In re Estate of Border

68 A.3d 946
CourtSuperior Court of Pennsylvania
DecidedApril 23, 2013
StatusPublished
Cited by24 cases

This text of 68 A.3d 946 (In re Estate of Border) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Estate of Border, 68 A.3d 946 (Pa. Ct. App. 2013).

Opinion

OPINION BY

OLSON, J.:

Appellant, Sharon L. Gray, Esquire, former plenary guardian to R. Border, Jr., an incapacitated person, appeals from the order entered March 12, 2012, by the Court of Common Pleas, Orphans’ Court Division, of Berks County, Pennsylvania, removing Appellant as plenary guardian of Mr. Border’s person, and appointing Mr. Border’s brother as plenary guardian of his person. The orphans’ court’s March 12, 2012 order expressly granted Mr. Border’s brother the power and authority to withhold and/or decline any life-sustaining medical treatment to Mr. Border, an action which Appellant refused to authorize while serving as Mr. Border’s guardian. Within hours of entry of the orphans’ court’s March 12, 2012 order, Mr. Border’s brother authorized the withholding of Mr. Border’s life-sustaining treatment, and Mr. Border died that day. On appeal, Appellant argues that an advanced directive executed by Mr. Border prior to his incapacitation survived his incapacitation, and that the orphans’ court erred in removing Appellant as Mr. Border’s plenary guardian and appointing a guardian willing to authorize the termination of Mr. Border’s life-support. For the foregoing reasons, we affirm.

The certified record reflects the sad factual and procedural background of this matter as follows.

On March 15, 2010, the Berks County Office of Aging (the “Department”) filed a petition for appointment of a guardian on behalf of Mr. Border. The petition explained that Mr. Border was a 62-year-old resident at the Golden Living Center nursing facility. According to the petition, Mr. Border required appointment of a guardian due to chronic medical conditions and failing mental health. The petition alleged that, due to the decline in his mental health, Mr. Border was a potential victim of designing persons, and needed assistance with decision-making by an advocate that had his best interest in mind. The Department averred that appointing a guardian of Mr. Border’s person and estate was the least restrictive measure to protect Mr. Border’s best interest. The petition listed Mr. Border’s presumptive heirs as his wife and two adult daughters. The petition also acknowledged the existence of a health care power of attorney executed by Mr. Border, and naming his eldest daughter, Renee Vongpathoum, as his agent.1 The petition requested that [949]*949the orphans’ court appoint Ms. Vongpath-oum guardian of Mr. Border’s person, and attorney, Sharon L. Gray, Esquire (Appellant), guardian of his estate.

On April 14, 2010, the orphans’ court held a hearing on the Department’s petition. At the conclusion of that hearing, the orphans’ court entered an order declaring Mr. Border incapacitated, and appointing Ms. Vongpathoum plenary guardian of his person and Appellant plenary guardian of his estate.2 Additionally, the order expressly revoked any other existing general power of attorney, limited power of attorney, and/or health care power of attorney previously executed by Mr. Border.

Two weeks later, on April 28, 2010, the Department filed a motion for reconsideration of the orphans’ court’s April 14, 2010 order. According to the Department’s motion, Ms. Vongpathoum had arranged to have Mr. Border removed from the nursing facility, planning to return him to his residence, where Ms. Vongpathoum intended to care for him. Within the motion, the Department alleged that Ms. Vongpathoum was physically unable to care for Mr. Border, and that he should not be removed from the nursing facility. Additionally, based upon information received from Appellant, the Department cited concerns about Mr. Border’s other daughter who also resided in the home. The Department suggested that the orphans’ court remove Ms. Vongpathoum as guardian of Mr. Border’s person, and appoint Appellant as guardian of both his person and his estate.

That same day, April 28, 2010, the orphans’ court filed an amended order, appointing Appellant as the guardian of Mr. Border’s person in addition to her role as guardian of his estate. The April 28, 2010 order repeated the previous language wherein the orphans’ court revoked “any other existing general power of attorney, limited power of attorney and/or health care power of attorney” previously executed by Mr. Border. Orphans’ Court Order, 4/28/2010.

From April 28, 2010 until March 12, 2012, Appellant served as plenary guardian of Mr. Border’s person and estate, making all decisions regarding Mr. Border’s care and finances. In March 2012, Mr. Border was admitted to the intensive care unit at Reading Hospital and Medical Center (the “Hospital”). As a patient in the intensive care unit, doctors placed Mr. Border on a mechanical ventilator and other forms of life-sustaining treatment. During this time, Mr. Border’s treating physician and other Hospital personnel contacted Appellant, explaining that Mr. Border’s health condition was both terminal and futile. Hospital personnel recommended that, as guardian of his person, Appellant authorize the removal of Mr. Border’s life-support. Mr. Border’s family, including his wife, brother, sister, sister-in-law, and both adult daughters, all agreed with the Hospital’s recommendation. Appellant, howev[950]*950er, disagreed and asserted her authority as guardian of Mr. Border’s person to prohibit the removal of his life-support.

On March 8, 2012, the Hospital was provided with a copy of a Veterans Administration Advance Directive: Durable Power of Attorney for Health Care and Living Will, dated July 25, 2007 (the “Directive”). As set forth above, within the power of attorney section of the Directive, Mr. Border appointed his daughter, Ms. Vongpath-oum, as his health care agent. In the event that Ms. Vongpathoum was “unavailable” to serve as his health care agent, the Directive appointed Mr. Border’s wife, Charlotte Ann Border, as his health care agent.

Additionally, within the living will portion of the Directive, Mr. Border set forth that he would want to have life-sustaining treatments under all categories of situations listed in the document. The living will also stated that Mr. Border wanted his noted preferences for life-sustaining treatments to serve as a “general guide,” acknowledging that “in some situations the person making the decisions for [him] may decide something different ..., if they think that it is in [his] best interest.” Directive, 7/25/2007, at Part III(C).

Relying upon the Directive and conversations between herself and Mr. Border (acknowledging, however, that those conversations took place after Mr. Border was already incapacitated), Appellant steadfastly refused to authorize the removal of Mr. Border’s life-support. Hospital personnel and Mr. Border’s family continued to disagree. Those in disagreement with Appellant believed that removal of life-support was what Mr. Border would have wanted and was in his best interest.

As a result of the conflict, on March 12, 2012, the Hospital filed an emergency petition, seeking the removal of Appellant as plenary guardian of Mr. Border’s person and suggesting that the orphans’ court appoint Mr. Border’s brother (“Brother”), as the new guardian of Mr. Border’s person. The orphans’ court summarized the emergency petition and the subsequent proceedings as follows.

According to the petition, [Mr. Border] was a sixty-four-year-old male in the Medical Intensive Care Unit of the Hospital. The Hospital was aware of [Appellant’s appointment] as [Mr. Border’s] guardian pursuant to the April 28, 2010 Order ...

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Bluebook (online)
68 A.3d 946, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-border-pasuperct-2013.