In the Int. of: M.A., Appeal of: M.A.

J-A18016-22

2022 PA Super 180

IN THE INTEREST OF: M.A., AN : IN THE SUPERIOR COURT OF

ALLEGED INCAPACITATED PERSON : PENNSYLVANIA

:

:

APPEAL OF: M.A. AND JONES, :

GREGG, CREEHAN & GERACE, LLP :

:

:

: No. 1003 WDA 2021

Appeal from the Order of December 10, 2021

In the Court of Common Pleas of Allegheny County

Orphans’ Court at 022104306

BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.

OPINION BY MURRAY, J.: FILED: OCTOBER 17, 2022

In this appeal, Attorney Thomas J. Dempsey, Jr. (Attorney Dempsey),

appeals the order striking his appearance on behalf of M.A., an alleged

incapacitated person (AIP).1 Upon review, we vacate and remand for further

proceedings.

Case History

Although the issues before this Court are narrow, a comprehensive

recitation of the proceedings is relevant to our disposition. On June 1, 2021,

one of M.A.’s four adult daughters, Marsha Asbearry (Marsha), filed an

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1 Orders precluding counsel in civil cases are interlocutory and not immediately

appealable. E.R. v. J.N.B., 129 A.3d 521, 525 (Pa. Super. 2015). However,

once a final order has been entered, the precluded attorney may bring a

separate appeal challenging disqualification. Id. As the orphans’ court

entered a final order during the pendency of this appeal, in the interest of

judicial economy, we “regard as done what ought to have been done,” and

consider the appeal as being from the December 10, 2021, order. See Zitney

v. Appalachian Timber Products, Inc., 72 A.3d 281, 285 (Pa. Super.

2013).

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“Emergency Petition for Appointment of Permanent Plenary Guardian of

Person and Estate and Injunctive Relief,” seeking appointment as M.A.’s

guardian. Petition, 6/1/21, at 1 (unnumbered).2 Marsha averred that M.A.’s

wife (Marsha’s mother), Vondella, died on April 4, 2021, and M.A., who was

89 years old, suffers from dementia. Id. at 1-2 (unnumbered). Marsha

claimed there was an ongoing dispute between her and her siblings regarding

M.A.’s finances. Id. at 2-3 (unnumbered). She alleged:

[Marsha] seeks guardianship, in part, to maintain continuity of the

Living Will, [POA], Last Will and Testament, and clear wishes of

both Vondella [ ] and [M.A.].

[Marsha] has been familiar with the legal, medical and private

affairs of [M.A.] for many years, through the present with primary

support previously provided by Vondella [ ].

[Marsha] seeks to establish successor permanent guardianship

over [M.A.’s] person, and permanent plenary guardianship over

the Estate of [M.A.].

Id. at 3 (unnumbered). In addition to being named guardian, Marsha sought

“immediate injunctive relief via an Order of Court freezing the assets of [M.A.]

pending further Order of Court and resolution of these proceedings.” Id. at 4

(unnumbered).

Marsha attached to the petition copies of both parents’ 2019 wills,

which, in the event of their death, named Marsha as sole heir and executor.

Id. at Exhibits A and B. She also included a 2019 power of attorney (POA)

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2 Marsha’s sisters are Adraine Moreland (Adraine), Virginia Smiley (Virginia),

and Audrey Patrick (Audrey). Audrey is not involved in the proceedings.

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appointing her as M.A.’s agent in the event of Vondella’s unavailability. Id.

at Exhibit C. Accompanying the petition was the sworn affidavit of Michele J.

Gaines, the paralegal who assisted in preparing the wills and POA. Ms. Gaines

stated in her affidavit that at the time of Vondella’s death, M.A. suffered from

dementia and was unable to locate his and Vondella’s wills, so Ms. Gaines

provided copies. Id. at Exhibit D. Lastly, Marsha appended a letter from John

T. Haretos, M.D., who stated he had been M.A.’s primary physician for 20

years, and

[M.A.] has had a decline in his mental faculties over the last five

years. He is now diagnosed with Dementia. He no longer can live

independently and he cannot handle his own financial affairs. This

is a permanent situation and will not improve.

