by Peter Klenk, Esq. & Kathleen Maloles, Esq.

When because of age, illness or accident a person is no longer able to care for himself or herself the Court is often Petitioned to recognize the person as being incapacitated and to appoint for the person a Guardian of the Estate and Person.  The Guardian of the Estate cares for the incapacitated person’s assets while the Guardian for the Person cares for the incapacitated person’s day-to-day needs.

Sadly, some people have no one who is willing to serve as guardian.  Other times there is no shortage of volunteers and the Court is asked to select between two or more candidates.  It is this second situation that I am addressing in this short memo.

Recently, in Montgomery County, Pennsylvania, the Orphans’ Court was petitioned to select a Guardian of the Person and Estate for a woman we shall call  “Mrs. Z” (names here are abbreviated) who suffered from dementia.  I shall use her case to outline the factors examined by the Court in deciding who should serve as Guardian and the facts of Mrs. Z’s case to demonstrate how the Court used the listed factors in her specific case.  The reader should realize that each case has its subtle differences, but it is my hope that by using an actual Orphans’ Court decision, the reader will better understand how the Court applies the factors and then be better able to apply the factors to the reader’s own situation.

In Mrs. Z’s case both her husband and one of her adult children petitioned the Court asking for appointment as Guardian of the Person and Estate.  Knowing no more than this the reader might assume that the husband of 47 years would naturally be appointed over a child.  In this case the assumption is incorrect; the Court decided against the husband and awarded Guardianship of the Person to Mrs. Z’s daughter.  This case is an example of where the Court, weighing all the given facts, decided against the husband and as such is an excellent example of how the Court weighs the various factors in a Guardianship action.

When Mrs. Z slipped into dementia, she had her husband of 47 years, Mr. Z, and four adult children.  On September 15, 2006 Mr. Z filed a Petition with the Montgomery County Orphans’ Court seeking to have his wife adjudicated an incapacitated person and to have himself appointed Guardian of her Person and Estate.  Procedurally, the Attorney for Mr. Z notified Mrs. Z’s children of the Petition.  Taking away a person’s right to care for themselves either financially or physically is a huge exercise of the Commonwealth’s power, and as such, the Court is obligated to make sure the alleged incapacitated person is legally represented.  Because Mrs. Z had no Attorney of her own, the Orphans’ Court Judge on October 10, 2006, appointed an Attorney to represent Mrs. Z’s interests.  In each incapacity hearing the appointed Orphans’ Court Judge will review many types of evidence and much testimony before making his or her decision.  Each party will bring in witnesses to support their version of the facts and Judges recognize that each side in a dispute will do its best to color the facts to support their own position.  Because the Court is tasked with making a decision as to what is in the “best interest” of the alleged incapacitated person the Court will go beyond the evidence presented by the Parties and demand the opinion of a neutral expert in the area of incapacity and guardianship. On November 13, 2006 by agreement between Mrs. Z and Mr. Z’s attorneys, the Judge then appointed an outside Company (IAI) to conduct an evaluation of Mrs. Z’s needs.  On November 15, 2006 Mrs. Z’s daughter, LEW, filed an Answer and New Matter to Mr. Z’s Petition.  In her Petition, LEW requested that she, rather than her father, be appointed Guardian.  Later, LEW filed a Counter-Petition to have her mother adjudicated an incapacitated person.

After holding hearings on two days, March 6th and April 3rd of 2007, the Orphans’ Court Judge ruled as follows:

• That Mrs. Z was in fact totally incapacitated,
• That IAI, a corporation bonded in Pennsylvania, should serve as Mrs. Z’s Guardian of the Estate (in charge of her money and payment of her expenses), and
• That LEW should serve as the Guardian of Mrs. Z’s Person.

The Judge in this case declined to name the husband as Guardian of the Person and instead named a daughter.  Furthermore, the Judge declined to name any family member as Guardian of the Estate and instead named an outside, Corporate Trustee.  Intuitively, one would assume that a spouse would be given these powers, so what factors were used in the Judge’s decision to exclude the spouse from having any official powers over his wife’s Person or Estate and what facts were presented in this given case that caused the Judge to exclude Mr. Z?

In Mrs. Z’s case this factor weighed heavily because she suffered from dementia.  Dementia sufferers are known to find change stressful and difficult.  Further, the Court will often hesitate to exchange an incapacitated person’s current environment for an unknown, new environment when the person’s current care is determined adequate.

The Parties presented the following evidence:  By the time of the hearings Mrs. Z. had been living for eight months in the memory-impaired assisted living portion of WHV, a continuing care retirement community in Montgomery County.  Mr. Z. was then living year-round in Venice, Florida in a home where the couple spent winters prior to Mrs. Z’s admission to WHV.  Dr. Z testified that he wanted to move Mrs. Z to Florida and care for her in the house by himself or with in-house care and also suggested that he had been investigating a Florida facility nearby the house.  LEW testified that she wanted her mother to stay in WHV.  The Court heard medical testimony and the opinion of the IAI investigator stating that remaining in WHV was in Mrs. Z’s best interest.

