In Re: I.M.R.

Opinion

J-A23044-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN RE: I.M.R., AN ALLEGED : IN THE SUPERIOR COURT OF INCAPACITATED PERSON : PENNSYLVANIA : :

APPEAL OF: WILLIAM CARDWELL :

: : : : No. 728 MDA 2022

Appeal from the Decree Entered April 8, 2022 In the Court of Common Pleas of Huntingdon County Orphans’ Court at No(s): 2021-281

BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED: JUNE 7, 2023

William Cardwell appeals from the April 8, 2022 decree adjudicating

I.M.R. to be a totally incapacitated person and appointing Huntingdon-

Bedford-Fulton Area Agency on Aging (“the Agency”) as the permanent

plenary guardian of the person and estate of I.M.R. We affirm.

In a prior memorandum, we detailed the factual and procedural history

of this case as follows:

I.M.R. was born in November 1938. In 2014, I.M.R.

displayed symptoms of cognitive decline and memory loss that would eventually be diagnosed as vascular dementia, a progressive condition which impairs her ability to function independently. Immediately prior to September 2021, she resided with her adult son, Appellant, who exercised power of attorney on her behalf. The agency became involved with the family on September 13, 2021, after a stranger discovered I.M.R. wandering alone, unable to state her name, and indicating that

____________________________________________

* Former Justice specially assigned to the Superior Court.

J-A23044-22

she did not want to live with her son. N.T., 12/20/21, at 24. Appellant refused to cooperate fully with the Agency’s subsequent investigation of the incident. Id. at 25-27.

On December 6, 2021, the Agency sought and received the appointment of an emergency plenary guardian of both the person and estate of I.M.R. Thereafter, on December 15, 2021, the Agency filed a petition to adjudicate incapacity and to appoint a permanent plenary guardian for the person and estate of I.M.R. The petition alleged that I.M.R. needed daily care and supervision to ensure her safety, and it averred that no alternative to the appointment of a guardian had been considered.

Following four non-consecutive evidentiary hearings, the orphans’ court entered the above-described decree adjudging I.M.R. to be totally incapacitated and appointing the Agency as the permanent plenary guardian of both the person and estate of I.M.R. Appellant timely filed a notice of appeal, and the orphans’ court filed a Pa.R.A.P. 1925(b) order directing him to file and serve a Rule 1925(b) statement within twenty-one days of the order.

In Re: I.M.R., 728 MDA 2022 (Pa.Super. filed March 16, 2023)

(nonprecedential memorandum at 1-2).

Appellant initially failed to file the statement within the allotted

period, and the orphans’ court found all issues waived and declined to

address the merits of any of the issues presented. Id. at 2-3. However,

this Court determined that, because the orphans’ court’s Rule 1925(b)

order was facially deficient, Appellant’s failure to strictly comply with

Rule 1925(b) did not render his claims waived on appeal. Id. at 7.

Hence, we remanded the matter for the preparation of a supplemental

orphans’ court opinion, which the orphans’ court filed on April 11, 2023.

3

J-A23044-22

Appellant presents five issues for our review.[1]

1. Did the orphans’ court abuse its discretion or make an error of law when it granted the Huntingdon- Bedford- Fulton Area Agency on Aging’s motion for access to records without giving [I.M.R.] or William Cardwell an opportunity to respond?

2. Did the [orphans’] court abuse its discretion or make an error of law when it granted emergency guardianship without a hearing when there was no adequate proof of an actual emergency?

3. Did the [orphans’] court abuse its discretion or make an error of law when it prohibited Shaun O’Toole, Esq., [I.M.R.’s] previous attorney, from representing [her] . . . in this matter?

4. Did the [orphans’] court abuse its discretion or make an error of law when it failed to appoint William Cardwell as guardian of [I.M.R.’s] person despite no Area Agency on Aging observ[ations] inside their home; only one caretaker witness who observed William Cardwell and [I.M.R.] together inside the home over a span of a few months; and [evidence that I.M.R.] walk[ed] away from the home on one brief occasion three months before the guardianship petition was filed?

5. Did the [orphans’] court abuse its discretion or make an error of law when it failed to appoint William Cardwell as guardian of [I.M.R.’s] estate in light of four witnesses and the estate planning documents presented clearly stating [I.M.R.’s] desired intention for William Cardwell to inherit everything from her and the ability to make gifts to himself?

Appellant’s brief at 4-6 (cleaned up) (unnecessary capitalization omitted).

Appellant’s claims challenge the orphans’ court’s finding of incapacity

and subsequent appointment of a guardian, which we review for legal error or

____________________________________________

1 As we noted in our prior memorandum, we do not address the sixth issue that Appellant raised in his statement of questions presented, concerning the March 19, 2022 invalidation of a transfer of land, because Appellant failed to appeal the order that is the genesis of that claim.

4

J-A23044-22

an abuse of discretion. In re Duran, 769 A.2d 497, 506 (Pa.Super. 2001).

As we have explained,

The appointment of a guardian lies within the discretion of the trial court and will be overturned only upon an abuse of discretion. 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.

Id. (cleaned up).

Pursuant to Chapter 55 of the Probate, Estates, and Fiduciaries Code

(“PEF Code”), an orphans’ court may appoint a guardian of the person and/or

estate upon clear and convincing evidence of incapacity. See 20 Pa.C.S.

§ 5511(a). The PEF Code defines incapacitated person as “an 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. § 5501.

As to the orphans’ court’s determination of incapacity and appointment

of a guardian, the PEF Code further provides, in pertinent part, as follows:

(a) Determination of incapacity.--In all cases, the court shall 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.

5

J-A23044-22

(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.

....

(c) Plenary guardian of the person.--The court may appoint a plenary guardian of the person only upon a finding that the person is totally incapacitated and in need of plenary guardianship services.

....

(e) Plenary guardian of the estate.--A court may appoint a plenary guardian of the estate only upon a finding that the person is totally incapacitated and in need of plenary guardianship services.

20 Pa.C.S. § 5512.1.

For the following reasons, we discern no error or abuse of discretion on

the part of the orphans’ court. In the supplemental opinion, the orphans’ court

thoroughly distilled the relevant evidence concerning: (1) I.M.R.’s cognitive

impairment; (2) the effect of those impairments on I.M.R.’s ability to

communicate decisions, manage financial resources, and insure her physical

health and safety; (3) Appellant’s suspect care of I.M.R.’s physical and

financial needs, including the alleged misappropriation of the $250,000

6

J-A23044-22

proceeds from her late-husband’s life insurance policy; and (4) Appellant’s

persistent obstinacy, which not only frustrated the Agency’s ability to serve

I.M.R.’s needs, but also led to the suspension of Appellant’s visitation

privileges from the residential facility that cared for I.M.R. after she was

removed from Appellant’s home. As the learned President Judge George N.

Zanic concluded in the supplemental opinion filed in this case,

The focus of this case should be I.M.R. However, [Appellant]

has continuously attempted to make it about himself. Time and time again he has shown that his true concern is maintaining control over I.M.R. and her assets, rather than acting in her best interest. I.M.R. is incapacitated and in need of a guardian. That guardian needs to be someone other than [Appellant], so that he can no longer exploit her.

See Orphans’ Court Supplemental Opinion, 4/11/23, at 61.

Thus, after reviewing the certified record, the parties’ briefs, and the

orphans’ court’s comprehensive sixty-one-page supplemental Rule 1925(a)

opinion addressing the identical issues that Appellant presented in his brief,

albeit in a slightly different order, we adopt the trial court’s rationale as our

own and for the reasons cogently explained in the supplemental opinion, we

affirm the April 8, 2022 decree adjudicating I.M.R. to be a totally incapacitated

person and appointing the Agency as the permanent plenary guardian of the

person and estate of I.M.R.2

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2 President Judge Zanic’s analysis of Appellant’s third issue, concerning the denial of Appellant’s request to have Attorney O’Toole appointed as counsel (Footnote Continued Next Page)

7

J-A23044-22

____________________________________________

for I.M.R., incorporated the court’s January 24,2022 order stating that Attorney O’Toole was ineligible to serve as I.M.R.’s counsel in the competency/guardianship matter due to both a conflict of interest between Appellant and I.M.R. and the fact that Attorney O’Toole was a necessary witness. Citing Pennsylvania Rules of Professional Conduct 1.7 and 3.7, entitled “Conflict of Interests: Current Clients” and “Lawyer as Witness”, respectively, the court provided the following rationale:

Attorney O’Toole represented [I.M.R.] with respect to estate planning that occurred in or about 2018. That estate planning, though, was done in coordination with [Appellant], and included the power of attorney in favor of [Appellant] that is one of the many matters at issue here. Given the significant level of involvement in those affairs testified to by [Appellant], there was, at minimum, a quasi (if not actual) attorney-client relationship between Attorney O’Toole and [Appellant] at that time. This finding is supported by the fact that when the emergency guardianship was initiated the first person [Appellant] contacted to contest it was Attorney O’Toole (meaning that while there may not be a formal, current attorney-client relationship between them, there is still arguably a quasi one). . . . Attorney O’Toole cannot represent both [I.M.R.’s] interests and [Appellant’s] interests, as they are not congruent. (For example, if it is in [I.M.R.’s] best interest to have a guardian appointed, and to have that guardian be someone other than [Appellant], that position is diametrically opposed to [Appellant’s] interests in remaining the caregiver and power of attorney for her.) This is a clear conflict of interest that violates Rule 1.7.

....

[As to the likelihood of being a necessary witness, h]ere, Attorney O’Toole drafted the power of attorney and other estate planning documents that are at issue, as they establish what right, power, and authority [Appellant] has with respect to [I.M.R.’s] property—property that [Appellant] is alleged to have misappropriated and converted to his own use. More significantly, though,[Attorney O’Toole] is the only disinterested party with knowledge of [I.M.R.’s] capacity both in 2018 and at the current time (in light of his estate planning meetings with her in 2018 and his recent meeting with her on January 10, 2022, regarding the (Footnote Continued Next Page)

8

J-A23044-22

Decree affirmed.

Judge McCaffery joins.

P.J.E. Stevens concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/7/2023

____________________________________________

proposed Engagement Letter), and thus the changes, if any, in her condition during that period.

Order, 1/24/22, at 3-5 (cleaned up). We adopt the foregoing analysis as well.

Circulated 05/31/2023 09:48 AM

IN THE COURT OF COMMON PLEAS OF HUNTINGDON COUNTY, PENNSYLVANIA

ORPHANS' COURT DIVISION

IN RE: IVA M. ROUSH, CP-31-OC-281-2021 CP-31-00-281-2021

an incapacitated person 728 MDA 2022

AMENDED OPINION AMENDED IN

OPINION IN SUPPORT OF ORDER SUPPORT ORDER

PURSUANT PURSUANT

TOTO Pa.R.A.P.

Pa.RA.P, 1925(a)

19256)

Petitioner William Cardwell, the son of incapacitated person Iva lva M. Roush

("I.M.R."), appeals from the Final Decree entered by this Court on April 8, 2022, ("IM.R."), which: which: ((1)

1) adjudged I.M.R.

L.M.R. to be totally incapacitated; and and (2)

(2) appointed the

Huntingdon- Bedford- Fulton Area Agency on Aging to be the plenary permanent Huntingdon-Bedford-Fulton guardian of both IM.R's

I.M.R.'s person and estate estate.

This Court originally filed its Opinion in Support of Order Pursuant to Pa.R.A.P. Pa.R.AP. 1925(a)

1925(a) on March 27, 2022. Because Petitioner had not, either within the established 21- day deadline or as of the filing of such opinion, fled 21-day filed aaStatement of

Errors Complained

Complained of On Appeal, this Court originally proceeded on the basis that

•• z0 •3 Aq pan.aaS

ol xoglieW asnoq:ano:) Aq panaaS

he had waived all issues. Pursuant to the Superior Court's order of March 16, 2 a 2023, this Court hereby submits this Amended Opinion in Support of Order g .0 g d

%5 Pursuant to Pa.R.A.P.

Pa.R.A.P. 1925(a), which amends and supplements its original, and c 01SdSn

6 9 • L e addresses Petitioner's late- filed Statement.

8 $ 50 late-filed 3 t , c

8

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z I. ISSUES RAISED 0 $- = g ° ° -0

2

g

8' On Appeal, Petitioner's even-later-filed

Appeal, filed June 13, 2022,'

ISSUES RAISED

even-later- filed Amended Statement of Matters Complained of

2022, 1raises the following issues issues (text

(text as in the original):

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1. The trial court abused its discretion and/or made an error of law when it granted Agency

granted the Huntingdon-

Agency on Aging's Iva

Bedford- Fulton Area

Huntingdon-Bedford-Fulton Aging's Motion for Access to Records without giving an opportunity to respond.

rt va M. Roush

B

0

N

8

(D

2

• lD

v

0 1Petitioner petitioner filed his original statement of errors on May 31, 2022, followed by his his amended statement. The 5 Court makes no finding with regard to whether Petitioner's original late-filed late- filed statement or his even-later-filed •'+(De amended statement amended statement should should apply

apply here. Since they

here. Sin� they are

are largely

l•'l!•ly the same,

1hr .. me, the Court proettd< th• Cou, � proceeds on

on the basis of

the basis of the

the

'

3

1+

amended statement. aw«Mamo nu_tprjL N LLg r

" •t CL

e

Kelsey Dunn Register of Mils letsey Wills v nd Clerk of the on#ans'

ts'dcenafte Orphans' co Court

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i• (d} {/ Huntingdon County, Pens/eanit Huntington county. Pennsylvania

22

2. Z. The

The trial court abused its discretion and/or made an error of law when it granted the Huntingdon-Bedford-Fulton Huntingdon- Bedford- Fulton Area Agency on Aging's

Aging's Motion for Access to Records without giving William Cardwell an opportunity to respond.

3. The trial court abused its discretion and/or made an error of law when it granted Emergency Guardianship without a a hearing hearing when there was no adequate proof of an actual emergency.

4. 4, The trial court abused its discretion and/or made an error of law when it granted Emergency Guardianship without any medical expert

expert testimony or any medical evidence showing aa need for guardianship.

S. 5. The trial court abused its discretion and/or made an error of law when it prohibited

prohibited Shaun O'Toole, Esq., Iva M. Roush's previous previous attorney, from representing Iva lva M.

M. Roush in this

matter. matter

6. The trial court abused its discretion and/or made an error of law when it failed to appoint William Cardwell as guardian of lva M. Roush's person despite no Area Agency on Aging Iva observing observing inside their home; only oneone ((1)

1) caretaker witness

who observed William Cardwell and Iva va M. Roush together inside the home over aaspan of aa few months; and Iva M. Roush walking away from the home on one one ((1)

1) brief occasion three

months before the guardianship petition was filed?

7. The trial court abused its discretion and/or made an error of law when it failed to appoint William Cardwell as guardian of Iva lva M. Roush's estate in light of four (4)

(4) witnesses and the

estate planning

planning documents presented clearly stating Iva M.

Roush's desired intention for William Cardwell to inherit everything everything from her and the ability to make gifts to himself?

8. 8 The trial court abused its discretion and/or made an error of law when it voided the deed signed by William Cardwell in light light of the fact that the Area Agency Agency on Aging never requested 'I that William Cardwell be removed as power of attorney of Iva M. Roush and the Court did not remove him prior to signing the deed?

l'

II. I. PROCEDURAL

PROCEDURAL HISTORY RELEVANT HISTORY AND RELEVANT FACTS FACTS

1. I.M.R. is currently 84 years old, having been born on November 27, 1938.

IM.R.is 1938 ,',·

3

,:

2. This matter first came to the attention of the Court on September 22, 2021, it

when when the

the Huntingdon- Bedford- Fulton Area Huntingdon-Bedford-Fulton Area Agency on Aging Agency on Aging (the

(the "Agency")

"Agency")

filed aapetition

petition for access to I.M.R.'s L.M.R's medical and financial records pursuant to the Pennsylvania

Pennsylvania Older Adult Protective Services Act, 35P.S.

35 P.S. $$

§§

10225.101, et seq. (the ""OAPSA"), seq. (the OAPSA"), and the guardianship support agency

provisions of 20 Pa. provisions C.S. ch. 55 Pa.CS. 55 (such

(such petition, the

the ""Records

Records Petition.") The

The

Records Petition was granted granted by

by this Court ex parte the same day.

On December 6, 2021, the Agency 3. 0n Agency filed a a petition

petition to adjudicate incapacity and to appoint

appoint an emergency I.M.R.'s person emergency and permanent guardian of IM.R's and estate

estate (the

(the ""Emergency

Emergency Petition").

Petition"). The Emergency Petition was

supported by supported by aasigned

signed statement provided provided by I.M.R.'s

IM.R.'s treating physician, Dr. Amy

Amy Sellers, who opined

opined that I.M.R.

LM.R. ""should

should not be left alone,"

alone," "suffers

from from mild-moderate

mild-moderate dementia && gets gets confused easily," is "[n]ot capable of is "[not

higher[-] level executive functioning," and higher[-Jlevel and "needs "needs care including help with [activities of daily living] [activities living] && monitoring so she does not wander off." The granted the emergency guardianship ex parte the same day, Court granted day. It

appointed the Agency appointed Agency as the emergency guardian of I.M.R.'s LM.R's person and

appointed Ray

estate, and appointed Ray A. Ghaner, Esq., Esq., to represent IM.R.

I.M.R.z

4. On December 7, 2021, the Agency filed aapetition to extend the emergency

guardianship. That guardianship. That petition petition was granted, and was granted, and the

the emergency

emergency guardianship

guardianship

was 2021. was extended until December 28, 2021 S. 5. On December 8, 2021, Shaun E. O'Toole, Esq., filed aapraecipe for entry of appearance, seeking to represent LM.R. appearance, I.M.R. in lieu of Attorney Ghaner.

6. On December 10, 2021, Roberto D. Ugarte, Esq., filed aapraecipe for entry of appearance, representing appearance, representing Petitioner.

