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BLANCHE J. MCCARTNEY v. COMMONWEALTH PENNSYLVANIA (01/11/83)

decided: January 11, 1983.

BLANCHE J. MCCARTNEY, PETITIONER
v.
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.

COUNSEL

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.

Author: 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 ยง 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 ...


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