J-S15011-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: MICHAEL LELLOCK, AN : IN THE SUPERIOR COURT OF
ALLEGED INCAPACITATED PERSON : PENNSYLVANIA
:
:
APPEAL OF: MICHAEL LELLOCK, :
ALLEGED INCAPACITATED PERSON :
:
:
: No. 1157 WDA 2019
Appeal from the Order Entered July 3, 2019
In the Court of Common Pleas of Jefferson County Orphans' Court at
No(s): 27-2019 O.C.
BEFORE: BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 8, 2020
Appellant, Michael Lellock, appeals from the orphans’ court’s July 3,
2019 order deeming him an incapacitated person under the Incapacitated
Persons Statute, 20 Pa.C.S. §§ 5501-5555, and appointing Appellee,
Distinctive Human Services, Inc. (hereinafter “DHS”), as the permanent
plenary guardian of his person and estate. After careful review, we affirm.
Appellant summarizes the facts of this case, as follows:
Prior to the initiation of the action before th[e orphans’
c]ourt, Appellant was charged in multiple criminal matters in
Jefferson County. Those matters were all of an identity theft
nature. During the course of the prosecution of those matters,
the trial court ordered Appellant to be evaluated for competency.
Appellant was evaluated by a psychiatrist. Said evaluation
required Appellant to be sent to Torrance State Hospital for
restorative therapy, prior to the completion of the competency
evaluation. Torrance State Hospital ultimately concluded
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S15011-20
Appellant was not restorable and was therefore incompetent to
stand trial in his criminal matters. Based on the determination
from Torrance, the original psychiatrist concluded Appellant was
incompetent to stand trial.
Appellant was later evaluated by a psychologist[, Dustin
Bingaman, Psy.D.,] who determined Appellant suffers from
dementia-related conditions. [DHS] filed a petition asking the
lower court to determine Appellant incapacitated and to appoint
[DHS] as guardian of Appellant’s person and estate.
During evidentiary hearings, [Dr. Bingaman] testified as to
Appellant’s mental state and diagnosed conditions. The lower
court took judicial notice of the criminal proceedings, including the
determinations made by the psychiatrist and Torrance State
Hospital. Appellant testified on his own behalf. At the conclusion
of the second day of testimony, the [orphans’] court adjudicated
Appellant an incapacitated person and appointed [DHS] guardian
of his person and estate.
Appellant’s Brief at 6-7.
Appellant filed a timely notice of appeal from the orphans’ court’s order
deeming him an incapacitated person and appointing DHS as his guardian.
On July 19, 2019, the court ordered Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal within 21 days. On
August 19, 2019, Appellant’s counsel filed a “Motion for Leave to File 1925
Statement Nunc Pro Tunc,” claiming that he had not been served with the
court’s Rule 1925(b) order. The court granted counsel’s motion that same
day, and directed that Appellant file his Rule 1925(b) statement within five
days. Appellant timely complied. On December 13, 2019, the orphans’ court
filed its Rule 1925(a) opinion. Herein, Appellant states one issue for our
-2-
J-S15011-20
review: “Whether the [orphans’ court] erred in adjudicating Appellant an
incapacitated person[?]”1 Appellant’s Brief at 5.
To begin, our Supreme Court has applied the following standard of
review to incapacity determinations:
[T]he Court is bound by the trial judge’s findings of fact
unless those findings are not based on competent evidence.
Conclusions of law, however, are not binding on an appellate
court[,] whose duty it is to determine whether there was a
proper application of law to fact by the lower court. Lawner
v. Engelbach, … 249 A.2d 295 ([Pa.] 1969).
In re Peery, 727 A.2d 539, 540 (Pa. 1999).
Appellant challenges the court’s determination that he is an
‘incapacitated person’ in need of DHS’s guardianship over his person and
estate. The statute defines “incapacitated person” 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.” 20 Pa.C.S. § 5501. In regard to the court’s
making a determination of incapacity and appointing a guardian, the statute
directs:
(a) Determination of incapacity.--In all cases, the court shall
consider and make specific findings of fact concerning:
____________________________________________
1Appellant presents two issues in his Statement of the Questions Involved,
but indicates that he is withdrawing his first claim. See Appellant’s Brief at 5.