This was done per This 2 per the Court's standard practice, practice, which is to appoint appoint counsel for the alleged incapacitated person in person in all guardianship cases, unless they are already represented by counsel.

guardianship casts, counsel, The Court notes here that Attorney Attorney Ghaner did not have an opportunity to address the scope and nature of his meetings with his client, I.M.R., LM.R., until much later in the case than usual.

usual, This is because of the unusual progression of this matter.

matter,

However, However, Attorney Attorney Ghaner did inform the Court that he had met with I.M.R.

IM.R. twice prior to the second hearing in this matter on February 1, 2022, N.T., February1,2022. NT., February 1, 2022, Hearing, at 67 1 202Z, 67. Attorney Ghaner addressed the matter of his meetings with I.M.R, LM.R. in detail at the third hearing, 2022. See61, hearing held on February 8, 2022. infra, See ¶ 61, infra

On December 15, 2021, Attorney O'Toole filed a 7. 0n a petition for reconsideration of the emergency

emergency guardianship, asserting, inter alia, that in 20181.M.R.

2018 I.M.R. had

11 executed aageneral

general power

power of attorney in favor of Petitioner Petitioner (the

(the "Alleged

"Alleged

POA"), POA"), and that Petitioner had been serving as I.M.R.'s IM.RR's caregiver prior to the emergency guardianship. emergency That same guardianship. That same day, day, the

the Agency filed aapetition Agency filed petition

seeking to have IM.R.

I.M.R. be adjudicated as fully incapacitated and to be

appointed as plenary I.M.R.'s person and estate plenary guardian of IM.R's estate (the (the

"Guardianship Petition"). 8. On December 16, 2021, Attorney Attorney Ugarte filed, on behalf of Petitioner, an emergency petition emergency petition to remove the Agency as guardian and to conduct aa review hearing.

hearing. Petitioner asserted that he had full authority over I.M.R.'s IM.R.'s

property property and healthcare decisions pursuant to the Alleged POA, that he served as I.M.R.'s caregiver, and then asserted aalitany of deficiencies with IM.R.'s caregiver,

the Emergency Petition and the Agency's actions in general. On December 20, 2021, the first hearing was held in this matter, addressing 9. 0n the Emergency

Emergency Petition, Attorney O"Toole's O'Toole's proposed representation of

I.M.R., L.M.R., and Petitioner's emergency petition to remove the Agency as guardian (such guardian (such hearing, the the ""First

First Hearing").

10. The Court first addressed Attorney O'Toole's O"Toole's praecipe for entry of appearance. The Court extensively queried Attorney O"Toole appearance, O'Toole regarding

whether he had undertaken actions that might satisfy the requirements of

Pa.R.O.C.P. Pa.R.O.C.P 14.4(b),

14.4(b), including whether he had aacurrent engagement letter with I.M.R.

IM.R. regarding the guardianship proceeding and whether he had met with I.M.R.

IM.R. Attorney

Attorney O'Toole represented represented that he did not have aacurrent engagement letter with I.M.R., LM.R., had not met with her since 2018 when he prepared prepared the Alleged

Alleged POA, and had minimal knowledge of the matter. He had simply

simply been contacted by

by Petitioner, notified by him that I.M.R.

I.M.R. had

been "taken" been "taken" by

by the Agency,

Agency, and requested by Petitioner to intervene.

Because Attorney O'Toole had not complied with Rule 14.4(b), as well as Attorney 0"Toole

l had potential potential conflicts arising from his preparation of the Alleged POA and

i contacts with contaLts with Petitioner, the the Court did not

not allow him

him to represent

represent I.M.R.

I.M R at

the First Hearing. It did, however, did allow him to be present so he was

aware of the proceedings. N.T., First Hearing, at 2-9, proceedings. NT, 2-9. The Court further

directed the Agency to assist Attorney 0"Toole O'Toole in arranging aameeting with

I.M.R. and ordered Attorney Attorney O'Toole, if he was satisfied after such meeting that I.M.R.

IM.R. wished to have him represent her, to comply with the requirements of Rule 14.4(b).

14.4(b). N.T., First Hearing, at 104.

11. The first witness for the Agency was Bonnie Sue Parks.

a. Ms.

Ms. Parks primarily

primarily works at the Giant store in in Smithfield Township,

Huntingdon Huntingdon County,

County, but also makes additional income on the side as an informal home health aide/caregiver. She met Petitioner through her employment at Giant, and Petitioner made arrangements with her to provide provide care for I.M.R,

1.M.R. at his home in the James Creek area of Huntingdon Huntingdon County.

County.'3 She was initially initially paid in

in cash, but was also later

paid in-kind (Petitioner paid in-kind (Petitioner gave her aacar, and she she "worked off" the

"worked off the value of

the car). Id,

Id. at 10-11, 17-18

10-11,17-18

b. Ms. Parks would go to the home two to three times aaweek, staying anywhere from 45 minutes to two hours. Ms. Parks's primary task was to give I.M.R.

I.M.R. showers, but she also assisted with many other tasks, including including laundry,

laundry, dressing, medication, changing bedclothes, and preparing preparing meals. The other residents of the home were Petitioner and his mechanic, known to her only as as ""Bil"

Bill." Id,

Id. at 10-11, 13.

c. Per Ms. Parks, the condition of the home was quite poor.

Q: And so IIknow this will be difficult but I'd like hike you to

describe the condition of the home va Iva lives in.

A: The home is dirty. Q: 0: Is

ls it fair to say that you've described it as aa quote, unquote unquote shit hole?

I' A: IIcan't say shit hole but it does---it does— it is dirty.

l Q: There a a lot of dog feces throughout the home?

specifically, 3 Tussey Lane in Lincoln Township, Specifically, 3016 Tussey Township, Huntingdon County, with aamailing address of 3016 Tussey Lane, James Creek, PA 16657 Creek,PA 16657.

I'

A: Yes.

Q: Cats throughout the home? A: There is only one cat. Q: The kitchen, has that been described as aahog pen?

A: Ihave went out there, yes, and it has been very dirty.

Ihave dirty Q: Q: Is

ls that because there are aalot of dirty dishes?

A: A: Dirty dishes. The floor is very dirty at times. Q: How about spoiled food in crockpots, things like that? A: Ihave seen that, yes, Ihave yes.

Id. at 12 Id, 12 (testimony

(testimony of Ms. Parks on direct examination by the Agency's counsel, Michael M. Kipphan, Esq.) d. Ms. Parks further testified that I.M.R.

IM.R. did not have the level of care she needed, and the level of care she did receive from Petitioner was poor.

Q: To your

your knowledge,

knowledge, Bonnie, have there been times when va's been left alone? Iva's

A: A: Yes, there has been aafew times I Yes,there I have went out there and she has been alone.

Q: Q: Does that concern you when you see that?

A: Yes, it does, because she =like IIsaid, she is not able to she---hike

I' take care of herself and she f falls.

lls. a She has no phone to

contact anybody with.

with

Q: Have you

you come to the home and found Iva covered in feces before?

A: A: I

I have come there and like hike her diaper that she wears has in it, yes

had feces in yes.

:, Q:

0: How are Iva's

lva's meds managed? You put them in aaseven 'I day box and and [Petitioner]

[Petitioner] gives them to her?

I, A: A: He either gives them to her or sets them on the table when she gets up in

in the morning. Then she gets them.

them

:Q• Would it be fair to say that Iva lva can't take care of her own meds?

A: Correct.

,11: 6

77

...

Q: Q: How does lva

Iva get

get around? Does she need a a walker?

A: She—yes she, does walls She-yes walk sometimes without her walker but she is very unstable.

Q: Q: Based on your

your observations is she aafall risk?

A: A. Yes.

Q: Has Iva

lva shared with you that she also hallucinates about people people in trees and things like that?

'I' A: Yes, she has.

has.

Q: And have you noticed that she has some cognitive thinking disabilities?

A:

. ..

Yes.

THE COURT: Can I

I ask, ma'am, when was the last time you saw Iva?

THE WITNESS: It would have been the day that they came to get get her which IIthink was December 6 6th.

THE COURT: Okay. And when you saw her was this one of Okay. the days

days when her diaper was full of feces?

THE WITNESS:

WITNESS No, no.

THE COURT: When was the last time that happened?

THE WITNESS: That's when when she

she was

was sick and

and she was

was having

the diarrhea, so at times she couldn't get her diaper down fast enough. diaper enough

THE COURT: Okay.

Okay. When you're not there, do you know who takes care of her?

I THE WITNESS:

WITNESS: [Petitioner]

[Petitioner] had told me that his mechanic Bill has cleaned her upup.

I'

Id. at 12-14 Id, 12-14 (testimony

(testimony of Ms.

Ms. Parks on direct examination by Attorney Kipphan, Kipphan, with follow-up by the Court). e. Upon

Upon examination by I.M.R.'s counsel, Attorney Ghaner, Ms. Parks gave by IM.R.'s

I.M.R.'s cognitive issues and daily life.

further detail about IM.R's

I' II Q: Q• Ms.

Ms. Parks, Mr.Mr Kipphan asked you about cognitive disabilities. What sort of shortcomings do you see [va Iva

having? having?

A: She does not remember-you remember—you know, you can say something to her and within aa half hour she don't remember what you've

you've told her. Very often she has said about people

people out in the trees fighting. She had said about people being there that I people being I know that wasn't there. She's very very hallucinating.

Q: Can you

you have aanormal conversation with her like you and I

I are having

having right now?

A: You can but then she steers off and she has no idea what she's talking about.

Q: Q: She gets confused?

A: Very easy,

easy.

Q: Q: Does she forget

forget things

things during the conversation that you— you-

A: Yes.

Q: Q: Does she forget

forget things

things like whether or not she's eaten that day?

day

A: Yes, she has.

Q: Q: Does she forget

forget whether or not she's had her medications those days?

A: No.

No, She does remember she takes her medicine because every time I've every I've went out, I've asked her, have you taken your your medicine and she's always said yes.

yes. When I I woke

up, you know, it was on the table. I up, you tools it. She always I took

tells tells you exactly

you exactly how

how many

many pills she took.

took.

Q: 0: Where was she residing residing when you were providing care for her?

l A: She lived inin the home home with

with [Petitioner].

[Petitioner]. She had

had aa

il bedroom there. When IIwould go in, if she wasn't sitting '

at the table, she was usually in her bed

Id. at 15-16 Id, 15-16.

11 f.f Cross-examination of Ms.

Ms. Parks by Petitioner's counsel did not reveal additional significant

significant details. Ms. Parks did clarify that she had begun

99

working for Petitioner in March of 2021, had begun caring for L.M.R. working I.M.R.

after I.M.R.

LM.R. had come from the hospital, hospital, and that Petitioner had had another person person coming in to help I.M.R.

LM.R. for a

a short time after she first came home from the hospital.

hospital, With regard

regard to the condition of the home, Ms. Parks said that she had mentioned to Petitioner about cleaning the

house, and specifically specifically the kitchen, on a a few occasions, and in response Petitioner had asked his mechanic to vacuum, and Ms.

Ms. Parks to wash the

dishes. Id, dishes. Id. at 17-23 17-23.

9. At the outset of her testimony, Ms. Parks indicated that she was g. concerned about the potential for retaliation from Petitioner. Id, Id. at 10.

10

Her demeanor reflected that.

12. Next to testify was Brenda Hughes, aaProtective Service Worker for the 12. Agency. Agency. Ms.

Ms. Hughes

Hughes testified that I.M.R. first came to the attention of the agency via aareport from the Pennsylvania State Police on September 13, 2021, after an incident in which I.M.R.

1M.R. had been found wandering down the road by aastranger and transported to the Huntingdon PSP station.

She was unable to state her name.

name. She was saying she did not want to live with her son, son. She also said she was headed to New York. There were also concerns about, you know, home conditions, exploitation, that she's alone for long periods of time and the son would not go pick her up at the police station.

station

Id. at24. Id, at 24. Eventually Eventually arrangements were made that day for Ms. Parks to pick pick up up I.M.R., IM.R., spend the day with her, and then take her home.

13. Ms. Ms. Hughes when to Petitioner's home the next day to interview him and and.

I.M.R., L.M.R. and to observe the conditions there. To say the visit was not successful would would be

be an

an understatement.

understatement

Q: Q; What investigation did you undertake based on the report report of need?

A: A: What investigation?

Q: Q: Did you interviewinterview —

A: Idid aaface-to-face visit.

1did

Q: Q: With Iva?

lva?

i

A: A; Well, Well, unfortunately

unfortunately II couldn't meet meet with Iva alone.

with lva

Mr. Mr. Cardwell would

would not

not allow that.

that.

Q: Did you ask to Did you to meet

meet with Iva alone?

with lva

A: Yes, Yes, I did.

I did.

Q: 0: Did Mr. Cardwell refuse that?

A: A Yes, Yes, he did.

he did

Q: Did he tell you why you were not allowed to meet with her alone?

A: No.

No. He just said that's not going to happen.

Q: So when you met with her it was—

was-

A: With him.

Q: —with 0 with him.

him. And

And what

what was

was the outcome

outcome of that meeting?

meeting?

A: A Well, she had acknowledged that she took aawalk the other day, the day before, and she had said she was going York. And then she also said that to see her sister in New York she was going to go to the hospital and I I asked was she not feeling

feeling well and she said no, that she wants to go to aa nursing nursing facility because she can't take care of herself and needs needs help.

,, help ...

Q: Q: Were you you able to observe Ms.

Ms. Roush's ambulation?

A: No too much, no. I I mean, she came out to the porch.

porch. She

was using her walker I believe.

I believe

Q: Did you also ask to see the home? A: I I can't say as I

I got that far.

far He was being so resistive, I

I

wasn't pushing it any further further.

Q: Was he being intimidating? A: A: Yes, not only to me but also to Mrs. Roush.

THE COURT: What do you mean by that? Can you describe I that? You say he was being being intimidating to

Me. Roush. Ms.

ii THE WITNESS: Well, when she said about wanting to go to the

l ii

11 nursing facility.

facility. He said, you don't want to go

to a

a nursing facility and you have no money. You only get Social Security and who's going to visit you in the nursing facility and you don't know anyone in the nursing facility and what about your cat?

Id. at 25-27. Id, 14. With respect 14.With respect to Petitioner's statements to I.M.R.

IM.R. that she

she "has

"has no money,"

the Agency Agency had conducted an investigation of I.M.R.'s IM.R.'s financial situation as it could with the records it had been able to access using the Records best it Petition. That investigation gave significant cause for concern regarding the possible possible dissipation dissipation and misappropriation of IM.R.'s I.M.R.'s assets by Petitioner.

Petitioner

Per Ms. Hughes's Hughes's testimony,

testimony, I.M.R.

IM.R. had realized $$500,000 500,000 in income or

assets in September September 2018, yet by October 2021 she had less than than $$2,000

2,000 in

her bank account account (which

(which was aajoint account with Petitioner).

Petitioner). That was the same account that her monthly Social Security payments were directly Id. at 27-28.

deposited into. Id, 15. Ms. Hughes had significant concerns regarding I.M.R.'s 15.Ms. IM.R's safety in the home, based in part part on the reports

reports from Ms. Parks, but also on statements made to her by by Petitioner. When she raised the issue of the walkaway incident, incident, "[h]e

"[hJe

didn't seem to think it was aabig big deal. He said she had aadestination in mind.

She was going to New York." Id, Id. at 29. More concerning was the following:

Q; Q: Following

Following the incident in which Ms. Roush wandered from the home, did Mr. Cardwell tell you that his cure was to lock her in the house when he was gone?

A: A. Yes.

Yes

Id. Id 16. In addition to her testimony testimony regarding Petitioner's demeanor during her I.M.R., Ms. Hughes

attempt to interview IM.R., Hughes testified regarding actions taken by Petitioner to hamper hamper her investigation

investigation into the matter generally generally.

/ It's my understanding that Ms. Roush has aasister, is that Q:

'1 right?

A: That's what I'm told, yes.

I .! l 11

'I n Q: Q Did you ask

Did you Mr. Cardwell

ask Mr. Cardwell for

for the

the name and address

name and address and

and

phone number phone number of the sister?

A: A Yes.

Yes

Q: Q: She would be entitled to notice of today's hearing, hearing, isn't

that right?

A: A: Well,

Well, as aasister, sure.

Q: 0: Did Mr.

Mr Cardwell give you that information or did he refuse refuse it?

A: He refused

refused.

Q: 0: Did you

you ask him on more than one occasion?

A: A Yes.

Yes.

Q: Q say you On each occasion did he say you can't have it?

A: A: Yes. And aa second time he told me it's none of my business.

Q: Q: Did

Did he

he also tell you not

tell you not to

to come back

back to

to the

the house?

A: A: IIcan't say

say that but I

I certainly got that message.

Q: Q Has Mr. Cardwell provided provided you with any medical or, I'm sorry, sorry, financial information?

A: No.

No

Q: Q: Now I I understand that there's a Iva Roush income a trust, lva

only trust? only trust?

A: Yes.

Yes.

Q. Q: Have you

you been given aacopy of that?

' ,I A:

A: No.

No.

Q: Q Are you

you asking

asking the Court today to direct that the Agency receive aafully executed copy of that trust?

A: A Yes.

Id. at 30-31 Id 30-31 (emphasis

(emphasis added).

17. I.M.R., along with the highly suspect 17 The lack of financial information for IM.R., nature involving her property, rendered nature of transactions involving rendered her her ineligible

ineligible at

il l"

that time for medical assistance to pay for the care she needed. 'That That

ineligibility ineligibility could also extend for five years into the future.

Q: Why

Why was itit so difficult to get Ms. Roush approved for medical assistance?

A: We still don't have her approved. It's so difficult because property that was sold for $250,000 of the property $ 250,000 in January of 2020, so the County Assistance Office is going to look at that as aasold asset and actually itit was sold under fair market value. It's actually 280-something 280- something thousand

dollars and so because that's within the past five years, going to have a

she's going aperiod period of ineligibility.

Q: Q, you're talking So you're talking about the five year look back that Medical employs to determine if you're Medical Assistance employs you're eligible for nursing care, is that right?

right

A: Yes.