Id. at Exhibit E.

On June 2, 2021, the orphans’ court issued an emergency order freezing

M.A.’s assets (the order was not entered on the orphans’ court docket). On

June 4, 2021, the orphans’ court appointed Nicola Henry-Taylor, Esquire

(Attorney Henry-Taylor), to represent M.A.3 On June 9, 2021, attorneys Carol

Sikov Gross and Lori Capone (Attorney Capone), from the law firm of Sikov

and Love, entered their appearances on behalf of Adraine, Virginia, and M.A.

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3 Having been elected in November 2021, to the Allegheny County Court of

Common Pleas, Attorney Henry-Taylor is now The Honorable Henry-Taylor.

Following her election, Judge Henry-Taylor moved to withdraw her

appearance. On December 29, 2021, the orphans’ court granted her request

and appointed Jennifer Price, Esquire, as counsel for M.A.

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The orphans’ court issued a preliminary order scheduling a hearing for July 8,

2021. On June 10, 2021, the orphans’ court issued another order scheduling

a status conference for June 22, 2021.

On June 22, 2021, Attorney Capone filed a petition to withdraw from her

representation of M.A. (the orphans’ court never ruled on the petition).

Attorney Capone sought to withdraw based on the orphans’ court’s

appointment of Attorney Henry-Taylor to represent M.A. Petition to Withdraw

Appearance, 6/22/21. That same day, Attorney Capone filed on behalf of

Adraine and Virginia a motion to unfreeze M.A.’s assets. Motion for Emergency

Order to Unfreeze Assets, 6/22/21. The Motion included a POA executed by

M.A. on April 12, 2021 (four days after Vondella’s death), naming Adraine and

Virginia as agents. Id., Exhibit B. In their motion, Adraine and Virginia

disputed Marsha’s allegations that (a) they had engaged in financial

misconduct; and (b) Marsha had been primarily responsible for assisting her

parents with financial and personal affairs. Id. 3 (unnumbered). They

asserted:

During the last few years of her life, Vondella’s daughter, Adraine

[], assisted her mother and father with their financial matters,

such as paying bills, verifying that essential bills were paid, and

making deposits on their behalf.

***

On April 12, 2021, [M.A.] executed a Durable Financial [POA]

appointing his daughters [Adraine and Virginia], as his agents[].

…

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At all times since the execution of the 2021 POA, [Adraine and

Virginia] have properly managed their father’s finances and

personal affairs.

Id. at 2-3 (unnumbered). The sisters further averred:

[O]n numerous occasions and over many years, their father,

[M.A.], stated his desire to have [Adraine and Virginia] manage

his financial affairs.

[O]n numerous occasions and over many years, their father,

[M.A.,] stated his desire and intention never to have [Marsha]

manage his financial affairs.

Id. at 4 (unnumbered) (paragraph numbers omitted).

Moreover, their motion alleged M.A.

is without funds to buy food, pay for any utilities, and necessities,

or even pay for his wife’s gravestone that had been previously

ordered.

***

In order to afford even the necessities of life, [M.A.] has been

forced to borrow money from three of his daughters, [Adraine]

[Virginia], and [Audrey].

During the time since she obtained a Court Order to freeze the

accounts, [Marsha] has provided no financial support to [M.A.].

Id. at 3-4 (paragraph numbers omitted).

Thereafter,

[t]he June 22, 2022, status conference was attended by three (3)

lawyers, various family members and, most importantly, [M.A.].

The focus of this conference was [M.A.] centric. The [orphans’

c]ourt’s “goal” was “to create some framework for [M.A.] to be

taken care of, for his bills, for his welfare to be secure” and leave

the meaty issue of incapacity for the upcoming hearing.

After some back-and-forth with counsel, it was learned that

[M.A.’s] daughter, [Adraine], who he was living with at the time,

would take care of her father. The [orphans’ c]ourt concluded that

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this was not “an emergency” or a “Crisis” situation. The [orphan’s

c]ourt then adjourned the [conference] with a reminder to all

present that we will “meet on July 8th as Scheduled and we’ll

proceed from there.”

