency petition was dismissed “by
demurrer based on a complete inability to sustain a burden of proof,” his
“entire” reconsideration argument was improperly “based on facts that are
established.” N.T., 1/14/21, at 5. Counsel further argued that Appellant’s
requested relief — further evaluation of L.J.J. — was “an invasion of [L.J.J.’s]
privacy” and not supported by fact or any legal authority. Id. at 6.
On January 21, 2021, the orphans’ court entered the underlying order,
which essentially vacated its reconsideration order and reinstated its denial of
Appellant’s emergency petition. Appellant filed a timely notice of appeal on
February 12th, and subsequently complied with the court’s order to file a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Meanwhile,
on February 24th, L.J.J. filed a motion for return of the $221,041.79 funds
that were in Appellant’s IOLTA account. In response, on March 29th, the court
ordered Appellant to issue a check in that amount to the orphans’ court, to be
held pending further order of the court. Order, 3/29/21.
II. Statement of Questions Involved
Appellant presents three issues for our review:
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I. Did the orphans’ court abuse its discretion and err as a matter
of law in granting a non-suit when the court had failed to consider
the substantial weight of evidence, including that provided by
[L.J.J.’s] own expert, that [L.J.J.] was susceptible to undue
influence, confused, and memory impaired, and that her real
property and accounts had recently been retitled or converted to
ownership by others resulting in substantial risk to her immediate
and future financial security?
II. Did the orphans’ court abuse its discretion and err as a matter
of law in granting a non-suit when the court had failed to exercise
its statutory and equitable authority to direct the guardian ad
litem to engage in an evaluation of [L.J.J.] in light of the
substantial evidence of her impaired condition, her susceptibility
to influence, and the acts of conversion and undue influence
perpetrated upon her by others?
III. Did the orphans’ court abuse its discretion and err as a matter
of law in granting a non-suit when the court had failed to exercise
its statutory and equitable authority to order an independent
evaluation of [L.J.J.] in light of the substantial evidence of her
impaired condition, her susceptibility to influence, and the acts of
conversion and undue influence perpetrated upon her by others?
Appellant’s Brief at 4.
III. Standard of Review & Statutory Authority
We first note the standard of review and relevant authority.
“‘In reviewing the decision of the orphans’ court, our task is to
assure that the record is free from legal error and to determine if
the chancellor’s findings are supported by competent and
adequate evidence, and are not predicated upon capricious
disbelief of competent and credible evidence.’” Our standard of
review with respect to the factual findings of the auditing judge is
clear: “‘The credibility of the witnesses and the weight to be given
their testimony is in the first instance to be determined by the
auditing judge. His [or her] findings of fact, affirmed by the court
en banc, like those of a jury, are conclusive unless they are
unsupportable by the record.’”
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In re Estate of Duran, 692 A.2d 176, 178 (Pa. Super. 1997) (citations
omitted).
Although L.J.J. made an oral motion for a demurrer here, and did not
file preliminary objections, we find instructive the following authority
regarding demurrers:
Preliminary objections in the nature of a demurrer test the legal
sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
are admitted as true, as well as all inferences reasonably
deducible therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained only in cases in
which it is clear and free from doubt that the pleader will be unable
to prove facts legally sufficient to establish the right to relief. If
any doubt exists as to whether a demurrer should be sustained, it
should be resolved in favor of overruling the preliminary
objections.
See Richmond v. McHale, 35 A.3d 779, 783 (Pa. Super. 2012) (citations
omitted).
Chapter 55 of our Probate, Estates and Fiduciaries Code8 governs
incapacitated persons. Section 5501 defines an “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.
The stated purpose of the Code is as follows:
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8 20 Pa.C.S. §§ 5501-5555.
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Recognizing that every individual has unique needs and differing
abilities, it is the purpose of this chapter to promote the general
welfare of all citizens by establishing a system which permits
incapacitated persons to participate as fully as possible in all
decisions which affect them, which assists these persons in
meeting the essential requirements for their physical health and
safety, protecting their rights, managing their financial resources
and developing or regaining their abilities to the maximum extent
possible and which accomplishes these objectives through the use
of the least restrictive alternative; and recognizing further that
when guardianship services are necessary, it is important to
facilitate the finding of suitable individuals or entities willing to
serve as guardians.
20 Pa.C.S. § 5502.
Section 5511(a) provides that a court, upon petition, a hearing, and “the
presentation of clear and convincing evidence, may find a person . . . to be
incapacitated and appoint a guardian or guardians of his person or estate.”
20 Pa.C.S. § 5511(a). “The court may dismiss a proceeding where it
determines that the proceeding has not been instituted to aid or benefit the
alleged incapacitated person or that the petition is incomplete or fails to
provide sufficient facts to proceed.” Id. Section 5518 governs the evidentiary
burden for a finding of incapacity:
To establish incapacity, the petitioner must present testimony,
in person or by deposition from individuals qualified by
training and experience in evaluating individuals with
incapacities of the type alleged by the petitioner, which
establishes the nature and extent of the alleged incapacities and
disabilities and the person’s mental, emotional and physical
condition, adaptive behavior and social skills. The petition must
also present evidence regarding the services being utilized to meet
essential requirements for the alleged incapacitated person’s
physical health and safety, to manage the person’s financial
resources or to develop or regain the person’s abilities; evidence
regarding the types of assistance required by the person and as
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to why no less restrictive alternatives would be appropriate; and
evidence regarding the probability that the extent of the person’s
incapacities may significantly lessen or change.