Q: And as we stand here todaytoday she's not qualified because of all the stuff that's gone?

A: More likely

likely than not, no. IIdon't have the official word but I

I know that they have the five year look back and she's got she's got well

well over

over the

the $$8,000

8,000 limit

limit that

that is

is aacriteria

criteria for

for

their program.

Id. at 39-40. Id,

18. Petitioner's cross-examination of Ms. 18. Ms. Hughes primarily focused on matters

such as the fact that the Agency was relying on Ms. Parks' testimony regarding regarding conditions inside the home, and that Ms.

Ms. Hughes had only been

out to the home twice

twice (on September 13

[on September 13th and December 6).

6th). Pertinent

matters that came out during her cross-examination were that the Agency

had been trying

trying to obtain bed space space for I.M.R.

IM.R. since the September incident, hampered initially by Petitioner's refusal to provide financial but had been hampered records, and then by the fact that on paper, it appeared that I.M.R.

IM.R. should

have significant

significant assets

assets (meaning

[meaning that medical assistance funding was not available to pay care). 4 Overall, Petitioner's cross-examination pay for her care).'

Petitioner's counsel raised an allegation that Petitioner had asked the Agency for help in March 2021, but 4 petitioner's

4

had been refused, insinuating that they would not help when asked, but then turned around and went after

amounted solely amounted solely to an attack to an attack on

on how

how the Agency proceeded.

the Agency It raised proceeded. It raised no

no

matters that contradicted the evidence presented or weakened it it to an

Id. at 31-40

appreciable degree. Id, 31-40.

19. To follow-up 19.To follow-up on Ms.

Ms. Hughes's

Hughes's testimony regarding I.M.R.'s IM.R.'s finances,

finances, the

Agency Agency presented the testimony testimony of Caroline Burnell, an expert witness in the field of financial fraud examination. Based on the records that the

Agency had been able to obtain using the Records Petition, as well as publicly publicly available land records, it it was Ms. Burnell's preliminary preliminary opinion

that: (i)

(1) there was at least $200,000 $ 200,000 0f

of I.M.R's

I.M.R.'s funds not accounted for; and

(ii) the records showed potential financial exploitation of IM.R.

I.M.R. of between

and $

$200,000 and 500,000. Id, $500,000. Id. at 40-43.

40-43

Ms. Burnell further opined that, based on the information she had at that 20. Ms.

I' point, I.M.R. had been aavictim of financial exploitation. She based this point, IM.R. primarily primarily on her findings with respect respect to two joint bank accounts held by I.M.R. Petitioner. [d. L.M.R. and Petitioner Id. at 44-45.

a. The first was a

a checking account with M&T M&T Bank. It was opened in March 2018 and closed in November 2018, 2018. Reviewing the transaction

history, the withdrawals attributable to Petitioner exceeded the

deposited by

amounts deposited about $$61,000.

by him by about 61,000. Even taking into account

roughly roughly $$6,000

6,000 of deposits that could not be directly attributed to either

account holder, the excess amount taken by Petitioner was was $$55,000.

55,000.

b. When the M&T

M&'T Bank account was closed in November 2018 it had aa balance of $180,000. balance of $ 180,000. That amount, which which was

was all

all the

the proceeds of aalife

insurance policy

policy that paid out to IM.R.

I.M.R. after her husband passed away,

was was deposited

deposited into

into aanew

new account

account at

at Members

Members First

First Federal Credit

Federal Credit

Petitioner. Petitioner later raised this allegation multiple times in his own testimony in an attempt to cast the Petitioner Agency Agency in aapoor

poor light. Pet Ms

Ms. Hughes's testimony, what actually happened was that when IM.R.

I.M.R. was released

from the hospital, the Agency was tasked with performing an evaluation to see what care she might need. need. This elderly persons similarly situated in the Agency's service area.

is done for all elderly area. However, the actual investigation eligibility determination are performed by a and eligibility abroker working on contract funded by the Pennsylvania Aging. This meant that once the Agency obtained the initial information, the matter was out of Department of Aging its hands. llL Its Id. at 34-35 34-35. The Agency therefore had no information about whatwhat might might have transpired between between

II Petitioner ad and the broker

broker,

,

Union the same month. By

By the end of February 2019 the balance of the account had been depleted to $27,000 $ 27,000.

21. Ms. Burnell made clear that her report was preliminary, 21.Ms. preliminary, and that it was based on the limited information that the Agency had been able to obtain. "If a If areport report is needed for aafinal guardianship hearing, then I I will obviously

do additional work"

work." Id. at 46.

22. Petitioner's cross-examination of Ms.

Ms. Burnell proceed in a

a similar fashion as

for Ms.

Ms. Hughes.

Hughes. Petitioner's counsel questioned Ms.

Ms. Burnell's methods,

reliance on incomplete data and information information (i.e.,

(i.e. less than the full and complete bank records, which Petitioner had impeded access to), and reliance on information from the Agency, Agency, but raised no issues that contradicted Ms. Burnell's conclusions or appreciably weakened the strength of her testimony. Id, Id. at 46-50

46-50.

23. 23. The final witness for the Agency Agency was Lori Heaton, Service Director.

Ms. Heaton's testimony focused on:

on: (i) Petitioner's conduct in impeding the Agency's investigation of IM.R.'s I.M.R.'s case and preventing access to IM.R.;

I.M.R.; and

(ii) Petitioner's conduct in harassing and intimidating the Agency and its (ii) employees. Id, employees. Id. at 51-57. She also discussed the steps taken by the Agency

try to obtain appropriate care for IM.R., to try I.M.R., which were met with resistance

by Petitioner. Id, Id. at 53-54.

24. Ms. Heaton became directly directly involved in the matter on December 2, 2021, when she accompanied another Agency employee on an attempt to visit

I.M.R. I,Mg and interview her at Petitioner's home.

home, The

The visit itself was

uneventful; however, Petitioner's actions afterward were troubling, to say

the least.

Q: Q: Can you

you give

give us some details about the [level [level of

Petitioner's] cooperation cooperation [in

[in the case]?

A: Yes. Again

Again all during the case IIhad been hearing about the difficulties and cooperation by Mr. Cardwell but on December 2nd I I went out to the home along with Belinda Black to try

try to see lva

Iva and she was not home. We did ,, ' speak with his mechanic, Mr. Cardwell's mechanic, Bill. '

,. l I' I,I He He tried to reach

reach Mr.

Mr. Cardwell but was

returned to the office.

was unable

unable to.

to. So we

we

l When WhenIreturned to the office office Ihad a

avery angry voicemail

'I· %

message message from Mr. Cardwell telling us that we had no Ii business stopping stopping by the home and to never do it and that if we wanted to-anything it again

to— anything from him, we were to mail itit in writing to aa Chambersburg address address. Subsequently he then called the office again and IIspoke with him over the phone

phone and again he was very angry, threatening threatening me that we should never come back to the home again; that it

it was not necessary. IItold him that we just wanted to visit Mrs. Roush, discuss the case further, just talk talk about any

any needs that

that she had

had and

and he said that it was

that it was

not necessary.

Q: Q: Is anything you ls there anything you would would like

like to add about

cooperation cooperation with Mr.

Mr. Cardwell?

A: Just

Just that there has been several instances of phone calls from him demanding to know the worker's full names. You know,

know,itit just seems to serve no other purpose but to harass, be menacing.

menacing. He's accused they did not have their proper

proper ID, which is not true, andand —

Q: Q: After the emergency guardianship was filed, did Mr.

Cardwell file aaright

right to know demand?

A: Yes. Q: Q: Listing dozens

Listing dozens and dozens of requests requests for

for information?

A: Yes, yes.

Q: Q: Do you

you believe that was in retaliation for your actions?

A: A. Yes, Ido.

Yes,I

Id. at S2, S4 (emphasis

52, 54 (emphasis added).

2S. On cross-examination, I.M.R.'s 25. L.M.R's counsel obtained clarification about the right-to- know requests, right-to-know requests, which included five five (or

[or more)

more] years' worth of

records pertaining

pertaining to how many people the Agency had removed from their homes, the salaries of all Agency employees, all complaints that have been filed against the Agency, drug testing and criminal background check

16

H

17

!I

results for all Agency employees, sources of funding for the Agency, and Agency employees,

what legal authority what legal authority the Agency Agency has

has to

to do emergency guardianships. Id. at 56. Ms. 56, Ms. Heaton also provided provided further information regarding her communications with Petitioner.

Q: How many times have you interacted with Mr.

Mr Cardwell?

A: Five to six times actually verbally over the phone and then we had several email exchanges.

I

' I Q:

Q

A:

Have you-maybe

you— maybe close to ten times?

Yes, or more.

more

Q: Q• You have been doing this [work]

[work] for almost 30 years.

Those ten times you interacted with him, how many of those was he helpful?

A: Less than half. Q: Q: How many of those was he focused on what was best for his mother?

A: In my opinion none. He did verbalize that he was concerned that she belonged with him and not in aa nursing nursing facility.

facility. In fairness I

I will say the one time

that I

I did feel that he had aatrue concern was that he wanted to make sure that her healthcare directives were followed.

Id. at 57

57 (emphasis added).

26. Clarification questions questions from the Court revealed the extreme nature of Petitioner's actions toward the Agency.

THE COURT: Ms.

Ms. Heaton, were you

you able to

to get into

into the

the home

home

or were you allowed access to Ms.

Ms. Roush?

THE WITNESS: No, we weren't.

weren't

THE COURT: THE COURT: What had to happen to get access to Ms. Ms. Roush.

Roush.

THE WITNESS: We had to get aaCourt Order.

,,' THE COURT:

THE COURT: Typically Typically in these

these situations

situations when you

you come

to me with an emergency, an Order is signed and then you do what you have to do?

THE WITNESS:

WITNESS Yes.

THE COURT: Was this different from most situations?

THE WITNESS:

WITNESS. Yes.

Yes.

THE COURT: Why? THE WITNESS: We were very concerned about the safety of our our workers, so we

workers, so had to

we had to ask

ask the

the police

police to

to

accompany us.

THE COURT THE COURT: And that accomplished what you needed to accomplish?

THE WITNESS: Yes, it did.

Id. at 55 Id, 55.

27. Petitioner offered the testimony of himself in in rebuttal of the evidence

presented presented by by the Agency.

Agency. Due to the allegations allegations of financial exploitation that were raised, as well as the presence of representatives of the

Huntingdon Huntingdon County District Attorney's Office and two criminal investigators from the Pennsylvania State Police in the courtroom, the Court gave

Petitioner the opportunity to meet with counsel to discuss whether to

testify, testify, and then conducted aabrief colloquy on the record to confirm that Petitioner both understood his Fifth Amendment rights and that the

testimony he gave could be used against him in acriminal prosecution.

in a

Petitioner confirmed that he understood his rights rights and the possible risks involved, and that that he

he still

still wanted to testify. Id. at at 64-66.

28. Petitioner's testimony on direct examination was troubling, and, at times, 28.

bizarre. 29. Petitioner had been caring for I.M.R.

IM.R. for ten years. He originally was caring for both his parents, and they were living at their f farm a in Dauphin County. rm

His father father (I.M.R.'s

(IM.R.'s husband) passed away in 2018, and at some point after that, he had moved IM.R.

I.M.R. in with him at his home in in Huntingdon County.

I.M.R. had been living with him for between two and one-half and three .M.R. years. Petitioner and I.M.R. years. IM.R. met with Attorney O'Toole, and she signed the Alleged died. Id, Alleged POA, after Petitioner's father died. Id. at 6 67-68. 7-68

' I ,: n

I.M.R. had only recently been prescribed medication 30. Petitioner claimed that IM.R.

for Alzheimer's, which he then clarified as being being ""aacouple of years." He did not believe that her condition had deteriorated that far.

far He characterized

having "good

her as having days and bad days." He confirmed that she at times has "good days

trouble recognizing

recognizing people.

people. He described aagood day as I.M.R.

IM.R. having aa

conversation with him and telling him the the "years and dates of her sisterssisters —

she had 13 brothers and sisters." Id, Id. at 68-69. He described a "bad day" as

follows:

A: A: Bad day,

day. She has fits where she sees aanaked person ' outside the house.

house. Then you have to explain to her there's no naked people

people hanging outside your house and I she's okay.

okay. Might

Might argue with you some but she's okay.

Q: Would you acknowledge what was testified to earlier about her visions of people in the trees?

A: Yeah, that's— normally it happens with she gets aaurinary that's-normally

tract infection is when it it happens most of the time.

dI. at ld, 69.

at69

31. Per Petitioner, I.M.R.

I.M.R. had been hospitalized at the beginning of the year for about about aaweek,

week, and when

when she

she was

was discharged he

he tried

tried to

to get her

her into

into aa

nursing nursing home in Carlisle. That did not happen happen "because

"because we had something with the insurance where we were in the wrong county or something. I

don't know." dI.

Id, at 70. The hospital did set up someone to come to the home three times aaweek for skilled care.

care. He claimed that this continued for

many many months,

months, until

until mid- summer, and

mid-summer, and that

that he

he had

had brought

brought in

in Ms.

Ms. Parks

Parks to

to

supplement supplement the skilled care providers. Id. When the skilled care ended it providers. Id,

was only

only himself, his mechanic, and Ms. Parks who were providing providing care. He

confirmed that Ms. Parks came to the home three days aaweek, her primary duty was to bathe I.M.R., duty IM.R. and that he had her take care of IM.R.'s I.M.R.'s other

needs. needs. Petitioner was very very hands-off with respect to Ms. Parks's care for I.M.R. "She

"She was never given aaschedule. She was told to come out there three times aaweek,

week, make sure mom got

got aabath and if there was anything

19

19

I

20

else that mom needed, let her do it.

it. I

I mean, that's what IIwas paying her for." at 72. for." Id. at 72 32. Petitioner's description of the daily routine was that I.M.R. would get up on her own, give give herself aasponge bath, and then come out to the table for

breakfast. He would make her something to eat and giver her her medications. medications. If she'd been incontinent of herself overnight, he would clean her up.

up. She would typically

typically spend the rest of the day napping and playing with the dogs or her cat. She had previously spent a alot of time watching

television, but that had tapered off. She did not know how to turn the Id. at 72.73

television on herself. Id, 72-73.

33. Petitioner claimed that I.M.R. was rarely left alone in the house.

house. Either he

or his mechanic would be in the house with her.

her, But there were times that he had to go pick up aacar or car parts and I.M.R.

IM.R. had been left on her own own.

days he would have Ms.

One those days Ms. Parks come twice or have aafriend check in in on her. Jd.

Id. at 73-74.

34. Petitioner also claimed that he often took I.M.R.

IM.R. on errands and trips with him him to to buy

buy car parts.

parts. He

He also would take

take her

her out to

to get her hair

hair done or her

her

nails done.

done. Id,

Id. at 73--74.

73-74.

35. Petitioner's description of Petitioner's description of the the events

events of

of September

September 6,

6th, when

when I.M.R.

IM.R. walked

walked

away and was picked up away up by by PSP, was as follows:

A: She was mad at me because she wanted to go to New York. York

Q: What's in New York? A: That's

That's where

where our our family

family isis from.

from. MomMom likes to

likes to

gamble, gamble, so we go go up there to this place way up north. IIgot

got to think what the hell it is. is, It's a a reservation

casino thing up there she goes to. She'll spend eight hours sitting at a atable. IIactually have to tell the lady at the table to shut it down so she'll eat but she likes to gambling. So we to do the gambling. just had one of her we just her brothers brothers

or sisters passed away, so she wanted to go up north, so I· we went up up north but before I I could do that she got mad because I I told her

her IIcouldn't do itit that day. She that day. got—

She gotclimbed

a a little fence. Started walking down the road.

n

I

I ' ii Q: What little fence is that? Inside the house?

A: A: We got afence so we can let the dogs out and they don't got afence

run off. So you

you can't come in the house that way. There's a fence like two foot, three foot high. a high Q: Okay.

Okay.

A: A: So mom crawled over the fence, decided to walk down the road. When she walked down the road, somebody picked picked her up.

up. We only live on James Creek Road. We see maybe

maybe five cars aaday down there there.

Q: Were you home at the time?

A: A: No.

No. I was getting groceries. Bill [Petitioner's mechanic]

Iwas

was home. Bill's the one that called me, said Bill, your mom walked off,off. Well, you know what happened. She walked down the road, somebody picked her up and dropped her off at the State Police. I dropped I call the State Police, Police,

alerted them before she even got there. She wasn't even there there when

when II called them. While II was talking to him, she walked into the police station. Well, I I was in in Altoona. I I

called Bonnie

Bonnie [Parks].

[Parks]. Bonnie went and picked her up brought her

and brought her back home. Then back home, Then the next next day that lady

lady

[pointing at Ms. Hughes] showed up [pointing up.

Id. at75-76. Id, at 75-76. 36. Much of Petitioner's testimony regarding his interactions with Ms. Hughes and the Agency

Agency focused on what he alleged were illegal or impermissible actions by

by them

them (matters

(matters which the Court ruled were not relevant to the question of the emergency question emergency guardianship). It did confirm, however, that he took posture with took an adversarial posture with the Agency from the Agency from the

the very start.

very start

Q: And do you

you recall at that time whether Ms.

Ms. Hughes asked

you to take a

a look around the house or to meet with your mom? mom?

A: A: No, The conversation went pretty much like No. hike this.

this. She

come up on the porch. She said she'd like to talk to come up on the porch. She said she'd like to talk to mom.

mom.

I

I went and got

got mom, put

put her on the porch and she had aa conversation, two minute conversation, with my mom and turned around and told me my mom needs to be in a a nursing nursing home. Then I I asked her, II said, who are you to tell me in aatwo minute conversation with my mother she belongs belongs in aanursing home? What qualifications do you ,,'

l I II have? In fact, I

I said to her where's your identification because she by law-

THE COURT THE COURT: Let's move on. I'm not concerned with that.

Id. at 77; see also generally id. at 77-78.

