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
Full Article & Source:
Court vacates appointment of indefinite guardian ad litem to incapacitated woman
