Appeal from the Order of the Office of Hearings and Appeals, Department of Public Welfare, in case of Appeal of: Elizabeth Ellen Lang, Re: William George LeViseur -- Assessment of Liability, dated December 26, 1984.
Foster S. Goldman, Jr., with him, Vernadean S. Passodelis, Berkman, Ruslander, Pohl, Lieber & Engel, for petitioner.
Jean E. Graybill, Assistant Counsel, with her, Edward P. Carey, Regional Counsel, John Kane and Roger T. Margolis, for respondent.
Judges Craig and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino.
[ 96 Pa. Commw. Page 119]
Elizabeth Lang (Trustee) appeals from a decision of the Department of Public Welfare (DPW) which held that the income and principal of a testamentary trust were available resources for William LeViseur (Beneficiary) and assessed liability for payment for medical care against the trust. For the reasons set forth below, we affirm.
The Beneficiary is an incompetent adult suffering from "idiopathic epilepsy" and "mental deficiency." He has resided in state school and hospital facilities the majority of his life, and currently resides at the Western Center, in Canonsburg, Pennsylvania. From 1946 to 1968, Edward LeViseur, Sr., the Beneficiary's father, paid the costs of maintaining the Beneficiary at the state facilities.*fn1 In 1968, Edward LeViseur, Sr. (Testator) died, leaving a will under the terms of which a trust was created for the benefit of the Beneficiary and his three siblings. The language of the will provided:
[ 96 Pa. Commw. Page 120]
FOURTH: I give, devise and bequeath to my Trustee, hereinafter named, all shares of stock that I may own or be entitled to receive in any publicly held companies, In Trust, nevertheless, for the following uses and purposes.
A. The Trustee shall hold, manage, invest and reinvest said trust estate and shall distribute the net income (hereinafter called 'Income') and principal from time to time as follows:
(1) During the lifetime of my son, WILLIAM GEORGE LeVISEUR, if he survives me, the Trustee shall pay the Income periodically to or for the support, maintenance, welfare and benefit of my said son or may, in the Trustee's discretion, add part or all of the Income to principal, to be invested as such.
(2) The Trustee may distribute such part of the Income not necessary for the support of my son, in equal shares to my three children, MARGARET MARY SMITH, EDWARD JOHN LeVISEUR, JR. and ELIZABETH ELLEN LANG, or to the survivor or survivors of them, provided however, should any of my said children predecease me, or surviving me die prior to the termination of the Trust Estate leaving issue, such deceased child's then living issue shall take the deceased parent's share, per stirpes.
(3) The Trustee shall use so much of the principal as may in her opinion be advisable therefor, for the support, maintenance, welfare, comfort and support of my son, ...