77-78

37. Petitioner claimed that he had no further interaction with the Agency until they they showed up

up with the State Police on December 6th 6 to take custody of

I.M.R. Id. at 78. He addressed the financial issues in aasuperficial manner; I.M.R. Id,

0:Q• There's been some allegations about misappropriation of mom's funds. Is there anything that we[sic] to have to say about that here today?

A: A: There's no misappropriation of mom's funds. Whenever mom or dad died, they were renting the farm out to $13,000. $13,000. When I I rented the farm out, she made made $$25,000.

25,000.

I

l put

put that in a

a trust fund and that goes into her money or into our bank account along with both of our social securities goes into the same bank account. We have the same bank account.

Id. at 79. Id, 38. As far as his income, Petitioner claimed that he was retired or 38.As or ""semisemi -

retired," due to having

having suffered some unspecified injury in 1991. He last worked in 2012. Id,

Id. at 68. He also claimed to be an expert in in in-home care

and the investigation of elder abuse.

Q: Mr.

Mr Cardwell, prior

prior to your retirement and/or disability, do you have any work history in the field of in-home care?

A: Absolutely. Q: What is that?

A: Iused to be acontractor Fused acontractor for the Office of Aging.

Aging. I

I covered

eight counties.

Q: Q; When you say aacontractor, what do you mean?

A: We did in-home care. IIhad aahundred girls working for Il me, so I'm l'm very

very much aware of what's going on here.

Q• How long

long did you

you work in that capacity?

I

l I ::

ii A: Six years I

I think it was.

was. In those six years I I had two

counties investigated and basically the Federal government came in and shut them down.

Id. at 80 Id, 80.

39. 39, When Petitioner was asked by his own counsel about how I.M.R.

I.M.R. was doing

since having been placed in a a nursing home

home (he

(he had visited her the previous day), day), he had trouble focusing on his mother's overall condition, and focused instead on supposed shortcomings with both what the Agency had done and the quality of the home they selected. Id, Id. at 80-82.

Q: Q• Has she-do

she— do you know whether or not she's taking her medications or is receiving any kind of medical treatment that she may need?

A: Well, I— when I

I-when I got to the nursing home— on the way to home--on

the nursing come I I call the other Area of Aging and asked them the story on the nursing home. They told me they have Covid[sic] in the nursing home and they told me it was aathe worst nursing in in the county. They told me it had aa one star rating and they're seriously understaffed.

understaffed

Iasked lady[sic] at the nursing home or the Area of Aging asked would you put your mom there. She said absolutely not.

I.I Q: Q Has your— how is your mom's condition?

las your-how When's the last time you saw your mom?

A: Yesterday.

Yesterday

Q: How is her condition? A: Good.

Q: Q• Did she have any kind of, you know, infections or any kind of conditions? In good condition or no?

A: A. When I I finally got to see my mom aaweek later, her nose looked like it was falling off her face.

face. So I I got the

administrator and IIasked them, what's this thing on her face and they

they told me it was aastaph infection.

infection. She didn't

have aastaph infection when she left me but sure got one now. So—

So-

Id. at 81-82 Id, 81-82.

I ,. n l

24

40. Cross-examination of Petitioner 40.Cross-examination by the Agency's Petitioner by Agency's counsel revealed revealed more

more

bizarre claims and information that was much more concerning than what

came out in direct examination. a.a. Petitioner claimed to be unaware that IM.R's I.M.R.'s physician, Dr. Sellers, had

diagnosed I.M.R. diagnosed IM.R. with dementia in 2014 and had prescribed medication for the condition at that time. (This (This despite supposedly having been to every I.M.R.'s medical appointments every one of LM.R.'s appointments since he began taking care of her in 2012.) Id,

in 2012.) Id. at

at 84-85.

b. He could not provide provide aafull name for IM.R.'s I.M.R.'s sister, as he only knew her

as as "Aunt Suzy." He could not provide her address despite having been to her house "a her house "a hundred times."

times." ""Don't

Don't ask me where

where she

she lives.

lives. IIcan only

drive there." [d,

Id. at 83-84.

83--84

c. He did not dispute Ms. Parks's description of the interior of his home.

cleaning freak." Id. at 86.

He did, however, claim that she was a ""cleaning He (unintentionally) d. He [unintentionally) confirmed that I.M.R.'s LM.R.'s cat could be used as aa source of leverage over her.

her,

I'

Q

Q: When your

your mom expressed

expressed some concern-strike concern— strike that.

your mom

Was your mom worried

worried about

about what

what was

was going to

to happen

to her cat if she went to a a nursing home?

A: My

My mom's always worried about what happens to that cat. Everyday

Everyday she wakes up IIget a a story about

this cat.

Q: Did you tell

Did you tell her,

her, quote, you should have fucking thought quote, you thought you

about that before you took off down the road and to the State Police? State Police?

A: No.

No

Q: You never said that? A: No.

Id. (emphasis added)

added).

e. He admitted that his claim that the infection on I.M.R.'s IM.R.'s nose was staph

was false. He also

also (again,

(again, unintentionally)

unintentionally) confirmed that his focus was I.M.R., and not

on control of LM.R., not what was best her.

best for her

Q; Q• The staph infection that you indicated your mom has on nose.

her nose

A: Yes.

Q: Q: Isn't it true that the doctor there said it was cellulitis?

Isn'tit

A: They

They told me it

it was a

a staph infection. I I have not heard the terminology

terminology cellulitis until yesterday.

Q: Who did you

you hear it from yesterday yesterday?

A: The nurse.

Te

Q: Q: At the nursing

nursing home?

A: A: At the nursing home.

home

Q: So yesterday you were told it was cellulitis?

A: Yes.

Q: But today you're testifying it was aastaph infection?

A: That's what I

I was told.

Q: Q By whom? A: The coordinator up at the nursing home. When I I got to the nursing

nursing home, the first thing I thing I did was went to the coordinator and he got the director of nursing and I I handed them the power of attorney that I I had which basically states everything my mom wants done. I I told them Huntingdon doesn'doesn'ttrecognize this power of attorney but everybody in the country does. I I said if IIwas you, I

I would get

get my

my mom evaluated because you just told me that this happened outside of your area.

Id. at 90 ld, 90 (emphasis

(emphasis added).

f.f, Petitioner confirmed that the copy of the Alleged POA that he had

provided provided to his attorney and that had been filed with the Court, the same document he had represented represented to the Agency as giving him I.M.R.'s person and property, had not been absolute authority over IM.R.'s ,,'

effective. Id

executed by him as required for it to be effective. Id. at 90-91. The

Court left open the possibility possibility of Petitioner locating an executed copy.

Id. Id.

,I 41. With respect 41.With respect to the misappropriation misappropriation issue, Petitioner initially refused to I any specifics discuss any specifics regarding finances without having bank records with

him, claiming

claiming that he could not remember the details. For example, he ,, initially claimed he didn't recall that I.M.R. received received $$250,000

250,000 from aalife

insurance policy

policy after her husband died in 2018.

2018. [Id,

Id. at 92.

92. He then said

that he was

was ""aware

aware of it." Id. His testimony was similar regarding it." Id, regarding $$250,000 250,000

that that I.M.R.

IM.R. had

had received

received from

from the

the sale

sale of

of aaproperty.

property. He

He then

then went on to

went on to

testify testify that he did not know how the money had been spent or where it was.

was

He also

also (inadvertently)

[inadvertently) testified once again to the degree of control he had over I.M.R.

LM.R.

Q: Q: Well,

Well, you do know or you

you doknow you don't know.

know. As your [sic] power As your[sic]

of attorney

attorney I

I would assume you would be on top of those things.

A: asking me. She's got it. If she got it, it's probably You're asking in the bank account and II probably either tools took it out for

something something or did something with it but she okayed everything that I've done. everything

Q: Q: So it's still somewhere?

A: A: Probably.

Probably

Q: Q: Are you handling her finances?

A: Ipaid her bills.

Q: Q: You don't know where her money is?

A: A: Ipay

pay her taxes. I I pay the bills and it comes out of my They [I.M.R.

account and her account. They [IM.R. and her husband] had separate

separate accounts when they were married of when dad died. When all that took place, there was 60-some 60- some

thousand dollars missing

missing out of one of dad's accounts. It is what it is.

is, I

I didn't have control over dad's accounts either.

,, THE THE COURT: When did your dad pass away?

THE WITNESS: was-]I want to say it's in the ]I think it was— September September range 2018. He died at the range of 2018

house.

'I THE COURT: Was

Was that before or after after the

the power

power of

attorney?

THE WITNESS: After— no, I'm After -no, I'm sorry. No, No. Yeah, it was after because before dad died I I tried to get her to do aa power of attorney on dad and I I don't think she did.

did . I

I don't think she did

but at some point we had mom's name put on everything and at some point dad tried to get her to sign off on it and I I told her no.

And then when dad died, she ended up with everything everything and then she told the attorneys that she wants to give me everything now while she's still alive.

THE COURT: When was that?

THE WITNESS: Back in 2018. That's when IIput everything in a trust fund so that we a we— the income coming in -the in

from the house shows up as income and that's what's on the taxes every single year.

year

Id. at 93-94 93-94 (emphasis

(emphasis added).

42. Petitioner further revealed that his recordkeeping with regard to his joint

account with I.M.R. was woefully inadequate, and that he considered all of her assets to be his, his.

Q: 0: So right now she gets her Social Security?

A: Yes.

0: Q: And

And $$25,000

25,000 aayear, is that right?

A: A Yes.

Q: She get any other income?

A: No.

Q: Q• And her money

money goes

goes into a

a joint bank account with yo, you,

is that

that right?

A: A Yes.

Q

Q• It would be safe to say that the balance of you account at least in October would have been aa couple thousand bucks?

I A: I l have no idea what my

my balance its. I'm 60 years old and I I've I've never reconciled aachecking account since then then.

I Q:

Q Would you

you know if it

it was a

a couple thousand versus aa ,I million?

A: Probably

Probably because I I get notifications that I I got more than

aathousand in my bank account. I I don't keep money in the bank. II pull money in and out of banks all the time time.

Q: Q: Do you keep your mom's money in the bank?

A: I

I pull money out all the time. Our money— it's our money-it's

money. It is not my mom's money. If mom needs something, something, IIbuy my mom whatever she needs. My mom's not wanting for anything.

anything.""

95-96 (emphasis

Id. at 95-96 (emphasis added).

43. Petitioner 43. Petitioner confirmed that there were ten ten dogs in the home. Id. at 96 home. Id, 96.

44. Petitioner confirmed that he contacted Attorney O'Toole for help with 44.

getting I.M.R.

IM.R. out of the Agency's custody as soon as she was removed from his home, specifically

specifically focusing on the Alleged POAS POA. 5 Id,

Id. at 98

98.

45. At the close of the hearing the Court denied the petitions to remove the Agency I.M.R.'s person Agency as guardian of IM.R.'s person and estate and to reconsider the appointment of the appointment Agency as emergency the Agency emergency guardian, guardian. The Court also stated

on the record its limited reasons for denying the petitions, and that it

believed I.M.R.'s

IM.R's dementia and need for care were sufficient to support the guardianship.

emergency guardianship

THE COURT: I l appreciate

appreciate the argument.

argument. However, under

the circumstances based on the testimony that IIheard I I think there's more than enough to deny the emergency petition to to remove the the

current guardian.

guardian. II believe that Ms.

Ms. Roush is

at risk

risk based

based on the

the testimony.

testimony. II believe

believe she

has been at risk. Again, Again, IIwould imagine that the testimony will be developed further but IIdon't think there's any any question

question that she has dementia.

dementia. She's in a

a

SThe Court notes that it did not allow further questioning or testimony on this issue given the possibility of Te privileged being revealed. privileged information being revealed, The fact that Petitioner did contact Attorney"Toole Attorney O'Toole is relevant, however, to question of to the question of whether whether he

he should have been

been permitted to represent permitted to I.M.R.

represent IM.R

I

l I dementia dementia unitunit now

now which

which I think

think is

►1 appropriate based on the testimony. It sounds as if she needs round the clock care. There's no evidence that round the clock care has been been provided

provided under

under the circumstances.**** the circumstances.

Id. at Id, 102-103.

at 102-103

46. The Court further ordered Petitioner to provided fully executed trust 46,

documents within ten days. Id, Id. at 103.

47. Following

Following the First Hearing, aafull hearing on the Guardianship Petition was scheduled for February 1, 2022.

48. 48. On January 13,

0n January 13, 2022, Attorney Attorney O'Toole filed an emergency petition petition for

for leave

leave

to serve as legal I.M.R. That petition was incomplete, as it legal counsel for IM.R. it did

not include an engagement engagement letter as required by Pa.R.0.C.P.

Pa.R.O.C.P. 14.4(b).

14.4(b). The

following following day, the Court entered an order directing Attorney O'Toole to file acopy of the engagement acopy engagement letter as aaconfidential document and giving the

other parties

parties until January

January 21, 2022, to file any written responses to

Attorney O'Toole's petition. After review of the then-existing Attorney O"Toole's then- existing record, the

petition, petition, and the response response filed by Attorney Ghaner, the Court denied Attorney O'Toole's petition on January 24, 2022.

49. The second hearing 49, hearing in this matter matter (the

(the ""Second

Second Hearing") occurred as

scheduled on February 1, 2022.

50, 50. The Agency

Agency presented the testimony of Dr. Brandon Michael Roscoe, Dr. Dr. Amy

Amy Sellers, Brittany

Brittany Bacher,

Bacher, and

and Carissa Beish.

51. Dr. Roscoe 51.Dr Roscoe is aaprimary primary care physician

physician who specializes in geriatrics. He is is

an attending physician at Mountain attending physician Mountain6 Laurel Laurel Healthcare and Rehabilitation Rehabilitation

facility at

Center in Clearfield, PA, the facility at which I.M.R. was which IM.R. was placed

placed after being

being

removed from Petitioner's home.

home. N.T.,

N.T., Second Hearing, at 6-7 6-7. He

examined I.M.R.

IM.R. in that capacity upon her admission to the f facility, cility, a and

reviewed her medical records from before that time and those generated by I.M.R.'s L.M.R.'s treatment

treatment by

by other staff at the Id. at 7, the facility after admission. Id, 9-10.

7, 9-10

I!: -,.-,-,-, , --"-"-,-,-,-,-m-

" ,-.- , --.,-. .,r�rs to , "-,-0-,

The hearing transcript continually refers to ""Mount t..urel, • but Mount Laurel," but ""Moun!•1n Mountain Laurel"is

Laurel" is correct

correct.

.,

6

I

29

II

He He concurred with Dr. Id. at Dr. Seller's diagnosis of vascular dementia. Id, at 7. In In

his opinion, opinion, it "completely " completely impairs her ability to function independently,"

rendering rendering her in need of round-the-clock skilled care. Id, Id. at 8. When asked

specific activities he about specific opined that he opined that she would

would not

not be

be able to negotiate

negotiate

contracts, handle her own checkbook, administer he own medicines, cook cools

her own meals, or regularly regularly use the bathroom on her own. Id,at Id.at 8, 10--11,

10-11.

On cross-examination by by Petitioner's counsel, Dr. Roscoe specifically referenced I.M.R.'s LM.R'S BIMS score. BIMS is aaneurologic BRIMS score, neurologic assessment tool used by by the nursing nursing facility,

facility, scored 0-15; 13-15 is normal, 8-12 is moderate cognitive impairment, and anything less than 7 cognitive 7 is severe cognitive impairment. impairment, I.M.R.'s LM.R's score was 6. Dr. Roscoe characterized this as as ""aa

profound Id. at 11. He further testified that the prognosis for profound deficit." Id, I.M.R.'s vascular dementia is poor, with the condition expected to be I.M.R's progressive progressive and worsening. Id, Id. at •

9.

52. Dr. Sellers is aaphysician in private practice in Harrisburg, PA, specializing family medicine. She began in family began treating treating I.M.R.

IM.R. in 2014 and continued as I.M.R.'s primary I.M.R's primary care physician physician until she was placed in the Mountain Laurel facility. Dr. Sellers first saw I.M.R. for facility. for ""difficulty difficulty with her memory" after aa

fall. Id. at 14-15. Dr. Sellers first prescribed medication to treat her "memory difficulties" in December 2014, and, with, some changes in medication, she has been treated with medication for cognitive issues ever

since that time. Id, Id. at 15, 20--21.

20-21. Although Dr. Sellers prescribed

I.M.R. in 2014, she did not diagnose her with vascular medication for IM.R. dementia at time;

time; "The

"The official diagnosis was made aabit later but it was mild cognitive impairment impairment at that point

point that we were using the [medication] [medication] to treat." Id. at 20, treat" Id, 20. Dr. Sellers confirmed that she personally

prepared prepared the form M-851 Physician's Statement Regarding Patient's Medical Condition and Medical Condition and Capacity Capacity that

that was attached to

was attached to the Emergency the Emergency

Petition. d.

Id. at 27-28.

27-28. She confirmed that I.M.R.

I.M.R. needs round-the-clock nursing nursing care, cannot live independently, and can only complete basic tasks such as getting food and going to the bathroom with assistance. Id, Id. at 15-

,", l I n 16, 23-24. On cross-examination by 16,23-24. by Petitioner's counsel, Dr. Sellers characterized I.M.R.'s

LM.R.'s impairment

impairment as being milder than opined by Dr. Roscoe, repeating

repeating her

her "mild to moderate" characterization from the Id. at 23, 27. Dr. Sellers also noted, however, that in addition form M-851. Id, to her baseline dementia, I.M.R.

IM.R. had suffered several instances in which "things flared" and she suffered "things suffered ""acute acute mental status changes." This was

attributed to urinary

urinary tract infections and instances of T[As TIAs or

or "minimini

-

Id. at 29. The TIAs contributed to her vascular dementia.

strokes." Id, dementia. Id, Id.

Upon Upon further questioning, Dr. Sellers noted that the acute mental status changes had led to multiple emergency room visits for IM.R., changes I.M.R., and had been

occurring ""frequently." occurring frequently." Id, Id. at 30. She agreed with Dr. Roscoe that L.M.R's I.M.R.'s

prognosis is poor and progressive. Id, prognosis Id. at 16.

