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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF EDWARD IN THE SUPERIOR COURT OF
WALTERMAN, AN INCAPACITATED PENNSYLVANIA
PERSON,
APPEAL OF: EDWARD WALTERMAN,
Appellant No. 498 WDA 2014
Appeal from the Order March 6, 2014
In the Court of Common Pleas of Washington County
Orphans' Court at No(s): 63-13-0377
BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 30, 2014
Edward Walterman appeals from the orphans’ court’s determination
that he is an incapacitated person. We affirm.
Marsha J. Adams, a Protective Service Caseworker, and The
Southwestern Pennsylvania Area Agency on Aging, Inc., instituted this action
seeking a declaration that Appellant was an incapacitated person. A citation
was issued, Appellant was permitted to proceed in forma pauperis, and
Neighborhood Attorneys, LLC was appointed to represent Appellant. After
the matter proceeded to a hearing, the orphans’ court found that Appellant
was incapacitated. This appeal followed, and Appellant raises these issues
on appeal: “Did the Trial Court abuse its discretion and/or err as a matter of
law in adjudicating the Appellant incapacitated?” and “Was the evidence
sufficient to support the Trial Court's finding that the Appellant is
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incompetent and in need of guardians of his estate and person?” Appellant’s
brief at 3.
Appellant’s contentions are argued together on appeal. He suggests
that there was not sufficient evidence to sustain the orphans’ court’s
conclusion that he is incapacitated. We employ a deferential standard when
reviewing a decree entered by the orphans’ court. In re Estate of
Smaling, 80 A.3d 485 (Pa.Super. 2013). Specifically,
When reviewing a decree entered by the Orphans' Court, this
Court must determine whether the record is free from legal error
and the court's factual findings are supported by the evidence.
Because the Orphans' Court sits as the fact-finder, it determines
the credibility of the witnesses and, on review, we will not
reverse its credibility determinations absent an abuse of that
discretion. However, we are not constrained to give the same
deference to any resulting legal conclusions. Where the rules of
law on which the court relied are palpably wrong or clearly
inapplicable, we will reverse the court's decree.
In re Estate of Fuller, 87 A.3d 330, 333 (Pa.Super. 2014).
The definition of an incapacitated person is as follows:
“Incapacitated person” means 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. Thus, a person is incompetent if either he cannot
manage his financial resources or if he cannot effectively communicate so as
to meet the essential requirements for his physical health and safety. Syno
v. Syno, 594 A.2d 307 (Pa.Super. 1991).
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“[A] person is presumed to be mentally competent, and the
burden is on the petitioner to prove incapacity by clear and
convincing evidence. In Re Myers' Estate, 395 Pa. 459, 150
A.2d 525, 526 (1959). Our review of the trial court's
determination in a competency case is based on an abuse of
discretion standard, recognizing, of course, that the trial court
had the opportunity to observe all of the witnesses, including, as
here, the allegedly incapacitated person. Id. “A finding of
mental incompetency is not to be sustained simply if there is any
evidence of such incompetency but only where the evidence is
preponderating and points unerringly to mental incompetency.”
Id. at 527.
In re Hyman, 811 A.2d 605, 608 (Pa.Super. 2002).
Appellant’s brief merely recites the evidence favorable to himself.
However, the orphans’ court found that Appellant cannot receive and
evaluate information effectively to meet the essential requirements for his
own physical health and safety. This finding, contrary to Appellant’s
position, is amply supported by the evidence. Appellant was admitted to a
nursing home after he broke his hip. He desired to return home even
though his wife was incapable of meeting his physical needs.
The court found Appellant incapacitated based upon the following
facts. Appellant was ninety-five years old at the time of the adjudication of
incapacity. Before his admission into the nursing home, Appellant
continually drove his car, even though his license was revoked due to his
mental infirmity. By these consistent actions, Appellant placed himself and
the public in danger. Before his placement in the nursing facility, Appellant
was observed wandering around in traffic on a cold day. Appellant also
routinely shoplifted for excitement and had been arrested and convicted of
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that crime. Before he broke his hip and went into the nursing home, he had
in-home assistance and his caregivers all expressed concern for his safety.
While at his nursing home, Appellant fell and insisted that he was fine
and was not in need of treatment even though he obviously was in extreme
distress in that he fractured his shoulder and orbital bone. Nursing home
personnel established that Appellant was incapable of performing any
activities of daily living (“ADLs”) in that he has to be assisted with bathing,
eating, dressing, and taking his numerous medications. A registered nurse
at the nursing home reported that Appellant suffered from short-term
memory loss and forgot where he was and what he needed to do next. In
direct contradiction to the testimony of these people, Appellant insisted that
he was capable of caring for himself as well as his wife. The court viewed
this delusional testimony as further evidence that Appellant was
incapacitated.
In light of the above proof, the adjudication of incapacity is supported
by the record, and we affirm based upon the well-reasoned opinion of the
Honorable Katherine B. Emery dated July 23, 2014.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2014
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