decided: January 11, 1983.
BLANCHE J. MCCARTNEY, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT
Appeal from the Order of the Department of Public Welfare in case of Appeal of Blanche J. McCartney, dated August 5, 1980.
Kenneth R. Alford, with him William R. Saul, for petitioner.
Jeffrey Gonick, Assistant Counsel, for respondent.
Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Blatt.
[ 71 Pa. Commw. Page 117]
Blanche J. McCartney (appellant) appeals here an adjudication of the Department of Public Welfare (DPW) denying her nursing home care benefits because she owned real property with a value in excess of $1500 and because this property was allegedly not occupied by the appellant's spouse, minor child or an incompetent adult child. Section 179.82 of the Public Assistance Eligibility Manual (PAEM), 55 Pa. Code § 179.82. The appellant contends that her son, Carl McCartney (Carl), is living on the property and is indeed incompetent. A hearing was held wherein the hearing examiner ruled that Carl was not incompetent, and thereby upholding the denial of assistance. An appeal to this Court followed.
As a general rule, the burden is upon the applicant for public assistance to show her eligibility for public assistance. See Dempsey v. Department of Public Welfare, 45 Pa. Commonwealth Ct. 121, 404
[ 71 Pa. Commw. Page 118]
A.2d 1373 (1979).*fn1 And where, as here, the party with the burden of proof did not prevail before the DPW, our scope of review as to the factual findings is to determine whether or not there has been a capricious disregard of competent evidence. Nunley v. Department of Public Welfare, 54 Pa. Commonwealth Ct. 10, 419 A.2d 240 (1980).
The appellant argues that the findings of the hearing examiner are not supported by the record*fn2 and that the evidence presented leads to a conclusion opposite to that arrived at below. We note initially that our appellate review of this case is hampered by the fact that the DPW has failed to enact some type of objective standard for determining incompetency. In testimony at the hearing, it was stated by Carrie Robbins, Income Maintenance Worker III, that the PAEM does not contain a definition of incompetency, and our review of the material leads us to the same inescapable conclusion.*fn3 The hearing examiner, however,
[ 71 Pa. Commw. Page 119]
had to use some form of test and, in his findings of fact, stated that the local assistance authorities found Carl not an incompetent adult child because of three factors: Carl receives Social Security checks and has not appointed a representative payee; Carl does not have a legal guardian; and Carl lives alone. Based on this last statement, the hearing examiner also found that there were no nearby relatives, which indicates to him that Carl's daily activities do not require supervision.
Reviewing these factors, we cannot say that they are supported by the evidence. The fact that Carl receives his Social Security checks in his own name is not indicative of competency. Representative payees are named for a variety of reasons, and legal incompetency is not the sole criteria.*fn4 In addition, Kay McCartney (Kay), the appellant's granddaughter-in-law, testified that she did not apply for a representative payee for Carl because "at the time that he got his check he was tickled to death, it was the first
[ 71 Pa. Commw. Page 120]
time in 36 years that he ever had anything of his own, and I didn't want to take it away from him. He never in all his life had any money of his own. He was always under the guardian [sic] of his mother." Moreover, Kay testified uncontradicted that she handled all of Carl's financial affairs, including watching him sign his check, taking him to the bank, paying his bills, and buying his food and other necessities. As to the question of legal guardianship, it is true that, at the time in question, there was no one so appointed. Nonetheless it is also clear that a DPW employee testified that there is no requirement that Carl be declared legally incompetent.*fn5
Lastly, as to the fact that Carl lived alone and did not have any nearby relatives, our review of the record reveals that this finding is simply wrong. Kay testified that Carl's sister lived only eight miles away and that the sister was in contact with Carl every day. In addition, Kay herself is only 35 miles distant from Carl and visits him at least once, sometimes twice, a week. There is ample evidence in the record that Carl is extremely dependent on his relatives. Cleaning, laundry, home repairs, finances -- all are handled by his relatives. The testimony also indicates that he cooks his simple meals on a hot plate because he does not know how to operate a modern electric stove. And it is axiomatic that observations of those who see and talk with the incompetent and observe his acts and his conduct are the best evidence. See, e.g. Urquhart Estate, 431 Pa. 134, 245 A.2d 141 (1968). Yet, it was this type of evidence which the hearing examiner apparently ignored.
[ 71 Pa. Commw. Page 121]
Inasmuch as the DPW was operating without an objective standard and the evidence fails to support the examiner's findings even under the subjective standard here employed, we must reverse the order and remand for computation of benefits.
And Now, this 11th day of January, 1983, the order of the Department of Public Welfare in the above-captioned matter is hereby reversed, and the case remanded with instructions to compute benefits.
Reversed and remanded.