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In re Noyallis-Kush

Superior Court of Pennsylvania

September 12, 2013

IN RE: MARY KAY NOYALLIS-KUSH, AN INCAPACITATED PERSON APPEAL OF: MARY KAY NOYALLIS-KUSH Appellant IN RE: MARY KAY NOYALLIS-KUSH, AN INCAPACITATED PERSON APPEAL OF: MARY KAY NOYALLIS-KUSH Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered November 9, 2012 In the Court of Common Pleas of Montgomery County Orphans' Court at No.: OC #2002-X2042

Appeal from the Order Entered October 4, 2012 In the Court of Common Pleas of Montgomery County Orphans' Court at No.: OC #2002-X2042

BEFORE: FORD ELLIOTT, P.J.E., BENDER, J., and WECHT, J.

MEMORANDUM

WECHT, J.

Mary Kay Noyallis-Kush ("Appellant") appeals from the orders of October 4, 2012 and November 9, 2012. Those orders appointed a guardian for Appellant's estate and person after the Orphans' Court found Appellant to be incapacitated. We affirm.

In July 2002, the Orphans' Court found Appellant to be incapacitated as a result of Korsakoff's syndrome, [1] which was caused by severe alcohol abuse. In December 2003, following a review hearing, the order was vacated and dissolved. Trial Court Opinion ("T.C.O."), 11/9/2012, at 1-2.

On July 23, 2012, Suburban Woods Health and Rehabilitation Center ("Suburban Woods") filed a new petition for adjudication of incapacity and appointment of a guardian. At that time, Appellant was residing at

Suburban Woods and wished to leave the facility. A court-ordered independent psychological evaluation was performed. T.C.O. at 2. The expert testimony showed that Appellant was intelligent, articulate, and alert. T.C.O. at 5. However, the expert testimony simultaneously demonstrated that Appellant had significant cognitive impairment, an inability to assess a situation and implement a plan, and significant difficulties with executive function. T.C.O. at 5-7. Following a hearing, on August 22, 2102, the court found Appellant to be incapacitated, and appointed a guardian. T.C.O. at 2.

After Appellant notified the court that she wished to introduce additional psychiatric testimony that was not available at the hearing, the court vacated its August 22 decree. On September 27, 2012, the court held a second hearing, and on October 4, 2012, issued a decree finding Appellant to be totally incapacitated. T.C.O. at 2-3.

On October 17, 2012, Appellant filed a notice of appeal. On November 9, 2012, the Orphans' Court filed an amended decree, appointing a successor guardian. On November 26, 2012, Appellant filed a second notice of appeal.[2] By order dated January 22, 2013, the two appeals were consolidated.

Appellant raises one issue for our review: "Is the trial court's finding of incapacity supported by clear and convincing evidence?" Appellant's Brief at 6.

Our standard of review is as follows:

[T]he Court is bound by the trial judge's findings of fact unless those findings are not based on competent evidence. Conclusions of law, however, are not binding on an appellate court whose duty it is to determine whether there ...

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