16

53. With specific respect to her knowledge of Petitioner and his relationship with I.M.R., Dr. Sellers first met him in 2017, when he began taking I.M.R.

IM.R., Dr IM.R. to her medical appointments. Id, Id. at 22. She characterized I.M.R.

IM.R. as always

being dressed appropriately and not appearing malnourished or neglected. Id. at 22-23. She noted that she had had discussions with I.M.R. Id IM.R. and Petitioner sometime after I.M.R.'s IL.M.R's husband died about the fact that I.M.R.

IM.R.

could no longer

longer live alone, after which I.M.R.

IM.R. moved in with Petitioner. Id, Id.

at 16.

16, She had also

also discussed with Petitioner Petitioner more

more recently

recently that I.M.R.

I.M.R. was

was

Id. at 17-18. Notably, at aavisit in now in need of round-the-clock care. Id April 20187 April 2018 7 Petitioner asked Dr. Sellers about becoming a apower- ofpower

-ofattorney

for I.M.R.

LM.R. Id. at 18, 22.

54. Brittany 54. Brittany Bacher is the Director of the Alzheimer's Unit at Mountain Laurel.

I.M.R. L.M.R. was housed in that unit. Id, Id. at 46. Ms. Bacher's testimony only briefly

addressed I.M.R.,

IM.R. whom she characterized as having taken some time to adjust to the transition before showing improvement, improvement, but generally doing I adjust Id. at 47. The focus of Ms. Bacher's testimony was on Petitioner's well. Id,

' behavior

behavior at visits and

and his

his actions afterward. Petitioner's Petitioner's harassment

harassment and

I

7 Dr. Sellers first testified that this occurred in April 2019, but then consistently referred to it as occurring in 'Dre April April 2018 inin all later testimony, See later testimony. See id. at 18, 19,22.

id. 19, 22,

intimidation intimidation of Mountain

Mountain Laurel's

Laurel's staff matched that that he had

had committed

11

against the Agency. He had repeatedly photographed and videoed staff, continuing to do so after being being directed to stop.

stop, He was loud and disruptive during during visits, to the point that he upset other patients. He repeatedly threatened to sue Mountain Laurel and its staff. He subjected multiple staff members to questioning and caused aascene if any of them answered

others. He claimed that the Alleged POA trumped the differently than the others. orders of this Court. He told Ms. Bacher that he was placing pennies on the floor to see if the facility facility was being cleaned, and then the next day reported Mountain Laurel to the Department of Health. (The (The resulting investigation was returned

returned "unfounded.")

"unfounded.") Petitioner complained that he had taken the wedding ring off IM.R.'s

I.M.R.'s finger and no staff members had noticed.

noticed. Ms.

Bacher personally

personally witnessed Petitioner eating food off of IM.R's I.M.R.'s tray and

had to "redirect" him not to do so.

so, And she had witnessed him intimidating I.M.R., pressuring her to change her drink selection selection ("[H]e

("[HJe told her no. You

don't drink that.

that. You drink the other one.") Id, Id. at 48-50. These actions had

led the Agency to suspend Petitioner's visits with I.M.R. Id. at 48.

IM.R. Id

55. Carissa Beish is the Director of Nursing Services at Mountain Laurel. 55. Laurel. She was familiar with IM.R.

I.M.R. and, similar to Ms. Bacher, characterized I.M.R.

IM.R. as

having having adjusted to the transition and doing well. Id. at 57-58. Also as with well. Id,

Ms. Bacher, the focus of Ms. Beish's testimony was Petitioner's behavior at the facility.

facility

Q: Do you recall an event at your facility during which Mr. Cardwell was yelling in in Iva's room and Iva's lva's roommate pleaded

pleaded for the yelling and fighting to stop?

A: Yes.

Q: Q: Is

ls it fair to say

say that your facility isn't equipped your facility equipped to to handle

that kind of behavior by visitors?

A: A. Correct.

Correct

58.

Id. at 58

,, 32

32

,, 56. On cross-examination by Petitioner's counsel, Ms. 56.On Ms. Beish testified that she

had been made aware of Petitioner photographing staff, including while

staff was providing

providing care to IM.R.

I.M.R. in her room, and that Petitioner had made

and ""frequent"

"numerous" and frequent" complaints regarding the cleanliness of the

facility alleged noncompliance with €OVID-19 facility and alleged COVID-19 infection management

protocols. Id,

Id. at 59-63.

57. Petitioner presented

presented the testimony of Dr. William Kauffman.

Kauffman. Dr. Kauffman

practices in the hospice

hospice and nursing home setting, and was previously engaged in family practice. Id, engaged Id. at 35. He was originally presented to the

having been aatreating physician for IM.R.

Court as having I.M.R. He was accepted as aa

witness on that basis, and not as an expert. Id, Id. at 36. However, it soon

became apparent that I.M.R.

[.M.R. had never been aapatient of Dr. Kauffman Kauffman (he

(he

characterized it as

as "[n]ot officially aapatient"). Id, Id. at 36, 43.

43. Instead,

Dr. Kauffman knew Petitioner as both aapatient and aafriend. In fact, they

had known each other for 30 years.

years. Id,

Id. at 36, 44. Dr. Kauffman had been

contacted by Petitioner, given Petitioner's version of events, and was testifying testifying as aafavor to him. Id Id. at 44.8

44. 8 Dr. Kauffman had last seen I.M.R.

LM.R. in

March 2021 when she was hospitalized in Carlisle, and presumably had checked in on her as a

a favor to Petitioner. Id Id. at 37.

37 The primary thrust of

Dr. Kauffman's testimony was to dispute the severity of I.M.R.'s IM.R.'s cognitive

impairment impairment as characterized by Dr. Roscoe. Dr. Kauffman was skeptical of the BIMS score, which he alleged could vary day-by-day, and the fact that

Dr. Roscoe did not evaluate IM.R.

I.M.R. multiple times, because her level of

eSee id See id. (cross-examination by the Agency's counsel).

Agency's counsel)

Q

Q: ***And your attendance here today, is that as aafavor to Mr. Cardwell? Are yo And so, Doctor, your you being paid to be here today? ls being paid Is it it an accommodation? Can you help me do that?

I' A; Iam not being paid.

paid

Q; Okay, sorry

Okay sorry.

' Q A; A: No, that's okay, No,that's okay. So he and I talk—we I talk -we get together maybe four times aayear because we have a hobby a common, so we get together for dinner about four times a hobby in common, ayear and so when he told me what had happened and it it did not make aalot of sense to me, IIsaid IIwas happy to help help out if I

I could.

could

33

11 I,

34

it

cognitive impairment cognitive impairment could also vary vary day-to-day and would have been exacerbated by

by the move into the nursing home. Id, Id. at 39-40.

39-40. However, he

also confirmed that beyond beyond the BIMS score, he had no reason to disbelieve Dr. Roscoe's findings

findings regarding

regarding I.M.R.

IM.R. nor Dr. Roscoe's ultimate conclusion that she was incapacitated. Id. at 40-41.

incapacitated. [d,

58. 58. Due to time constraints, the Second Hearing was adjourned, with the remainder of the testimony to be presented on February 8, 2022. Id. at 67. 59. Two days 59.Two days after

after the

the Second

Second Hearing

Hearing (February 3, 2022)

(February 3, 2022) Petitioner Petitioner filed

filed aa

motion in limine seeking to have all medical and financial records obtained

by by the Agency

Agency excluded from evidence, evidence. The basis for the motion was that

the Records Petition had been wrongfully wrongfully granted ex parte, without notice to I.M.R. Petitioner. In essence, Petitioner was making a ""fruit IM.R. and Petitioner, fruit of the

poisonous poisonous tree" argument, argument, claiming that the alleged impropriety with respect to the information obtained via the Records Petition extended

across the entirety of the Agency's case, and significantly prejudiced both I.M.R. IM.R. and Petitioner.

Petitioner

60. The final hearing was held as scheduled on February 8, 2022 60, 2022 (the (the "Third

Hearing"). The Court began Hearing"). 'The began by by hearing argument from counsel for all of the parties parties regarding

regarding the motion in limine. N.T., Third Hearing, at 1-9. While the Court agreed

agreed with Petitioner's counsel that the Records Petition should

the Interest of

not have been granted ex parte, citing In the of M.B., MB, 686 A.2d 877

(Pa. CmnwIth. (Pa. Cmnwlth. 1996), it did not agree that significant prejudice had

occurred, nor that the proper resolution was to exclude all of the Agency's evidence. Rather, the Court denied the motion, citing the facts that: (i)

() even

without without the

the evidence obtained

obtained using

using the

the Records

Records Petition, the

the remaining

evidence in the possession possession of the Agency

Agency at the time the Emergency Petition was filed grant the emergency guardianship;

fled was sufficient to grant guardianship; (ii)

[ii] the

the

Agency Agency would have obtained all of the records at issue as aaresult of the emergency guardianship emergency guardianship (i.e., (ie., inevitable discovery); and and (iii)

(iii) Petitioner did

not have an interest in protecting the records, as that interest belonged to

I.M.R. L.M.R. N.T., Third Hearing, at 10-11 10-11.

61. Petitioner's Petitioner's counsel specifically specifically raised

raised the

the question of why

why Attorney

Attorney

Ghaner, as counsel for I.M.R., IM.R., had not joined in the motion in himine limine in order

to protect protect I.M.R.'s Id. at2.

LM.R's rights. Id at 2. Attorney Ghaner first noted his concern

that the motion in Aimine limine appeared to be an attempt by Petitioner to use

I.M.R.'s rights rights as aashield to protect himself. Attorney Ghaner then

explained his reasoning for not joining explained joining the motion in limine imine as follows:

Moreover, Your Honor, and factually specific to this, I I have met

with my client two times at length because of the controversial nature of this specific guardianship. I I spent an extended amount of time with her. And on neither of those occasions did she present she as somebody present as somebody whowho I I believe believe would

would have the

have the

capacity to understand the argument that is being made and capacity the records that

that were

were taken.

taken

So with that, I

I conducted some research and am led by Rule of Professional Conduct 1.14 1.14 which

which directs that

that aalawyer when

when

dealing dealing with a

a client of diminished capacity, shall, as far as reasonably possible, maintain aa normal client/lawyer relationship. relationship That rule goes on to state that if the lawyer reasonably believes that the client is of diminished capacity and at aasubstantial risk risk of physical,

physical, financial,

financial, or other harm, harm, then

then the

the lawyer

lawyer can

can

seek seek the

the appointment

appointment of aaguardian.

guardian

exactly why we are here. For the appointment of aa That is exactly guardian. guardian. There is emergency guardian is an emergency guardian in in place,

place, which

which I

I

believe is proper.

proper. And IIwill tell you whenever I'm called upon, that based on lengthy discussions with Iva, lva, that a

a guardian is

needed.

Id. at 8, 9. Id, 62. The Agency Agency presented

presented further testimony from Ms.

Ms. Burnell and Ms. Heaton Heaton.

63. Ms. Burnell's testimony was in follow-up to her original testimony 63.Ms.

regarding I.M.R. by Petitioner from the First regarding financial exploitation of IM.R. Hearing, Hearing, as she had been able to review review "many

"many hundreds of pages of bank I, documents" as well as other items in the intervening time and had prepared ' aafinal report. Id. at 14-16. Although Ms. Burnell did not provide aafinal report. Id,

number for the amount of misappropriated assets, she noted aanumber of transactions and occurrences that totaled hundreds of thousands of dollars,

36

and and which led her her to

to the

the conclusion that financial financial exploitation had been substantiated. Id. at 23. substantiated. 23. These included: a.a. The assets that were to have been transferred into the income-only income- only trust

for I.M.R.

IM.R. were not the properties properties actually transferred into it.

it. The

properties that had been transferred into it properties it were sold in January 202O, 2020,

with no indication of what happened to the proceeds. Although it it

appeared appeared that they

they had

had been

been placed

placed in the joint account the joint account between I.M.R.

between LM.R.

and Petitioner and at Members Petitioner at Members First First Bank,

Bank, there

there was,

was, at

at most, only $103,000

most, only $ 103,000

of those assets remaining. Id, Id. at 17.

b. Also with respect respect to the Members First account, in November 2018 of IM.R.'s

$180,000 0f I.M.R.'s money had been transferred into that account. By

March 2019 very little of those funds were left. The funds were spent in

aaway

way that both violated the Multiple Parties Account Act and that would penalize I.M.R. in terms of eligibility for medical assistance, including penalize IM.R.

$ 41,000 paid to vendors who were $81,000 that was withdrawn in cash, $41,000 not identified or who could not be identified in terms of the services they they provided, and

and $$18,000

18,000 paid to vendors dealing in automotive

repair repair and restoration, including painting Id. at 18.

painting and transportation. Id, Payments that were received from aaDarren M. c. Payments M. Weaver/Weaver Weaver/Weaver Family

Farm, which appeared to be ground rent paid for the use of property

owned by I.M.R.

IM.R. and payment for property of I.M.R.

IM.R. that was sold to

Mr. Weaver, had been made via check payable to Petitioner and

deposited in deposited in the joint account, rather the joint rather than than the trust.

trust. The ground

ground rent

rent

payment payment was for $24,800

$ 24,800 and the other check, the purpose of which

1'

could not be definitively definitively identified, was for $363,700, $ 363,700. Id,

Id. at 20-21.

d. Because Because the

the property

property that had been held held in

in the

the trust was sold to

I Mr. Weaver for $250,000, $ 250,000, the $ 363,700 check raised the possibility that the $363,700

Petitioner had arranged

arranged some sort of installment sale of the farm still

,. owned by by I.M.R.

IM.R. to Mr. Weaver. That farm had aavalue of approximately Mr Weaver,

I $800,000, and was the only significant asset I.M.R.

IM.R. had remaining. Id. at ,I 21-22.

21-22

I

37

64. In addition to the bank and land records, Ms. 64. Ms. Burnell had reviewed the

Alleged Alleged POA and the trust document for the Iva lva M. Roush Income-Only

Income- Only

Trust. The Alleged Alleged POA included

included aaprovision that I.M.R.

IM.R. has

has an interest in

receiving medical assistance; the trust document includes aasimilar

provision. provision. These provisions provisions both authorized the holder of the property or power power to undertake actions that would hasten or facilitate such eligibility for I.M.R.

IM.R. However, even if the transactions undertaken by Petitioner were claimed to be a ""spend spend down" of assets so as to hasten such eligibility, none

of them had that effect.

effect. In fact, they had just the opposite effect, potentially

rendering rendering I.M.R. ineligible for up to five years into the future. Id, Id. at 16-17,

18,19-20. 18,19-20 65. On cross-examination by IM.R's I.M.R.'s counsel, Ms. Burnell confirmed that the

copy of the Alleged copy Alleged POA she had received had not been signed by Petitioner.

She also confirmed that it contained language requiring Petitioner to act in

I.M.R.'s best interests. Id, L.M.R.'s Id. at 40-42 40-42.

66. Ms. 66. Ms. Heaton's testimony testimony was limited to the issues regarding Petitioner's visits to I.M.R.

I.M.R. at the Mountain Laurel facility that had been raised at the

Hearing, and specifically Second Hearing, specifically with respect to the Agency's suspension of Petitioner's visiting privileges. a. Not long long after IM.R.

I.M.R. was removed from Petitioner's home he contacted

Ms. Heaton asking her where I.M.R. was and requesting to visit IM.R. Ms. I.M.R.

Ms. agreed to Ms. Heaton agreed to provide provide this

this information and allow visits visits so long

as Petitioner agreed

agreed to comply with rules established by the Agency for

visitation. visitation, Those rules

rules were

were laid

laid out in an email Ms.

Ms. Heaton

Heaton sent

Petitioner Petitioner on December

December 10, 2021. The rules rules included

included that

that Petitioner

Petitioner

would follow the rules and protocols protocols of the facility regarding regarding COVID-19;

that he understood that he was not to remove or attempt to remove

I.M.R. L.M.R. from the facility; that he would not not ""engage

engage in contentious

staff; and that he would

behavior with facility staff"; would "not "not speak with

Mrs. Roush in an intimidating tone or upset Mrs. Roush in any way

I. during the during the visit." Id. at 45-46.

visit." Id 45-46. After After some back

back and forth regarding

regarding

visiting visiting hours, Petitioner agreed to the rules via email on December 13th.

13,

Id. at 46. Id,

b. Problems with Petitioner's behavior at Mountain Laurel began almost immediately. immediately. On December 15th, 15t, the Agency received its first call from the facility regarding

regarding Petitioner's behavior there. Between December 15, 2021, and

and January

January 13, 2022,

2022, Ms. Heaton

Heaton received

received 11 separate

reports reports from the facility regarding Petitioner's behavior and actions actions.

The issue was significant enough that the Agency was in danger of losing

the placement

placement for I.M.R.,

IM.R., as the facility was prepared to discharge I.M:R.

IM.R.

if the behavior continued.

continued. As a

a result the Agency, both of its own I volition and on the request request of the facility, suspended Petitioner's visiting ,, privileges. Id, privileges. Id. at 47-48. Ms.

Ms. Heaton noted that before this action occurred, she had communicated with Petitioner's counsel regarding the issue, but that no change in in Petitioner's behavior and actions

dI. at 48.

resulted. Id,

c. Ms. Heaton further testified that in her roughly 30 years of working for the Agency,

Agency, she could only recall suspending visits for family members in two or three cases. She concurred that it was a "pretty severe action" to get to that point. Id, Id. at 48-49.

48--49.

67. Cross-examination of Ms. Burnell and Ms. Heaton by Petitioner's counsel 67,Cross-examination

mirrored what occurred at the First Hearing. Ms. Burnell was repeatedly questioned about the sufficiency of her methods and the information she questioned reviewed as well as her conclusions that the Alleged POA and trust

document did not permit Petitioner to make unfettered use of1.MR.'s of I.M.R.'s assets

for his own benefit. Id,

Id. at 24-38. Ms. Heaton was questioned regarding the

sufficiency sufficiency of the Agency's Agency's communications with Petitioner prior to the f removal of I.M.R., LM.R, the sufficiency

sufficiency of its actions with respect to suspending visits and not providing

providing alternatives such as video calls, the quality of the I Mountain Laurel facility, facility, and the timeliness of aanotification to Petitioner regarding regarding a "lump" that had been discovered on I.M.R.'s Id. at 59.