Orphans’ Court Opinion, 2/7/22, at 22 (emphasis added, citations omitted).

Attorney Henry-Taylor formally entered her appearance on behalf of

M.A. on June 25, 2021. Four days later, on June 29, 2021, Attorney Dempsey

entered his appearance on behalf of M.A.

On July 12, 2021, Marsha filed a motion to strike Attorney Dempsey’s

appearance. On July 14, 2021, Attorney Henry-Taylor filed a motion to strike

Attorney Dempsey’s appearance. Both motions relied on correspondence in

which Attorney Dempsey acknowledged Attorney Henry-Taylor’s appointment

as counsel for M.A. and stated that he “look[ed] forward to working with

Attorney Henry-Taylor as co-counsel[.]” Letter from Attorney Dempsey,

6/29/21, at 2 (unnumbered). Neither Marsha nor Attorney Henry-Taylor

requested an evidentiary hearing on their motions. On July 14, 2021, the

orphans’ court continued the guardianship hearing to July 26, 2021.

Adraine and Virginia filed an answer and new matter to Marsha’s

guardianship petition on July 23, 2021. The sisters contested the validity of

the 2019 will, and alleged Marsha had a

history of criminal behavior, drug dependency, and other

inappropriate behavior, [such that Vondella and M.A.] never

intended to place [Marsha] in any position from which she could

access their assets and income or exercise any control over their

finances.

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Answer and New Matter of Adraine and Virginia, 7/23/21, at 1-2. Adraine and

Virginia maintained that guardianship was unnecessary, as the recently

executed durable financial POA and durable health care POA naming them as

M.A.’s agents was a less restrictive alternative obviating the need for a

guardianship. Id. at 5-6. However, in the event the orphans’ court found

M.A. to be incapacitated, Adraine and Virginia asserted they should be named

co-guardians of M.A.’s person and estate. Id. at 5-6.

On July 23, 2021, Attorney Dempsey filed an answer and new matter in

response to the guardianship petition. Answer and New Matter of M.A.,

7/23/21. In his answer and new matter, to which he attached an unsworn

verification purportedly signed by M.A., Attorney Dempsey asserted: “M.A.

has at all times acted of his own volition to engage counsel for the purpose of

determining and acting to preserve all of his legal rights free of any undue

influence by any of his family members.” Answer and New Matter of M.A.,

7/23/21, at 3 (unnumbered). Attorney Dempsey also averred:

[Attorney Henry-Taylor] has not consulted with [M.A.] for a

sufficient amount of time, she has not given him the opportunity

to fully express his desire to advance a less-restrictive alternative

to guardianship that will adequately promote and preserve his

autonomy and independence, and she has not advocated on his

behalf for the least restrictive alternative to the guardianship

sought by [Marsha].

Id. at 7.

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Attorney Dempsey additionally filed “A Demand for Testimony Pursuant

to Pa.O.C.R. 14.3(c)(1).4 Attorney Dempsey sought a witness and exhibit list

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4 Although the demand for testimony purports to be pursuant to Rule

“41.3(c)(1),” this appears to be a typographical error. Rule 14.3(c) provides,

in relevant part:

(a) A petitioner may seek to offer into evidence an expert report

for the determination of incapacity in lieu of testimony, in-person

or by deposition, of an expert using the form provided in the

Appendix to these rules. In an emergency guardianship

proceeding, an expert report may be offered into evidence if

specifically authorized by the court.

(b) Notice.

(1) If a petitioner seeks to offer an expert report permitted

under paragraph (a), the petitioner shall serve a copy of the

completed report upon the alleged incapacitated person’s

counsel and all other counsel of record pursuant to Rule 4.3 or,

if unrepresented, upon the alleged incapacitated person,

pursuant to Pa.R.C.R. No. 402(a) by a competent adult no later

than ten days prior to the hearing on the petition.

(2) If a petitioner seeks to offer an expert report, as permitted

under paragraph (a), the petitioner shall serve pursuant to Rule

4.3 a notice of that fact upon those entitled to notice of the

petition and hearing no later than ten days prior to the hearing

on the petition.

