In Re: J.L.

• Court: Superior Court of Pennsylvania
• Decided: January 7, 2022
• Docket: 582 MDA 2021
• Status: Unpublished

Opinion

J-S30034-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: J.L., AN ALLEGED : IN THE SUPERIOR COURT OF INCAPACITATED PERSON : PENNSYLVANIA : : : : : : : No. 582 MDA 2021

Appeal from the Order Entered April 16, 2021 In the Court of Common Pleas of Centre County Orphans' Court at No(s): 2021-0271

BEFORE: BENDER, P.J.E., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED JANUARY 7, 2022

Appellant, J.L., appeals an order of the Orphans’ Court Division of the

Court of Common Pleas of Centre County (Orphans’ Court) adjudicating him

to be an incapacitated person and appointing a guardian for his person. For

the reasons set forth below, we vacate and remand.

Appellant is a 57-year-old inmate incarcerated at the State Correctional

Institution at Rockview (SCI-Rockview) who suffers from dementia. On April

13, 2021, Richard Ellers, the Corrections Health Care Administrator for SCI-

Rockview, filed a Petition for Adjudication of Incapacity and Appointment of a

Limited Guardian of the Person with the Orphans’ Court seeking an

adjudication that Appellant is an incapacitated person under 20 Pa.C.S. §§

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* Retired Senior Judge assigned to the Superior Court. J-S30034-21

5511 and 5512.1 and seeking appointment of himself as guardian of the

person of Appellant.

On April 16, 2021, the Orphans’ Court held a hearing at which Ellers

testified and Appellant, represented by counsel, spoke. Ellers testified to his

responsibilities and interaction with inmates as SCI-Rockview’s healthcare

administrator and to his willingness to serve as Appellant’s guardian, and

testified that he serves as guardian for several other inmates and has

experience and training as a licensed nursing home administrator. N.T. at 3-

8. With respect to the issue of whether Appellant was incapacitated, Ellers

testified that Appellant

most times is pleasant in his demeanor. He’s not aggressive in any nature. However, he does at times have difficulty understanding what we might be trying to explain to him and also the long-term ramifications of the decisions that we might be making. Therefore, our providers wanted us to pursue this authority to work with him and help make decisions and make sure his welfare is protected.

Id. at 5. Ellers testified that he attempted to contact Appellant’s relatives

concerning guardianship for Appellant and that he spoke to Appellant’s sister,

but that the other relative, Appellant’s nephew, did not return his call. Id. at

6, 8. Ellers testified that Appellant’s sister was willing for Ellers to serve as

Appellant’s guardian, but did not testify that she was unwilling or unable to

serve as Appellant’s guardian. Ellers testified:

[Appellant’s sister] and I had a lengthy conversation about the proceedings, and we discussed her involvement, and she agreed. She said it would be sufficient that we would handle these responsibilities in his best interest.

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Id. at 6. Ellers was unsure whether Appellant had an advance healthcare

directive and thought that Appellant may have designated his sister to make

medical decisions for him, testifying:

Q. Does [Appellant] have any advanced healthcare directives, or has he designated anyone to serve as a surrogate over his medical care?

A. I have to check his current records. I believe his sister is designated as his -- for the advanced directive and notification of next of kin.

Id. at 7.

An expert report of SCI-Rockview’s medical director, Vernon H. Preston,

M.D., was admitted with Appellant’s agreement pursuant Pa.O.C.R. 14.3.1 In

that report, Dr. Preston opined that Appellant had moderate to severe

dementia, that Appellant’s “short term memory does not allow him to

understand long term decisions” and that he was totally impaired in his ability

to give informed consent or make medical decisions for himself. Preston

Expert Report at 2-5. Dr. Preston also opined in his report that Appellant

needs some help but is not totally impaired in communicating decisions. Id.

at 3. Dr. Preston stated in his report that the last time he saw and evaluated

1 The Petition for Adjudication of Incapacity and Appointment of a Limited Guardian of the Person purported to attach this report, but instead attached an expert report concerning a different SCI-Rockview inmate. This error was corrected by a Notice of Errata filed two days before the hearing and it appears from the Orphans’ Court opinion that the report admitted at the hearing was the expert report concerning Appellant, not the report erroneously attached to the petition.

