In the Int. of: M.A., Appeal of: M.A.

J-A18016-22
2022 PA Super 180IN THE INTEREST OF: M.A., AN : IN THE SUPERIOR COURT OF
ALLEGED INCAPACITATED PERSON : PENNSYLVANIA
:
:
APPEAL OF: M.A. AND JONES, :
GREGG, CREEHAN & GERACE, LLP :
:
:
: No. 1003 WDA 2021
Appeal from the Order of December 10, 2021
In the Court of Common Pleas of Allegheny County
Orphans’ Court at 022104306
BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.
OPINION BY MURRAY, J.: FILED: OCTOBER 17, 2022
In this appeal, Attorney Thomas J. Dempsey, Jr. (Attorney Dempsey),
appeals the order striking his appearance on behalf of M.A., an alleged
incapacitated person (AIP).1 Upon review, we vacate and remand for further
proceedings.
Case History
Although the issues before this Court are narrow, a comprehensive
recitation of the proceedings is relevant to our disposition. On June 1, 2021,
one of M.A.’s four adult daughters, Marsha Asbearry (Marsha), filed an
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1 Orders precluding counsel in civil cases are interlocutory and not immediately
appealable. E.R. v. J.N.B., 129 A.3d 521, 525 (Pa. Super. 2015). However,
once a final order has been entered, the precluded attorney may bring a
separate appeal challenging disqualification. Id. As the orphans’ court
entered a final order during the pendency of this appeal, in the interest of
judicial economy, we “regard as done what ought to have been done,” and
consider the appeal as being from the December 10, 2021, order. See Zitney
v. Appalachian Timber Products, Inc., 72 A.3d 281, 285 (Pa. Super.
2013).
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“Emergency Petition for Appointment of Permanent Plenary Guardian of
Person and Estate and Injunctive Relief,” seeking appointment as M.A.’s
guardian. Petition, 6/1/21, at 1 (unnumbered).2 Marsha averred that M.A.’s
wife (Marsha’s mother), Vondella, died on April 4, 2021, and M.A., who was
89 years old, suffers from dementia. Id. at 1-2 (unnumbered). Marsha
claimed there was an ongoing dispute between her and her siblings regarding
M.A.’s finances. Id. at 2-3 (unnumbered). She alleged:
[Marsha] seeks guardianship, in part, to maintain continuity of the
Living Will, [POA], Last Will and Testament, and clear wishes of
both Vondella [ ] and [M.A.].
[Marsha] has been familiar with the legal, medical and private
affairs of [M.A.] for many years, through the present with primary
support previously provided by Vondella [ ].
[Marsha] seeks to establish successor permanent guardianship
over [M.A.’s] person, and permanent plenary guardianship over
the Estate of [M.A.].
Id. at 3 (unnumbered). In addition to being named guardian, Marsha sought
“immediate injunctive relief via an Order of Court freezing the assets of [M.A.]
pending further Order of Court and resolution of these proceedings.” Id. at 4
(unnumbered).
Marsha attached to the petition copies of both parents’ 2019 wills,
which, in the event of their death, named Marsha as sole heir and executor.
Id. at Exhibits A and B. She also included a 2019 power of attorney (POA)
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2Marsha’s sisters are Adraine Moreland (Adraine), Virginia Smiley (Virginia),
and Audrey Patrick (Audrey). Audrey is not involved in the proceedings.
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appointing her as M.A.’s agent in the event of Vondella’s unavailability. Id.
at Exhibit C. Accompanying the petition was the sworn affidavit of Michele J.
Gaines, the paralegal who assisted in preparing the wills and POA. Ms. Gaines
stated in her affidavit that at the time of Vondella’s death, M.A. suffered from
dementia and was unable to locate his and Vondella’s wills, so Ms. Gaines
provided copies. Id. at Exhibit D. Lastly, Marsha appended a letter from John
T. Haretos, M.D., who stated he had been M.A.’s primary physician for 20
years, and
[M.A.] has had a decline in his mental faculties over the last five
years. He is now diagnosed with Dementia. He no longer can live
independently and he cannot handle his own financial affairs. This
is a permanent situation and will not improve.
Id. at Exhibit E.
On June 2, 2021, the orphans’ court issued an emergency order freezing
M.A.’s assets (the order was not entered on the orphans’ court docket). On
June 4, 2021, the orphans’ court appointed Nicola Henry-Taylor, Esquire
(Attorney Henry-Taylor), to represent M.A.3 On June 9, 2021, attorneys Carol
Sikov Gross and Lori Capone (Attorney Capone), from the law firm of Sikov
and Love, entered their appearances on behalf of Adraine, Virginia, and M.A.
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3Having been elected in November 2021, to the Allegheny County Court of
Common Pleas, Attorney Henry-Taylor is now The Honorable Henry-Taylor.
Following her election, Judge Henry-Taylor moved to withdraw her
appearance. On December 29, 2021, the orphans’ court granted her request
and appointed Jennifer Price, Esquire, as counsel for M.A.
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The orphans’ court issued a preliminary order scheduling a hearing for July 8,
2021. On June 10, 2021, the orphans’ court issued another order scheduling
a status conference for June 22, 2021.
On June 22, 2021, Attorney Capone filed a petition to withdraw from her
representation of M.A. (the orphans’ court never ruled on the petition).
