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In Re: Estate and Person of

April 23, 2013

IN RE: ESTATE AND PERSON OF RUSSELL R. BORDER, JR., AN INCAPACITATED PERSON APPEAL OF: SHARON L. GRAY, ESQUIRE, PETITIONER AND FORMER PLENARY GUARDIAN TO MR. BORDER


Appeal from the Order Entered March 12, 2012 In the Court of Common Pleas of Berks County Orphans' Court at No(s): 81403

The opinion of the court was delivered by: Olson, J.

BEFORE: BOWES, OLSON and WECHT, JJ.

OPINION BY OLSON, J.:

Appellant, Sharon L. Gray, Esquire, former plenary guardian to R. Border, Jr., an incapacitated person, appeals from the order entered March 12, 2012, by the Court of Common Pleas, Orphans' Court Division, of Berks County, Pennsylvania, removing Appellant as plenary guardian of Mr. Border's person, and appointing Mr. Border's brother as plenary guardian of his person. The orphans' court's March 12, 2012 order expressly granted Mr. Border's brother the power and authority to withhold and/or decline any life-sustaining medical treatment to Mr. Border, an action which Appellant refused to authorize while serving as Mr. Border's guardian. Within hours of entry of the orphans' court's March 12, 2012 order, Mr. Border's brother authorized the withholding of Mr. Border's life-sustaining treatment, and Mr. Border died that day. On appeal, Appellant argues that an advanced directive executed by Mr. Border prior to his incapacitation survived his incapacitation, and that the orphans' court erred in removing Appellant as Mr. Border's plenary guardian and appointing a guardian willing to authorize the termination of Mr. Border's life-support. For the foregoing reasons, we affirm.

The certified record reflects the sad factual and procedural background of this matter as follows.

On March 15, 2010, the Berks County Office of Aging (the "Department") filed a petition for appointment of a guardian on behalf of Mr. Border. The petition explained that Mr. Border was a 62-year-old resident at the Golden Living Center nursing facility. According to the petition, Mr. Border required appointment of a guardian due to chronic medical conditions and failing mental health. The petition alleged that, due to the decline in his mental health, Mr. Border was a potential victim of designing persons, and needed assistance with decision-making by an advocate that had his best interest in mind. The Department averred that appointing a guardian of Mr. Border's person and estate was the least restrictive measure to protect Mr. Border's best interest. The petition listed Mr. Border's presumptive heirs as his wife and two adult daughters. The petition also acknowledged the existence of a health care power of attorney executed by Mr. Border, and naming his eldest daughter, Renee Vongpathoum, as his agent.*fn1 The petition requested that the orphans' court appoint Ms. Vongpathoum guardian of Mr. Border's person, and attorney, Sharon L. Gray, Esquire (Appellant), guardian of his estate.

On April 14, 2010, the orphans' court held a hearing on the Department's petition. At the conclusion of that hearing, the orphans' court entered an order declaring Mr. Border incapacitated, and appointing Ms. Vongpathoum plenary guardian of his person and Appellant plenary guardian of his estate.*fn2 Additionally, the order expressly revoked any other existing general power of attorney, limited power of attorney, and/or health care power of attorney previously executed by Mr. Border.

Two weeks later, on April 28, 2010, the Department filed a motion for reconsideration of the orphans' court's April 14, 2010 order. According to the Department's motion, Ms. Vongpathoum had arranged to have Mr. Border removed from the nursing facility, planning to return him to his residence, where Ms. Vongpathoum intended to care for him. Within the motion, the Department alleged that Ms. Vongpathoum was physically unable to care for Mr. Border, and that he should not be removed from the nursing facility. Additionally, based upon information received from

Appellant, the Department cited concerns about Mr. Border's other daughter who also resided in the home. The Department suggested that the orphans' court remove Ms. Vongpathoum as guardian of Mr. Border's person, and appoint Appellant as guardian of both his person and his estate.

