In re: Anna Hoban Appeal of: Anna Hoban

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ANNA HOBAN (AKA “NANCY), AN IN THE SUPERIOR COURT OF
INCAPACITATED PERSON PENNSYLVANIA
APPEAL OF: ANNA HOBAN,
AN INCAPACITATED PERSON
No. 1036 EDA 2015
Appeal from the Decree March 31, 2015
In the Court of Common Pleas of Montgomery County
Orphans' Court at No(s): OC#2014-X3309
BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.
MEMORANDUM BY MUNDY, J.: FILED APRIL 13, 2016
Appellant, Anna Hoban, appeals from the March 31, 2015 decree,
affirming the adjudication of Ms. Hoban as a totally incapacitated person,
entered after a review hearing of the orphans’ court’s November 4, 2014
order. After careful review, we affirm.
The facts of this case, as summarized from the certified record, are as
follows. On December 9, 2013, Ms. Hoban, an 84-year-old retired chemist,
was living alone when she suffered from a fall. Responding emergency
medical personnel took her to Abington Memorial Hospital in Montgomery
County. On December 11, 2013, she was discharged from Abington
Memorial and then admitted to The Landing at Willow Grove (The Landing),
an independent living facility, after the Montgomery County Office of Aging
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and Adult Services determined that she could not return to her home,
because the house was not in a habitable condition.
Specifically, James Salanik, an Abington Township code enforcement
officer, testified Ms. Hoban’s “house was in disarray” on December 9, 2013.
N.T., 11/4/14, at 11. He elaborated that it was difficult to maneuver
throughout the house because of all the clutter. Id. In fact, the police and
medical personnel had trouble taking her from the house because of the
mess. Id. Additionally, Ms. Hoban’s bed sheets were heavily soiled. Id.
Her cats were urinating and defecating freely throughout the house. Id.
There was no running water or working plumbing, and Ms. Hoban “was using
the bathtub and five-gallon buckets to relieve herself.” Id. The heating
system was also not functioning, and only “little electric space heaters” were
heating the house. Id. Further, the refrigerator was not working. Id.
Moreover, there was a large hole in the second-story floor above the
kitchen. N.T., 10/28/14, at 26. The Abington Township code enforcement
office sent Ms. Hoban a letter stating that the house was not habitable, and
informing her of the measures she needed to take, including cleaning and
restoring the heating and plumbing. N.T., 11/4/14, at 16. Abington
Township considers the house condemned and has boarded it up. N.T.,
10/28/14, at 14.
After being admitted to The Landing, Ms. Hoban remained determined
to rehabilitate her house and return to it. Ms. Hoban explained that she
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contacted state representative Madeleine Dean, who was able to arrange for
Mr. Salanik to permit Ms. Hoban to access the house to attempt to clean it
and make repairs. Id. at 62; N.T., 11/4/14, at 16-17. However, despite
Ms. Hoban’s efforts, as of October 29, 2014, the house remained
uninhabitable. N.T., 11/4/14, at 18-19. Mr. Salanik noted that the
electricity did not work, and he was unable to access the breaker panel in
the basement because furniture and debris were blocking it. Id. at 18. The
plumbing was still not working, and there was no running water. Further,
the heating company shut off the heater that they had replaced because the
pipes circulating water to the radiators froze. Id.
Moreover, Ms. Hoban does not have the financial resources to
rehabilitate the house. Her total monthly income from Social Security and
her civil service annuity is $1,524.72. N.T., 2/19/15, at 22-23. She has no
other liquid assets. N.T., 10/28/14, at 74-75. Her monthly bill at The
Landing is $2,130.00, and she owed $27,000.00 as of February 2015. N.T.,
2/19/15, at 23. Her monthly mortgage payment is approximately $800.00.
N.T., 10/28/14, at 65. Moreover, the mortgage is underwater. Ms. Hoban
owes $187,000.00 on the mortgage, but the house has been valued at
$70,000.00 to $80,000.00 in its current state of disrepair. N.T., 2/19/15, at
25. As of February 2015, the mortgage company had delayed foreclosure,
pending the outcome of these guardianship proceedings.
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The orphans’ court detailed the procedural history of this case as
follows.
On September 19, 2014, The Landing at
Willow Grove (hereinafter “The Landing”), a long-
term care facility located in Willow Grove,
Montgomery County, petitioned [the orphans’ court]
for an adjudication of incapacity and the
appointment of plenary guardians for Anna Hoban,
an 84 year old resident of the facility. Upon the
[orphans’] court being advised Ms. Hoban wished to
contest the petition, Jacqueline J. Shafer, Esquire,
was appointed as counsel for her on October 1,
2014. The matter proceeded to hearings on
October 28, and November 4, 2014. At the
conclusion of the hearings, [the orphans’ court]
determined that Ms. Hoban suffered from moderate
dementia and adjudicated her a totally incapacitated
person. Adjustments, Inc., through its principal
Kalpana Doshi, was appointed plenary permanent
guardian of the person and estate of Ms. Hoban.