Therefore, we do not address that issue further.
-3-
J-S15011-20
(1) The nature of any condition or disability which impairs
the individual’s capacity to make and communicate
decisions.
(2) The extent of the individual’s capacity to make and
communicate decisions.
(3) The need for guardianship services, if any, in light of
such factors as the availability of family, friends and other
supports to assist the individual in making decisions and in
light of the existence, if any, of advance directives such as
durable powers of attorney or trusts.
(4) The type of guardian, limited or plenary, of the person
or estate needed based on the nature of any condition or
disability and the capacity to make and communicate
decisions.
(5) The duration of the guardianship.
(6) The court shall prefer limited guardianship.
20 Pa.C.S. § 5512.1(a). The court’s incapacity and guardianship
determination must be supported by clear and convincing evidence. 20
Pa.C.S. § 5511.
Here, the court held a bifurcated hearing on DHS’s petition to deem
Appellant incapacitated. At the initial hearing on April 18, 2019, DHS called
Dr. Bingaman, who was admitted as an expert in the field of psychology with
a specialty in geriatric psychology. N.T. Hearing, 4/18/19, at 9. Dr. Bingaman
testified that he conducted a capacity evaluation of Appellant on February 21,
2019. Id. at 10. As a result of his evaluation, Dr. Bingaman opined that
Appellant’s “memory is very poor” and that “the main thing that … really
hinders [Appellant is] his delusional thought process.” Id. at 13. The doctor
stated that these issues would cause “a real strain on [Appellant’s] making
decisions and evaluat[ing] and interpreting information.” Id.
-4-
J-S15011-20
When asked what Dr. Bingaman found relevant in reaching his diagnosis
of Appellant, the doctor detailed the delusions Appellant had exhibited during
the evaluation, including that he has “a hundred million dollars in gold bars,”
and “Al-Qaeda is out to get him.” Id. at 14, 15. Very concerning to the doctor
was Appellant’s comment that he did “not want[] to get a felony because he
didn’t want to lose his right to … carry a firearm” because “he feels like he
needs his weapons because … people are coming to get him.” Id. When the
doctor asked Appellant how he would respond if he had an emergency,
Appellant told the doctor that “he would not call the police because he doesn’t
trust them and … he would call God and God would take care of everything.”
Id. at 15. Dr. Bingaman testified that it was very difficult to decipher which
of Appellant’s thoughts were delusional, and it was clear that Appellant was
“not thinking in reality at times.” Id. at 16.
Based on his evaluation, Dr. Bingaman concurred with the prior
diagnosis of a doctor at Torrance State Hospital that Appellant has delusional
disorder and unspecified neurocognitive disorder, which essentially is
“cognitive trouble[,] specifically in memory.” Id. The doctor opined that
Appellant’s delusional disorder and paranoia would “really impair[] his ability
to evaluate information effectively” and make decisions regarding his life and
finances. Id. at 17. Dr. Bingaman testified that he does not believe Appellant
“has a general understanding of what his assets are,” and he opined that
Appellant could be taken advantage of financially, and would likely be making
-5-
J-S15011-20
financial decisions based on money he incorrectly believes he has. Id. at 18,
19.
In regard to family support, Dr. Bingaman testified that Appellant told
the doctor that he lives alone on his family farm and “he consider[s] his …
living siblings dead” because of family disputes. Id. at 33. The doctor testified
that, considering Appellant’s paranoia and unwillingness to call police in an
emergency, he “would be concerned about [Appellant’s] living on a rural farm
by himself with no family.” Id. Additionally, Appellant had mentioned having
a friend, but indicated to the doctor that he was unwilling to call that friend or
his sisters for help. Id. at 34. When asked if the assistance of a friend or
family member would change the doctor’s opinion about whether Appellant
needed a guardian, the doctor said no, explaining that he worried Appellant’s
paranoia might cause him to turn against any person helping him, and he
would be left unassisted once again. Id.