Attorney Capone sought to withdraw based on the orphans’ court’s
appointment of Attorney Henry-Taylor to represent M.A. Petition to Withdraw
Appearance, 6/22/21. That same day, Attorney Capone filed on behalf of
Adraine and Virginia a motion to unfreeze M.A.’s assets. Motion for Emergency
Order to Unfreeze Assets, 6/22/21. The Motion included a POA executed by
M.A. on April 12, 2021 (four days after Vondella’s death), naming Adraine and
Virginia as agents. Id., Exhibit B. In their motion, Adraine and Virginia
disputed Marsha’s allegations that (a) they had engaged in financial
misconduct; and (b) Marsha had been primarily responsible for assisting her
parents with financial and personal affairs. Id. 3 (unnumbered). They
asserted:
During the last few years of her life, Vondella’s daughter, Adraine
[], assisted her mother and father with their financial matters,
such as paying bills, verifying that essential bills were paid, and
making deposits on their behalf.
***
On April 12, 2021, [M.A.] executed a Durable Financial [POA]
appointing his daughters [Adraine and Virginia], as his agents[].
…
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At all times since the execution of the 2021 POA, [Adraine and
Virginia] have properly managed their father’s finances and
personal affairs.
Id. at 2-3 (unnumbered). The sisters further averred:
[O]n numerous occasions and over many years, their father,
[M.A.], stated his desire to have [Adraine and Virginia] manage
his financial affairs.
[O]n numerous occasions and over many years, their father,
[M.A.,] stated his desire and intention never to have [Marsha]
manage his financial affairs.
Id. at 4 (unnumbered) (paragraph numbers omitted).
Moreover, their motion alleged M.A.
is without funds to buy food, pay for any utilities, and necessities,
or even pay for his wife’s gravestone that had been previously
ordered.
***
In order to afford even the necessities of life, [M.A.] has been
forced to borrow money from three of his daughters, [Adraine]
[Virginia], and [Audrey].
During the time since she obtained a Court Order to freeze the
accounts, [Marsha] has provided no financial support to [M.A.].
Id. at 3-4 (paragraph numbers omitted).
Thereafter,
[t]he June 22, 2022, status conference was attended by three (3)
lawyers, various family members and, most importantly, [M.A.].
The focus of this conference was [M.A.] centric. The [orphans’
c]ourt’s “goal” was “to create some framework for [M.A.] to be
taken care of, for his bills, for his welfare to be secure” and leave
the meaty issue of incapacity for the upcoming hearing.
After some back-and-forth with counsel, it was learned that
[M.A.’s] daughter, [Adraine], who he was living with at the time,
would take care of her father. The [orphans’ c]ourt concluded that
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this was not “an emergency” or a “Crisis” situation. The [orphan’s
c]ourt then adjourned the [conference] with a reminder to all
present that we will “meet on July 8th as Scheduled and we’ll
proceed from there.”
Orphans’ Court Opinion, 2/7/22, at 22 (emphasis added, citations omitted).
Attorney Henry-Taylor formally entered her appearance on behalf of
M.A. on June 25, 2021. Four days later, on June 29, 2021, Attorney Dempsey
entered his appearance on behalf of M.A.
On July 12, 2021, Marsha filed a motion to strike Attorney Dempsey’s
appearance. On July 14, 2021, Attorney Henry-Taylor filed a motion to strike
Attorney Dempsey’s appearance. Both motions relied on correspondence in
which Attorney Dempsey acknowledged Attorney Henry-Taylor’s appointment
as counsel for M.A. and stated that he “look[ed] forward to working with
Attorney Henry-Taylor as co-counsel[.]” Letter from Attorney Dempsey,
6/29/21, at 2 (unnumbered). Neither Marsha nor Attorney Henry-Taylor
requested an evidentiary hearing on their motions. On July 14, 2021, the
orphans’ court continued the guardianship hearing to July 26, 2021.
Adraine and Virginia filed an answer and new matter to Marsha’s
guardianship petition on July 23, 2021. The sisters contested the validity of
the 2019 will, and alleged Marsha had a
history of criminal behavior, drug dependency, and other
inappropriate behavior, [such that Vondella and M.A.] never
intended to place [Marsha] in any position from which she could
access their assets and income or exercise any control over their
finances.
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Answer and New Matter of Adraine and Virginia, 7/23/21, at 1-2. Adraine and
Virginia maintained that guardianship was unnecessary, as the recently
executed durable financial POA and durable health care POA naming them as
M.A.’s agents was a less restrictive alternative obviating the need for a
guardianship. Id. at 5-6. However, in the event the orphans’ court found
M.A. to be incapacitated, Adraine and Virginia asserted they should be named
co-guardians of M.A.’s person and estate. Id. at 5-6.
On July 23, 2021, Attorney Dempsey filed an answer and new matter in
response to the guardianship petition. Answer and New Matter of M.A.,
7/23/21. In his answer and new matter, to which he attached an unsworn
verification purportedly signed by M.A., Attorney Dempsey asserted: “M.A.
has at all times acted of his own volition to engage counsel for the purpose of
determining and acting to preserve all of his legal rights free of any undue
influence by any of his family members.” Answer and New Matter of M.A.,
7/23/21, at 3 (unnumbered). Attorney Dempsey also averred:
[Attorney Henry-Taylor] has not consulted with [M.A.] for a
sufficient amount of time, she has not given him the opportunity
to fully express his desire to advance a less-restrictive alternative
to guardianship that will adequately promote and preserve his
autonomy and independence, and she has not advocated on his
behalf for the least restrictive alternative to the guardianship
sought by [Marsha].
Id. at 7.
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Attorney Dempsey additionally filed “A Demand for Testimony Pursuant
to Pa.O.C.R. 14.3(c)(1).4 Attorney Dempsey sought a witness and exhibit list
____________________________________________
4 Although the demand for testimony purports to be pursuant to Rule
“41.3(c)(1),” this appears to be a typographical error. Rule 14.3(c) provides,
in relevant part:
(a) A petitioner may seek to offer into evidence an expert report
for the determination of incapacity in lieu of testimony, in-person
or by deposition, of an expert using the form provided in the
Appendix to these rules. In an emergency guardianship
proceeding, an expert report may be offered into evidence if
specifically authorized by the court.
