Family law is often narrowly viewed as issues affecting custody, support and divorce. Many families, however, also find themselves in Pennsylvania’s Orphans’ Court grappling with issues concerning adoption and incapacitated persons.
We live in an age when medicine often allows the body to last longer than the brain. Dementia and Alzheimer’s disease is a part of life for many families and it can make for a difficult time. Pennsylvania has adopted a flexible approach toward incapacity. The PA approach is based on the concept that elderly citizens may need help doing some things but not others.
The recent Bucks County ruling, Collins Estate, illustrates the PA model. 82 Bucks Co. L.R. 404 (June, 2009). In August of 2007, the children of David Collins saw their father starting to fail mentally. One child filed a petition to have a guardian appointed of his person (to make decisions affecting his welfare) and of his estate (to manage his assets). At a preliminary hearing in September of 2007, five of his children testified in favor of the appointment of their sibling because their father was becoming forgetful about his personal needs and his financial affairs. Mr. Collins sat quietly through the proceedings. When the Court issued temporary orders for an independent evaluation by a psychologist, however, he appealed to the Superior Court. This appeal was quashed because the proceedings were not complete.
Mr. Collins also resisted the evaluation. He retained a lawyer and demanded a jury trial on the issue of whether a permanent guardian should be appointed. The trial took five days and included testimony by Mr. Collins, his children and by the psychologist who found that he suffered from dementia. The jury found Mr. Collins incapacitated. Incapacity having been found, the Court structured an order seeking to balance the need for supervision against the rights we expect to enjoy to the use of our property. The daughter who had brought the petition was appointed guardian of the person of Mr. Collins. He had asked that his lawyer be given that task.
Mr. Collins was found to have difficulty attending to his day to day finances, his personal care and his medical needs. His daughter’s appointment provided that these decisions were to be made in consultation with her father but with the clear directive that she could rule on these matters if her father’s wishes did not comport with his welfare.
Mr. Collin’s estate consisted of roughly $250,000 in bank deposits and $1.85 million in investment accounts at Boening & Scattergood. The daughter was empowered to manage the bank deposits to manage his needs but Mr. Collins was left in charge of the investment account because he seemed to have some familiarity with the funds and how they should be invested. The Court also saw that he had a longstanding and trusting relationship with his broker. Because the funds were conservatively invested, the broker would know if Mr. Collins would begin to act in ways that seemed inconsistent with his history of managing his wealth.
Mr. Collins appealed the final decree imposing these limitations and challenging the constitutionality of the statute. 20 Pa. C. S. 5501 et seq. He also asserted that the Court exceeded its authority in conducting an inquiry into the nature and extent of his wealth. As this decree is now final, this ruling will be evaluated by the Superior Court.
The statute defines an incapacitated person as one whose ability to receive and evaluate information as well as to communicate decisions effectively is impaired to an extent that renders him unable to manage financial resources or meet essential requirements of health and safety. 20 Pa. C.S. 5501 Once this level of impairment is found a guardian is appointed. Consideration may be given to the preference of the person for whom the guardian has been appointed. But the court may overrule the request of the subject in favor of someone it believes will perform the tasks of guardian and who has no clear conflict of interest. 20 Pa. C.S. 5511(f). In Collins, the Court determined that the daughter who brought the petition was already serving in a similar capacity for her mother and that her siblings approved of her performance. On the other hand, it saw the appointment of Mr. Collin’s attorney as guardian to be potentially divisive.
This case offers a good illustration of how the statute works and the flexibility it can provide where the incapacity is partial. These are difficult cases as many aging parents either cannot sense that their mental abilities are slipping or they are resistant to giving up control of certain aspects of daily life. The litigation can also breed family conflict as children will sometimes disagree on what should occur or side with a parent because they believe it may offer them advantage when the parent does his or her estate planning. These are challenging questions and make for complex and protracted litigation because there is no “bright line” test for mental acuity.