On November 10, 2014, Ms. Hoban filed a
timely appeal from the adjudication of incapacity.1
Shortly thereafter, counsel for Ms. Hoban advised
the [orphans’] [c]ourt that rather than pursue the
appeal, she and Ms. Hoban would prefer that the
[orphans’] [c]ourt appoint another professional to
conduct an independent evaluation of Ms. Hoban
and hold a review hearing. Pursuant to the
[orphans’] [c]ourt’s agreement to do so, the appeal
was discontinued as of December 26, 2014.
On January 9, 2015, [the orphans’] [c]ourt
appointed Kenneth R. Carrol, Ph.D., a clinical
psychologist, to perform an evaluation of Ms.
Hoban. A review hearing was held at The Landing
on February 19, 2015. At the conclusion of that
hearing, [the orphans’] [c]ourt announced its
intention to affirm its earlier decision adjudicating
Ms. Hoban a totally incapacitated person. [The
orphans’ court’s] final decree issued March 30,
2015, expressly affirmed the findings at the
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conclusion of the earlier hearings and the terms of
[the orphans’] [c]ourt’s final decree issued
November 4, 2015.
1
This appeal was docketed at [] 3363 EDA [2014].
Orphans’ Court Opinion, 6/4/15, at 1-2 (footnote in original). On April 7,
2015, Ms. Hoban filed a timely notice of appeal.1
On appeal, Ms. Hoban presents the following issues for our review.
A. Whether the Montgomery County [o]rphans’
[c]ourt erred in adjudicating Anna Hoban as an
[i]ncapacitated [p]erson without having received
evidence on whether a less restrictive alternative
to a plenary guardianship of the person and of the
estate existed[?] 20 Pa.C.S.A. § 5502.
B. Whether the Montgomery County [o]rphans’
[c]ourt erred in failing to consider whether Anna
Hoban could understand and execute a power of
attorney[?] 20 Pa.C.S.A. § 5601.
C. Whether the Montgomery County [o]rphans’
[c]ourt erred in failing to consider whether Anna
Hoban could execute an [a]dvanced [d]irective for
[h]ealthcare or [l]iving [w]ill[?] 20 Pa.C.S.A.
§ 5422.
D. Whether the Montgomery County [o]rphans’
[c]ourt erred in failing to consider whether Anna
Hoban could execute a [h]ealthcare [p]ower of
[a]ttorney[?] 20 Pa.C.S.A. § 5452.
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1
Ms. Hoban and the orphans’ court have complied with Pennsylvania Rule of
Appellate Procedure 1925. Moreover, we note that The Landing advised us
that it would not be filing a brief in this appeal.
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Ms. Hoban’s Brief at 2-3. We will address all the issues together because
they are interrelated.
The decision to declare a person incapacitated and to appoint a
guardian is within the discretion of the orphans’ court, and we will reverse
only for an abuse of that discretion. In re Duran, 769 A.2d 497, 506 (Pa.
Super. 2001). An orphans’ court abuses its discretion if it “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. (citation and internal quotation marks omitted). This Court will not,
however, reweigh the evidence and substitute our judgment as long as the
evidence “is sufficient in quality and quantity to sustain the [orphans’
court’s] finding of incompetency[.]” In re Myers’ Estate, 150 A.2d 525,
526 (Pa. 1959) (citations omitted); see also Estate of Haertsch, 609 A.2d
1384, 1385 (Pa. Super. 1992).
Section 5501 of the Probate, Estates and Fiduciaries Code, 20
Pa.C.S.A. §§ 101-8815, defines an incapacitated person as follows.
§ 5501. Meaning of incapacitated person
“Incapacitated person” means 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.A. § 5501.
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A statute of this nature places a great power in
the court. The court has the power to place total
control of a person’s affairs in the hands of another.
This great power creates the opportunity for great
abuse. Myers’ Estate, [supra]. “Mental capacity
and competency are to be presumed and before any
person shall be deprived of the right to handle his or
her own property and manage his or her affairs there
must be clear and convincing proof of mental
incompetency and such proof must be
preponderating.” Id.Estate of Haertsch, supra, at 1386 (parallel citation omitted). “Once an
individual has been found incapacitated within the meaning of 20 Pa.C.S.A.
§ 5501 … and in need of guardianship services, it then becomes the court’s
responsibility to appoint an individual to serve, granting limited or plenary
powers consistent with the incapacitated person’s needs.” Estate of
Haertsch, 649 A.2d 719, 720 (Pa. Super. 1994), citing 20 Pa.C.S.A. § 5511.