(b) Notice.
(1) If a petitioner seeks to offer an expert report permitted
under paragraph (a), the petitioner shall serve a copy of the
completed report upon the alleged incapacitated person’s
counsel and all other counsel of record pursuant to Rule 4.3 or,
if unrepresented, upon the alleged incapacitated person,
pursuant to Pa.R.C.R. No. 402(a) by a competent adult no later
than ten days prior to the hearing on the petition.
(2) If a petitioner seeks to offer an expert report, as permitted
under paragraph (a), the petitioner shall serve pursuant to Rule
4.3 a notice of that fact upon those entitled to notice of the
petition and hearing no later than ten days prior to the hearing
on the petition.
(3) The petitioner shall file a certificate of service with the court
as to paragraphs (b)(1) and (b)(2).
(c) Demand.
(1) Within five days of service of the completed report provided
in paragraph (b)(1), the alleged incapacitated person’s counsel
or, if unrepresented, the alleged incapacitated person, may file
with the court and serve upon the petitioner pursuant to Rule
4.3 a demand for the testimony of the expert.
(Footnote Continued Next Page)
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from Marsha and requested she provide either live expert testimony or the
deposition of M.A.’s treating physician. Demand for Testimony, 7/23/21, at
1-2 (unnumbered).
Lastly, Attorney Dempsey filed nearly identical responses to the motions
to strike his appearance. He did not attach a copy of his fee agreement with
M.A. or signed verification from M.A. The responses provided minimal
information about the circumstances under which M.A. retained Attorney
Dempsey. See Reply to Motion to Strike Appearance, 7/23/21, at 1-6
(unnumbered). The responses did not request an evidentiary hearing.
Notwithstanding, Attorney Dempsey requested the orphans’ court “deny the
motion to strike appearance[.]” Id. at 6 (unnumbered). Attorney Dempsey
did not file a motion to strike Attorney Henry-Taylor’s appearance.
On July 26, 2021, the orphans’ court issued a ruling from the bench on
the “two requests to strike appearance of a lawyer who claims to represent
the incapacitated person.” N.T., 7/26/21, at 3-4. Attorney Paul Ellis appeared
on behalf of Marsha; both Attorney Henry-Taylor and Attorney Dempsey
appeared on behalf of M.A. Attorney Capone, who had filed the outstanding
petition to withdraw from representation of M.A., did not appear.
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Pa.O.C.R. 14.3(a), (b) and (c)(1).
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The orphans’ court noted the parties had raised this Court’s decision in
Estate of Rosengarten, 871 A.2d 1249 (Pa. Super. 2005). N.T., 7/26/21,
at 4. The orphans’ court distinguished Rosengarten, stating:
I read it. I see a big distinction without [sic] facts, and as such,
the rules springing from Rosengarten will not apply here. In
Rosengarten there were facts of much improved mental
condition of Ms. Rosengarten. She was now taking her medicine.
That should have prompted the trial court to review its previous
incapacity decision. We do not have facts close to that.
So here’s my ruling. [Attorney] Dempsey, your appearance is
hereby stricken. You are not co-counsel for [M.A.].
Id. Attorney Dempsey took exception. Attorney Dempsey did not aver M.A.
was being denied the right to counsel of his choice, but argued the orphans’
court “right now doesn’t even have jurisdiction over my client because he
hasn’t been served pursuant to 5511 of the Guardianship Act.” Id. at 5.
Immediately following its decision striking Attorney Dempsey’s
appearance, the orphans’ court proceeded to a hearing on M.A.’s alleged
incapacity. Attorney Henry-Taylor represented M.A.; Attorney Ellis
represented Marsha; and Attorney Capone represented Adraine and Virginia.
M.A. was present, despite Attorney Dempsey’s claim regarding lack of service.
The orphans’ court did not take any sworn testimony.5 Instead, the court
explained its “understanding” of the matter and inquired about the feud
between M.A.’s daughters. N.T., 7/26/21, at 3, 9-10. The court stated, “I
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5 The transcript is in the certified record, but the exhibits admitted into
evidence are not.
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have some background, to sort of, what I thought this would be about. It’s
about who’s going to get the money. [M.A.] can have all these other issues
but ultimately this is about who’s going to get dad’s money and what
proportion.” Id. at 14. The court continued:
Why are we here? … I have a lot of cases but I don’t get children
feuding over the parent. I mean, this is a modest estate. There’s
something else here other than the traditional issues that I see
that belie this type of proceeding. Maybe what would help me is,
what’s the feud about? Why isn’t there any - - why isn’t there any
family congruence or harmony about giving dad the best life he
can have for the balance of the life he has? … I believe the
requisite issues with respect to [M.A.] and an AIP proceeding
would probably move forward, but who should be the guardian.
How come there can’t be some agreement? That’s the part I don’t
understand. So we can go forward with the emergency issue and
the AIP but I’m really - - I’m confused, what is it about. Where
did you all go awry? What happened? I received letters from the
husband of one party and it’s almost like a poison pen – I mean,
I do estates for multi hundreds of millions of dollars and it doesn’t
have the same sort of noxious poison that this modest estate has.
