By Nicholas Malfitano
HARRISBURG – The Superior Court of Pennsylvania has vacated a ruling from the Delaware County Court of Common Pleas Orphans’ Court, and in so doing, also vacated the guardian ad litem (GAL) appointment for an incapacitated elderly woman subject to that “unauthorized” arrangement for more than three years.
Superior Court judges Victor P. Stabile, Deborah A. Kunselman and Correale F. Stevens issued a memorandum opinion to that effect on July 22, with Stabile authoring the Court’s opinion in this matter.
Stabile began by pointing to the trial court’s recitation of the facts of the case.
“This matter stems from an emergency petition filed by the Delaware County Office of Services for the Aging (COSA) on Aug. 31, 2020 requesting Appellant J.L.C. be adjudged an incapacitated person and requesting the appointment of a Guardian of her Person and Estate. On Sept. 1, 2020, the Orphans’ Court held an emergency hearing in which Appellant appeared with counsel. The court subsequently issued a decree appointing Elizabeth Stefanide, Esquire, as GAL for Appellant,” Stabile said.
“In its petition, COSA averred that Appellant was 80 years of age at the time and that she lacked capacity to make and/or properly communicate decisions concerning her Person and/or Estate. According to the petition, Appellant has two children, her daughter, J.F., and her son, J.J.C. Her assets include 13 residential/business properties, in addition to J&M Discount Tires, the values of which were listed ‘TBD.’ Appellant receives $1,170 per month in social security and $8,000 per month from Bryn Mawr Trust. COSA averred that Appellant resides in her home located…in Delaware County, Pennsylvania.”
Stabile added that COSA had initially been contacted regarding Appellant J.L.C. being a potential target for financial exploitation, allegedly by her own daughter, J.F.
“Up until 2017, both Appellant’s son and daughter were named as her power of attorney. More recently, on Aug. 2, 2020, Appellant’s daughter, J.F., took Appellant to a new attorney to sign paperwork designating herself solely as power of attorney. J.F. took money from her account to pay the lawyer then executed the new power of attorney document and a new will. At the time, J.F. was questioning her brother J.J.C.’s management of the family business and assets, as he is the president of the family business (J&M Discount Tires) and has managed all of Appellant’s financial affairs. J.J.C. provided an expert report, from Appellant’s longtime psychiatrist and a neuropsychological evaluation performed in 2019, which indicates a level of incapacitation in Appellant’s decision making,” Stabile stated.
“The psychological assessment…was performed on Aug. 21, 2020. During the evaluation, Appellant was unable to or had difficulty recalling the year she graduated, the year she was married, and the cause of her late husband’s death. When Appellant was asked about power of attorney, she stated that both her son and daughter have financial and medical power of attorney. However, it was reported that Appellant signed a new power of attorney naming solely her daughter as power of attorney in early August. At the time of the 2020 evaluation, Dr. Moore was provided with the assessment completed by Dr. Payne on May 8, 2019. Following the assessment, Dr. Payne concluded that Appellant had dementia of a mild-approaching-moderate severity, with features of long-standing psychiatric variability (bipolar history). Dr. Payne opined that Appellant was partially incapacitated but did have testamentary capacity regarding financial decision-making, as she had a good understanding of her current estate plan.”
It was noted Dr. Moore’s report “indicated that Appellant has major neurocognitive impairment with an impression of vascular dementia” and opined that “Appellant appears to be incapacitated and is in need of an emergency guardian, due to the significant amount of money in question and the family business being involved.”
After a September 2020 hearing and due to “condition of Appellant’s capacity and the [GAL’s] concerns regarding the execution of the July 8th power of attorney, the Court amended the GAL decree by suspending the July 8, 2020 power of attorney.”
On Jan. 19, 2023, GAL Elizabeth Stefanide contacted the court via telephone to relay the difficulty in her ability to access certain financial documents of Appellant, pursuant to her authority as GAL for Appellant. Due to said difficulty, a 2nd Amended Decree was issued on Jan. 24, 2023, clarifying Ms. Stefanide’s duties as GAL.