IM.R's armpit. Id,

I', Nothing raised on cross-examination weakened the Agency's evidence, and

I

ii at times it strengthened it (including [including with respect to the unreasonableness of Petitioner's demands and behavior).

behavior].

68. 68. Petitioner

Petitioner presented

presented the testimony

testimony of Terry Lynn

Lynn Lumbard-Monnat,

Lumbard-Monnat, Valerie

Valerie

Scott, and himself

himself.

69. Ms. Lumbard-Monnat is LM.R's 69,Ms. I.M.R.'s niece and Petitioner's first cousin, cousin. She lives

in New York state and has a a cottage in Black Lake, New York. Her testimony I.M.R.'s cognitive capacity, the relationship between IM.R.

focused on IM.R.'s I.M.R. and

Petitioner, and IM.R.'s

I.M.R.'s condition while in Petitioner's care. She had last

seen I.M.R. in September

September 2021 when they

they came to her cottage for aa weeklong weeklong visit. She characterized IM.R.

I.M.R. as having dementia but being able

to care for herself, dressing dressing herself and using using the bathroom unassisted. Id.

unassisted. Id,

at 61, 62-63. Per Ms.

61,62-63, Ms. Lumbard-Monnat, I.M.R.'s IM.R's mind is still sharp when it comes to playing games, and she and Ms. Lumbard-Monnat played games nightly. nightly, Ms. Lumbard-Monnat noted multiple times that I.M.R.

IM.R. likes to

gamble and go to the casino.

casino. Id,

Id. at 61, 63, 65. She also discussed the extent

to which I,M.R.

I.M.R. and Petitioner would gamble, gamble.

Q: You said that Iva

lva likes to gamble.

gamble. Was that always at the house or would you go to casinos?

A: We would frequent a a casino when we were together.

together,

We have been to The Turning Stone,Stone. We have been to Akwesasne. I I wouldn't stay as long because Iva and Bill like to gamble.

gamble. My aunt more so than him. She would sit there for hours and hours and hours. IIalso work for the federal government, government, so I I didn't spend money money the way

way they

they did. I

I would limit myself to maybe $500. They would $500. They would bring bring in

in thousands.

thousands.

Id. at 65 Id, 65 (emphasis added).

(emphasis added)

70. Ms. Lumbard-Monnat characterized the relationship between Petitioner 70,Ms.

I.M.R. as

and IM.R. as "very

"very good," and his care of her as as ""exceptional."

exceptional."

Ms. Lumbard-Monnat emphasized that I.M.R. Ms. I.M.R. always had her hair done, her nails done, had on nice clothes, and that Petitioner took tools her out to eat and

out shopping

shopping all the time. Id. at 64, 65. When questioned further about time. ld,

I.M.R.'s I.M.R's mental capacity, though, Ms.

Ms, Lumbard-Monnat noted that aalot of

39

II

I{ I.M.R.'s childhood and their conversations focused on past events, such as IM.R.'s family. Id, Id. at 61, 63.

Q: Q• How was her conversation? Could she hold aa conversation and understand what you were saying, make sense?

A: Her conversation is limited. My aunt likes to talk about her childhood upbringing. Bill and her her. We would talk

about going to the casino. Not aanormal conversation you would have about what is going going on, you know, in the world, no.

Id. at 63. 71. Valarie Scott is another of1.MR.'s 71.Valarie of I.M.R.'s nieces, first cousin to Petitioner, and also

lives in New York. Her testimony was largely irrelevant. The 'The relevant

portions, portions, though, though, mirrored Ms. Lumbard-Monnat's. Specifically, Ms.

Ms. Scott

lives jn in New York, had last seen I.M.R.

I.M.R. when she and Petitioner visited in in

September 2021, downplayed the degree of I.M.R.'s IM.R's cognitive impairment, believed that I.M.R.

IM.R. could largely take care of herself, and noted how close Petitioner and I.M.R.

IM.R. had always

always been. Id,

Id. at 68--69,

68-69, 70-72,75-76.

70-72, 75-76. She also

I.M.R.'s skill at card games noted IM.R.'s games.

Q: 0: Tell me aalittle bit about her demeanor, her well-being well-being?

A: She was fine. She doesn't change, change. I'm the one who calls her on aaregular basis. I I have always done that.

that She has

always been with us.us. She slowed down like anybody does at her age, but she is still able to walk around and join everybody, and she is aawhiz at cards. She is pretty sharp.

Id. at 71. Id, 72. After discussion with his counsel over the lunch break, Petitioner once again elected to testify. Id, Id. at 77--79.

77-79. Much of his testimony on direct

examination was aarepeat repeat of his testimony at the First Hearing, at times with more detail and at times with less, but with the same tone and

demeanor. He did make, however, yet more troubling admissions regarding I.M.R.'s

his handling of LM.R.'s finances.

a. Petitioner confirmed that he, I.M.R., IM.R., and his mechanic lived in the home at 3916 Tussey Lane in the James Creek area of Huntingdon County. However, he also claimed that they did not have aamailbox there as they

considered it

it a ""cabin,"

cabin," and not aaresidence. He maintained that I.M.R.'s L.M.R.'s

residence was at the farm in Dauphin County (4206 Dauphin County (4206 Roush Road), and he consistently gave aaFranklin County mailing address for himself, which he later admitted was nothing nothing more than aaUPS box. Id, Id. at 80, 85-

86, 129-130. He faulted the Agency for attempting to send notices to the the home in

in Huntingdon County, as

Huntingdon County, opposed to as opposed to the out- of- county the out-of-county

addresses. Id, addresses. Id. at 85.

b. Petitioner once again railed about the Agency, accusing it and its staff of wrongdoings. Id,

multiple wrongdoings. Id. at 84--91.

84-91.

c. Petitioner testified that he had done extensive work to his home since

I.M.R. had been removed to make it handicapped accessible for her, and that such work had been planned planned prior to the removal removal (this

[this was also

raised at the First Hearing).

Hearing). He believed this made his home an entirely appropriate and safe place for I.M.R. appropriate Id. at 92--95.

IM.R. Id, 92-95.

d. He made extensive allegations allegations of poor conditions and neglectful care at the Mountain Laurel facility. Id. at 95-102.

facility. Id, 95-102. Yet he also confirmed that

he began

began making

making complaints to the facility administrator right away, focused excessively on the cleanliness of the floors, and had been taking pictures in the facility. Id, Id. at 97, 99-100, 102-103. This testimony also

confirmed his absolute disregard for authority.

Q: Q• After you were told to leave the facility and that you were longer welcome back, did anybody reach out to you to no longer

I try try to arrange

arrange any

telephone

any other form of communication like telephone or video?

', A: No. That's when II told you to get aahold of somebody II because they they can't stop

stop me from seeing my mom. I I ' don't care who they are. 11 ld. l Id. at 103 103 (emphasis

(emphasis added).

"1''

I.M.R.'s only sources of income were rental e. Petitioner confirmed that IM.R's from the farm in the amount of of $25,000

$ 25,000 annually and Social Security

$ 1,375 monthly. Id. at 106. of $1,375

payments of

f. I.M.R.'s husband died in After LM.R.'s in 2018, her land assets included the core

farm ((128

family farm 128 acres in Dauphin County) and an unspecified number

of properties in the surrounding area. Petitioner testified that at that I.M.R. gave him all of the properties.

point IM.R. properties. Id, Id. at 107.

107, He then sold all of

properties other than the farm, because the farm was generating the properties income, and claimed that he had put the farm into the income- only trust income-only

I.M.R. He claimed that doing this allowed himself and I.M.R.

for LM.R. IM.R. to avoid paying $$375,000 paying 375,000 in

in taxes. Id,

Id. at 107-108.

g.g. Petitioner confirmed that Darren Weaver was the person who was leasing the farm and who had purchased all of the other properties. Id.

at 109.

h. Petitioner's testimony took aamarked turn when he addressed the funds

from the Members First Bank joint account.

Q: Q: From the—

the-IIbelieve it was just the Member's[sic] First bank account. What do you you have to say in response to any of that

that [Ms.

[Ms. Burrell's testimony] as far as any kind of explanation?

"' A: Well, there is no explanation to it.

it.All

All that money was

put in that account belonged to me.

me. My mom gave me

all of that.

that. That'

That'sswhy it's in there.

there, The only income

my mom has is $1357

$1357 in social security, and she has the $ 25 ,

000 coming in from the farm.

the $25,000

Q: If

[f there ever was a

a time mom needed long-term care and was unable to afford it—

it--

A: Never will my mom not afford anything. If she needs something, IIprovide for it.

Q: Q• Was there ever aatime that mom was hospitalized and couldn't pay a

a hospital bill?

A: A. No.

No

Q: Was there ever a a time that you didn't have enough money to pay for food or medicine or anything else?

42

"I' ,,

A: No. I

I have

have $40,000 in food at my house right now. I'm $40,000

a preparer. a preparer. I

I have got aa building buried underground underground full of food food..There is no way we're ever going going to be without anything.

L Id i. Id. at 110-111 110-111 (emphasis added).

(emphasis added)

j.j. Per Petitioner, when I.M.R.

IM.R. received the $ 250,000 check from her the $250,000

husband's life insurance policy, policy, she simply signed it over to him and gave him. Id. at 112. Petitioner testified that he put the funds into gave it to him. the joint bank account, put I.M.R.'s L.M.R.'s name on the property in Huntingdon County, and then used the funds to build aa50x80x16 shop building and automotive paint paint booth on the property. He also testified that he put an addition on the house that doubled its size, but then clarified that this L.M.R. had been removed. Id. at 113.

occurred after I.M.R.

k. Petitioner believed that the additions greatly improved the value of the property in Huntingdon County, and that it could be sold property sold (along [along with

other property property he owns) if he ever needed funds to pay for IM.R.'

I.M.R.'s

s long-

term care. Id, Id. at 114.

114

I.1. Petitioner closed his direct testimony with the following troubling admissions: admissions Q: Q: Anything

Anything in relation to mom's finances that we didn't cover here today that you want to make sure?

A: No.

No. Mom's finances are very simple,simple. It's It's $1357

$ 1357 and

$25,000 for farm rental,

rental. That's her finances. So when they they are confused about the money money coming in and

account,it's very simple, out of the account, simple .The money going into the account is mine. The money coming out of the $ 25,000 and

account is $25,000 and $$1357, 1357, which those are for her hair, to do her nails, doctor appointments. Whatever she needed is covered.

Q: Q• Is it true that mom liked Isit lilted to to gamble as well?

A: Oh absolutely. I take $ I would take 10,000 out of the bank, $10,000

and we would go to the casinos. That's why there is cash withdrawals all over the place.

place

Id. at 117 117 (emphasis added).

(emphasis added].

73. On cross-examination by the Agency's counsel, Petitioner exhibited aa 73.0n significant degree of confusion regarding what property was in in the trust for

I.M.R., swearing

swearing that he thought the farm was in it, but also claiming he had not transferred title to it. Id, Id. at 119, 120.

120. He claimed that he was given no explanation as to how the Alleged Alleged POA was supposed to work, and could not recall if he had ever signed it as I.M.R.'s IM.R's agent. Petitioner went so far as to attempt

attempt to have his counsel answer whether there existed aasigned copy of the Alleged

Alleged POA. Id,

Id. at 120-122. He was unaware of any of the

requirements requirements for exercising aafinancial power of attorney, such as keeping

l separate accounts separate accounts for his own and I.M.R.'s property, and IM.R's property, keeping keeping records

records of all

transactions, and fiduciary duties generally. Id, Id. at 122-123

122-123.

74. Petitioner confirmed that the $$360,000 74. 360,000 deposited from Mr. Weaver was a

a

loan to him, stating

stating ""IIborrow money off of Weaver any time IIwant to." He

claimed that there was no full agreement for Mr Mr. Weaver to buy the farm,

but that there was an option to buy in in the lease agreement and and "Weaver

"Weaver will

probably probably end up

up with the farm because he bought bought all the rest of it." Id, Id. at

126-127. Petitioner further confirmed that he believed the farm was in the 126-127, trust, even though

though it was still held in the name of I.M.R.

IM.R. and her deceased

husband. Id,

Id. at 128.

75. Cross-examination by I.M.R.'s 75.Cross-examination LM.R.'s counsel largely affirmed the testimony Petitioner provided the Agency's counsel. He once again confirmed that he

did not have aacopy of the Alleged POA that he had signed, this time claiming that he would have to call Attorney O"Toole. claiming O'Toole. Id, Id. at 131-133. He

further claimed that he had done everything according to her wishes or in her best interest before providing the following testimony regarding the

improvements to the Huntingdon County property.

Q: Q: You testified that you built a a 50 by 80 by 16 building?

A: A. Yes.

Yes

Q: On the property? A: Yes.

Q: It has aapaint

Ithas paint booth in

in the back?

A: Yes.

Yes

Q: Q: paint booth is for refurbishing cars, for painting That paint cars?

A: A. Yes.

Q: Does your mom paint cars? A: My mom? No. Q: But you have used money from her to build that building?

i' A: No.

No. I used my money that my mom gave me to build the ]used

build the garage and put the big addition on the house. That's when II put my mom on the property Q: Q: How was that building building benefitting your mom?

A: It doesn't have to benefit mom,mom. Everything in that building building is sellable stuff, stuff. If mom needs any kind of care, that is how I I make money. That's how—set how--set up

for me to make money. It has nothing to do with my mom. Other than mom lives there. IIasked mom what were we gonna

gonna do.

do. She said you have got the money; use it. And that's what II did.

Id. at 133-134 Id, 133-134 (emphasis

(emphasis added).

76. On re- 76.0n direct, Petitioner alleged that he had re-direct, had $ 250,000 worth of cars in the $250,000

building building that could be sold sold "within two weeks" to raise money to fund care for I.M.R. Id. at 134.

LM.R. Id 134

77. Finally, follow-up questions from the Court revealed that Petitioner had not 77Finally,

filed aafederal income tax return since at least 2015 2015 ("

("IIdon't file a

a tax return

l because I'm disabled.

disabled. I

I stopped doing that."),

that.") had not notified the IRS that ,1 he had received significant funds from I.M.R., and likely had not even

accounted for income from the sale of IM.R's I.M.R.'s properties appropriately for

tax Id. at 137-138. tax purposes. Id, 78. 78. The Court ordered that transcripts be prepared of all of the hearings, and allowed the parties

parties 30 days

days after the filing of the transcript for the Third

Hearing Hearing to file proposed

proposed findings of fact and conclusions of law. The ,1' u I

46

transcript transcript was filed on February 28, 2022, meaning the parties had until March 30, 2022, to make their filings.

filings.

79. On March 30, 2022, the Agency filed an emergency petition for relief, 79,0n

seeking to set aside and vacate an alleged transfer by Petitioner of the farm seeking

.", from I.M.R.

IM.R. to the trust. The transfer was evidenced by aadeed executed by Petitioner on March 16, 2022, allegedly acting as power of attorney for

I.M.R., and recorded in the Dauphin County land records on March 18, 2022.

20Z2.

80. A

A hearing

hearing was

was held

held on the

the emergency

emergency petition

petition on April 2022 (the April 7, 2022 (the ""Fourth Fourth

Hearing"). Hearing"). The Agency

Agency presented the testimony of Ms. Hughes, Hughes, and

Petitioner presented the Petitioner presented the testimony testimony of

of himself.

himself

81. Per Ms. Hughes, the Agency learned of the transfer from the Huntingdon County County Assistance Office, which was evaluating evaluating I.M.R.'s

IM.R.'s eligibility

eligibility for

medical assistance. As of the date just prior to the transfer, I.M.R.

IM.R. had aa

of $748.269.60,

"penalty" of $ 748.269.60, which would mean she was not eligible for :I medical assistance for 4.24 years. The transfer made by Petitioner added 11

I $699,660 to the penalty amount, and extended the period of ineligibility to eight years. N.T., Fourth Hearing, at 1-3. 82. After claiming that he had made the transfer solely to address the matter of the farm not being in the trust that was raised at the Third Hearing,

Petitioner Petitioner testified

testified that

that he

he had

had searched through

through I.M.R.'s

IM.R's documents and

found not one but two prior powers of attorney.

attorney, The first was from 2008 and the second was from 2016. Both had been signed by him. Id, Id. at 10-12.

He was able to locate it in aapile of papers papers "in

"in my truck" which apparently also included I.M.R.'s

IM.R's will. [d,

Id. at 12, 13. After further examination by

counsel for all parties regarding regarding matters surrounding the execution and

notarization of the powers powers of attorney, and hearing legal argument from counsel for the Agency and for I.M.R., IM.R., the Court took aa15- minute recess to 15-minute

perform legal research. Id, perform Id. at 13-28. Upon return from recess, Petitioner's

counsel submitted to the court an executed copy of the Alleged POA, which Petitioner claimed he had also found in the pile of documents in his truck.

Id. at 28.

28. After making clear on the record that it was not making any

determinations regarding

regarding the validity or invalidity of any of the three powers powers of attorney that had been presented presented (including

[including the Alleged POA), the Court set aside and vacated the transfer of the farm due to the alleged

agent's failure to act in good good faith and failure to act loyally for the principal's benefit. Id. at 28-29. This was set forth in aawritten order principal's benefit. entered day. entered the same day On the following day, April 8, 2022, the Court entered the order appealed 83. 0n from, finding

finding I.M.R.

IM.R. totally

totally incapacitated

incapacitated and appointing appointing the Agency as

guardian of her person and estate.