Id. at 9-10. As to the competing wills, the court opined:
I understand the sisters’ position that, why should [the third
sister, Marsha] get everything. I don’t know whether that was his
intent, the father to give everything to one daughter when there’s
three who get nothing, I don’t know. But if I was one of the three
who didn’t get nothing, I would probably be here in court. … I
believe if I had a sibling who somehow produced a document that
said that if mom dies before dad, then I get everything and it
didn’t make sense, given the relationships that the other kids had
with dad, I would probably come here and see if this will is
legitimate.
Id. at 18-19; see also id. at 25-27 (orphans’ court noting that should the
wills be invalidated, an intestate estate would be divided evenly between
heirs); id. at 30-31 (“Why do you all need a will? … The real issue is the will.
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… If I were to make a decision whether to have no will or have a will that
divides things equally, I would go with the will that divides things
equally[.]…”). The orphans’ court discounted the issue of whether M.A. had
the capacity to enter into a POA or will on April 12, 2021, as “just smoke.”
Id. at 24.
At the urging of the court, the parties arrived at a settlement. Id. at
21-22. They agreed to M.A. being declared incapacitated, and Marsha,
Adraine, and Virginia serving as co-guardians of M.A.’s person and estate, with
a corresponding order to be drafted by Attorney Henry-Taylor. Id. at 39-41.
M.A. was present throughout the proceedings and did not object to the
striking of Attorney Dempsey as counsel, his representation by Attorney
Henry-Taylor, or the agreement regarding his incapacity and guardianship.
Attorney Henry-Taylor advised the court that M.A. wished to settle and wanted
“everyone [to] get along and share everything … [and] would like to see the
fighting stop.” N.T., 7/26/21, at 23. M.A. confirmed to the court:
“Everything’s good.” Id. at 29. See also id. at 39-41 (orphans’ court
announcing parties’ agreement and stating Attorney Henry-Taylor would
memorialize the agreement); id. at 43-45 (Attorney Henry-Taylor affirming
she personally served M.A. and explained the proceedings to him; she also
noted M.A. was in the courtroom for all proceedings and participated to the
extent possible). While Attorney Capone argued lack of proper service upon
M.A., and thus the orphans’ court’s lack of personal jurisdiction, she stated,
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“the fact that we were working something out, I would like this matter to move
forward.” Id. at 42; see id. at 41-42.
On August 3, 2021, the orphans’ court issued an order denying Attorney
Dempsey’s demand for testimony as moot. On August 13, 2021, Attorney
Henry-Taylor filed a petition for compensation. Marsha filed a response to
Adraine and Virginia’s answer and new matter on August 17, 2021. Marsha
filed a guardianship bond on August 24, 2021. On September 2, 2021,
Adraine and Virginia filed a guardianship bond.
On August 26, 2021, prior to entry of a final order, Attorney
Dempsey filed this appeal from the order striking his appearance.
Attorney Dempsey and the orphans’ court complied with Pa.R.A.P. 1925. In
the meantime, proceedings involving M.A. continued in orphans’ court.
On October 26, 2021, Adraine and Virginia filed a motion to amend (the
not yet memorialized) consent agreement and sought the appointment of an
independent entity to serve as guardian of M.A.’s estate. Motion to Amend,
10/26/21, at 3-5. That same day, Adraine and Virginia filed a motion to
unfreeze M.A.’s assets and dissolve the injunction. Motion to Unfreeze Assets,
10/26/21, at 3-5. Marsha filed a reply to both motions on November 1, 2021.
A guardianship review hearing took place on November 1, 2021, at
which all parties (including M.A.) appeared, represented by counsel. Counsel
indicated that because Marsha, Adraine, and Virginia were in conflict as co-
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guardians of the estate, the three sisters agreed to the court appointing a
third party as guardian of M.A.’s estate.
M.A. spoke at the hearing. He did not object to his representation by
Attorney Henry-Taylor or request representation by Attorney Dempsey. N.T.,
11/1/21, at 40-41. M.A. described his current living situation: “Well, what I
do is live the regular way, like I always did.” Id. at 40. He referenced the
conflict between his daughters stating, “This one do this and this one do that,
but I don’t live like that.” Id. He expressed his desire that they work together,
“if you want to make good of it[.]” Id. at 41.
On December 10, 2021, all parties filed consents to serve as guardians
of M.A. That same day, the orphans’ court filed its final order memorializing
the parties’ agreement (a) declaring M.A. to be incapacitated; (b) appointing
Marsha, Adraine and Virginia as co-guardians of his person; and (c) appointing
Ameriserv Trust and Financial Service Company as permanent plenary
guardian of his estate. Order, 12/10/21, at 2.
On December 17, 2021, Adraine filed a request for $1,500.00 per
month, retroactive to June 22, 2021, to defray M.A.’s living expenses. Petition
for Compensation, 12/17/21, at 1-3 (unnumbered). Marsha filed a response
objecting to the request, noting the orphans’ court had stricken from its final
order a paragraph allotting funds to Adraine. Response, 12/20/21, at 1-4
(unnumbered). Adraine filed a reply on January 6, 2022. The orphans’ court
granted Adraine’s request by order entered January 20, 2022.
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Issues
Attorney Dempsey challenges the order striking him as M.A.’s counsel.
He presents two issues for review:
I. Did the Orphans’ Court abuse its discretion and err as a matter
of law in denying an alleged incapacitated person the right to
counsel of his own choosing?
II. Did the Orphans’ Court err as a matter of law in sua sponte
voiding a fee agreement between a client and his privately
retained counsel without due process[?]
Attorney Dempsey’s Brief at 4.6
Discussion
We begin with our standard of review:
[T]his Court must determine whether the record is free from legal
error and the court’s factual findings are supported by the
evidence. Because the Orphans’ Court sits as the fact-finder, it
determines the credibility of the witnesses and, on review, we will
not reverse its credibility determinations absent an abuse of that
discretion. However, we are not constrained to give the same
deference to any resulting legal conclusions. Where the rules of
law on which the court relied are palpably wrong or clearly
inapplicable, we will reverse the court’s decree.
