In the Matter of: McGusty, E.

J-S06033-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF: ELIZABETH N. IN THE SUPERIOR COURT OF
MCGUSTY, AN ALLEGED PENNSYLVANIA
INCAPACITATED PERSON
APPEAL OF: ELIZABETH N. MCGUSTY
No. 2699 EDA 2016
Appeal from the Order Entered July 20, 2016
in the Court of Common Pleas of Chester County Orphans’ Court
at No(s): 1516-0113
BEFORE: MOULTON, RANSOM, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JUNE 01, 2017
Appellant, Elizabeth N. McGusty, appeals from the order entered in the
Chester County Court of Common Pleas appointing Appellant’s adult sons,
Appellee, James C. McGusty, Jr., and Edwin A. McGusty plenary guardians of
Appellant’s person and Appellee as the sole plenary guardian of Appellant’s
estate. Appellant contends that the trial court erred by failing to properly
consider her testimony regarding her sons. We affirm.
We adopt the facts and procedural history set forth by the trial court’s
opinion. See Trial Ct. Op., 10/10/16, at 1-3. In this timely appeal,
Appellant raises the following issue for review: “Did the trial court commit an
abuse of discretion when it failed to properly account for or consider the
testimony of Appellant as it related to the appointment of her adult sons as
*
Former Justice specially assigned to the Superior Court.
J-S06033-17
plenary guardians of her person, and [Appellee] as guardian over the
estate?” Appellant’s Brief at 9.
Appellant argues that the trial court failed to properly consider her
testimony regarding her “distrust of and objection to the appointment of her
sons as co-guardians of her person and Appellant as plenary guardian of her
estate.” Id. at 13. To this end, Appellant specifically points to her
testimony regarding her sons purported lack of interest in caring for her
daily needs. Id. at 18. She also cites her previous refusal to grant her sons
a durable power of attorney as evidence of her continual distrust. We
conclude no relief is due.
Our standard of review is well settled:
The findings of a judge of the [O]rphans’ [C]ourt division,
sitting without a jury, must be accorded the same weight
and effect as the verdict of a jury, and will not be reversed
by an appellate court in the absence of an abuse of
discretion or a lack of evidentiary support. This rule is
particularly applicable to findings of fact which are
predicated upon the credibility of the witnesses, whom the
judge had the opportunity to hear and observe, and upon
the weight given to their testimony. In reviewing the
Orphans’ Court’s findings, our task is to ensure that the
record is free from legal error and to determine if the
Orphans’ Court’s findings are supported by competent and
adequate evidence and are not predicated upon capricious
disbelief of competent and adequate evidence. However,
we are not limited when we review the legal conclusions
that the Orphans’ Court has derived from those facts.
In re Estate of Cherwinski, 856 A.2d 165, 167 (Pa. Super. 2004) (quoting
In re Estate of Schultheis, 747 A.2d 918, 922 (Pa. Super. 2000)).
-2-
J-S06033-17
The appointment of a guardian lies within the sound discretion of the
trial court. Estate of Haertsch, 649 A.2d 719, 720 (Pa. Super. 1994).
“Discretion must be exercised on the foundation of reason. An abuse of
discretion exists when the trial court has rendered a judgment that is
manifestly unreasonable, arbitrary, or capricious, has failed to apply the law,
or was motivated by partiality, prejudice, bias, or ill will.” In re Duran, 769
A.2d 497, 506 (Pa. Super. 2001) (quoting Harman ex rel. Harman v.
Borah, 756 A.2d 1116, 1123 (Pa. 2000)).
The Pennsylvania Decedents, Estates and Fiduciaries Code provides:
(f) Who may be appointed guardian.--The court may
appoint as guardian any qualified individual, a corporate
fiduciary, a nonprofit corporation, a guardianship support
agency under Subchapter F (relating to guardianship
support) or a county agency. . . . If appropriate, the
court shall give preference to a nominee of the
incapacitated person.
20 Pa.C.S. § 5511(f) (emphasis added).
If a guardianship nominee is also named in a durable power of
attorney for an incapacitated person, that individual should receive particular
consideration. In re Sylvester, 598 A.2d 76, 83-84 (Pa. Super. 1991).
In the case sub judice, we note that Appellant had not executed a
durable power of attorney in favor of anyone. Accordingly, the trial court did
not err by failing to consider that Appellee was not previously named as
Appellant’s agent. See id. Further, the trial court specifically noted its
consideration of Appellant’s testimony:
-3-
J-S06033-17
As the record of the proceedings reflects, the court has
taken great care to consider the needs and desires of
[Appellant]. By way of example, the court took care to:
appoint counsel for [Appellant], allow [Appellant]
additional time to obtain an “independent” evaluation of
her capacity, and receive into evidence the direct
testimony of [Appellant] at both of the proceedings. As
the court told [Appellant] directly at the close of the
second hearing, although it was required under the law to
rule as it did, “I do understand you. I understand what
you are saying and I respect your views.”
Trial Ct. Op. at 5.
We conclude that the trial court aptly considered the evidence
presented, including Appellant’s testimony. See In re Estate of
Cherwinski, 856 A.2d at 167. Therefore, we hold that the trial court did
not abuse its discretion by naming Appellee and Edwin A. McGusty as the
plenary co-guardians of Appellant’s person and Appellee as the sole plenary
guardian of Appellant’s estate. See Estate of Haertsch, 649 A.2d at 720;
In re Duran, 769 A.2d at 506. Accordingly, we affirm the trial court’s
order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/1/2017
-4-