“Thus, the Orphans’ Court’s findings of fact reveal malfeasance on the part of Appellant’s daughter, J.F., and significant cognitive impairment of Appellant. Despite the latter, the Orphans’ Court has yet to make a finding of incapacity. Appellant, in the lengthy recitation of facts in her brief, criticizes the alleged malfeasance of J.J.C., Appellant’s son, and claims that COSA, the GAL, and the Orphans’ Court are doing J.J.C.’s bidding. J.J.C. has filed a participant’s brief in support of the Orphans’ Court’s decree refuting those allegations,” Stabile said.
“In essence, Appellant is a wealthy, elderly, allegedly incapacitated person whose children do not get along and have accused each other of mismanagement of various aspects of Appellant’s finances. As explained in detail below, we discern no statutory authority for the decree on appeal. We therefore have no occasion to delve into the details of Appellant’s children’s squabbles.”
Stabile provided that Appellant J.L.C. argued that the Orphans’ Court “lacked statutory authority to clothe the GAL with sweeping authority for an apparently unlimited period of time” – a sentiment with which the Superior Court agreed.
“The Orphans’ Court appointed Stefanide as GAL on an emergency basis in 2020. Three years later, the Orphans’ Court issued an ‘amended’ decree clarifying and arguably expanding some of the powers of the GAL, who apparently is still serving on an emergency basis. This matter commenced with COSA’s petition for a declaration of Appellant’s incapacity, and the appointment of a guardian of her person and guardian of her estate. To date, and for reasons not entirely clear from the record, none of those things has happened. Appellant is still an allegedly incapacitated person, and she has no guardian of her estate or her person,” Stabile stated.
“Guardians of the estate and/or person can be appointed, pursuant to 20 Pa.C.S.A. Section 5511, after a finding, by clear and convincing evidence, of incapacity. The duties of guardians of the person and estate are defined in 20 Pa.C.S.A. Section 5521. The decree before us was not entered pursuant to Section 5511, and the Court did not purport to follow Section 5521 in defining Stefanide’s duties. Rather, the Orphans’ Court appointed Stefanide as GAL after an emergency hearing and gave her powers as defined in the decree above, which appear to overlap somewhat with the statutory responsibilities of both a guardian of the estate and a guardian of the person. Stefanide has retained those powers for more than three years and apparently is set to retain those powers for an indeterminate time.”
Stabile pointed out that while Appellant J.L.C. is allegedly incapacitated and the Court found, back in 2020, that irreparable harm would result absent the appointment of a temporary guardian, “20 Pa.C.S.A. Section 5513 provides that an emergency order may be in effect for up to 72 hours and may be extended for no more than 20 days from the expiration of the initial order, [and] there is no authority in Section 5513 for the amendment, three years later, of an earlier decree which, if entered pursuant to Section 5513, has long since expired.”
Stabile further referenced Pennsylvania state law which “provides for the appointment of a guardian of the person or guardian of the estate of an incapacitated person, after a finding by clear and convincing evidence that the person is incapacitated…written notice must be provided to the alleged incapacitated person explaining the rights the alleged incapacitated person may lose as a result of a declaration of incompetency.”
According to the Stabile, “nothing in the record indicates that these procedural dictates were followed in this matter.”
“In summary, we agree with Appellant’s argument that no statutory authority exists to support the decree before us. It appears from the record that the Orphans’ Court and the parties have, for more than three years, subjected Appellant to a pseudo guardianship not authorized under any applicable law,” Stabile said.
“We remind the parties and the Orphans’ Court of this Court’s prior warning regarding the potential for the pernicious misuse of incapacity proceedings: ‘[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.’ For the foregoing reasons, we vacate the decree and remand for further proceedings in strict compliance with all applicable statutory and jurisprudential authority.”
Frank Rizzo III of Rizzo Law in Berwyn, offered a statement on the ruling.
“Fundamental due process rights do not have an expiration date and it is incumbent on those charged to protect the elderly, whether a local provider of protective services such as COSA, a Guardian Ad Litem, the Department of Aging or even the Pennsylvania Attorney General’s Office’s Elder Protection Unit to ensure these types of wrongs do not occur. There is no room for error when dealing with the most venerable yet vulnerable sector of our society,” Rizzo said.
Superior Court of Pennsylvania case 502 EDA 2023
Delaware County Court of Common Pleas Orphans’ Court case 0296-2020-O
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com
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Court vacates appointment of indefinite guardian ad litem to incapacitated woman
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