20 Pa.C.S. § 5518 (emphasis added).
IV. Weight of Parties’ Expert Reports
In his first issue, Appellant avers the trial court abused its discretion and
erred in weighing the evidence to conclude L.J.J. is not incapacitated. First,
Appellant cites his own “uncontradicted and credible testimony” about L.J.J.’s
“increasingly impaired cognition,” as well as R.’s actions that “violated her
fiduciary duty to avoid self-dealing as an agent.” Appellant’s Brief at 18, 21.
Appellant also points to the “uncontradicted evidence” that R. converted to
her own ownership L.J.J.’s real estate and “a substantial portion of her liquid
assets.” Id. at 21. Appellant acknowledges he was unable “to acquire
sufficient medical testimony” about L.J.J., but avers both his own and L.J.J.’s
expert reports opine that L.J.J. is “cognitively and memory impaired, and
susceptible to the influence of her granddaughters.” Id. at 20-21. We
conclude no relief is due.
Here, the orphans’ court considered Appellant’s claim that L.J.J. was
being manipulated by her granddaughter R., but found credible L.J.J.’s
testimony that R. was “the only person in the family that she can trust.”
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Orphans’ Ct. Op. at 1 (unpaginated),9 citing N.T., 3/17/20, at 24. With respect
to the parties’ expert reports, the court noted both experts have been qualified
as experts “many times” before it. Orphans’ Ct. Op. at 2, 3. The court credited
the report of L.J.J.’s expert, Dr. Marion, who evaluated L.J.J. the court
summarized:
[Dr. Marion] stated that [L.J.J.] scored in the normal range of
intellectual ability on the Montreal Cognitive Assessment. He
found that [L.J.J.] “is capable of receiving and evaluating
information effectively and making and communicating decisions
to meet her essential requirements for both her person and her
finances. As such, “a guardian for her estate is not necessary.”
Orphans’ Ct. Op. at 3.
It is not disputed that Appellant failed to present medical or expert
testimony about L.J.J.’s alleged incapacity, as required by Section 5518. We
acknowledge L.J.J.’s self-serving argument, where she refused to meet with
Appellant’s expert but then argued Appellant failed to present any medical
testimony. See N.T., 9/11/20, at 5, 48. Furthermore, L.J.J.’s counsel argued
that an evaluation, by the GAL or any evaluator, would be “an invasion of
privacy.” N.T., 1/14/21, at 6. However, we have not discovered any legal
authority for this proposition — that an anticipated invasion of privacy may
prevent an interested party, or a court, from investigating whether a person
is indeed suffering from incapacity under the Code.
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9 In our citation to the orphans’ court opinion pages, we do not include the
cover page.
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In any event, the orphans’ court acknowledged, twice in its opinion, that
L.J.J. “refused to be” evaluated by Dr. Wright and presented additional
reasoning for denying Appellant’s emergency petition. Orphans’ Ct. Op. at 2,
3. The court credited the report of L.J.J.’s expert, Dr. Marion, which
specifically opined L.J.J. was not incapacitated, “[s]he is capable of managing
her own finances,” and “she scored in the normal range of intellectual ability.”
See Dr. Marion’s Expert Report at 2, 4. Furthermore, our review of the report
reveals that Dr. Marion marked L.J.J. as “Unimpaired” in the following list of
cognitive skills: receiving and evaluation information effectively;
communicating decisions; ability to give informed consent; short-term
memory, long-term memory, “[m]anaging finances (including paying bills,
making deposits, withdrawals and working with financial institutions),”
managing health care, and “ability to resist scams.” Id. at 3. The only skills
that Dr. Marion marked as “needs some help” are “[a]ctivities of daily living”
and “[p]roviding for physical safety.” Id.
We consider Appellant’s claims that Dr. Marion found L.J.J. is
“significantly cognitively impaired” and “susceptible to influence,” and that Dr.
Marion recommended further evaluation. See Appellant’s Brief at 11. He
relies on portions of the expert’s narrative report. We set forth the cited
statements in their full context:
[L.J.J.] clearly has some strong feelings regarding her daughter
and one granddaughter. But it seems like the anger is relatively
new. [T]hings started to deteriorate at some time within the last
year. As [Appellant] noted, both granddaughters seem to be
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independently working for the better situation for themselves
individually. They both compromised [L.J.J.] by having dual roles
with her including caregiving roles, and recipients of her funds.
These dual roles make it harder for anyone, especially
someone like [L.J.J.] who is vulnerable due to her age,
need for care, difficulty seeing and hearing, to remain
objective, and can be easily influenced.
