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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: GERALD A. COLEMAN, JR. IN THE SUPERIOR COURT OF
AN INCAPACITATED PERSON PENNSYLVANIA
APPEAL OF: GERALD A. COLEMAN, JR.
No. 2226 EDA 2014
Appeal from the Decree of June 17, 2014
In the Court of Common Pleas of Lehigh County
Orphans’ Court at No(s): 2013-1734
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MARCH 30, 2015
Gerald Coleman, Jr. (“Appellant”) appeals from the decree entered in
the Court of Common Pleas of Lehigh County, Orphans’ Court Division,
adjudicating him to be an incapacitated person and appointing a plenary
guardian of his person and estate. After careful review, we affirm.
The trial court aptly set forth the pertinent factual and procedural
history as follows:
On November 14, 2013, Gerald A. Coleman, III, a medical
doctor Board-certified in emergency medicine (“Dr. Coleman”),
filed a Petition for Appointment of Emergency Guardian of the
Person and Estate for his father, Mr. Coleman, and his mother,
Mrs. Coleman.
With respect to Mr. Coleman, the petition alleged he was
74 years of age and married; had recently been discharged from
Lehigh Center, an assisted living facility, and had returned to his
personal residence against the recommendation of medical
professionals that he reside in an assisted living facility; that he
had fired all medical personnel that had been hired to assist him
while at home; had refused to relinquish his driver’s license
despite such advice from several medical professionals; and was
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unable to control his anger when medical personnel and family
tried to assist him. The petition contained a note from Dr. Todd
Holbrook (“Dr. Holbrook”) to the effect Mr. Coleman was not
capable of making and understanding the consequences of
decisions. It also contained a letter dated November 6, 2013,
from Dr. Darryl Jackson, Medical Director of Lehigh Center,
stating Mr. Coleman suffered from Parkinson’s induced
dementia, was evasive with details and was impaired to make
his own decisions.
...
A hearing on the emergency petitions was held on
November 22, 2013. Mr. Coleman appeared mid-way through it;
it is not clear from the record whether Mrs. Coleman appeared at
that time.
With regard to Mr. Coleman, Dr. Holbrook, a medical
doctor who is Board-certified in family medicine, testified he had
treated Mr. Coleman since July 17, 2013, and last saw him on
October 17, 2013. N.T. 11/22/13 at 22. He diagnosed Mr.
Coleman as having a super nuclear palsy, a progressive disease
with Parkinson-like symptoms. Id. He said Mr. Coleman
became agitated and angry quickly; could not formulate
reasonable decisions with regard to his health, safety, financial
transactions, or medical needs, including giving informed
consent for a medical or surgical procedure; could be taken
advantage of by unscrupulous persons; could not take his
medications safely; and had poor memory. Id. at 22-26. He
also said Mr. and Mrs. Coleman engage in a lot of yelling with
each other and do not quite understand the full severity of their
medical condition or problems. Id. at 23. When presented with
the statutory definition of an incapacitated person, Dr. Holbrook
believed Mr. Coleman met that definition and probably required
placement in a nursing center or, at a minimum, an assisted
living facility. Id. at 26-27.
Mr. Coleman testified on his own behalf. He stated
accurately that he had been the chief financial officer for CBS, a
major New York Stock Exchange company. He also admitted he
drove his automobile to the hearing even though his driver’s
license had been suspended by PennDOT on the basis of
information it received about his neurological or psychiatric
condition. When asked about his license, he was confused and
self-contradictory. Id. at 39-43.
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...
By order of November 22, 2013, Dr. Coleman was
appointed emergency guardian of the person and estate for each
of his parents. He filed a petition for determination of incapacity
and appointment of a plenary guardian of the person and estate
for each of his parents pursuant to 20 Pa.C.S.[] § 5501 et seq.,
on December 10, 2013. On the following day, December 11,
2013, privately-retained counsel filed her appearance on behalf
of Mr. Coleman and a motion to appoint a substitute emergency
guardian of the person and estate and a guardian ad litem for
Mr. Coleman, and to arrange for an independent evaluation of
him. By orders of December 16, 2013, the court appointed
Helen Stauffer, Esquire, guardian ad litem for Mr. Coleman;
ordered his counsel obtain a medical evaluation of Mr. Coleman
by a qualified physician of counsel’s choosing who would also be
acceptable to the guardian ad litem; appointed Shannon
Piergallini Smith, Esquire, guardian ad litem for Mrs. Coleman;
and scheduled a hearing in each matter for March 4, 2014. By
order of January 27, 2014, Mrs. Coleman’s guardian ad litem
was authorized to arrange for Mrs. Coleman to be evaluated by
any living/personal care facility selected by her guardian ad litem
to determine Mrs. Coleman’s suitability for placement in such
level of care.
Dr. Coleman subsequently resigned as emergency
guardian of the estate and person for his parents. By order of
February 14, 2014, Attorney David Roth was appointed to
succeed Dr. Coleman as emergency guardian of the estate of Mr.