(3) The petitioner shall file a certificate of service with the court

as to paragraphs (b)(1) and (b)(2).

(c) Demand.

(1) Within five days of service of the completed report provided

in paragraph (b)(1), the alleged incapacitated person’s counsel

or, if unrepresented, the alleged incapacitated person, may file

with the court and serve upon the petitioner pursuant to Rule

4.3 a demand for the testimony of the expert.

(Footnote Continued Next Page)

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from Marsha and requested she provide either live expert testimony or the

deposition of M.A.’s treating physician. Demand for Testimony, 7/23/21, at

1-2 (unnumbered).

Lastly, Attorney Dempsey filed nearly identical responses to the motions

to strike his appearance. He did not attach a copy of his fee agreement with

M.A. or signed verification from M.A. The responses provided minimal

information about the circumstances under which M.A. retained Attorney

Dempsey. See Reply to Motion to Strike Appearance, 7/23/21, at 1-6

(unnumbered). The responses did not request an evidentiary hearing.

Notwithstanding, Attorney Dempsey requested the orphans’ court “deny the

motion to strike appearance[.]” Id. at 6 (unnumbered). Attorney Dempsey

did not file a motion to strike Attorney Henry-Taylor’s appearance.

On July 26, 2021, the orphans’ court issued a ruling from the bench on

the “two requests to strike appearance of a lawyer who claims to represent

the incapacitated person.” N.T., 7/26/21, at 3-4. Attorney Paul Ellis appeared

on behalf of Marsha; both Attorney Henry-Taylor and Attorney Dempsey

appeared on behalf of M.A. Attorney Capone, who had filed the outstanding

petition to withdraw from representation of M.A., did not appear.

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Pa.O.C.R. 14.3(a), (b) and (c)(1).

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The orphans’ court noted the parties had raised this Court’s decision in

Estate of Rosengarten, 871 A.2d 1249 (Pa. Super. 2005). N.T., 7/26/21,

at 4. The orphans’ court distinguished Rosengarten, stating:

I read it. I see a big distinction without [sic] facts, and as such,

the rules springing from Rosengarten will not apply here. In

Rosengarten there were facts of much improved mental

condition of Ms. Rosengarten. She was now taking her medicine.

That should have prompted the trial court to review its previous

incapacity decision. We do not have facts close to that.

So here’s my ruling. [Attorney] Dempsey, your appearance is

hereby stricken. You are not co-counsel for [M.A.].

Id. Attorney Dempsey took exception. Attorney Dempsey did not aver M.A.

was being denied the right to counsel of his choice, but argued the orphans’

court “right now doesn’t even have jurisdiction over my client because he

hasn’t been served pursuant to 5511 of the Guardianship Act.” Id. at 5.

Immediately following its decision striking Attorney Dempsey’s

appearance, the orphans’ court proceeded to a hearing on M.A.’s alleged

incapacity. Attorney Henry-Taylor represented M.A.; Attorney Ellis

represented Marsha; and Attorney Capone represented Adraine and Virginia.

M.A. was present, despite Attorney Dempsey’s claim regarding lack of service.

The orphans’ court did not take any sworn testimony.5 Instead, the court

explained its “understanding” of the matter and inquired about the feud

between M.A.’s daughters. N.T., 7/26/21, at 3, 9-10. The court stated, “I

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5 The transcript is in the certified record, but the exhibits admitted into

evidence are not.

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have some background, to sort of, what I thought this would be about. It’s

about who’s going to get the money. [M.A.] can have all these other issues

but ultimately this is about who’s going to get dad’s money and what

proportion.” Id. at 14. The court continued:

Why are we here? … I have a lot of cases but I don’t get children

feuding over the parent. I mean, this is a modest estate. There’s

something else here other than the traditional issues that I see

that belie this type of proceeding. Maybe what would help me is,

what’s the feud about? Why isn’t there any - - why isn’t there any

family congruence or harmony about giving dad the best life he

can have for the balance of the life he has? … I believe the

requisite issues with respect to [M.A.] and an AIP proceeding

would probably move forward, but who should be the guardian.