Estate of Fuller, 87 A.3d 330, 333 (Pa. Super. 2014) (citation omitted).
When appropriate, the orphans’ court shall appoint counsel to represent the
alleged incapacitated person in any matter for which counsel has not been
retained by or on behalf of that individual. 20 Pa.C.S.A. § 5511(a). The
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6 Marsha did not file a brief, and Adraine and Virginia, by correspondence
dated April 28, 2022, indicated they take no position in this appeal.
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orphans’ court should abide by an incapacitated person’s wishes regarding
representation “to the extent possible.” Rosengarten, 871 A.2d at 1257.
In considering Attorney Dempsey’s issues, we recognize that the role of
counsel in guardianship proceedings is not clearly defined in the guardianship
statute. See 20 Pa.C.S.A. § 5511(a) (providing for court appointed counsel
of the alleged incapacitated person if the orphans’ court so chooses); see also
Estate of Haertsch, 609 A.2d 1384, 1387 (Pa. Super. 1992) (declining to
reach issue of whether alleged incapacitated person has constitutional right to
counsel).7 However, the following provisions of the Probate, Estates, and
Fiduciaries Code (PEF Code) provide guidance. Section 5501 of the PEF Code
defines an incapacitated person as:
[A]n adult whose ability to receive and evaluate information
effectively and communicate decisions in any way is impaired to
such a significant extent that he is partially or totally unable to
manage his financial resources or to meet essential requirements
for his physical health and safety.
20 Pa.C.S.A. § 5501. Section 5502 provides:
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
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7 Since 2014, the Pennsylvania Supreme Court’s Elder Law Task Force has
recommended changes to both the Rules of Professional Conduct and the
Orphans’ Court Rules, to address and clarify the role of counsel in guardianship
matters. See Report and Recommendations of the Elder Law Task Force,
11/2014, Guardian and Counsel Committee Report, § VIII.B.1.a.-b., at 50; §
VIII.C.1.D. at 51; § VIII.1.a., at 51; § VIII.C.1.c. at 51.; see also In re
Sabatino, 2016 WL 6995384, at *11 n.17 (Pa. Super. Nov. 30, 2016).
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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.A. § 5502 (emphasis added). The PEF Code defines the powers,
duties and liabilities of a guardian, and requires that the “[e]xpressed wishes
and preferences of the incapacitated person shall be respected to the greatest
possible extent.” 20 Pa.C.S.A. § 5521(a). Accordingly, counsel appointed to
represent an alleged incapacitated person must present the alleged
incapacitated person’s own position to the court. See generally, 20 Pa.C.S.A.
§ 5502. However, counsel must also consider the interests of the alleged
incapacitated person under 20 Pa.C.S.A. § 5501 (defining incapacitated
person).
Counsel’s ethical obligations are set forth in the Pennsylvania Rules of
Professional Conduct. Rule 1.14, which addresses representation of a person
with diminished capacity, states:
a) When a client’s capacity to make adequately considered
decisions in connection with a representation is diminished,
whether because of minority, mental impairment or for some
other reason, the lawyer shall, as far as reasonably possible,
maintain a normal client-lawyer relationship with the client.
b) When the lawyer reasonably believes that the client has
diminished capacity, is at risk of substantial physical, financial or
other harm unless action is taken and cannot adequately act in
the client’s own interest, the lawyer may take reasonably
necessary protective action, including consulting with individuals
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or entities that have the ability to take action to protect the client
and, in appropriate cases, seeking the appointment of a guardian
ad litem, conservator or guardian.
c) Information relating to the representation of a client with
diminished capacity is protected by Rule 1.6. When taking
protective action pursuant to paragraph (b), the lawyer is
impliedly authorized under Rule 1.6(a) to reveal information about
the client, but only to the extent reasonably necessary to protect
the client’s interests.
Pa.R.C.R. 1.14.
The Pennsylvania Orphans’ Court Rules have additional requirements:
(a) Retention of Counsel. If counsel for the alleged
incapacitated person has not been retained, the petitioner shall
notify the court in writing at least seven days prior to the
adjudicatory hearing that the alleged incapacitated person is
unrepresented and also indicate whether the alleged incapacitated
person has requested counsel.
(b) Private Counsel. If the alleged incapacitated person has
retained private counsel, counsel shall prepare a
comprehensive engagement letter for the alleged
incapacitated person to sign, setting forth when and how
counsel was retained, the scope of counsel’s services, whether
those services include pursuing any appeal, if necessary, how
counsel will bill for legal services and costs and the hourly rate, if
applicable, who will be the party considered responsible for
payment, whether any retainer is required, and if so, the amount
of the retainer. Counsel shall provide a copy of the signed
engagement letter to the court upon request.
(c) Appointed Counsel. The court may appoint counsel if
deemed appropriate in the particular case. Any such order
appointing counsel shall delineate the scope of counsel’s
services and whether those services include pursuing any
appeal, if necessary.
Pa.O.C.R. 14.4 (emphasis added).
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Incapacity must be proven by clear and convincing evidence. See In
re Hyman, 811 A.2d 605, 608 (Pa. Super. 2002); see also 20 Pa.C.S.A. §
5511(a). Clear and convincing evidence “is the highest burden in our civil law
and requires that the fact-finder be able to come to the clear conviction,
without hesitancy, of the truth of the precise fact in issue.” In re estate of
Heske. 647 A.2d 243, 244 (Pa. Super. 1994) (internal citations and
quotations omitted). The court may appoint a plenary guardian only
upon finding the AIP is totally incapacitated and in need of such
services. 20 Pa.C.S.A. § 5512.1(c).