Coleman and emergency guardian of the estate and person of
Mrs. Coleman. As noted in the footnote to that order, no
appointment of a successor emergency guardian of the person
for Mr. Coleman was made since he appeared to be cooperating
with his counsel and his guardian ad litem remained in place. By
orders dated March 19, and filed on March 24, 2014, the hearing
on the § 5511 petition was continued to June 9, 2014; Attorney
Stauffer’s motion to be discharged as guardian ad litem for Mr.
Coleman was granted; and Mrs. Coleman’s guardian ad litem
was instructed to arrange for a qualified expert to evaluate her.
On May 22, 2014, counsel was appointed for Mrs. Coleman
upon the request of her guardian ad litem. The final hearing on
the §5511 petitions was held on June 9, 2014. Mr. Coleman
attended with his privately retained counsel; Mrs. Coleman
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attended with her court-appointed counsel and her court-
appointed guardian ad litem.
With regard to Mr. Coleman, Dr. Susan Ingram, a clinical
neuropsychologist who was retained by his counsel to evaluate
Mr. Coleman’s cognitive functioning, testified she evaluated him
on January 7 and 10, 2014. She found his memory in formal
testing to be impaired “in some respects,” and his long term
memory poor if he was not given enough time to process
information. N.T. 6/9/14 at 65-66. He made several math
errors when working with decimals and fractions, but, she said,
was still within a range of most people. Id. at 67. She did not
assess whether he could formulate decisions concerning his
physical health and safety. Id. at 68. She concluded he had
“very mild” dementia secondary to Parkinson’s disease. Id. at
69. She felt Mr. Coleman could make a responsible decision
regarding his medical and surgical treatment, but also stated he
was prone to making “more errors, and poor judgments.” Id. at
71. She did not assess whether he could make responsible
decisions regarding financial transactions or whether he was able
to live independently. Id. at 71-72. She was clear that he
should not drive. Id. at 67. She also said she believed he could
“properly function by himself without ongoing monitoring,
without that ongoing treatment,” although she acknowledged
she did not assess him outside of her office. Id. at 67, 72.
When asked whether her report indicated “that Mr. Coleman
needs a guardian at this time,” she replied “I can't say. I didn’t
evaluate anything other than the cognitive functioning within my
testing.” Id. at 75.
Attorney Roth, Mr. Coleman’s court-appointed emergency
guardian of his estate, also testified. He said that although Mr.
Coleman had been what Mr. Roth described as the controller of a
division of CBS, his finances were “disheveled, and starting to
come apart.” Id. at 80. He also said Mr. Coleman complained
to him that his garbage had not been collected, although Mr.
Coleman could not remember the name of the private company
he used so that it could be contacted to address the matter, and
that Mr. Coleman was confused about whether he had paid his
real estate taxes and medical bills. Id. at 79-80.
Mr. Roth also testified that Mr. Coleman lived at home and
received about six hours of services each week day. He has
fallen and was hospitalized at least six times since February.
One time his alert button went off, the police responded, [but]
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he could not get up to answer the door so the police kicked it in,
and Mr. Coleman refused medical treatment and threatened the
police. It turned out he had pneumonia. Id. at 81. Another
time after a fall in his house and being hospitalized Mr. Coleman
agreed to 24-hour care, but canceled it the very next day. Id.
at 82. At times he has refused to admit his home health aid[e]s
entry to his house. He called Mr. Roth daily to report his toilet
was overflowing and “there was water everywhere.” Upon
arriving at Mr. Coleman’s residence, Mr. Roth said “there was no
water anywhere . . . the toilet just needed to be jiggled.” Id. at
83-84.
Mr. Roth described Mr. Coleman as cooperative, polite,
courteous and rational at times, and completely irrational,
inappropriate and aggressive at other times. Id. at 84. He
believed Mr. Coleman could not manage his financial affairs or
manage his own medical care or be safe “in any respect
whatsoever” without assistance. Id. at 86.
Finally, Mr. Coleman testified. There was nothing about
his demeanor or answers that supported a finding he was
capable of managing his own financial affairs or making
decisions; on the contrary, he provided every indication he was
incapable of managing his own affairs or otherwise making any
such decisions.
Trial Court Pa.R.A.P. 1925(a) Opinion, filed September 30, 2014, at 2-8
(footnote omitted).
On June 17, 2014, the trial court entered a final decree adjudicating
Appellant to be an incapacitated person and appointing a plenary guardian of
his person and estate. Appellant timely appealed. Both Appellant and the
trial court complied with Pa.R.A.P. 1925.
Appellant raises the following issue for review:
I. Whether the lower court abused its discretion and committed
an error of law in determining that Appellant is incompetent and
in appointing a guardian of the person and a guardian of the
estate?
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Appellant’s Brief, p. 6 (all capitals removed).
“The appointment of a guardian lies within the discretion of the trial
court and will be overturned only upon an abuse of discretion.” In re
Duran, 769 A.2d 497, 506 (Pa.Super.2001) (citing Estate of Haertsch,
649 A.2d 719, 720 (Pa.Super.1994)). This Court will find an abuse of
discretion only where “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. (quoting
Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1123 (Pa.2000)).