How come there can’t be some agreement? That’s the part I don’t

understand. So we can go forward with the emergency issue and

the AIP but I’m really - - I’m confused, what is it about. Where

did you all go awry? What happened? I received letters from the

husband of one party and it’s almost like a poison pen – I mean,

I do estates for multi hundreds of millions of dollars and it doesn’t

have the same sort of noxious poison that this modest estate has.

Id. at 9-10. As to the competing wills, the court opined:

I understand the sisters’ position that, why should [the third

sister, Marsha] get everything. I don’t know whether that was his

intent, the father to give everything to one daughter when there’s

three who get nothing, I don’t know. But if I was one of the three

who didn’t get nothing, I would probably be here in court. … I

believe if I had a sibling who somehow produced a document that

said that if mom dies before dad, then I get everything and it

didn’t make sense, given the relationships that the other kids had

with dad, I would probably come here and see if this will is

legitimate.

Id. at 18-19; see also id. at 25-27 (orphans’ court noting that should the

wills be invalidated, an intestate estate would be divided evenly between

heirs); id. at 30-31 (“Why do you all need a will? … The real issue is the will.

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… If I were to make a decision whether to have no will or have a will that

divides things equally, I would go with the will that divides things

equally[.]…”). The orphans’ court discounted the issue of whether M.A. had

the capacity to enter into a POA or will on April 12, 2021, as “just smoke.”

Id. at 24.

At the urging of the court, the parties arrived at a settlement. Id. at

21-22. They agreed to M.A. being declared incapacitated, and Marsha,

Adraine, and Virginia serving as co-guardians of M.A.’s person and estate, with

a corresponding order to be drafted by Attorney Henry-Taylor. Id. at 39-41.

M.A. was present throughout the proceedings and did not object to the

striking of Attorney Dempsey as counsel, his representation by Attorney

Henry-Taylor, or the agreement regarding his incapacity and guardianship.

Attorney Henry-Taylor advised the court that M.A. wished to settle and wanted

“everyone [to] get along and share everything … [and] would like to see the

fighting stop.” N.T., 7/26/21, at 23. M.A. confirmed to the court:

“Everything’s good.” Id. at 29. See also id. at 39-41 (orphans’ court

announcing parties’ agreement and stating Attorney Henry-Taylor would

memorialize the agreement); id. at 43-45 (Attorney Henry-Taylor affirming

she personally served M.A. and explained the proceedings to him; she also

noted M.A. was in the courtroom for all proceedings and participated to the

extent possible). While Attorney Capone argued lack of proper service upon

M.A., and thus the orphans’ court’s lack of personal jurisdiction, she stated,

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“the fact that we were working something out, I would like this matter to move

forward.” Id. at 42; see id. at 41-42.

On August 3, 2021, the orphans’ court issued an order denying Attorney

Dempsey’s demand for testimony as moot. On August 13, 2021, Attorney

Henry-Taylor filed a petition for compensation. Marsha filed a response to

Adraine and Virginia’s answer and new matter on August 17, 2021. Marsha

filed a guardianship bond on August 24, 2021. On September 2, 2021,

Adraine and Virginia filed a guardianship bond.

On August 26, 2021, prior to entry of a final order, Attorney

Dempsey filed this appeal from the order striking his appearance.

Attorney Dempsey and the orphans’ court complied with Pa.R.A.P. 1925. In

the meantime, proceedings involving M.A. continued in orphans’ court.

On October 26, 2021, Adraine and Virginia filed a motion to amend (the

not yet memorialized) consent agreement and sought the appointment of an

independent entity to serve as guardian of M.A.’s estate. Motion to Amend,

10/26/21, at 3-5. That same day, Adraine and Virginia filed a motion to

unfreeze M.A.’s assets and dissolve the injunction. Motion to Unfreeze Assets,

10/26/21, at 3-5. Marsha filed a reply to both motions on November 1, 2021.

