Smith v. Smith

BECK, Judge,

concurring:

I join the opinion of the majority. I write separately in order to emphasize that a finding of incompetency under the Decedents, Estates, and Fiduciaries Code must be based upon a searching inquiry into the facts of the particular case before the court.

As the Pennsylvania Supreme Court has noted, a law “which empowers a court to declare an individual mentally incompetent and to place such individual’s business affairs in the hands of another is ‘a dangerous statute easily capable of abuse ... ’” Myers Estate, 395 Pa. 459, 462, 150 A.2d 525, 526 (1959) (citing Denner v. Beyer, 352 Pa. 386, 388, 42 A.2d 747, 748 (1945)). See generally Comment, *204Guardianship Incompetency Standard, 124 U.Pa.L.Rev. 1048 (1976). This danger of abuse is especially great where the alleged incompetent has given large sums of money to an organization which espouses a political ideology that is outside the mainstream. However, in the case sub judice, I find upon careful reflection sufficient evidence of record from which the trial court could have fairly concluded that appellant’s incompetency was established and that the donations or loans he made to the LaRouche organization were manifestations of that incompetency. If appellant had given or lent money to the Republican or Democratic parties or to a recognized charity under the same circumstances as existed in this case, I would also have concluded that the trial court did not err in finding him incompetent. I therefore conclude that the incompetency statute was not applied in a discriminatory manner and that the trial court’s order should be affirmed.

Appellant’s own testimony reveals a certain confusion and apathy regarding his financial affairs. For example, at a hearing on April 16, 1985, he was unable to explain why he had transferred $50,000 to a group affiliated with Lyndon LaRouche on April 4, 1985, and he did not remember whether this transfer represented a gift or a loan. N.T. April 16, 1985 at 48-50. Appellant also had difficulty adding figures and he was unable to count backward by threes.1 Appellee’s expert witness diagnosed appellant as suffering in part from an organic mental disorder which impaired his ability to calculate. N.T. June 12, 1985 at 37; July 29, 1985 at 51-54.

The record also supports the inference that appellant has already become the victim of designing persons. Appellant’s former roommate testified that during the fall of 1984, a representative of LaRouche often telephoned appel*205lant two or three times a night to solicit money. N.T. June 12, 1985 at 5-6. At this time, appellant refused to make a donation; however, he became deeply involved in the La-Rouche organization in early 1985 after attending a series of lectures sponsored by the group. During this period, appellant told his brother that he was sleeping only two or three hours per night. N.T. June 11, 1985 at 83.

Between February 13, 1985 and April 4, 1985, appellant donated or loaned a total of $212,000 to the LaRouche organization. Although appellant assured his family that he would not give the organization any more money until he received his first interest payments on his loans, he changed his mind after visiting the group’s headquarters in Lees-burg, Virginia. N.T. April 20, 1985 at 13; June 11, 1985 at 199. On April 10, 1985, he attempted to wire an additional $75,000 to a LaRouche affiliate. It was at this point that his family filed a petition for the appointment of a guardian.

On June 11, 1985, appellant informed the trial court that he planned to move to Leesburg in order to work for the organization in return for what he described as a “nominal stipend.” N.T. June 11, 1985 at 69. He also said that he was not interested in finding out how much he would be paid prior to relocating. Id. at 71. Later that month, he was told by his father’s secretary that his mother had become severely depressed as a result of his actions; he reportedly responded, “[W]ell, someone had to be sacrificed for the cause and it might as well be her.” N.T. August 30, 1985 at 44. Furthermore, in January 1986, six months before the trial court issued its final order, appellant was convicted in federal court of assaulting in an airport an individual who had questioned LaRouche’s policies.

Finally, it is significant that even one of appellant’s own expert witnesses testified that appellant has a “mental disorder” and that “He’s more likely to be influenced, conned, if you will, than the average individual.” N.T. July 9, 1985 at 75-76.

In light of all the circumstances of this case, the trial court did not abuse its discretion by concluding that there is *206clear and convincing evidence that appellant suffers from a serious mental disturbance, that he is likely to dissipate his estate, and that he is not capable of making a knowing and voluntary decision to dissipate his estate because of his mental condition. Accordingly, I agree that the trial court acted properly when it appointed a guardian to manage appellant’s assets.

. A. Backwards from a hundred by threes?

Q. By threes.
A. By threes. Ninety-seven, 94, 80 — 87. Eighty-three, 79, 60 — uhm, 69, 50 — how much longer do you want me to go?
Q. All the way.
A. Be here a long time.

N.T. June 11, 1985 at 12.