The Court’s decision did not mention this factor, but I cannot ignore the fact that Mr. Z planned to move Mrs. Z to Florida while LEW planned to keep Mrs. Z in Montgomery County.  Should Mrs. Z be moved to Florida, the Montgomery County Orphans’ Court would be virtually powerless to enforce its will and verify the adequacy of Mrs. Z’s care.  It is difficult to imagine that this factor did not weigh on the Court’s decision.

Both Mr. Z and LEW testified that they loved one another and hoped to maintain a relationship despite the dispute between them.

A Guardianship can be a long-term proposition, as an incapacitated person can live for decades.  The Court must consider not only the potential Guardian’s immediate ability to carry out the Guardianship’s obligations and duties, but also the ability to carry out the duties in the long run.  The Judge in this case considered testimony and other factors that were indicators of Petitioners ability to serve in the long-term, including each party’s past track record of caring for Mrs. Z.

Mr. Z is an 85 year-old retiree and Mrs. Z is 83 years old.   LEW is much younger and is a registered nurse.

Mr. Z testified that he would take care of Mrs. Z himself and did not need any outside helper, child or otherwise, but when questioned he admitted that he had begun to investigate facilities in Florida that offered care similar to WHV.  Mr. Z also testified that Mrs. Z needed no assistance except a physician and himself.  On cross-examination Mr. Z acknowledged that Mrs. Z fell and injured herself in their Montgomery County home in December of 2005, and that he flew to Florida himself the next day without first taking Mrs. Z for medical treatment.  The testimony of medical professionals and by IAI contradicted Mr. Z’s opinion, stating that Mrs. Z required constant, professional supervision and care.

The Judge listened to the testimony of not only the family members asking to be named Guardian, but also other persons with knowledge of the family situation.

Mr. and Mrs. Z had three adult children other than LEW. One of these children testified on behalf of Mr. Z, another testified on behalf of LEW and the third declined to testify.

Mr. and Mrs. Z’s child ,PC, supported Mr. Z’s plan to move Mrs. Z. to Florida, but acknowledged that WHV was a proper facility to take care of her mother.  PC suggested that Mr. Z serve as co-guardian with someone else and testified that in the past she had arguments with her sister, LEW, over Mrs. Z’s assets and the existence of past powers of attorney.

Mr. and Mrs. Z’s child, VZ, testified that he supported LEW serving as both the Guardian of the Person and Estate.

Mr. Z explained that he and Mrs. Z had planned to clean out their Montgomery County home and to move together to Florida.  He testified that Mrs. Z was placed at WHV after being discharged from the hospital in August of 2006 and that he did not participate in or at the time know of this decision.

LEW testified that when Mrs. Z went to stay with Mr. Z in Florida during February of 2006 she deteriorated physically and mentally.  After Mrs. Z’s surgery in 2004, LEW arranged for in-home care in Mrs. Z’s Montgomery County home, but Mr. Z resisted the caregiver and would lock her out of the house.

LEW presented the testimony of AP, a nursing supervisor at WHV.  AP testified that Mrs. Z was malnourished when she arrived at the facility and had since put on weight.  He stated that she is medically stable and has adjusted nicely to her new surroundings.  AP also stated that Mr. Z’s visits to Mrs. Z had been disruptive and upsetting to Mrs. Z while LEW visited her mother three times a week and their time together made Mrs. Z happy.

LEW also presented the testimony of TP, a certified nurse’s assistant who worked as a companion to Mrs. Z in her Montgomery County house during 2004.  She offered her opinion that Mr. Z’s behavior toward his wife was at times, “abusive.”  TP also stated that Mr. Z sometimes refused TP access to Mrs. Z in the house.

The Court understands that each side will present evidence that supports its position and attempt to avoid or minimize contrary testimony.  The Court will then give great weight to the neutral opinion of an appointed expert who has interviewed the interested Parties and analyzed the care required for the alleged incapacitated person.

KMF, a social worker employed by IAI, had evaluated Mrs. Z’s situation at the Court’s request and testified as to his findings.  KMF testified that Mrs. Z. needed 24-hour supervision in a secure place in case she should decide to wander.  KMF stated his professional opinion that WHV offers very good care and that Mr. Z’s plan to take care of his wife in the Florida residence was not viable in view of her dementia and his age.  KMF believed that it would be detrimental to Mrs. Z to remove her to Florida from WHV.  KMF also testified that it was in Mrs. Z’s best interest that non-family members oversee Mrs. Z’s finances.

Given the evidence, the Court then arrived at its decision that Mrs. Z’s daughter, LEW, should serve as Guardian of the Person while an outside company, IAI should serve as the Guardian of the Estate.  The factors weighed and the evidence presented caused the Orphans’ Court Judge to rule against the husband’s Petition, ruling that it was in the best interest of the incapacitated person to exclude her husband from having rights over either her Person (decisions concerning where and who cares for her) or her Estate (how her assets are invested or used).

I hope this short memo has been of use to you.  If you have any further questions or would like a free consultation with respect to your specific Guardianship situation, please feel free to contact me!