Mindful of the above authority, we consider Attorney Dempsey’s
argument that the orphans’ court “abused its discretion and erred as a matter
of law by depriving [M.A.] of the right to choose his own counsel.” Attorney
Dempsey’s Brief at 15; see id. at 15-20. Attorney Dempsey relies on this
Court’s decision in Rosengarten.
In Rosengarten, the AIP, Ms. Rosengarten, suffered from bipolar
disorder and had stopped taking her medication. Rosengarten, 871 A.2d at
1251. The orphans’ court appointed counsel and ultimately found Ms.
Rosengarten to be incompetent. Id. The court appointed a guardian of the
estate and person, who filed a petition seeking to sell Ms. Rosengarten’s
residence. Id. Ms. Rosengarten hired her own attorney, who filed an answer
and new matter objecting to the sale, seeking removal of the guardian, and
asking that her father be appointed guardian of the estate. Id. The answer
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and new matter also raised specific allegations of financial misconduct by the
current guardian and maintained that Ms. Rosengarten’s mental health had
improved as a result of her taking medication, and thus a review hearing was
warranted to the issue of her continued incapacity. Id. The orphans’ court
did not hold the requested hearing; instead, it held a hearing on the guardian’s
petition to sell the home, which it granted. Id. at 1252. The court did not
allow Ms. Rosengarten’s chosen counsel to participate. Id.On appeal, this Court reversed and remanded. Id. at 1250. We first
concluded the trial court erred in failing to conduct the requested review,
particularly where there were allegations regarding the guardian’s
misconduct. Id. at 1254. We held the failure to conduct a review hearing
violated 20 Pa.C.S.A. § 5512.2(a), which requires a hearing when the
incapacitated person or other “interested person” alleges “a significant change
in the person’s capacity.” 20 Pa.C.S.A. § 5512.2(a); id. We recognized that
the failure to hold a review hearing ignored the incapacitated person’s “stated
preference,” in violation of 20 Pa.C.S.A. § 5502. Id. We opined:
The dangers of the incompetency statute have been recognized
since its inception. In re Bryden's Estate, 211 Pa. 633, 633, 61
A. 250, 250 (1905) (statute allowing for declaration of
incompetency “is a dangerous statute” and is “to be administered
by the courts with the utmost caution and conservatism.”). It is
basic to our jurisprudence that a person’s property is theirs
to dispose of as they wish, even if it results in poverty. Id.As the Court stated in Bryden, “[T]he basic principle involved, as
laid down in Lines v. Lines, 142 Pa. 149, 21 A. 809, [is] that a
man may do what he pleases with his personal estate during his
life. He may even beggar himself and his family if he chooses to
commit such an act of folly.” Id. Recently, in In re Hyman, 811
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A.2d 605, 608 (Pa.Super.2002) (quoting Estate of Haertsch,
415 Pa.Super. 598, 609 A.2d 1384, 1386 (1992)), we noted that
the incompetency statute “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.” The above cited and other
provisions of Chapter 55 are tailored to ensure that the
incapacitated person’s wishes are honored to the maximum extent
possible. In this case, the guardian and the orphans’ court
violated this mandate at nearly every conceivable opportunity.
Chapter 55 must be interpreted and the courts’ actions
guided by a scrupulous adherence to the principles of
protecting the incapacitated person by the least restrictive
means possible. This concept is embodied in our Supreme
Court’s decision in In re Peery, 556 Pa. 125, 727 A.2d 539(1999). In that case, the alleged incapacitated person was
mentally impaired, but the orphans’ court concluded that a
guardianship was not warranted because the person had a support
system in place that met her financial and physical needs and
which she preferred over a guardianship. The Supreme Court
lauded the orphans’ court’s implementation of the incapacitated
person’s desire to continue with the existing support system and
quoted with approval the orphans’ court’s statement that it would
abide by the incapacitated person’s wishes as long as they were
rational and did not result in harm to her.
Id. at 1254-55 (emphasis added).
Regarding Ms. Rosengarten’s right to counsel of her choosing, we
observed:
First, we are not presently considering the validity of any contract
entered by Ms. Rosengarten and [chosen counsel], and in fact,
there is no evidence that one was made. Second, a contract
entered into by an incapacitated person is merely presumed to be
voidable, and this presumption is subject to rebuttal by proof that
the person was not incapacitated, see Fulkroad v. Ofak, 317
Pa.Super. 200, 463 A.2d 1155 (1983), which was an allegation
raised in this matter. Finally, this position begs the central
question, which is whether Ms. Rosengarten should have
the right to appointed counsel of her choosing. As the
above-cited case law and statutory language make
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abundantly clear, Ms. Rosengarten’s stated wishes are to
be honored to the extent possible. In the absence of some
indication that [chosen counsel’s] representation would be
harmful to Ms. Rosengarten, once Ms. Rosengarten indicated that
she wanted him to represent her, [chosen counsel] should have
been permitted to represent her voice.
The appointment of [chosen counsel] would have been particularly
appropriate herein as appointed counsel … admitted at oral
argument that she made no inquiry into and took no action on the
allegation that Ms. Rosengarten no longer was incapacitated. In
addition, at the hearing regarding the sale of the house,
[appointed counsel] did not raise a single objection to [the
guardian’s] fees and failed to articulate Ms. Rosengarten’s desires
in this matter, including her wish that her father act as guardian
to reduce costs.
Id. at 1257 (emphasis added).
In the 17 years since it was issued, there has been a dearth of published
case law interpreting Rosengarten. Similarly, there are few unpublished
cases, and those cases only discuss Rosengarten briefly.