That same day, April 28, 2010, the orphans' court filed an amended order, appointing Appellant as the guardian of Mr. Border's person in addition to her role as guardian of his estate. The April 28, 2010 order repeated the previous language wherein the orphans' court revoked "any other existing general power of attorney, limited power of attorney and/or health care power of attorney" previously executed by Mr. Border. Orphans' Court Order, 4/28/2010.

From April 28, 2010 until March 12, 2012, Appellant served as plenary guardian of Mr. Border's person and estate, making all decisions regarding Mr. Border's care and finances. In March 2012, Mr. Border was admitted to the intensive care unit at Reading Hospital and Medical Center (the "Hospital"). As a patient in the intensive care unit, doctors placed Mr. Border on a mechanical ventilator and other forms of life-sustaining treatment. During this time, Mr. Border's treating physician and other Hospital personnel contacted Appellant, explaining that Mr. Border's health condition was both terminal and futile. Hospital personnel recommended that, as guardian of his person, Appellant authorize the removal of Mr. Border's life-support. Mr. Border's family, including his wife, brother, sister, sister-in-law, and both adult daughters, all agreed with the Hospital's recommendation. Appellant, however, disagreed and asserted her authority as guardian of Mr. Border's person to prohibit the removal of his life-support.

On March 8, 2012, the Hospital was provided with a copy of a Veterans Administration Advance Directive: Durable Power of Attorney for Health Care and Living Will, dated July 25, 2007 (the "Directive"). As set forth above, within the power of attorney section of the Directive, Mr. Border appointed his daughter, Ms. Vongpathoum, as his health care agent. In the event that Ms. Vongpathoum was "unavailable" to serve as his health care agent, the Directive appointed Mr. Border's wife, Charlotte Ann Border, as his health care agent.

Additionally, within the living will portion of the Directive, Mr. Border set forth that he would want to have life-sustaining treatments under all categories of situations listed in the document. The living will also stated that Mr. Border wanted his noted preferences for life-sustaining treatments to serve as a "general guide," acknowledging that "in some situations the person making the decisions for [him] may decide something different..., if they think that it is in [his] best interest." Directive, 7/25/2007, at Part III(C).

Relying upon the Directive and conversations between herself and Mr. Border (acknowledging, however, that those conversations took place after Mr. Border was already incapacitated), Appellant steadfastly refused to authorize the removal of Mr. Border's life-support. Hospital personnel and Mr. Border's family continued to disagree. Those in disagreement with Appellant believed that removal of life-support was what Mr. Border would have wanted and was in his best interest.

As a result of the conflict, on March 12, 2012, the Hospital filed an emergency petition, seeking the removal of Appellant as plenary guardian of Mr. Border's person and suggesting that the orphans' court appoint Mr. Border's brother ("Brother"), as the new guardian of Mr. Border's person. The orphans' court summarized the emergency petition and the subsequent proceedings as follows.

According to the petition, [Mr. Border] was a sixty-four-year-old male in the Medical Intensive Care Unit of the Hospital. The Hospital was aware of [Appellant's appointment] as [Mr. Border's] guardian pursuant to the April 28, 2010 Order...

[Within the petition, the Hospital acknowledged the existence of the 2007 Directive executed by Mr. Border, but] noted that the April 28, 2010 guardianship Order revoked the Directive[;] [however] the Hospital's position was that this Directive clearly expressed [Mr. Border's] wishes that [Mr. Border's health care agent, Ms. Vongpathoum,] should have the final say on his medical decisions.

The petition continued by alleging that [Mr. Border] was critically ill, having been a patient at the [H]ospital since February 18, 2012, and that he had previously been a patient on multiple occasions during the previous six months. Many specialists had been involved in [Mr. Border's] care and their consensus was that [Mr. Border's] prognosis was dismal and that the medical care being provided was futile and causing him pain. It was their belief that the medical treatment being provided was contra indicated and not in the best interest of [Mr. Border]. The petition summarized [Mr. Border's] medical conditions as the following:

(a) severe peripheral vascular disease which has resulted in bi-lateral lower extremity amputations;

(b) end stage renal disease which requires hemodialysis;

(c) severe sepsis;

(d) pneumonia;

(e) severe coronary artery disease;

(f) respiratory failure, which has required the use of mechanical ventilation;

(g) severe chronic ischemic white brain matter changes as a result of multiple infarcts;

(h) dementia; and

(i) stage 2/3 decubitis ulcers on his sacrum area.