Ultimately, Dr. Bingaman opined, to a reasonable degree of medical
certainty, that Appellant was not “able to make decisions concerning the
essential requirements for his physical health and safety[,]” and that he would
not be able to appropriately manage his income. Id. at 20. Dr. Bingaman
also stated that Appellant “presents with a lot of paranoia [that] a lot of people
are out to get him, and I would worry that if he starts responding to these
delusional thoughts that he could harm somebody.” Id. at 15. Pertaining to
the definition of ‘incapacitated person’ in the statute, Dr. Bingaman testified:
-6-
J-S15011-20
[Appellant] struggles with the ability to … effectively evaluate
information. I have serious concerns about him being able to take
care of his physical health, [and] personal safety[,] especially in
emergencies. I worry that if he were responding to these
delusional thoughts, that would impact the safety of others, and
even if his friend was managing his finances, … I would be worried
about him living independently on his farm.
Id. at 36-37.
DHS next presented the testimony of Ellen Hamilton, the “founder and
CEO of [DHS],” which was established to serve as guardian for individuals who
are “indigent, … elderly, and/or mentally and physically challenged….” Id. at
45-46. Ms. Hamilton explained that if DHS were appointed as Appellant’s
guardian, he would be placed into a personal care facility, which would provide
“[s]ome supervision, assistance with medications, socialization, activities of
daily living, laundry, … meals, interactions, … and medical [assistance.]” Id.
at 49-50. DHS would also provide an initial assessment within 90 days, setting
forth Appellant’s assets, where he was going to be living, his visitation
allowances, etc. Id. at 53. DHS would file additionally an annual report
detailing Appellant’s financial situation, medical information, “any concerns
that [DHS] might have,” and whether the guardianship should continue. Id.
at 54. Ms. Hamilton testified that she was aware that Appellant was
incarcerated in the county jail at the time of the hearing, because he had
pending criminal charges but had been deemed incompetent to stand trial.
Id. at 64. She stated that, if the court deemed him incompetent, DHS would
“make every effort quickly to get him out of jail” and into a facility. Id.
-7-
J-S15011-20
Also at the April hearing, Appellant presented the testimony of his
friend, Kim Musser. Ms. Musser testified that she has known Appellant for
approximately five years, and that, while he was incarcerated, she checked
on his house, got his mail, and paid his bills. Id. at 66-67. According to Ms.
Musser, Appellant was able to clearly explain to her how to handle issues that
arose with his home and finances. Id. at 71. Ms. Musser also testified that,
to her knowledge, before Appellant was incarcerated, he was able to
independently handle his finances, home, property, and other life
responsibilities. Id. at 69. She had no concerns about his ability to continue
to do so upon his release from prison. Id. at 70.
At the close of the hearing on April 18, 2019, the court ordered DHS to
serve as Appellant’s temporary guardian. Id. at 78. It then recessed the
hearing and directed that it would reconvene on July 2, 2019. Id. at 79.
On that date, Appellant testified. He explained that, if he were not
deemed an incapacitated person, he would return to the family farm where he
had resided before he was incarcerated, and live there alone. N.T. Hearing,
7/2/19, at 4, 8. Appellant described a typical day living on his farm. Id. at
9. He discussed his personal care and hygiene, and how he cooked his own
meals, gardened, cared for his property, maintained his farm equipment, and
regulated his diabetes and other health conditions. Id. at 9-15. Appellant
expressed that he could “absolutely” take his required medication, as he had
been doing for many years. Id. at 20. He explained that if he had a medical
-8-
J-S15011-20
emergency, he would call 911. Id. at 21. Appellant also testified that he has
his driver’s license and a vehicle. Id. at 22.
In regard to his finances, Appellant explained that his monthly income
from Social Security was electronically deposited into his bank account, and
he paid his bills electronically or by telephone. Id. at 26. He testified clearly
about the bills he pays, including his car payment and insurance, as well as
approximately how much he spends on groceries, gasoline, and maintaining
his home and property. Id. at 27-32.