III. It. ANALYSIS

A. Standard of of Review and Pertinent Statutes

• Here, the bulk of Petitioner's claims of error, though characterized as issues

of law, are actually attacks upon this Court's determinations regarding the

credibility of witnesses and the weight given to their testimony. This means he has a a very very high high bar to overcome.

overcome. The findings of an orphans' court judge, sitting

without aajury, a jury. In jury, are accorded the same weight and effect as the verdict of a In

re: Jackson, 174 A.3d 14, 23 re; 23 (Pa. (citing and quoting In re:

2017) (citing

(Pa. Super. 2017) re: Paxson

Trust Trust1,I, 893 A.2d 99, 112-13 112-13 (Pa. 2006). They cannot be reversed by an (Pa. Super. 2006).

appellate court in the appellate the absence of an abuse of discretion or lack lack of evidentiary

Id. This rule is of particular support. Id, particular importance when applied to findings of fact predicated on the credibility of witnesses and the weight predicated weight to be given to their testimony. Id. It is not sufficient for an appellant to persuade the higher court that testimony.

it might might have reached a a different conclusion on the evidence than the one reached I by by the orphans' court, as an abuse of discretion is not merely an error in judgment. Id. Rather, to establish an abuse of discretion the appellant must establish: Id, establish: (i)

(1) that

the orphans'

orphans' court overrode or misapplied the law;

law; (ii)

[ii) the determination of the orphans' court is manifestly unreasonable; or or (iii)

[iii) the orphans' court acted based on partiality, prejudice, bias, or partiality, prejudice, or ill-will, as shown by by the

the evidence of record.

record. Id.

The orphans' court's findings will be upheld if they are supported by competent

48

and adequate evidence, and will be overruled only if they are predicated upon

I capnc1ou� d1�bel1ef of competent and credible evidence kl. capricious disbelief of competent and credible evidence. Id.

Under 20 Pa. C.S. $§ 5601(d), aapower of attorney, other than one that is Under20Pa.CS.

limited to making making decisions regarding regarding health care or mental health care, is valid

I only if accompanied accompanied by an acknowledgment signed by the agent using the form specified in the statute. 9

,:

""~"..do-otoo Under 20 Pa. C.S. § 5601.3(a), an agent who has accepted appointment

under under a a power attorney (other power of attorney (other than than one that

that is limited to malting making decisions

regarding regarding health care or mental health care) shall do the following, regardless of any provisions in the power power of attorney to the contrary:

(1) Act in accordance with the principal's reasonable expectations to (1)Act the extent actually known by the agent and, otherwise, in the principal's principal's best interest.

interest

(2) Act in (2) good faith.

in good

(3) Act only within the scope of authority granted in the power of attorney. attorney

I' !JI. Id.

B. Granting of of the Records Petition Without Notice and Opportunity to Respond Petitioner's first and second claims of error address the issue of the Court

granting the Records Petition ex parte. Although Petitioner takes aaslightly granting different tack here, these are the same claims he raised in his February 3, 2022,

9 See id.

(d) Acknowledgment executed by agent-An (d)Acknowledgment agent.--An agent shall have no authority to act as agent under power of attorney unless the agent has first executed and affixed to the power of attorney the power an acknowledgment inin substantially the following form;

form

I, , have read the attached power of attorney and am l. ...,have am the person identified as the agent for the principal, principal. I

I hereby acknowledge that when I agent;

act as agent

IIshall act in

in accordance with the principal's reasonable expectations to the extent actually known by me and, otherwise, otherwise, in the principal's best interest, act in good

good faith and act only within the scope of authority granted to me by the principal in the power of attorney.

attorney

(Agent) (Date)

motion in limine. In the motion, Petitioner sought relief in the form of exclusion of

all of the evidence obtained as aaresult of the Records Petition. Here, Petitioner proffers proffers no solution, but makes the bare claim that the granting of the Records Petition was was "an

"an abuse of discretion and/or an error of law." The Court believes that appropriate and thorough discussion of the issues raised, and explanation of ' its reasons for denyrng denying the

Lhe motion, occurred in open court at the beginning of the Hearing. See N.T., Third Hearing, at 1-11. However, aabrief treatment is Third Hearing. appropriate here here.

As stated at the Third Hearing, the Court agrees with Petitioner that the

Records Petition should not have been granted ex parte without notice and opportunity to respond for I.M.R.

LM.R.IO10 This holding is based on In the of M.B the Interest of M.B.,

A.2d 877

686 A.24 877 (Pa. Cmnwlth. 1996).

(Pa. Cmnwth. 1996). The Court does not, however, agree that

Petitioner himself had aaright to notice and opportunity to respond. Despite being

I.M.R.'s son!' IM.R's son 11 and despite allegedly having aapower of attorney to manage her

affairs, he did not have aadirect interest in preventing disclosure of LM.R.'s I.M.R.'s records

to the Agency.

Agency, First, the fact that an individual has aapower of attorney does not mean that they they are automatically substituted for their principal in all legal matters.

Rather, it only permits the holder to act on the principal's behalf. Second, and

more significantly, significantly, the simple fact that Petitioner is I.M.R.'s IM.R.'s son does not give him aa direct interest in protecting her records.

Having established that the Records Petition should not have been granted

without notice to I.M.R., IM.R., the question turns to the appropriate resolution.

resolution

Petitioner would have the entirety of the evidence thrown out, the matter dismissed, and I.M.R. dropped off on his doorstep. This is nowhere close to appropriate. Such drastic action does not even occur in criminal matters without appropriate. careful consideration and analysis. Here, the Court, after finding no controlling I• caselaw, looked to to the

the nature

nature of the

the error and

and the impact it case. The it had on the case

I ·,- ,Th-,-�-�--,-ro-�-•-.-., -,-,.-=- r •• corrected this error lo to The Court has procedure for records in pl'O«dn.., ""!"•st• r,rords requests und,r

under th•

the DAl'M In future matters, and OAPSA in

does not take the issue lightly, lightly

11 Because the records request request falls under the 0AP'SA, OAPSA, and not

not §$5511

SS 11 of the Probate, Estates and Fiduciaries Code (the Code (the "PE PEF Code;

Code"; 20 Pa, C.S. §§ 101, Pa.CS.$8 etseq.),

101 et seq.) the expanded standing provision of $§ 5511(a)

SS11(a) does not apply

to the Records Petition Petition.

most reasonable approach was to place the Agency Agency in the position it would have been at the time of the filing of the Emergency Petition had the Records Petition

not been granted, granted, and then determine whether the remaining evidence was sufficient to support the emergency emergency guardianship. This would mean that the Agency would have the testimony of Ms. Parks Parks (conditions

(conditions inside the home, I.M.R.'s IM.R.'s

care needs and cognitive impairment, and lack of round-the-clock care), Ms. Hughes Hughes (report (report of walkaway incident from PSP, SP, denial of access to I.M.R.

IM.R. by

Petitioner, intimidating and aggressive behavior by Petitioner at the home), and

Ms. Heaton Heaton (attempts [attempts by Petitioner to intimidate the Agency into backing down, , retaliatory retaliatory actions against the Agency Agency by Petitioner). These were more than I.M.R. was incapacitated and in need of an emergency sufficient to establish that IM.R.

° guardian of both her person guardian person and her estate. As soon as the Agency was appointed as emergency guardian, guardian, it had

had full

full right

right and authority

authority to access the

the records

records at

issue. As aaresult, it was inevitable that the medical and financial records in

ii question question would have been discovered by the Agency and entered as evidence in would have been discovered by the Agency and entered as evidence in this matter. The error was therefore harmless. this matter, The error was therefore harmless. ,. It must be noted that there are equitable considerations at play here. As

noted by both counsel for the Agency and counsel for I.M.R., IM.R., the motion in limine ultimately ultimately amounted to the the ""alleged

alleged perpetrator

perpetrator...• of financial exploitation asking that the Court enforce the victim's rights so that he doesn't get in trouble for what

he did to the victim." NT., N.T., Third Hearing, at 6-7 6-7 (argument

(argument of Attorney Kipphan);

see al $Re so id.

also 8-10 (argument id, at 8-10 (argument of Attorney Ghaner).

Ghaner). The focus of this matter is

I.M.R., and not Petitioner. Allowing him to enforce her rights to shield himself so

that he may may continue his abusive behavior toward her and her property would amount to an abuse of the law and of the courts.

C. Granting of the Emergency Granting of Emergency Petition Petitioner's third and fourth claims of error pertain pertain to the granting of the Emergency Emergency Petition. The third claim is that the Court erred in granting the Emergency Emergency Petition without aahearing hearing "when

"when there was no adequate proof of an actual emergency." The fourth claim pertains pertains to the granting of the Petition

so

"without any medical expert testimony or any medical evidence showing aaneed for guardianship."

The Court has reviewed the extensive record and filings in this matter, and has not found aapoint at which Petitioner has raised these specific issues before.

This means that they they have been waived.

waived. However, in the event that the Superior Court finds that they have not been waived or are non-waivable, the Court addresses them here here.

As an initial matter, it must be noted that while while §$ 5513 of the PEF Code incorporates the requirements for full guardianship proceedings under under §$ 5511, it

also provides provides an exception for those requirements in situations where where "the

"the court

has found that it is not feasible in the circumstances" to satisfy them prior to

granting the emergency guardianship. See.&.g See, e.g., In re:

re; Sylvester, 598 A.2d 76, 78, 82 (Pa. Super. 1991) / 82(Pa. 199 1) (orphans' court properly dispensed with with §$ 5511 notice to the • appellants, both holders of powers of attorney executed by the incapacitated person person and both executors under his will, under the exception set forth in $§ 5513; appellants were alleged to have been isolating the incapacitated person from his friends, disposing of his assets against his wishes, and misappropriating his assets for their own benefit; notice to the appellants under such circumstances would have provided them with time to take additional harmful actions toward to the incapacitated person person and hide assets so they could not be recovered).

recovered).A?

12 Thus,

there are situations in which the requirements of of 8§ 5511 may be waived.

waived.13

Turning to the analysis of Petitioner's third and fourth claims, these claims of error present aaquestion that is somewhat convoluted, but ultimately easily ' resolved. Specifically, Petitioner is arguing from aaposition that assumes his late- Ii '------

Seealso 1zSee also hare: Estate of In re; Estate of Dorone, 517 Pa.

Doro4, Pa. 3,7,

7, 9

9 (1987)

(1987) (The

(The orphans' court properly disposed of notice to the Incapacitated person's parents and conducted aabrief hearing via telephone with the administrator and incapacitated surgeon surgeon for the the hospital

hospital where

where the incapacitated

incapacitated person

person was

was aapatient

patient before granting

granting the

the emergency petition

to appoint appoint aa temporary temporary guardian

guardian to consent to medical procedures; the incapacitated person had been seriously injured in an accident, was unconscious, needed emergency surgery, was lying on the operating table at the time of the telephone telephone hearing, and his parents refused to give permission for aablood transfusion necessary for the surgery surgery to occur

occur; the orphans' court's actions were reasonable under the circumstances]

circumstances).

The Court 13The Court notes it recognizes notes that it recognizes and respects the need to follow follow the

the requirements § 5511 in regard requirements of 65511in regard to to

emergency guardianships emergency guardianships in the absence of circumstances that render such compliance not feasible. Involving feasible. Invoking

this exception is not the standard practice of the Court, and the issue should have been noted clearly n in the order granting the Emergency Emergency Petition.

Petition

filed motion in limine precludes any consideration of the information the Agency

obtained using the records request.

request. This is significant because the Agency Agency based

the Emergency Petition exclusively on the medical information obtained from Dr.

Sellers, and did not include any of the information obtained from Ms. Parks or by

Ms. Hughes's Hughes's and Ms. Heaton's interactions and Ms. interactions with with I.M.R.

IM.R. and Petitioner.

Petitioner.

1. Analysis of the Emergency Petition as filed. The Court believes that the equities of this situation, including the facts that the motion in limine was filed late in the action and that the Agency's unprecedented difficulty in obtaining records and information regarding IM.R.

I.M.R.

II was w.1� due to Petitioner's Petitioner'� own actions, do not merit excluding the information from Dr. Sellers in analyzing the Emergency Petition. Moving forward on this basis basis (i.e.,

(i.e.

on the information the Court was actually presented with at the time the Emergency Petition was filed), Petitioner's claims have no merit. The Emergency Petition clearly alleged that I.M.R.

l.M.R. was in

in immediate need of round-the-clock round-the-dock care,

did not have such care, and could not provide for her own care and safety due to her cognitive impairment. That is an emergency situation by any objective measure, and thus the Court appropriately moved forward prior to conducting aa

hearing so that appropriate housing housing and care could be provided for I.M.R.

IM.R.

immediately. This addresses Petitioner's third claim. As for his fourth claim, the immediately.

j: Emergency Emergenly Petition was supported supported by the statement from Dr. Sellers, which is sufficient to meet the requirements of of $§ 5518 of the PEF Code.

2. Analysis in the absence of information obtained using the Records Petition.

Assuming, arguendo, that Petitioner's position is correct, and that the

Emergency Emergency Petition must be evaluated without the benefit of information obtained using the Records Petition, the only fair and equitable way to address the situation

is to evaluate the position the Agency would have been in without the Records Petition, and therefore what information it could have included in the Emergency

Petition. 14 Even proceeding on this basis, Petitioner's third and fourth claims of Petition.IM error fail.

fail As noted above, Ms.

Ms. Parks provided significant, credible testimony regarding regarding the degree of I.M.R.'s cognitive impairment, her need for constant monitoring and care, the failure of Petitioner to provide such constant monitoring

and care, and the deplorable living conditions in Petitioner's home. Ms.

Ms. Hughes

provided credible testimony regarding Petitioner's tight control over IM.R., I.M.R., his

intimidation of I.M.R., LM.R., his attempts to intimidate Ms. Hughes, his refusal to allow I.M.R. to be interviewed separately, his refusal to allow anyone from the Agency inside the home, and his refusal to provide any information regarding IM.R.'s I.M.R.'s

medical condition and financial resources. Ms.

Ms. Hughes's testimony was supported by the testimony of Ms. Heaton, which further included Petitioner's attempts attempts to

harass and intimidate the Agency into dropping its investigation. Finally, there was the highly concerning nature of the walkaway that occurred in September 2021. This information is more than sufficient to establish that IM.R. 2021. I.M.R. was at risk

and an emergency situation existed, such that she needed to be removed from the home prior to aahearing being held. This negates Petitioner's third claim.

With respect to Petitioner's fourth claim, Petitioner's assertion that the Agency was Agency was required required to

to present

present the

the Court

Court with

with medical

medical expert

expert testimony

testimony and

and

I'i medical medical evidence showing aneed for an emergency guardianship is false as a evidence showing a need for an emergency guardianship is false as a matter of law. matter of law.

Medical testimony is of great significance since it assists the trial court in determining the nature, severity, and consequences of an alleged incompetent's disability, disability. The Pennsylvania Supreme Court has stated in dicta that

that "[e]xpert

"[e]xpert testimony is needed when transactions fall within the penumbra between competence and incompetence, when the light

light of reason may may come andand go go unbidden." Hagopian

Hagopian v v.

Eskandarian, 396 Pa. 404,153 Pa. 401, 404, 899 ( 1959),cert 153 A.2d 897, 899(1959) cent. denied, 361 U.S.

0.S. 938, 80 S.Ct. 381, 4 4 L.Ed.2d LEd.2d 358 ((1960).

1960). However, the

appellate courts have never adopted aa rule of evidence which would require require the use of expert testimony in in all incompetency incompetency proceedings

proceedings

without exception. The testimony of lay witnesses who have observed the alleged incompetent is admissible and highlyhighly probative probative

To do 4To 14 do otherwise otherwise would

would reward

reward Petitioner

Petitioner for

for his behavior in

his behavior in stonewalling stonewalling the Agency and the Agency and ignore the ignore the

overwhelming evidence of I.M.R.'s IM.R's incapacity and need for aaguardian of both her person and her estate estate.

since "[o]ne's

"[o]ne's mental capacity is best determined by his spoken words, his acts, and his conduct." Urquhart Estate, 431 Pa. 134, 142, 245 A.2d

A2d 141, 146146 ((1968).

1968). See also Weir

Weir by

by Gasper v.v. Ciao, 364

Pa.Super. Pa.Super, 490, 494-495, 528 A.2d 619-620 ((1987)

A2d 616, 619-620 1987) (court (court may

base finding of competency on evidence provided provided by

by lay

lay witness).

witness].

Although Although the introduction of expert testimony from psychiatrists, psychiatrists,

psychiatric nurses, and other health care professionals is to be encouraged, we cannot say that lay testimony alone can never be sufficient to meet the heavy burden of establishing establishing incompetency.

In re: ln re; Estate of Wood, Wood, 533 A.2d

A.24 772, 774 (Pa.

772,774 (Pa. Super. 1987)

1987) (internal

(internal quotations

quotations

and citations as in the original).

Here, the core allegations of the Emergency Petition were that I.M.R. was an 83 year- old woman who suffered from debilitating cognitive impairment, was in year-old in

immediate need of round-the-clock care, and was not receiving that care.

care. The

Agency was in possession of, and presented to the Court at the First Hearing,

evidence in support of those allegations from:

from: ((1)

1) Ms. Parks, a

a lay witness with

direct and extensive knowledge of I.M.R.'s LM.R's day-to-day care needs, mental condition, and Ad living situation; and and ((2)

2) Ms. Hughes,

Hughes, a

a lay witnesses experienced in the field of I cider care, who had personally seen the nature of the interactions between l.M.R. elder care, who had personally seen the nature of the interactions between I.M.R.

and Petitioner; and and (3)

(3) Ms. Heaton, aalay witness experienced in the field of elder I• care who has investigated countless cases of elder abuse and neglect, who personally interacted with Petitioner and observed his actions in response to the Agency's attempts to investigate the situation and determine if LM.R.'

I.M.R.'s

s needs were

being met.

met. That evidence is

is sufficient both

both to

to meet

meet the requirements

requirements of $§ 5518 and !I to establish that I.M.R.

LM.R. was in need of an emergency guardian.

guardian.

I D. ofAttorney O'Toole's Petition to Represent LM.R D. Denial of I.M.R.