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Appellant was in July 2020, approximately nine months before the incapacity

and guardianship hearing. Id. at 2. While the expert report listed tests that

had been administered to determine Appellant’s cognitive abilities, it reported

only the scores of those tests and did not provide the test results, contrary to

the requirements of the Orphans’ Court Rules and the instructions on the

expert report form, which direct the expert to attach the test results. Id.;

see also Pa.O.C.R. 14.3 (providing for admission of report “of an expert using

the form provided in the Appendix to these rules”); Pa.O.C.R. Form G-06,

Question No. 6c (directing the expert to “[a]ttach test results, not just the

score”). Dr. Preston also noted as relevant to the court’s determination of

incapacity that Appellant was “willing to have a guardian appointed to help

him in these matters.” Preston Expert Report at 5.

Appellant stated at the hearing that he wanted his sister or his nephew

to be his guardian and that he did not want Ellers to be his guardian. N.T. at

9-10. Appellant also stated:

[Appellant’s Counsel]: And do you think you need a medical guardian?

[Appellant]: I don’t think I do. I mean, I do have dementia, and I forget things, but I’m not fully, you know, incompetent. I can write letters to my family. I can call on the phone, make requests and everything.

Id. at 10-11.

At the end of the hearing, the Orphans’ Court granted the Petition for

Adjudication of Incapacity and Appointment of a Limited Guardian of the

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Person and entered an order determining that Appellant was incapacitated and

appointing Ellers as guardian for the person of Appellant. N.T. at 12; Orphans’

Court Order, 4/16/21. In its order, the Orphans’ Court did not limit the

guardian’s powers to assisting Appellant in medical decisions and providing

informed consent for treatment to which Appellant did not object, but instead

granted Ellers power to make all medical decisions for Appellant, “including

the acceptance or refusal of recommended treatment related to physical

or mental health needs,” and ordered that “[a]ny previously executed powers

of attorney or health care powers of attorney of [Appellant] are rendered

ineffective, and any agents authorized to act under such documents are

divested of such authority to the extent that their authority conflicts with the

authorizations herein granted to Richard Ellers as guardian.” Orphans’ Court

Order, 4/16/21, at ¶¶2, 3 (emphasis added).

Appellant timely appealed and argues that the evidence at the hearing

was insufficient to support the Orphans’ Court adjudication that he was

incapacitated and appointing a guardian with control over all of his medical

decisions. In reviewing the Orphans’ Court’s order here, we are bound by its

findings that are based on competent evidence, but are not bound by its

conclusions of law. In re Peery, 727 A.2d 539, 540 (Pa. 1999).

Chapter 55 of the Probate, Estates and Fiduciaries Code provides that a

person may be adjudicated incapacitated and a guardian of the person may

be appointed only if the petitioner seeking such an adjudication and

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appointment shows by clear and convincing evidence that the person’s ability

to receive and evaluate information and communicate decisions is impaired to

the extent that he is partially or totally unable to meet essential requirements

for his physical health and safety and that he is in need of a guardian. 20

Pa.C.S. § 5501; 20 Pa.C.S. § 5511(a); 20 Pa.C.S. § 5512.1(b), (c); Peery,

727 A.2d at 541; In re Hyman, 811 A.2d 605, 608 (Pa. Super. 2002). Even

if the court finds by clear and convincing evidence that the person is

incapacitated, the guardianship ordered must be the least restrictive means

of protecting the incapacitated person and the incapacitated person’s

intentions and wishes must be honored to the extent possible. 20 Pa.C.S. §

5511(f); 20 Pa.C.S. § 5512.1(a), (b), (c); In re Estate of Rosengarten, 871

A.2d 1249, 1255, 1257 (Pa. Super. 2005). Section 5512.1 of the Probate,

Estates and Fiduciaries Code specifically requires that the court, in

determining whether the person is incapacitated and the extent of the

guardianship, “shall consider and make specific findings of fact concerning: …

The need for guardianship services… in light of the existence, if any, of

advance directives such as durable powers of attorney.” 20 Pa.C.S. §

5512.1(a)(3).2

2 Neither Appellee nor the Orphans’ Court contend that these requirements are inapplicable to prison inmates or that the Orphans’ Court could evaluate the evidence concerning Appellant’s need for a guardian or the scope of a guardianship order differently because he is an inmate.