Appellant was then asked about his statement to Dr. Bingaman that he
was in danger because of Al-Qaeda. Appellant proceeded into lengthy
testimony about how he was the “beneficiary of a large quantity of gold” and,
based on his communication with former CIA agents, he believed that if he
attempted to access that gold, he would be in danger from “a large gang of
Nigerians….” Id. at 43-44. Appellant claimed that his life is in danger and he
wears “body armor at … different times….” Id. at 44. He testified that he
owns approximately 30 firearms and was in the process of acquiring more.
Id. at 37. He also indicated that he would use his guns to defend himself.
Id. at 44. Appellant explained that he would eventually acquire the gold,
which he claimed was valued at “close to a hundred million dollars.” Id. at
45, 46.
Appellant also repeatedly indicated that he did not trust the police, and
that he has “NRA training” to handle any issues himself. Id. at 44, 77. In
addition, Appellant claimed that he won a lawsuit against “the State of Ohio”
-9-
J-S15011-20
for ten million dollars. Id. at 52. He also stated that he had executed a
durable power of attorney naming a friend, Sani Sulley, as his agent. Id. at
72. According to Appellant, Ms. Sulley is a retired CIA agent who was shot in
Ghana by Al-Quaeda during dealings surrounding the “large quantity of gold”
Appellant claimed to have inherited. Id. at 43.
Additionally, Appellant testified at length about his professional
experience, claiming that he is an aircraft engineer and consultant, and that
he works for “the department of defense[,]” the Federal Aviation
Administration, and Boeing. Id. at 55-56, 57. He explained that he has
access to “secret national securities information” and that if he divulges any
information “it’s punishable by [his] death by firing squad.” Id. at 58.
Appellant testified that because of this, he has “to be very careful about what
[he] say[s] to people,” which affected his responses in his evaluation with Dr.
Bingaman. Id. at 59. Appellant explained that the doctor “thought there was
something wrong with [Appellant] mentally” because Appellant had to pause
and think about what he could reveal to the doctor. Id. Appellant claimed
that he “made up delusions” and lied when speaking with the doctor, so as
not to reveal confidential information. Id. Appellant also testified at length
about companies he allegedly owns and operates, and certifications and
licenses that he possesses. Id. at 60-62. However, he did not produce any
documentation to support his testimony, claiming that it might have been
destroyed when his home “was ravaged by the State Police[,]” who “threw
paper everywhere inside [his] business [and his] house.” Id. at 62.
- 10 -
J-S15011-20
At the close of the July 2, 2019 hearing, the orphans’ court set forth its
reasons for deeming Appellant an incapacitated person, stating:
[The Court]: [Appellant], it’s my duty as the trial court judge to
find facts and to decide what are the true facts. … I have to
determine whether you have sufficient capacity to make decisions
concerning your health, safety, and financial matters, and the
Petitioners [DHS] have indicated you do not.
Now, certainly I’ll say it in colloquial terms, you haven’t been
on the street since August of 2017. When you were last on the
street, you were charged with a series of felonies, and those
charges kept increasing on you. I shredded all my papers
regarding the charges because I looked at the reports of Dr.
Martone[2] and Torrance and found that you were incompetent to
stand trial, which I’m going to say is a lower standard than
incapacity, in my opinion, because to stand trial on specific facts,
you have to be able to be aware of what the facts are and to be
able to assist your attorney or yourself in asking questions and
doing that to professionals.
Well, I believe if I recall Dr. Martone’s first report, was, I
need to send him to Torrance to do a medical regimen to see if he
could be stabilized to aid in his defense. Torrance after several
months wrote a report that said, [t]his man cannot be stabilized.
Now, because of your age, at some point, the jail was informed.
Jefferson County Area Agency on Aging, totally separate from all
that, sent Dr. Bingaman out who does their normal evaluations for
these type[s] of proceedings, and he told the Area Agency on
Aging, [t]his man cannot live on his own and cannot make
financial decisions.
So[,] I don’t see just the fact of having a friend pay your
bills while you’re in jail as your last acts. I have anywhere from
fifty to three hundred thousand dollars in restitution claims that
were the result of troopers believing that you did those, and I
think it’s all the result -- your testimony is delusional. I mean, I
-- I really was waiting to hear it, but I am now confident that no
appeals court judge will look at this opinion and say this man is
not delusional.