In Estate of Crowder, 262 A.3d 549 (Pa. Super. 2021) (unpublished
memorandum),8 the orphans’ court dismissed the AIP’s petition to nullify a
health care POA, based on a finding that the AIP lacked standing, and the
issue was rendered moot by the appointment of a guardian. Crowder, 262
A.3d at *1-2. This Court, after determining the orphans’ court erred in
deeming the POA moot, held that under Rosengarten, the AIP had standing
to pursue nullification of the POA. Id. at *2-3. We noted the AIP’s statement
____________________________________________
8 Pa.R.A.P. 126(b) provides that unpublished non-precedential decisions of
the Superior Court filed after May 1, 2019, may be cited for persuasive value.
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at the guardianship hearing that he did not want the person holding the POA
to make healthcare decisions for him, and we concluded the AIP had “a
substantial, direct, and immediate interest” in the outcome of his petition to
nullify the POA. Id. at *3. We also acknowledged the AIP’s capacity to make
this decision because the orphans’ court had found him incapable of making
financial decisions but had not appointed a guardian of his person. Id.
In Sabatino, a dispute arose between court-appointed counsel for the
AIP and counsel for his service providers, who purported to be the AIP’s
counsel of choice. Sabatino, 2016 WL 6995384, at *1, 159 A.3d 602 (Pa.
Super. 2016) (unpublished memorandum). The orphans’ court distinguished
Rosengarten based on the AIP’s tendency to say what he thought the last
person speaking wanted to hear, thus raising doubts about the AIP’s capacity
to choose counsel. Id. at *3, *6-8. However, the court permitted the service
providers and their counsel to fully participate in proceedings as amicus
curiae. Id. On appeal, this Court concluded we need not reach the service
providers’ argument that the orphans’ court decision violated Rosengarten,
given that the providers were permitted to participate in the proceedings. Id.
at *9. We further rejected their argument that the allegedly erroneous
disqualification of counsel of the AIP’s choice in a guardianship proceeding
constituted structural error. Id.
In In Re Kline, 2016 WL 102755 (Pa. Super. Jan. 8, 2016), the great-
niece of the AIP appealed the order dismissing her as guardian of the person
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and estate, appointing a third party as guardian, and assessing a surcharge
for waste and mismanagement. Kline, 2016 102755, at *1. In affirming the
orphans’ court, this Court rejected the former guardian’s reliance on
Rosengarten, finding it was distinguishable where “no issue has been raised
regarding [the AIP’s] continued incapacity or ability to return home.” Id. at
*7 n.13.
Lastly, in Estate of Wittmaier, this Court adopted the orphans’ court’s
finding that Rosengarten did not apply, where the orphans’ court had refused
to allow the AIP to change from originally retained counsel to different retained
counsel. Wittmaier, 131 A.3d 81, 2015 WL 7012971 (Pa. Super. 2015)
(unpublished memorandum), at *1-2. Citing Rosengarten, the orphans’
court recognized it, “should abide by the incapacitated person’s wishes so long
as they are rational and do not result in harm to the incapacitated person.”
Id. at *8. The orphans’ court observed the AIP had not alleged misconduct
by original counsel. Id. at *7. Rather, the AIP “will always be upset at
anybody who disagrees with what his interests or desires are.” Id. (citation
omitted). The orphans’ court found, based on hearing testimony, that the AIP
would oppose any counsel who disagreed with him, even if counsel were acting
in the AIP’s best interests. Id. at *8. The court also expressed concern
regarding errors in new counsel’s filings, and new counsel’s lack of preparation
and understanding of the seriousness of the AIP’s medical condition. Id.
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As the above cases demonstrate, the issue of the AIP’s right to counsel
in guardianship proceedings is imprecise. The PEF Code mandates that
orphans’ courts honor, to the extent possible, the wishes of the AIP. See 20
Pa.C.S.A. §§ 5502 and 5521(a). Thus, the orphans’ court must balance the
competing interests in the wishes of the AIP, the resources available, and the
best interests of the AIP. See Rosengarten, supra at 1255-57.
The facts of this case are different from Rosengarten. M.A. is elderly,
and this is not a case where his functioning was impaired by failure to take
medication and had he “started to take [his] medication properly, it would
follow that a review hearing would be in order.” Id. at 1255. This is also not
a case where M.A. wrote a “cogent and practical” letter to the orphans’ court
expressing his preferences, including a preference for counsel of his choice.
Id. at 1252. Despite the factual distinctions, we are unable to determine
whether Rosengarten applies given the deficiencies in the record.
As recounted above, many of the filings failed to conform with Orphans’
Court Rules. Marsha’s petition does not comply with Pa.O.C.R. 14.2 (detailing,
inter alia, petition content and exhibits). For example, Marsha did not include
a Pennsylvania State Police Criminal Records Check as required by Pa.O.C.R.
14.2(c)(2). In another instance, the orphans’ court’s order appointing
Attorney Henry-Taylor as counsel does not comply with Pa.O.C.R. 14.4(c), as
it does not detail the scope of her representation. While both Attorney Capone
and Attorney Dempsey challenged the orphans’ court’s jurisdiction based on
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improper service, neither filed preliminary objections as provided in Pa.O.C.R.
3.6(c) and 3.9(b)(1).
In 2020, the Administrative Office of Pennsylvania Courts and The
Advisory Council on Elder Justice in the Courts authored and distributed to the
orphans’ courts a Guardianship Bench Book. The authors stated:
In balancing an AlP’s need for protection with respect for their
autonomy, judges are required by the United States
Constitution’s guarantee of Due Process to protect the
rights of the AIP to the greatest extent possible.
