J-A04038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF: NANCY S. KEEGAN, IN THE SUPERIOR COURT OF
AN ALLEGED INCAPACITATED PERSON, PENNSYLVANIA
Appellee
APPEAL OF: KATHLEEN A. GALLAGHER
No. 496 WDA 2015
Appeal from the Order February 18, 2015
In the Court of Common Pleas of Butler County
Orphans' Court at No(s): O.C. NO. 2015-00005
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.
MEMORANDUM BY SHOGAN, J.: FILED MAY 10, 2016
Appellant, Kathleen A. Gallagher, appeals from the order that
appointed Appellant and Attorney Dorothy J. Petrancosta (“Attorney
Petrancosta”) as permanent plenary co-guardians of the person and for the
estate of Nancy S. Keegan (“Mother”).1 We affirm.
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1
In addition, Appellant has filed an application to strike the supplemental
record submitted sua sponte by the trial court. Instantly, after the filing of
this appeal and the transmittal of the certified record to this Court, the trial
court held ancillary proceedings unrelated to the appointment of Appellant
and Attorney Petrancosta as co-guardians and drafted a supplemental
Pa.R.A.P. 1925(a) opinion that buttressed its decision currently on appeal.
Thereafter, the trial court sua sponte transmitted a supplemental record to
this Court. The trial court’s sua sponte action precipitated Appellant’s
application to strike.
(Footnote Continued Next Page)
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The trial court summarized the history of this case as follows:
Counsel for the Appellant filed a Petition for the Appointment of
Plenary Guardian of the Estate and Person of an Incapacitated
Person Under 20 Pa. C.S.A. 5511 Et Seq. (hereinafter “Petition
for Guardianship”) on or about January 7, 2015, initiating this
action. Pursuant to the Preliminary Order of Court under date of
January 7, 2015, the Court scheduled a hearing on said Petition
for February 17, 2015, at 11:00 o’clock A.M. in Courtroom #3 of
the Butler County Government Center.
[Mother] is a widow with five living children[: Appellant],
Marian S. Keegan, Terence M. Keegan, Kevin M. Keegan, and
Robert F. Keegan. Terence M. Keegan and Robert F. Keegan
each filed a Consent of Heir shortly after the Petition for
Guardianship was filed by Appellant.
At the time and place set for hearing on the Petition for
Guardianship, Appellant appeared along with her counsel,
Elizabeth A. Smith, Esquire. Lynn M. Patterson, Esquire, court
appointed counsel, appeared on behalf of the adjudicated
incapacitated person, [Mother]. Marian S. Keegan and Kevin M.
Keegan also appeared to both contest the adjudication of
[Mother] as incapacitated, and to protest to the appointment of
_______________________
(Footnote Continued)
Pa.R.A.P. 1926 addresses the correction and modification of the
certified record. However, Pa.R.A.P. 1926 does not allow for the
introduction of new evidence at the appellate level. Rather, Pa.R.A.P. 1926
permits the correction or modification of the existing certified record when
“anything material to either party is omitted from the record by error or
accident or is misstated therein[.]” “Material” in this sense means
evidentiary items that were considered by the trial court but, for some error,
were not included in the formal certified record. Rae v. Pa. Funeral Dir’s
Ass’n, 925 A.2d 197, 204 (Pa. Cmwlth. 2007) (vacated on other grounds)
(citing Gulentz v. Schanno Transp., Inc., 513 A.2d 440 (Pa. Super.
1986)). Here, the items in the supplemental record transmitted sua sponte
by the trial court were not material to its consideration of the current order
on appeal. Accordingly, Pa.R.A.P. 1926 cannot be utilized as a vehicle to
introduce these new items. Rae, 925 A.2d at 204. Hence, we grant
Appellant’s application and strike the supplemental record. In reaching our
decision in this matter we have not considered any items contained in the
supplemental record.