“The selection of a guardian for a person adjudicated incapacitated lies
within the discretion of the [orphans’] court whose decision will not be
reversed absent an abuse of discretion.” In re Duran, supra.Ms. Hoban challenges the orphans’ court’s conclusion that she is totally
incapacitated. Specifically, she contends that the evidence shows she
effectively received and evaluated information, and she made a conscious
decision to pay the mortgage on her house and her monthly bills instead of
making payments to The Landing. Ms. Hoban’s Brief at 21. Moreover, she
argues that the appointment of a plenary guardian was not the least
restrictive alternative. Id. at 22, citing, 20 Pa.C.S.A. § 5502. Instead, Ms.
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Hoban asserts that the orphans’ court should have permitted her to appoint
a power of attorney, execute an advanced directive for healthcare, and
designate a healthcare power of attorney.2 Id. at 22-24, citing, 20
Pa.C.S.A. §§ 5601, 5422, and 5452.
During the initial incapacity proceedings, in addition to extensive
evidence on the condition of Ms. Hoban’s house summarized above, two
doctors who had independently evaluated Ms. Hoban testified. The orphans’
court summarized their testimony as follows.
Paul R. Moyer, M.D., testified as to the results
of his evaluation of Ms. Hoban. … Dr. Moyer is a
geriatrician who primarily takes care of patients in
nursing homes. He has been the medical director at
seven facilities where he also acts as attending
physician. He met Ms. Hoban on October 17, 2014,
at The Landing. He was unable to review her
medical records and was not provided with a list of
medications she was taking. The doctor’s evaluation
consisted of a detailed conversation with Ms. Hoban
which lasted for somewhere between half an hour
and one hour. The doctor found Ms. Hoban oriented
and aware of current events surrounding her own
situation. She was further able to give a personal
history. He found that she had “some mild memory
loss.” Because Dr. Moyer found that Ms. Hoban was
aware of pertinent facts, he could not say that she
met the criteria for incapacity. But, he expressed
serious concern about her ability to execute a plan
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2
Ms. Hoban did not raise the issue of less restrictive alternatives to plenary
guardianship to the orphans’ court until she filed her Rule 1925(b) concise
statement. The trial court addressed those arguments in its opinion. We
decline to find waiver on the issue of alternatives to guardianship because
the express purpose of the guardianship chapter is to impose the least
restrictive alternative on an incapacitated person. 20 Pa.C.S.A. § 5502.
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for her own well-being, for her own maintenance,
and for her own living arrangements. Because of
those concerns, he felt that she might need a
guardian. Asked about Ms. Hoban’s repeated efforts
to get back into her residence, the doctor replied
that her actions spoke to a judgment issue and
worried him to the point that he believed she was
marginally incapacitated. He did add that this was a
hard call.
…
Kenneth B Goldberg, Psy.D., … performed a
neurophysiological evaluation of Ms. Hoban at Holy
Redeemer Hospital on August 4, 2014 pursuant to a
referral from her physician[.] After interviewing Ms.
Hoban and care staff, Dr. Goldberg administered
multiple tests that included the Mattis Dementia
Rating Scale, the Wechsler Adult Intelligence Scale
(logical memory 1 and 2 subtests), the California
verbal learning test (short form), the Boston naming
test, the controlled word association test, the animal
naming test, the clock drawing test, judgment of line
orientation test, the trail-marking test, and the
geriatric depression scale. He said he concluded that
Ms. Hoban suffered from deficits in executive
functioning, visual memory, visual scanning,
complex verbal learning, and verbal fluency. Her
scores placed her in the first, second (twice), sixth,
seventh, eighth, and sixteenth percentiles based on
a population of 84 year old females. Dr. Goldberg
testified that Ms. Hoban had arrived two hours early
for the evaluation and was disoriented in the
hospital. He formed a diagnosis of moderate
dementia and concluded that Ms. Hoban has limited
insight into her condition and the extent of her
deficits. He opined that she cannot safely manage
her healthcare decisions or her finances and that she
meets the definition of incapacity under
Pennsylvania’s guardianship statute.
On cross-examination, Dr. Goldberg
acknowledged that Ms. Hoban had complained that
she was cold in her evaluation room and that he
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adjusted the heat upward for her. He explained that
his diagnosis of dementia was subcortical as opposed
to cortical, which makes it likely to be the result of a
cerebral vascular accident (stroke) or a vascular
condition rather than an Alzheimer’s type dementia.
As such, the dementia may be progressive or may be
stable. Asked whether he felt Ms. Hoban needed a
little help or a lot of help, Dr. Goldberg replied “A lot
of help.”
Orphan’s Court Opinion, 6/4/15, at 4-5, 7-8 (citations omitted).
