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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NON-PRECEDENTIAL DECISION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 was a proper application of law to fact by the lower court.

In re Peery, 727 A.2d 539, 540 (Pa. 1999).

An incapacitated person is:

[A]n adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.

20 Pa.C.S.A § 5501. "The court, upon petition and hearing and upon the presentation of clear and convincing evidence, may find a person domiciled in the Commonwealth to be incapacitated and appoint a guardian or guardians of his person or estate." 20 Pa.C.S.A § 5511(a).

In making a determination of incapacity, the Orphans' Court is required to make findings of fact:

In all cases, the court shall consider and make specific findings of fact concerning:
(1) The nature of any condition or disability which impairs the individual's capacity to make and communicate decisions.
(2) The extent of the individual's capacity to make and communicate decisions.
(3) The need for guardianship services, if any, in light of such factors as the availability of family, friends and other supports to assist the individual in making decisions and in light of the existence, if any, of advance directives such as durable powers of attorney or trusts.
(4) The type of guardian, limited or plenary, of the person or estate needed based on the nature of any condition or disability and the capacity to make and communicate decisions.
(5) The duration of the guardianship.
(6) The court shall prefer limited guardianship.

20 Pa.C.S.A. § 5512.1(a).

Additionally:

Once an individual has been found incapacitated within the meaning of 20 Pa.C.S. § 5501, Meaning of incapacitated person, and in need of guardianship services, it then becomes the court's responsibility to appoint an individual to serve, granting limited or plenary powers consistent with the incapacitated person's needs. When making the decision who shall so serve, the court may consider, in addition to all the evidence before it, the preference of the party. Id., § 5511. The selection of a guardian for a person adjudicated incapacitated lies within the discretion of the trial court whose decision will not be reversed absent an abuse of discretion.

Estate of Haertsch, 649 A.2d 719, 720 (Pa. Super. 1994).

Having reviewed the certified record and the trial court opinion, we conclude that the Orphans' Court's findings are amply supported by the record and that the court properly applied the facts to the statutory law in making its determination. The court did not abuse its discretion in concluding that there was clear and convincing evidence that Appellant is incapacitated and that Appellant requires a guardian. We adopt the Orphans' Court's thorough and well-reasoned opinion. A copy is attached for reference.

Orders affirmed.

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