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the Appellant as [Mother’s] Permanent Plenary Guardian. Dr. Ira
S. Handler, M.D., a recognized expert in geriatric psychiatry,
testified that, after having met with and examining [Mother], his
diagnosis of her was Dementia, Not Otherwise Specified. He
further offered that this condition will not improve, but is likely
to worsen, and specifically that her ability to consider abstract
concepts has decreased even since his treatment of [Mother]
began in 2001. Dr. Handler testified that no medication exists to
cure [Mother’s] Dementia, and that without her late husband to
care for her, he believes her to have a difficult time performing
daily tasks. It was Dr. Handler’s opinion that because [Mother]
has simplistic and unrealistic thoughts as well as executive
function deficiency, she requires supervision in the least
restrictive form of a Permanent Plenary Guardian. Additionally,
it was made known to Dr. Handler, and he testified to [Mother]
being very upset because of the disagreement amongst her
children regarding this Guardianship.
Further testimony in this case revealed a strong discord
between three of the siblings. Appellant testified that after her
father’s death she moved [Mother] to New Haven Residential
Assisted Living on December 12, 2014. Appellant further
testified that she has handled [Mother’s] finances, and has made
medical decisions for her mother since the death of her father,
Terence J. Keegan [(“Father”)]. Appellant identified for the
Court a Power of Attorney dated November 15, 1996, signed by
[Mother], appointing [Father], and alternatively, [Appellant], as
[Mother’s] Power of Attorney. Appellant further identified a
Health Care Declaration and Health Care Power of Attorney
dated March 2, 1999, signed by [Mother], appointing only
[Father] as her surrogate with no successor. [Father] was
identified as [Mother’s] late husband. When asked why the
proceedings were instituted if Appellant was already vested as
[Mother’s] Power of Attorney, Appellant explained that she was
having difficulty exercising her Power of Attorney due to her
brother and sister, Marian S. Keegan and Kevin M. Keegan,
having contacted New Haven Residential Assisted Living in an
effort to obviate the authority of Appellant to make medical
decisions for [Mother]. Lastly, Appellant stated that, in her
opinion, a Co-Guardianship with her siblings would not work.
Both Kevin M. Keegan and Marian S. Keegan strongly
objected to the appointment of a Guardian, and specifically to
the appointment of [Appellant] as the Guardian of [Mother].
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Kevin M. Keegan and Marian S. Keegan both stated in open court
that they believe Appellant to be exerting control over [Mother].
In so claiming, both siblings used Appellant’s move of [Mother]
from her condo into New Haven Residential Assisted Living as an
example of said control. Marian S. Keegan testified that
[Mother] had expressed to Marian an interest in participating in
the Meals on Wheels program, and a desire to remain in her
condo, both of which, she claimed, Appellant did nothing to
facilitate. Marian S. Keegan expressed her shock that [Mother]
had been moved out of the condo only two months after the
death of [Father]. Marian S. Keegan further stated that she
believed Appellant to be “commandeering” [Mother’s] assets in
an effort to alienate Marian S. Keegan and Kevin M. Keegan from
[Mother].
Trial Court Opinion, 4/9/15, at 1-4 (citations omitted).
On February 18, 2015, the trial court entered an order declaring
Mother to be an incapacitated person2 and appointed Appellant and Attorney
Petrancosta, an unassociated third party, to act as permanent plenary co-
guardians of Mother. This appeal followed. Both Appellant and the trial
court have complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
Did the Orphans’ Court abuse its discretion when it appointed an
attorney as a “third party” Co-Guardian in addition to the
Appellant, Kathleen A. Gallagher, daughter of the incapacitated
person, where the incapacitated person previously declared in a
signed and notarized Power of Attorney that she nominated
Appellant as her sole Power of Attorney, where the evidence
established Appellant to be trustworthy, where the evidence also
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2
The term “incapacitated person” is defined pursuant to 20 Pa.C.S. § 5501
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.”