____________________________________________
2 Dr. Martone’s full name is not in the record before us.
- 11 -
J-S15011-20
The CIA testimony, the Ghana testimony, the fact there’s
gold somewhere and a $10 million judgment in Ohio, all untrue,
and you believe them. You believe them deep in your heart. You
believe some woman, who I think is a fictional character in a TV
show, has your power of attorney. … Even if these people exist,
it doesn’t make your testimony any more credible.
No one has come to the Jefferson County Jail. Boeing is not
going to look at you to solve their problems even though you’re
an aeronautical engineer. From the other cases on which you’ve
asked me to recuse because of those results, I know your
education, and I know you have a master’s degree. And I know
you work all over the world. And when you were younger and you
were in front of the [c]ourt, you were doing that and doing that
successfully. But I have to look at the charges you got.
I don’t believe you could care for yourself, and I believe you
need to be in a restrictive facility. And you certainly can’t be
anywhere near a computer because I believe with the delusional
acts you’ll have, you’ll be getting -- you’ll end up getting more
criminal charges. And if you[’re] on your own, you would also, I
believe, put your own money into that and end up in a destitute
situation. And I don’t think because you believe that, I don’t think
you can care for your health.
Yes, you -- obviously, you look better than the first hearing.
You dyed your hair. You got it cut. You’re well-dressed and well-
groomed. I think there’s more to living than that, and I don’t
think that you have the capacity to do that on your own.
***
Now, [DHS is] going to have the primary guardianship…[.]
[W]e’ve had three Ph.D.’s, one of them psychiatric [sic] at
Torrance, who would essentially all agree with this if they were
called: You’re incompetent to live on your own. You’re
incompetent to make decisions because of the actions you’ve
taken and because of the delusions you’re under.
N.T. Hearing, 7/2/19, at 104-08.
Additionally, in its Rule 1925(a) opinion, the court adds the following
discussion in support of its decision that Appellant is an incapacitated person:
- 12 -
J-S15011-20
Respecting [Appellant’s] capacity, the hearing transcripts
plainly demonstrate that the [c]ourt’s adjudication was not in
error. [Appellant] was evaluated by three different doctors, all of
whom found him to be delusional. The third, who specifically
evaluated him for purposes of … this case, opined that
[Appellant’s] delusions would interfere with his ability to live
independently and, more specifically, with his ability to make
rational decisions so as not to pose a danger to himself or others.
See [N.T.] Hearing…, 4/18/[]19…, [at] 9-43. His testimony was
credible in and of itself, but was bolstered by [Appellant] himself.
As the transcript reflects, [Appellant’s] thinking and
responses were flightive [sic] from the outset. His attorney,
however, was able to keep him on track pretty well and elicit
appropriate responses as to his home living situation and daily
routines, his monthly bills and expenses and how he handled his
financial affairs, and how he would respond to an emergency
situation. See [N.T. Hearing,] []7/02/[]19…, [at] 4-32. Even
then, though, he was deliberately tailoring his answers to reflect
what he “knew” his attorney and the [c]ourt “wanted” to hear.
Id. at 32. Yet he could not maintain his charade for long; his
extensive delusions and paranoia were soon brought fully to light,
beginning with his assertion that all of the psychiatric
professionals who had evaluated him were “trying to do [him] in.”
Id. at 40. Soon to follow was his belief that the police were
conspiring against him, id. at 41-42, which turned out to be one
of the least incredible and delusional things he said throughout
the remainder of his testimony. See id. at 42-93.
That [Appellant] had been able to live alone and care for
himself prior to his incarceration and could still keep track of his
financial obligations at the time of hearing were not dispositive
factors in this case. As Dr. Bingaman explained, his delusions and
paranoia posed a very real risk that he would lose faith in the few
people whose assistance he did invite and, guided only by his own
anti-social thoughts and ideas, endanger himself and those
around him.1 See [N.T. Hearing, 4/18/19, at] 34-47. See also
[N.T. Hearing, 7/2/19, at] 104-09 (where the [c]ourt verbalized
its findings in adjudicating [Appellant] to be incapacitated).