Immediately following the November 4, 2014 hearing, the trial court
adjudicated Ms. Hoban totally incapacitated. At the review hearing, on
February 19, 2015, Kenneth Carroll, Ph.D, a licensed clinical psychologist
that the orphans’ court appointed to conduct a third evaluation of Ms.
Hoban, testified as follows.
Counsel stipulated to the qualifications of Dr. Carroll
as an experienced clinical psychologist with a
specialization in geriatric cases. He testified that he
evaluated Ms. Hoban on January 16, 2015 at The
Landing. Dr. Carroll administered the Folstein mini-
mental state exam and supplemented that with a
number of other tests primarily designed to assess
executive function. These included the similarities
test, the Weschler Adult Intelligence Scale, and a
comprehension subtest from that scale. He also
administered a clock drawing test, the animal
naming test, and the geriatric depression scale
following a lengthy interview with Ms. Hoban. Dr.
Carroll testified that Ms. Hoban is a retired research
chemist who is very intelligent, bright, and did well
on most of the tests that were administered. On the
Folstein exam, she scored 27 out of 30. Although
she did well on the similarities test, she did not do as
well when asked to interpret proverbs. She also had
difficulties on some comprehension questions. She
was unable to draw a clock accurately which Dr.
Carroll characterized as significant. Dr. Carroll
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explained that Ms. Hoban does not appreciate how
dire her circumstances had become when she was
living at home and that this represents executive
dysfunction and an inability to access [sic] situations
accurately. For instance, he showed her some of the
photos from her home and her assessment of them
was inaccurate. Dr. Carroll said another symptom of
her executive dysfunction is the inability to plan,
recognize problems, and figure out solutions. Her
plans were vague. She had not decided what she
wants to do, she talked about having someone come
to live with her but has not pursued that. She said
she may or may not sell the house. Her answers
exhibited an obvious absence of purpose. Although
Ms. Hoban was able to identify the sources of her
income, she could not explain how she got into
serious financial difficulty and did not seem
concerned about that. Dr. Carroll opined that Ms.
Hoban is an incapacitated person, that it is a total
incapacity, and her determination to return to her
house would present a life-threatening situation.
Orphans’ Court Opinion, 6/4/15, at 9-10 (citations omitted). At the
February 19, 2015 review hearing, Kalpana Doshi also testified that Ms.
Hoban’s physician opined that Ms. Hoban should not be driving. Id. at 11.
Ms. Doshi’s opinion was that Ms. Hoban’s insistence on returning to her
house is impossible because it is not safe and she cannot afford the
necessary repairs. Id.
The orphans’ court found that “[t]he expert testimony clearly
established [] Ms. Hoban is totally incapacitated.” Id. at 12. The orphans’
court also concluded that “any of the traditional less restrictive alternatives
(power of attorney/health care power of attorney) would be ineffective as
Ms. Hoban would undoubtedly revoke any such power as soon as her agent
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made decisions inconsistent with her own unrealistic plans. … Regrettably,
there is no realistic alternative to [] plenary guardianship[.]” Id.
Here, three experts in geriatric mental health testified that Ms. Hoban
was incapacitated. Ms. Hoban’s overwhelming desire to return to her home
demonstrated her compromised judgment. The evidence showed that her
home was not in a habitable condition and her return to it would be a danger
to her health and safety. Further, Ms. Hoban cannot afford to make all of
the necessary repairs due to her financial situation.
Ms. Hoban argues that her payment of the mortgage, utilities, and bill
for the new heater, instead of the outstanding bill for The Landing, reflected
that she was capable of making conscious choices regarding her finances.
Ms. Hoban’s Brief at 18. However, those decisions further support the
orphans’ court’s finding that despite the impossibility of returning to her
home, “[s]he rationalized away all the concerns expressed by others as well
as the professional evaluation testimony. … Sadly, Ms. Hoban showed a total
inability to understand her situation, accept her limitations, and benefit from
the assistance of others.” Orphans’ Court Opinion, 6/4/15, at 12. It also
displays that there are no less restrictive alternatives available to plenary
guardianship because Ms. Hoban would revoke any alternative form of
guardianship or power of attorney when it became incompatible with her
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unrealistic goal of returning to her home.3 Our review of the record thus
demonstrates the evidence is sufficient to sustain the orphans’ court’s
finding of incompetency. See Myers’ Estate, supra.
Based on the foregoing, we conclude that the orphans’ court did not
abuse its discretion in adjudicating Ms. Hoban totally incapacitated. See
Duran, supra. Therefore, we affirm the orphans’ court’s March 31, 2015
decree.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2016
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3
We agree with the orphans’ court that “[Ms. Hoban] may be able to
execute a valid advance directive for health care and nothing in the orphans’
court’s decree prohibits this.” Orphans’ Court Opinion, 6/4/15, at 12. We
note that our decision is without prejudice to Ms. Hoban’s right to execute an
advance directive for health care.
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