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established that the incapacitated person placed great trust in
Appellant, and where the incapacitated person, through her
Court appointed attorney, neither sought out nor requested a
court appointed “third party” Co-Guardian.
Appellant’s Brief at 9.
In her sole issue, Appellant argues that the trial court abused its
discretion in appointing Attorney Petrancosta to serve as co-guardian along
with Appellant. Appellant’s Brief at 15-18. Appellant claims that the trial
court did not give substantial weight to Mother’s original intent in signing the
power of attorney dated November 15, 1996. Appellant contends the trial
court abused its discretion by speculating that the appointment of a co-
guardian with Appellant would minimize the discord between the siblings. In
essence, Appellant asks to be the permanent sole and plenary guardian.
We have long stated that the appointment of a guardian lies within the
sound discretion of the trial court. Estate of Haertsch, 649 A.2d 719, 720
(Pa. Super. 1994). “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.”
In re Duran, 769 A.2d 497, 506 (Pa. Super. 2001) (quoting Harman ex
rel. Harman v. Borah, 756 A.2d 1116, 1123 (Pa. 2000)).
Our Supreme Court has explained that pursuant to the guardianship
statute, which is a provision of the Pennsylvania Decedents, Estates and
Fiduciaries Code, “[a] guardian is appointed only upon a finding that the
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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, 541 (Pa. 1999)
(internal quotations marks and citations omitted) (emphasis in original).
In addition, this Court has stated the following:
Any person interested in the alleged incapacitated person’s
welfare may petition the court for a judicial determination that
the person is indeed incapacitated and for the appointment of a
guardian. However, 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 Hyman, 811 A.2d 605, 607-608 (Pa. Super. 2002) (citations and
quotation marks omitted).
To establish incapacity, a petitioner must comply with the
requirements set forth in section 5518 of the guardianship statute. In
addition, section 5512.1 of the guardianship statute stipulates a list of items
for the trial court to consider in making a determination of incapacity.
Following a determination of incapacity, the guardianship statute
provides the following statutory authority for a trial court to appoint a
guardian for the incapacitated person:
§ 5511. Petition and hearing; independent evaluation
(a) Resident.--The court, upon petition and hearing and upon
the presentation of clear and convincing evidence, may find a
person domiciled in the Commonwealth to be incapacitated and
appoint a guardian or guardians of his person or estate. The
petitioner may be any person interested in the alleged
incapacitated person’s welfare. . . .
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***
(f) Who may be appointed guardian.--The court may appoint
as guardian any qualified individual, a corporate fiduciary, a
nonprofit corporation, a guardianship support agency under
Subchapter F (relating to guardianship support) or a county
agency. . . . If appropriate, the court shall give preference to
a nominee of the incapacitated person.
20 Pa.C.S. § 5511(a) and (f) (emphases added).
Section 5511 must be read in conjunction with section 5604(c)(2),3
which directs the court to give preference to the nominee of the now
incapacitated person. The statute provides, in pertinent part, as follows:
§ 5604. Durable powers of attorney
(a) Definition.--A durable power of attorney is a power of
attorney by which a principal designates another his agent in
writing. The authority conferred shall be exercisable
notwithstanding the principal’s subsequent disability or
incapacity. . . .
***
(c) Relation of agent to court-appointed guardian.--
***
(2) A principal may nominate, by a durable power of
attorney, the guardian of his estate or of his person
for consideration by the court if incapacity
proceedings for the principal’s estate or person are
thereafter commenced. The court shall make its
appointment in accordance with the principal’s most
recent nomination in a durable power of attorney
except for good cause or disqualification.
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3
Chapter 56 of Pennsylvania Decedents, Estates and Fiduciaries Code
addresses powers of attorney. 20 Pa.C.S. §§ 5601-5611.
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20 Pa.C.S. § 5604(a), (c)(2) (emphases added).