Appointment of a guardian, with the resulting loss of rights for the
AIP, may not be necessary in situations where other resources are
available to assist the AIP. Even where the evidence clearly
demonstrates an incapacity, judges are required to consider
whether there is a less restrictive alternative to
guardianship that can meet the person’s needs. Judges are
required under Pennsylvania law to favor limited guardianships
over plenary guardianships in appropriate cases. Where possible,
limited guardianship orders should be framed to address the
specific areas in which the court determines, based on the
testimony and evidence, that an individual lacks the capacity to
meet the essential requirements for their well-being and is in need
of guardianship services.
The Advisory Council on Elder Justice in the Courts and The Administrative
Office of Pennsylvania Courts, Guardianship Bench Book, 5 (2020) (emphasis
added).
The PEF Code mandates, prior to an AIP being declared
incapacitated, a petitioner must prove incapacity by clear and
convincing evidence. 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
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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
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.A. § 5518 (emphasis added). The orphans’ court must “consider
and make specific findings of fact concerning”
(1) The nature of any condition or disability which impairs
the individual’s capacity to make and communicate
decisions.
(2) The extent of the individual’s capacity to make and
communicate decisions.
(3) The need for guardianship services, if any, in light of
such factors as the availability of family, friends and other
supports to assist the individual in making decisions and in
light of the existence, if any, of advance directives such as
durable powers of attorney or trusts.
(4) The type of guardian, limited or plenary, of the person
or estate needed based on the nature of any condition or
disability and the capacity to make and communicate
decisions.
(5) The duration of the guardianship.
(6) The court shall prefer limited guardianship.
20 Pa.C.S.A. § 5512.1(a).
The record indicates that this case proceeded without adherence to
Orphans’ Court Rules and the PEF Code. For example, the only medical
evidence of record to support a finding of M.A.’s incapacity, consists of the
letter purportedly written by M.A.’s physician, John Haretos, M.D. The
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orphans’ court appears to have accepted Dr. Haretos’ unauthenticated
determination that M.A. suffers from dementia and is incapable of caring for
himself. The court did so without ruling on Attorney Capone’s objection based
on her lack of opportunity to question Dr. Haretos, and without making
findings regarding Dr. Haretos’ expertise. See N.T., 7/26/21, at 5-7, 9-10;
see also, Pa.C.S.A. §§ 5512.1(a), 5518; Pa.O.C.R. 14.3.
The orphans’ court did not hear testimony or render findings, but
focused on family acrimony, including the validity of wills, while urging the
parties to settle. The court referenced the parties’ allegations of wrongdoing,
but did not specifically address the allegations or the suitability of the
daughters to serve as M.A.’s guardians. Although the parties arrived at an
agreement when they appeared before the court on July 26, 2021, they
continued to disagree. Consequently, the court conducted a hearing three
months later, and the agreement was amended to name a third-party,
Ameriserv, as guardian of the estate. See N.T., 11/1/21, at 2-43.
Of further significance, the court did not consider a less restrictive
alternative to guardianship, possibly the 2019 or 2021 POA, in violation of 20
Pa.C.S.A. § 5512.1(a)(3). With respect to Attorney Dempsey’s issues, the
court struck Attorney Dempsey’s appearance without hearing any evidence or
argument, and without considering the wishes of M.A. See Rosengarten,
supra; 20 Pa.C.S.A. § 5512.1(a)(1) and (2). Attorney Henry-Taylor did not
raise these considerations on M.A.’s behalf.
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For the above reasons, we are constrained to reverse and remand for
further proceedings regarding representation of M.A., including a
determination of whether M.A. is incapacitated, as follows:
• Hearings shall comply with 20 Pa.C.S.A. §§ 5501, 5502,
5518, and 5512.1(a), and all other relevant portions of the
PEF Code.
• If the parties wish to submit additional written materials
prior to the hearing, they must do so in compliance with the
Orphans’ Court Rules of Procedure.
• If Attorneys Capone and Dempsey wish to pursue claims
that they were retained by M.A., they shall submit copies of
their engagement letters in compliance with Pa.O.C.R.
14.4(b).
• The orphans’ court shall make findings of fact pursuant to
20 Pa.C.S.A. § 5512.1(a) and shall specifically determine
whether
(1) M.A. is incapacitated as alleged in the petition;
and whether
(2) M.A. has the capacity to retain private
counsel.
• If the orphans’ court finds M.A. has capacity to retain
counsel, the court shall determine M.A.’s preferred counsel
and allow representation by that counsel.
• If M.A. lacks capacity to retain counsel, the court shall
determine whether M.A.’s choice of counsel may be honored
to the extent possible, and whether any fee agreements
between Attorney Capone and/or Attorney Dempsey and
M.A. are voidable;
• If the orphans’ court finds M.A. incapacitated, the court shall
determine whether guardianship is the least restrictive
alternative. In so doing, the orphans’ court shall rule on the
validity of the 2019 and 2021 POAs.
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• In light of competing allegations of the sisters’ wrongdoing,
the orphans’ court shall make specific findings as to the
suitability of M.A.’s current living situation; whether
Adraine’s receipt of $1,500.00 per month constitutes an
appropriate charge against the estate, and, if it does not, to
determine the appropriateness of a surcharge, and whether
the appointment of an independent guardian is necessary.
Accordingly, we vacate the orders of July 27, 2021, December 10, 2021,
and January 20, 2022, and remand for further proceedings.9
Orders vacated. Case remanded for further proceedings consistent with
this Opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2022
____________________________________________
9 Given our disposition, we need not address Attorney Dempsey’s second
issue.
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