An “‘[i]ncapacitated 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. A court may appoint a
guardian “only ‘[u]pon a finding that the person is partially incapacitated and
in need of guardianship services,’” or “upon a finding that the person is
totally incapacitated and in need of plenary guardianship services[.]” In re
Peery, 727 A.2d 539, 540 (Pa.1999) (citing 20 Pa.C.S. § 5512.1(b)-(c))
(emphasis deleted). A person is presumed to be mentally competent and a
petitioner seeking guardianship must establish incapacity by clear and
convincing evidence. In re Hyman, 811 A.2d 605, 608 (Pa.Super.2002).
“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
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preponderating and points unerringly to mental incompetency.” Id. (quoting
In Re Myers' Estate, 150 A.2d 525, 527 (Pa.1959)). This Court has noted
“[a] statute of this nature places a great power in the court. The court has
the power to place total control of a person’s affairs in the hands of another.
This great power creates the opportunity for great abuse.” Id. (quoting
Estate of Haertsch, 609 A.2d 1384, 1386 (Pa.Super.1992)).
Appellant challenges the weight of the evidence. See Appellant’s
Brief, pp. 10-17. In short, Appellant claims Dr. Susan Ingram provided the
only medical testimony, that she testified Mr. Coleman was capable of
looking after himself with a little help 6-8 hours a day, and that the trial
court ignored this evidence without satisfactorily explaining its reasons in the
decree or the 1925(a) Opinion.1 Id. Appellant is incorrect.
The trial court considered Dr. Ingram’s testimony and discussed it in
its opinion. See 1925(a) Opinion, pp. 6-7. The trial court ultimately
determined:
Little weight was accorded to the testimony of Dr. Ingram, who
evaluated Mr. Coleman[.] . . . Dr. Ingram’s testimony was of
little help or credibility; it was self-contradictory, confusing and
unsubstantiated. She said Mr. Coleman had mild dementia and
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1
Appellant also suggests that the trial court placed too much weight on its
assessment of Appellant’s testimony. See Appellant’s Brief, p. 12.
Appellant does not elaborate on this argument in his brief. Additionally, we
may not substitute our judgment for that of the trial court, which had the
opportunity to observe Appellant testify. See In re Hyman, 811 A.2d at
609 (“[w]e will not substitute our judgment for that of the lower court
absent a clear abuse of discretion [.]”).
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was prone to making errors and poor judgments, and she
acknowledged she did not assess whether he could formulate
decisions concerning his physical health and safety, yet she
nonetheless concluded he could make a responsible decision
regarding his medical and surgical treatment. She also admitted
she did not assess whether he could live independently and did
not assess him outside of her office, yet she concluded he could
“properly function by himself.” And, finally, when asked whether
she thought Mr. Coleman needed a guardian she replied “I can’t
say. I didn’t evaluate anything other than the cognitive
functioning with my testing.”
1925(a) Opinion, pp. 12-13.
Additionally, Appellant incorrectly suggests that Dr. Ingram provided
the only medical testimony in this matter. This allegation completely ignores
the November 22, 2013 testimony of Dr. Todd Holbrook, which the trial
court considered and discussed. See 1925(a) Opinion, pp. 3-5. The trial
court summarized Dr. Holbrook’s testimony as to Mr. Coleman as follows:
With regard to Mr. Coleman, Dr. Holbrook, a medical doctor who
is Board-certified in family medicine, testified he had treated Mr.
Coleman since July 17, 2013, and last saw him on October 17,
2013. N.T. 11/22/13 at 22. He diagnosed Mr. Coleman as
having a super nuclear palsy, a progressive disease with
Parkinson-like symptoms. Id. He said Mr. Coleman became
agitated and angry quickly; could not formulate reasonable
decisions with regard to his health, safety, financial transactions,
or medical needs, including giving informed consent for a
medical or surgical procedure; could be taken advantage of by
unscrupulous persons; could not take his medications safely;
and had poor memory. Id. at 22-26. He also said Mr. and Mrs.
Coleman engage in a lot of yelling with each other and do not
quite understand the full severity of their medical condition or
problems. Id. at 23. When presented with the statutory
definition of an incapacitated person, Dr. Holbrook believed Mr.
Coleman met that definition and probably required placement in
a nursing center or, at a minimum, an assisted living facility.
Id. at 26-27.
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1925(a) Opinion, p. 4.
In addition to this medical testimony, the trial court considered the
testimony of the court-appointed guardian, Attorney Roth, and Appellant
himself in rendering its decision. In the trial court’s eyes, the testimony of
both Attorney Roth and Appellant supported its conclusion that Appellant
requires a guardian. This Court will not substitute its judgment for the lower
court. See In re Hyman, 811 A.2d at 609 (“[w]e will not substitute our
judgment for that of the lower court absent a clear abuse of discretion [.]”).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2015
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