Petitioner's fifth claim of error arises from his first avenue of attack against against

the guardianship proceedings, which was to attempt to have Attorney 0"Toole O'Toole

appointed as counsel for I.M.R.

IM.R. The Court addressed this issue at length in its order and opinion filed January January 24, 2022,

2OZ2, and incorporates that order and opinion by reference here. The Court will not provide further analysis of the issue here.

However, it is appropriate to note that Attorney O'Toole's petition, which was

55

requested and directed by Petitioner, is aarather bold attempt by Petitioner to take

control of control of the the proceedings and, ultimately, proceedings and, ultimately, retain control over retain control over I.M.R. and her LM.R. and her assets

assets.

E. Failure Failure to Appoint Appoint Petitioner

Petitioner as Guardian Based on Alleged Alleged Weaknesses in the l Agency's Agency's Evidence Evidence

" Petitioner's sixth claim of error contains aanumber of issues, and thus bears ] repeating here. 11 The trial court abused its discretion and/or made an error of law when it failed to appoint William Cardwell as guardian of Iva lva M.

' Roush's person despite no Area Agency on Aging observing inside ,I their home; only oneone ((1)

1) caretaker witness who observed William Cardwell and Iva

lva M. Roush together inside the home over aaspan of aa I few months; and Ivalva M. Roush walking away from the home on one (1) brief occasion three months before the guardianship petition (1)brief petition was filed?

The first item of note is that this claim of error contains an implicit implicit

admission—that IM.R. admission--that I.M.R. is incapacitated and in need of a guardian. This admission a guardian.

alone should be sufficient to negate negate the previous

previous four claims of error raised by by

Petitioner, because he is attempting to argue out of both sides of his mouth.

mouth. On the

one hand, he argues that this Court erred in in finding I.M.R.

IM.R. incapacitated and in in

need of aaguardian based on the overwhelming evidence presented. On the other hand, he now says that the Court rightfully rightfully found I.M.R.

IM.R. to be incapacitated incapacitated and

erred only with respect respect to its judgment as to who should be her guardian. Only under the application of the most twisted and disingenuous pretzel logic can these

two positions positions be reconciled.

Turning to the claim itself, what Petitioner is really challenging is this Court's determinations regarding regarding the

the credibility of the

the witnesses and the

the weight

weight to

to

be given to their testimony. The Court found Ms. Parks to be credible, and her

testimony alone is sufficient to find that Petitioner was not providing I.M.R.

IM.R. with

the care she needs. 'The The Court found Ms. Hughes and Ms. Heaton to be credible as

well, and their testimony regarding Petitioner's behavior and actions only

bolstered the Agency's argument that Petitioner is not aafit caretaker and guardian for IM.R, I.M.R. 'To To the extent that Petitioner claims this evidence is weak because

56

neither Ms. Hughes nor Ms. Heaton ever entered the home, he has only himself to

blame. He blocked all of their attempts at entry.

entry. Finally,

Finally, it is both troubling troubling and

telling that Petitioner continues to attempt to downplay IM.R's I.M.R.'s walkaway in

September 2021 as aaminor event event. His 83 year-old

year- old mother, aawoman who must use

aawalker to get get around, cannot perform tasks of daily living as simple simple as preparing

preparing

food for herself, has significant cognitive impairment, and has serious hallucinatory episodes, left the home, walked an unspecified distance along busy busy

roads roads+15 until someone stopped to help help her, and wound up being transported transported to the

Huntingdon PSP station. It is only by the grace of God that I.M.R.

IM.R. did not end up hit

by a a car or lost in the woods surrounding the area.

While Petitioner does not specifically mention the witnesses who testified in his favor regarding his care for I.M.R., IM.R., he will undoubtedly tout their testimony testimony

in his brief. The Court found the testimony of Petitioner's cousins, Terry Lynn Lynn

Lumbard-Monnat and Valerie Scott, to be generally credible, but of little weight. They each certainly believed that Petitioner took good and appropriate appropriate care of

I.M.R., but they did not have enough awareness of her day-to-day needs and the situation in Petitioner's home to provide significant testimony on those matters. They I.M.R.'s cognitive decline, focusing primarily They also downplayed the extent of I.M.R's primarily on what she can still do as opposed to how her limitations affect her ability ability to make

decisions and take care of herself. With respect to the testimony testimony of Dr. William

Kauffman, the Court found it to be largely irrelevant and worthy of little weight.

1: Dr. Dr. Kauffman Kauffman has has never treated I.M.R,

never tre.ited I.M.R., h.i� has not evaluated her, has only "read has only •read her

charts" occasionally when she was in the hospital, hospital, and the primary primary thrust of his

testimony testimony was an attempt to weaken the findings findings of Dr. Roscoe, I.M.R.'s LM.R's current

I treating physician treating physician.

,I There remains, of course, Petitioner's own testimony testimony regarding

regarding the care he

'! provided for IM.R.

I.M.R. Petitioner certainly appeared to believe his repeated, repeated, self-

' serving, and conclusory statements that he tools took excellent care of I.M.R., IM.R., gave her

isThe The Court takes judicial notice notice of fact that while of the fact while Tussey Tussey Lane,

Lane, the

the road that

that Petitioner's home is is located

on, maybe low-trattic road, it leads to State Route 26.

may be aalow-traffic 26. State Route 26 is the major north-south route on the western side of Raystown Lake, Lake, the only route that leads from Petitioner's home to the Huntingdon PSp PSP station, has has a

a prevailing

prevailing speed definitely "high-traffic."

speed limit of 55 MPH, and is definitely high-traffie."

exactly what she needed, and that she she "wanted

"wanted for nothing." Yet his testimony testimony also

j showed that he is not cogmz,rnt cognizant of I.M.R.'s

L.M.R.'s care needs, did not provide provide round-theclock

care, left her on her own in the house often often (regardless of the fact that he or

his mechanic were elsewhere on the property), and downplayed downplayed the very

very real risks

to her safety. And all the while, he was reducing reducing her net worth by hundreds of thousands of dollars, significantly benefiting himself and harming h.1rmmg her best interest.

interest

II On these facts it is unquestionable that Petitioner is not an appropriate guardian guardian

for for I.M.R.

i IM.R

F. Failure Failure to Appoint

Appoint Petitioner

Petitioner as Guardian Based Based on the

the Claim that I.M.R.

LM.R. Desired

of Her Assets to Petitioner and that He had Authority to Give All of Authority to Do Do With Them

as He Pleased

As with Petitioner's sixth claim of error, his seventh claim of error contains aanumber of issues, and bears repeating here.

here

The trial court abused its discretion and/or made an error of law when it failed to appoint William Cardwell as guardian of Iva va M. Roush's estate in light of four four (4) witnesses and the estate planning documents presented clearly stating lva Iva M. Roush's desired intention for William Cardwell to inherit everything from her and the ability ability to

make gifts to himself?

It is axiomatic that the law recognizes the right of a a competent person to do

as they wish with their assets, even if they spend or distribute those assets to the point of insolvency, and whether they they take such action while alive or in aa testamentary capacity after death. And, the law establishes a a strong preference

preference for

choices made by individuals prior prior to incapacity

incapacity when appointing appointing guardians.

guardians. 20 Pa.

C.S. $5511(f)("If CS. § 5511(f) (" If appropriate, the court shall give preference preference to aanominee of the incapacitated person. "). However, the law does not recognize: (i)

person."). [i) aaright right for agents

acting under aapower of attorney to take actions that are both against an ,I incapacitated person's best interests and contrary to their previously previously expressed

expressed

wishes; (ii) wishes; (ii) aaright right for heirs

heirs having control of an incapacitated incapacitated person's

person's property

property to

to

take their inheritance prior prior to

to the incapacitated

incapacitated person's or (iii)

person's death; or (iii) a a right

right for

trustees to take trust property and use it as their own. Yet all of these actions occurred in in this case

case.

As aapreliminary matter, the Court notes that Petitioner's count of witnesses

11 for this claim of error is incorrect. Presumably the four witnesses to which he refers refers are are himself, his

his cousins

cousins Terry

Terry Lynn

Lynn Lumbard-Monnat

Lumbard-Monnat and Valerie Valerie Scott,

Scott, and

' Attorney 0'Toole.

O'Toole. However, Attorney O'Toole never testified as aawitness, and his

comments and filings regarding I.M.R.'s IM.R.'s actions and intent were purely purely in the form

of allegations and argument intended to support support his petition

petition to represent I.M.R.

represent IM.R.

Petitioner attempted to testify as to what I.M.R.

IM.R. told him her wishes were, but that I evidence was not admitted because it is hearsay. See, e.g., N.T., See.&.g. N.T, Third Hearing, at l ii 106, 111. Even if admissible, such testimony has little weight, not only 106,111. only because of

Petitioner's own self-interest self-interest (his

[his interests with respect respect to the financial issues are 'I adverse to IM.R.'s), I.M.R.'s), but also because:

because: (i)

[i) there is aavast difference between the statement ""IIwant you to have everything" and the alleged implication general statement implication ""II want you to take everything I I have now, use it for your own benefit, and leave me with minimal income and no eligibility for medical assistance despite despite my

my

progressively worsening condition"; and and (ii)

(ii) the competency of I.M.R.

LM.R. when she

made the statements is highly suspect, particularly particularly since she had already already been

suffering from dementia for four years when her husband died and Petitioner took control of her life and property.

property

As As such, there were only two witnesses— Ms. Lumbard-Monnat and witnesses-Ms.

Ms. Scott--who Scott—who provided testimony testimony to the effect that I.M.R. had expressed expressed aadesire

to to give give all all of her property

of her property to Petitioner. However, to Petitioner. However, their testimony on their testimony on this point has this point has

only nominal weight. First, aside from the matter of self-interest, their testimony testimony

Ii suffers from the same issues as identified for Petitioner's testimony testimony above.

Second, their primary interactions with I.M.R.

LM.R. have been short, periodic periodic visits, and

the time period covered by their testimony is well after I.M.R.

I.M.R was diagnosed

diagnosed with

dementia and began began suffering cognitive impairment.

impairment.

Turning to the core of Petitioner's seventh claim of error, that the Court erred in not appointing him as guardian of LM.R's I.M.R.'s estate, the issues raised by by

Petitioner are largely irrelevant. This is because the preference preference for the

incapacitated person's chosen agent or guardian is strong, but not absolute.

When a a patient has executed a [durable [durable power of attorney]

attorney] and

named a a personal representative, that choice is given paramount paramount

importance. In Re Sylvester, 409 Pa.Super, Pa.Super. 439, 598 A.2d 76, 83 (1991). Under these circumstances, Section 5604(0)(2), 5604(c)(2), regulating

regulating

durable powers of attorney, must be read in conjunction with Section 5511. Id. Read together, these Sections require the court to give effect to the patient's selection of aa guardian, guardian, except for good good

Id.

cause or disqualification. Id In re:

re: Duran, 769 A.2d 497, 506 506 (Pa.

(Pa. Super. 2001)

2001) (internal

(internal citations as in the added).

original; emphasis added)].

Assuming, arguendo, that I.M.R.

IM.R. clearly competently expressed dearly and competently expressed an

intent for Petitioner to take the the $$250,000

250,000 life insurance payment payment as aagift,

gift, and for

him to be able to make other gifts of her property to himself via aavalid power power of

attorney, his actions were so noncompliant noncom pliant with the Alleged POA, trust document, and controlling law as to be nearly unfathomable.

Petitioner maintained no separation between his own funds and I.M.R.'s.

IM.R.'s.

He stated many times that her assets were his, and that she had no assets other than her income from the farm rent and social security. He spent hundreds of

thousands of dollars of her money to buy buy things

things that benefitted only only himself.

I The Alleged POA and the trust document contain clear provisions regarding regarding

I, the importance to IM.R.

I.M.R. of obtaining and maintaining eligibility for medical maintaining eligibility

assistance benefits. Yet, Petitioner's actions led to an ineligibility ineligibility period

period of over

years (which

four years [which would have been extended to eight if the transfer of the farm had been upheld). Nothing in the trust document or the Alleged Alleged POA authorized

Petitioner Petitioner to to avoid placing

placing any

any of

of the real

real estate properties

properties transferred

transferred to

to I.M.R.

IM.R

l I after her husband's death into the trust, and even if Petitioner actually actually believed the

' i farm had been transferred into the trust, nothing nothing authorized him to sell the remaining properties properties in the trust and keep keep the proceeds

proceeds for himself

himself.

Finally, even if it is true that Petitioner undertook the above actions actions (and

(and

others) based on the innocent belief that I.M.R.

LM.R. wanted him and had authorized him to do so, the testimony established that he is singularly singularly unfit to manage manage her

financial affairs. He had no awareness of the medical assistance eligibility eligibility issue, no

idea about his recordkeeping obligations, no awareness of the risk of converting converting

assets (land)

appreciating assets (land) into depreciating assets assets (cars,

(cars, building,

building, paint

paint shop),

shop), and

no awareness of the fact that was a a poor idea to allow an 83 year- old dementia year-old

'ppatient atient in need of long term care to spend hours at aatime sitting sitting in a

a casino losing

losing

I $10,000 aavisit. He also likely created significant federal income tax risk for

himself and I.M.R.

LM.R. by failing to properly report the alleged gift transfers and failing alleged gift failing ' to file income tax returns.

The sum total of all of these issues is that it is beyond beyond aareasonable doubt that there is good cause to override I.M.R.'s IM.R.'s selection of Petitioner as her agent agent

with respect to her estate, and that he should be disqualified from serving serving in

in that

capacity. capacity.

G. The Court's Order Vacating and Setting Aside Petitioner's Attempt Attempt to Transfer

Transfer the

Farm Into the Trust

The Court

Court first notes

notes that, as identified by by the Superior

Superior Court in

in its

its March

March

16, 2020 opinion remanding the case to this Court for the entry entry of aafull Rule 1925 opinion, Petitioner did not file aatimely appeal from the separate order regarding regarding

the property transfer, and that issue has therefore been waived. See Superior Superior

Court Opinion, Docket No. 728 MDA 2022, March 16, 2023, at 3-4 n. 1.

3-4n.

In a

a separate order, the orphans' court invalidated aaMarch 18, 2022 transfer of land stating that that "if there was aavalid power of attorney, attorney,

the alleged agent has failed to act in in good faith and failed to act loyally loyally

for the principal's benefit." Orphans' Court Order, 4/7/22. for the principal's benefit." Orphans' Court Order, 4/7/22. As As Appellant failed to appeal that order, this Court will not address it or the propriety of the deed referenced in Appellant's Appellant's statement of

questions presented.

Should the Superior Court decide, upon further reflection, to take up up this

issue, Petitioner's eighth claim of error is meritless.

meritless. As stated, he bases it on there being no request from the Agency to remove Petitioner as power power of attorney

attorney and

no no order order from from this

this Court removing

removing him

him as

as power

power of attorney prior

of attorney prior to

to him signing

him signing

the the deed on on March 16, 2022.

March 16, 2022. This is

is a

a red

red herring.

herring. The

The Court made

made no

no

determination regarding whether Petitioner had aavalid power power of attorney

attorney on

March 16, 2022.

2022. Instead, the Court, as noted in in the order, found that if there was a

a

valid power of attorney, Petitioner had failed to act in good faith and loyally in good loyally for

I, i'

I.M.R.'s benefit. 16 His act of transferring L.M.R's benefit.Io transferring the farm into the trust was clearly clearly an

attempt to wrest control of IM.R.'s I.M.R.'s sole remaining away from the remaining significant asset away Agency, and to prevent the Agency from potentially using it to pay using it pay for IM.R's I.M.R.'s care,

as Petitioner is is the sole trustee

trustee of the trust

trust and admitted that he already taken he had already

out loans from from Darren Weaver

Weaver in

in anticipation

anticipation of selling

selling the

the farm

farm to him in

in the

the

future. Further, this act risked nearly doubling doubling IM.R's

I.M.R.'s period ineligibility for period of ineligibility

medical medical assistance to eight any objective eight years. By any objective measure, measure, Petitioner's

Petitioner's transfer

of the the farm

farm was

was neither

neither in good faith

in good faith nor I.M.R.'s benefit.

nor done for L.M.R's benefit.

Finally, Petitioner's argument regarding his alleged removal as power power of

attorney has aafatal flaw in its logic.

logic. Petitioner did not submit aasigned signed copy

copy of the

Alleged Alleged POA, or or any power

power of attorney, to

to the

the Court prior

prior to attempting to transfer to attempting transfer farm. Therefore, neither the Agency nor the Court would have had any the farm. any reason r to address Petitioner's removal. Petitioner's actions were a complete surprise to to address Petitioner's removal. Petitioner's actions were acomplete surprise to

11 the the Agency, I.M.R.'s IM.R's counsel, and the

the Court, as was

was his alleged location

his alleged one, location of not one,

but three, signed powers of attorney behind the seat of his truck.

truck 17 Petitioner

I cannot fault the Court and the Agency for failing to anticipate his unannounced and surprise attempt to make an end run around the emergency emergency guardianship.

guardianship.

IV. CONCLUSION I.

The focus of this

this case should be I.M.R.

IM.R. However,

However, Petitioner

Petitioner has

continuously attempted continuously attempted to to make

make it about himself,

it about himself. 'Time

Time and

and time again he

time again he has

has

shown that his true concern is maintaining control over I.M.R.

IM.R. and her assets,

rather than acting in her best interest. I.M.R.

LM.R. is incapacitated

incapacitated and in need of aa guardian. 'That guardian. That guardian needs to be someone other than Petitioner, so that he can

·I no longer exploit no longer exploit her.

her

!

BY THE COURT:

As required by 20 Pa.CS.$ As 16 Pa. C.S. § 5601.3(a)

5601,3(a).

George

;;2�,,

Geo"rge N, •

eu

N. Zanic, ••

Zanic, President

President Judge

Judge

The Court Te 17 Court notes notes its

its high degree of

high degree of skepticism skepticism regarding

regarding the validity of the validity of the

the "discovered"

discovered" powers of attore powers of attorney.