Appellant argues that pursuant to our decision in In re Sylvester, 598
A.2d 76 (Pa. Super. 1991), Mother’s nomination of Appellant as the
successor to Father in Mother’s durable power of attorney should be given
great deference and that Appellant should have been appointed the sole
guardian. We disagree.
As we explained in Sylvester, generally there is no need to appoint an
independent guardian of the person and the estate where the incapacitated
person has executed a durable power of attorney to handle his finances.
Sylvester, 598 at 83-84. In Sylvester, an emergency guardian was
appointed based on allegations that the attorneys-in-fact had isolated the
incapacitated person and misused his funds. At the hearing, despite the lack
of proof regarding any wrongdoing by the attorneys-in-fact, the court
appointed different guardians. On appeal, this Court reversed, finding that
the trial court ignored the dictates of section 5604(c)(2) and we held that,
“[i]n the absence of proof of good cause or disqualification based on
competent evidence at the guardianship hearing, there was no need to
appoint an independent party as permanent guardian.’’ Id. at 83-84.
However, the facts of the instant case are distinguishable from Sylvester in
that the trial court did not ignore Mother’s election of Appellant as the
successor in the durable power of attorney. Here, the trial court appointed
Appellant to serve as a co-guardian, along with Attorney Petrancosta.
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The trial court offered the following reasoning for its decision to
appoint an independent third party to serve as Mother’s co-guardian along
with Appellant:
It was apparent to this Court that based on the facts and
testimony presented, there continues to be serious disagreement
between Appellant and her siblings, Kevin M. Keegan and Marian
S. Keegan, regarding the treatment of [Mother]. Testimony
indicated that these issues will not be resolved in the near
future, but would only increase if Appellant were granted sole
and exclusive guardianship authority of [Mother]. Therefore,
this Court weighed all facts and testimony presented concerning
the assists and supports available to [Mother], and utilized its
inherent judicial powers in law and equity to appoint a third-
party as Co-Guardian, to serve with Appellant, in an effort to
prevent further disagreements relative to [Mother’s] care and
future financial expenditures on her behalf. Such an
appointment is well within this Court’s legal and equitable
powers to administer justice.
Trial Court Opinion, 4/9/15, at 5.
Based upon our review of the record, we discern no abuse of discretion
in the trial court’s appointment of co-guardians in this matter. The three
siblings herein each offered testimony to the trial court that supported the
conclusion there is serious discord among the family members and complete
disagreement regarding the well-being and appropriate treatment of Mother.
N.T., 2/17/15, at 50, 52, 61, 71-73, 74-87. In addition, it is undisputed that
Appellant was listed on the 1996 durable power of attorney as the successor
to Father in the event that Father was unable to serve. Id. at 31-32.
Interestingly though, Appellant was not named as the successor to Father on
the 1999 healthcare power of attorney executed by Mother. Id. at 37-38.
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In addition, Dr. Handler testified that Mother is vulnerable to unscrupulous
and designing persons. Id. at 12. Appellant’s sister, Marian Keegan,
testified regarding concerns that Appellant was manipulating Mother and has
commandeered Mother’s assets. Id. at 82-86. The evidence before the trial
court was sufficient good cause as to why Appellant’s appointment as the
sole guardian of either Mother’s person or estate was not appropriate.
Accordingly, we conclude that the trial court followed the proper
statutory authority when it considered and appointed Appellant, the named
successor in Mother’s durable power of attorney, as a co-guardian in this
matter. Likewise, we conclude that the trial court was acting within its
discretion in choosing to appoint Attorney Petrancosta as an independent co-
guardian to serve along with Appellant. Thus, because the trial court
considered the necessity of an independent co-guardian and articulated a
sound evidentiary basis for its decision, we discern no abuse of discretion in
the decision of the trial court. Estate of Haertsch, 649 A.2d 719.
Order affirmed. Application to strike supplemental record granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2016
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