1 The [c]ourt is not intending to diagnose [Appellant] with
anti-social disorder; it uses the term as a shorthand to
represent his distrust of the police, the court system, and
others, combined with his belief that a variety of powerful
- 13 -
J-S15011-20
and dangerous people are looking for him and would prefer
to see him dead.
Trial Court Opinion (TCO), 12/13/19, at 1-2 (unnumbered).
On appeal, Appellant essentially argues that the orphans’ court erred by
“disregarding competent testimony as to Appellant’s abilities to handle his own
affairs.” Appellant’s Brief at 13. He points to Ms. Musser’s testimony that he
could “maintain his affairs prior to his incarceration” and that “she assisted
Appellant in keeping his bills paid and property maintained while he was
incarcerated.” Id. He stresses that he was able to clearly instruct Ms. Musser
how to handle his bills and other issues that arose. Id. at 13-14. Appellant
claims that, “in [Ms. Musser’s] review of his expenses, there was nothing out
of the usual that would demonstrate a propensity on his part to waste his
money or be taken advantage of.” Id. at 14.
Appellant also claims that his own testimony demonstrates his ability to
care for himself, maintain his property, and handle his own finances. Id.
According to Appellant, the court focused only “on Appellant’s outlandish
testimony and criminal matters,” and “disregard[ed] Appellant’s apparent
ability to live independently without endangering himself.” Id. at 15. He also
maintains that the court improperly relied “solely on the testimony of [DHS’s]
expert and that of the experts from the previous criminal matters[,]” while
“disregarding the credible testimony given that demonstrated Appellant’s
ability to maintain his personal affairs if living independently.” Id. He asks
this Court to “review such testimony and apply appropriate weight to the
same….” Id.
- 14 -
J-S15011-20
Our standard of review does not permit us to reweigh the evidence or
overturn credibility determinations when they are supported by the record, as
the court’s are in the present case. It was within the orphans’ court’s province,
as the fact-finder, to accept Dr. Bingaman’s expert opinion that Appellant is
incapable of caring for himself and handling his finances. This is especially
true where Appellant’s own confusing and delusional testimony supported the
doctor’s position. Moreover, the court was free to disregard Appellant’s
earlier, more coherent testimony about his daily life and ability to handle his
affairs when Appellant’s testimony subsequently devolved into lengthy
discourses concerning matters that seemed to be pure figments of his
imagination. In sum, the court’s credibility determinations are supported by
the record and, therefore, we must accept them.
Appellant also claims that the court erred by “allowing Appellant to be
placed in a more restrictive setting than is required for his unique situation.”
Id. at 17. Appellant insists that “he can adequately and safely live on his own
farm, without the need of twenty-four seven supervision. The [orphans’]
court’s fear of computer usage … result[ing] in new criminal matters can be
vitiated by a limited guardianship that restricts computer and internet access.”
Id. at 17-18.
However, the court clearly was not solely concerned about Appellant’s
computer access. It also found that Appellant’s prior ability to live alone and
handle his finances “were not dispositive factors” in its decision to deem him
an incapacitated person. TCO at 1 (unnumbered). Rather, the court was
- 15 -
J-S15011-20
primarily concerned that Appellant’s present delusions and paranoia would
make him a danger to himself and/or others, and that those mental health
issues render him incapable of adequately caring for himself or handling his
finances. As the record supports these determinations, we discern no error in
the court’s deeming Appellant an incapacitated person and appointing DHS as
the permanent plenary guardian of his person and estate.3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/2020
____________________________________________
3 We observe, however, that it appears the court failed to inform Appellant of
his right to file a petition to modify or terminate the guardianship. See 20
Pa.C.S. § 5512.1(h) (“At the conclusion of a proceeding in which the person
has been adjudicated incapacitated, the court shall assure that the person is
informed of his right to appeal and to petition to modify or terminate the
guardianship.”) (emphasis added). While Appellant has not raised any
challenge to this omission, thus waiving it for our review, we point out that he
may file a petition to change or end DHS’s guardianship if/when he believes
that his circumstances have changed.
- 16 -