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The Orphans’ Court’s broad guardianship order here violates these

requirements. The Orphans’ Court, based on the expert report of Dr. Preston,

found only that “there was clear and convincing evidence presented which

establishes Appellant is at least partially incapacitated and appointment of a

limited guardian is necessary to assure Appellant receives appropriate medical

and psychological services and to provide required consent or approval on

behalf of Appellant.” Orphans’ Court Opinion at 3. Its order, however, was

not limited in scope or tailored to address the problem of Appellant’s inability

to give informed consent for medical treatment that he wants to receive.

Rather, the Orphans’ Court’s order deprived Appellant of all ability to make

medical decisions, including decisions to refuse treatment. Orphans’ Court

Order, 4/16/21, at ¶2.

Moreover, although there was a suggestion in Ellers’ testimony that

Appellant may have an advance medical directive or medical power of attorney

executed before he was incapacitated and Ellers admitted that he could obtain

that information, N.T. at 7, the Orphans’ Court did not consider the effect of

such a directive or require Ellers, the party seeking to be appointed as

guardian, to provide that information. Instead, it ordered that any healthcare

powers of attorney executed by Appellant “are rendered ineffective,” without

regard to whether such powers of attorney expressed Appellant’s wishes

concerning medical care and whether they were executed at a time that he

was competent to make such decision. Orphans’ Court Order, 4/16/21, at ¶3.

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In addition, the Orphans’ Court based its determination that less

restrictive alternatives were not available on assertions that were not

supported by any evidence at the hearing. The court concluded that less

restrictive alternatives to its guardianship order did not exist because, inter

alia, “Appellant does not have any living next of kin willing to serve as guardian

or to make necessary medical decisions” and “attempts to find a living next of

kin willing to serve as guardian have been exhausted.” Orphans’ Court

Opinion at 2, 4. While the petition claimed that Appellant “does not have any

living next of kin willing to serve as guardian or to make necessary medical

decisions,” Petition for Adjudication of Incapacity and Appointment of a

Limited Guardian of the Person ¶¶9(c), 13, the testimony at the hearing

showed that Appellant has a sister, whom Appellant wanted as his guardian,

and did not show that she is unwilling to serve as a guardian. The only

evidence concerning Appellant’s sister’s willingness or unwillingness to act as

Appellant’s guardian was Ellers’ testimony that she was willing, after he spoke

at length to her, to have Ellers act as Appellant’s guardian. N.T. at 6. Such

testimony that the person seeking to be appointed as guardian has persuaded

a relative to not object to his appointment as guardian is not testimony or

evidence that the relative is unwilling to act as a guardian or healthcare power

of attorney.

Because the Orphans’ Court failed to consider whether Appellant has an

advance healthcare directive or healthcare power of attorney and its finding

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that there are no less restrictive alternatives is not supported by the record,

its broad order appointing Ellers as Appellant’s guardian, depriving Appellant

of all rights to refuse medical treatment, and negating any prior healthcare

powers of attorney contravenes Chapter 55 of the Probate, Estates and

Fiduciaries Code and cannot stand. Accordingly, we vacate the Orphans’ Court

order of April 16, 2021, and remand this case to the Orphans’ Court for a new

hearing at which it shall hear evidence on whether there are less restrictive

alternatives, including evidence on whether and what advance healthcare

directives and healthcare powers of attorney Appellant has executed and

evidence concerning whether Appellant’s sister is willing to act as Appellant’s

guardian or healthcare power of attorney.

Order vacated. Case remanded with instructions. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/7/2022

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