But [L.J.J.] is entitled to her opinion. She has clear reasons
for why she wants to remove one of the granddaughters from
accounts and her will and she has strong feelings regarding
creating trusts. Her views have been consistent over time
recently. But they are inconsistent with views that she held for
many years. It is not clear to me why [Appellant], as her attorney,
would not follow her wishes. But he is also aware of her past and
the tension that exists between the two granddaughters. . . .
* * *
. . . It might be very useful for the [GAL] to meet with
[L.J.J.] over several sessions over a four-week time frame,
and to review her history, previous decisions and the changes in
her wishes recently and to explore what she would like to have
happen with her estate after these sessions occur.
* * *
In conclusion, [L.J.J.] is capable of receiving and
evaluating information effectively and making and
communicating decision to meet her essential
requirements for both her person and her finances. A
guardian for her estate is not necessary.
See Dr. Marion’s Expert Report at 7-8 (emphases added).
Appellant extrapolates the above language to mean Dr. Marion has
“unequivocally” opined the following:
[L.J.J.] was “vulnerable due to her age”, “can be easily
influenced”, and that both granddaughters “compromised [L.J.J.]
by having dual roles with her” and “her income may have become
more important to them [the granddaughters], than what is in the
best interest of grandmother.”
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* * *
Dr. Marion also suggested that [R.] be removed from [L.J.J.’s]
house as a caregiver and that the [GAL] be directed by the court
to interview [L.J.J.] alone, over several sessions during a four-
week period away from the influence of either of her
granddaughters, specifically [R.] Dr. Marion believed that such an
intervention would allow the [GAL] to ascertain [L.J.J.’s] actual
desires, free from the clearly conflicted influence of her
granddaughters.
. . . Dr. Marion[ found that L.J.J.] was susceptible to influence . .
Appellant’s Brief at 11.
We reiterate that the weight of the evidence is for the orphans’ court to
evaluate in the first instance. Estate of Duran, 692 A.2d at 178. Here, the
orphans’ court considered the various statements in both parties’ expert
reports, together with Appellant’s and L.J.J.’s testimony. The orphans’ court
was free to weigh Dr. Marion’s suggestion, that the GAL “meet with” L.J.J. “to
review her history, previous decisions and the changes in her wishes recently,”
with the opinions, set forth in the same report, that that L.J.J. is not
incapacitated, can evaluate information effectively, has unimpaired short-
term and long-term memory, and can manage her finances and health care,
and that a guardian for her estate is not necessary. See Estate of Duran,
692 A.2d at 178; Dr. Marion’s Expert Report at 3, 8. The court stated that it
understood Appellant’s concerns, but found he did not establish any
“manipulation,” and his “concerns do not rise to the level of the appointment
of a guardian under the statute.” Orphans’ Ct. Op. at 1, 3-4. The court’s
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conclusion, that Appellant failed to establish incapacity under Sections 5501
(definition of an “incapacitated person”), 5511(a), and 5518 of the Code, is
supported by the record. Thus, we do not disturb the court’s granting a
demurrer and dismissing Appellant’s emergency petition. See Richmond, 35
A.3d at 783.
V. Orphans’ Court Denial of Further Evaluations of L.J.J.
We address together Appellant’s last two issues. He avers the orphans’
court abused its discretion and erred in not exercising its powers in equity to
direct the GAL to interview and assess L.J.J. Appellant contends the court
should “fully explore the evidence, issues, and opportunities for relief in a way
that would protect” L.J.J. Appellant’s Brief at 24. In support, Appellant again
argues that Dr. Marion found L.J.J. “was cognitively and memory impaired and
subject to influence by both of her granddaughters,” and Dr. Marion suggested
that the GAL “independently assess [L.J.J.’s] abilities, needs, and wishes.” Id.
at 23. In his final issue, Appellant incorporates these arguments to allege the
orphans’ court should have ordered an independent evaluation under Section
5511(d) of the Probate, Estates and Fiduciaries Code. We conclude no relief
is due.
First, we note Section 5511(d) provides the following:
Independent evaluation. — The court, upon its own motion or
upon petition by the alleged incapacitated person for cause shown,
shall order an independent evaluation which shall meet the
requirements of section 5518 (relating to evidence of incapacity).
The court shall give due consideration to the appointment of an
evaluator nominated by the alleged incapacitated person.
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20 Pa.C.S. § 5511(d).
We reiterate that the orphans’ court initially granted Appellant’s motion
for reconsideration and directed the GAL to meet with L.J.J. and “assess her
judgment, insight, memory, and overall capacity, and shall, as suggested by
[Dr. Marion’s report,] assess her susceptibility to influence by her
granddaughters or any other person.” Order, 10/20/20. However, following
an additional hearing on January 14, 2020, the court denied ultimately
Appellant’s emergency petition.
We incorporate our above discussion, and conclude the orphans’ court
did not err in denying Appellant’s request for further evaluations of L.J.J.
VI. Conclusion
We affirm the orphans’ court January 21, 2021, order, which denied
Appellant’s emergency petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2021
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