The petition also alleged that [Mr. Border] suffered from low blood pressure that, together with his dialysis, made proper pain medication impossible. Despite the concerns of numerous physicians and the overwhelming medical support for the removal of life[-]sustaining measures, [Appellant] insisted that all measures be taken to sustain [Mr. Border's] life. Not only did the Hospital's staff believe that [Appellant's] direction was inconsistent with [Mr. Border's] medical diagnosis and prognosis, but it was contrary to the wishes of [Mr. Border's] family and their belief as to what [Mr. Border] would have wanted in his circumstances. The Hospital therefore requested that the [orphans' court] substitute [Brother] as guardian for [Mr. Border] and authorize him to remove the ventilator and any other forms of life[-]support from [Mr. Border], opting instead for comfort care.

The telephonic testimony of one of [Mr. Border's] treating physicians, a pulmonary critical care physician, confirmed that [Mr. Border's] medical situation was indeed dire. [Mr. Border] was suffering from multiple organ failure as a result of severe cardiovascular disease. He was in respiratory failure, meaning that he could not be weaned from a ventilator. The vascular disease required the amputation of both of his legs above the knee. His nutritional status was so poor that his wounds had not been able to heal and he had exposed bone with ongoing infections despite weeks of very aggressive antibiotic treatment. Because of his inability to heal, he was not a candidate for any further surgery. His pneumonia was not responding to appropriate antibiotic treatment, and he was suffering from a progressively worsening encephalopathy such that he was becoming less and less responsive to the surrounding environment. He was unable to communicate or respond in any meaningful fashion, and the doctor's belief was that the prognosis was terminal. He expressed that with today's technology, it might have been possible to continue to keep [Mr. Border] alive by a number of weeks, subject to the next complication arising. The doctor also expressed his opinion that [Mr. Border] was suffering from pain and discomfort but that his conditions did not allow for proper pain management without discontinuing the life-sustaining treatment that was being administered. The doctor testified that he would, of course, follow the directions of [Appellant] in treating [Mr. Border]; however, it was clear to the [orphans' court] that he did not agree with those directions; particularly in light of the family's position that [Mr. Border] should be afforded comfort care rather than prolonging his [misery].

Before talking about [Mr. Border's] wishes[,] [Brother]

testified about their relationship. He talked about their hunting together for the past thirty years at a hunting camp that they built. He talked about giving his brother money and repairing his car. He talked about their having good conversations about family and what was happening socially. He talked about visiting his brother in the V.A. Hospital and in the Reading Hospital and visiting him two to three times per week while he resided in the nursing home for the past three years. He discussed the circumstances of his brother's living situation after his initial hospitalization, which led [Brother] to contact the Office of Aging for assistance. Apparently[,] he could not get relief because it was the office's position that because [Mr. Border] was married, [Mr. Border's] wife had to make the contact. [Mr. Border's] wife,

his second, was hesitant because of fears of retaliation from [Mr. Border's] daughters. Eventually, the Office of Aging did get involved as they were the petitioners for the guardianship.

[Brother] testified about his father having had diabetes. His father had a heart bypass operation and kidney failure, as well as a right leg amputation as a result of the diabetes. He testified about how he and [Mr. Border] cared for their father. He testified how he and [Mr. Border] discussed this over the years, especially over the last two years or so as [Mr. Border] continued to get sicker. They observed together how [Mr.

Border's] foot became infected just like their father's and, just like their father, resulted in a leg amputation. Thereafter, [Mr. Border] had a heart attack and was to undergo a bypass operation. After the operation, his other leg became infected. [Brother] recalled a conversation with [Mr. Border] prior to the first amputation that he would refuse dialysis, which at first he did. After [Mr. Border] went into convulsions, hospital staff had talked him ...


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