A guardianship review hearing took place on November 1, 2021, at

which all parties (including M.A.) appeared, represented by counsel. Counsel

indicated that because Marsha, Adraine, and Virginia were in conflict as co-

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guardians of the estate, the three sisters agreed to the court appointing a

third party as guardian of M.A.’s estate.

M.A. spoke at the hearing. He did not object to his representation by

Attorney Henry-Taylor or request representation by Attorney Dempsey. N.T.,

11/1/21, at 40-41. M.A. described his current living situation: “Well, what I

do is live the regular way, like I always did.” Id. at 40. He referenced the

conflict between his daughters stating, “This one do this and this one do that,

but I don’t live like that.” Id. He expressed his desire that they work together,

“if you want to make good of it[.]” Id. at 41.

On December 10, 2021, all parties filed consents to serve as guardians

of M.A. That same day, the orphans’ court filed its final order memorializing

the parties’ agreement (a) declaring M.A. to be incapacitated; (b) appointing

Marsha, Adraine and Virginia as co-guardians of his person; and (c) appointing

Ameriserv Trust and Financial Service Company as permanent plenary

guardian of his estate. Order, 12/10/21, at 2.

On December 17, 2021, Adraine filed a request for $1,500.00 per

month, retroactive to June 22, 2021, to defray M.A.’s living expenses. Petition

for Compensation, 12/17/21, at 1-3 (unnumbered). Marsha filed a response

objecting to the request, noting the orphans’ court had stricken from its final

order a paragraph allotting funds to Adraine. Response, 12/20/21, at 1-4

(unnumbered). Adraine filed a reply on January 6, 2022. The orphans’ court

granted Adraine’s request by order entered January 20, 2022.

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Issues

Attorney Dempsey challenges the order striking him as M.A.’s counsel.

He presents two issues for review:

I. Did the Orphans’ Court abuse its discretion and err as a matter

of law in denying an alleged incapacitated person the right to

counsel of his own choosing?

II. Did the Orphans’ Court err as a matter of law in sua sponte

voiding a fee agreement between a client and his privately

retained counsel without due process[?]

Attorney Dempsey’s Brief at 4.6

Discussion

We begin with our standard of review:

[T]his Court must determine whether the record is free from legal

error and the court’s factual findings are supported by the

evidence. Because the Orphans’ Court sits as the fact-finder, it

determines the credibility of the witnesses and, on review, we will

not reverse its credibility determinations absent an abuse of that

discretion. However, we are not constrained to give the same

deference to any resulting legal conclusions. Where the rules of

law on which the court relied are palpably wrong or clearly

inapplicable, we will reverse the court’s decree.

Estate of Fuller, 87 A.3d 330, 333 (Pa. Super. 2014) (citation omitted).

When appropriate, the orphans’ court shall appoint counsel to represent the

alleged incapacitated person in any matter for which counsel has not been

retained by or on behalf of that individual. 20 Pa.C.S.A. § 5511(a). The

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6 Marsha did not file a brief, and Adraine and Virginia, by correspondence

dated April 28, 2022, indicated they take no position in this appeal.

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orphans’ court should abide by an incapacitated person’s wishes regarding

representation “to the extent possible.” Rosengarten, 871 A.2d at 1257.

In considering Attorney Dempsey’s issues, we recognize that the role of

counsel in guardianship proceedings is not clearly defined in the guardianship

statute. See 20 Pa.C.S.A. § 5511(a) (providing for court appointed counsel

of the alleged incapacitated person if the orphans’ court so chooses); see also

Estate of Haertsch, 609 A.2d 1384, 1387 (Pa. Super. 1992) (declining to

reach issue of whether alleged incapacitated person has constitutional right to

counsel).7 However, the following provisions of the Probate, Estates, and

Fiduciaries Code (PEF Code) provide guidance. Section 5501 of the PEF Code

defines an incapacitated person as:

[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. Section 5502 provides:

Recognizing that every individual has unique needs and differing

abilities, it is the purpose of this chapter to promote the

general welfare of all citizens by establishing a system

which permits incapacitated persons to participate as fully

as possible in all decisions which affect them, which assists

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7 Since 2014, the Pennsylvania Supreme Court’s Elder Law Task Force has

recommended changes to both the Rules of Professional Conduct and the

Orphans’ Court Rules, to address and clarify the role of counsel in guardianship

matters. See Report and Recommendations of the Elder Law Task Force,

11/2014, Guardian and Counsel Committee Report, § VIII.B.1.a.-b., at 50; §

VIII.C.1.D. at 51; § VIII.1.a., at 51; § VIII.C.1.c. at 51.; see also In re

Sabatino, 2016 WL 6995384, at *11 n.17 (Pa. Super. Nov. 30, 2016).

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these persons in meeting the essential requirements for their

physical health and safety, protecting their rights, managing their

financial resources and developing or regaining their abilities to

the maximum extent possible and which accomplishes these

objectives through the use of the least restrictive

alternative; and recognizing further that when guardianship

services are necessary, it is important to facilitate the finding of

suitable individuals or entities willing to serve as guardians.

20 Pa.C.S.A. § 5502 (emphasis added). The PEF Code defines the powers,

duties and liabilities of a guardian, and requires that the “[e]xpressed wishes

and preferences of the incapacitated person shall be respected to the greatest

possible extent.” 20 Pa.C.S.A. § 5521(a). Accordingly, counsel appointed to

represent an alleged incapacitated person must present the alleged

incapacitated person’s own position to the court. See generally, 20 Pa.C.S.A.

§ 5502. However, counsel must also consider the interests of the alleged

incapacitated person under 20 Pa.C.S.A. § 5501 (defining incapacitated

person).

Counsel’s ethical obligations are set forth in the Pennsylvania Rules of

Professional Conduct. Rule 1.14, which addresses representation of a person

with diminished capacity, states:

a) When a client’s capacity to make adequately considered

decisions in connection with a representation is diminished,

whether because of minority, mental impairment or for some

other reason, the lawyer shall, as far as reasonably possible,

maintain a normal client-lawyer relationship with the client.

b) When the lawyer reasonably believes that the client has

diminished capacity, is at risk of substantial physical, financial or

other harm unless action is taken and cannot adequately act in

the client’s own interest, the lawyer may take reasonably

necessary protective action, including consulting with individuals

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or entities that have the ability to take action to protect the client

and, in appropriate cases, seeking the appointment of a guardian

ad litem, conservator or guardian.

c) Information relating to the representation of a client with

diminished capacity is protected by Rule 1.6. When taking

protective action pursuant to paragraph (b), the lawyer is

impliedly authorized under Rule 1.6(a) to reveal information about

the client, but only to the extent reasonably necessary to protect

the client’s interests.

Pa.R.C.R. 1.14.

The Pennsylvania Orphans’ Court Rules have additional requirements:

(a) Retention of Counsel. If counsel for the alleged

incapacitated person has not been retained, the petitioner shall

notify the court in writing at least seven days prior to the

adjudicatory hearing that the alleged incapacitated person is

unrepresented and also indicate whether the alleged incapacitated

person has requested counsel.

(b) Private Counsel. If the alleged incapacitated person has

retained private counsel, counsel shall prepare a

comprehensive engagement letter for the alleged

incapacitated person to sign, setting forth when and how

counsel was retained, the scope of counsel’s services, whether

those services include pursuing any appeal, if necessary, how

counsel will bill for legal services and costs and the hourly rate, if

applicable, who will be the party considered responsible for

payment, whether any retainer is required, and if so, the amount

of the retainer. Counsel shall provide a copy of the signed

engagement letter to the court upon request.

(c) Appointed Counsel. The court may appoint counsel if

deemed appropriate in the particular case. Any such order

appointing counsel shall delineate the scope of counsel’s

services and whether those services include pursuing any

appeal, if necessary.

Pa.O.C.R. 14.4 (emphasis added).

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Incapacity must be proven by clear and convincing evidence. See In

re Hyman, 811 A.2d 605, 608 (Pa. Super. 2002); see also 20 Pa.C.S.A. §

5511(a). Clear and convincing evidence “is the highest burden in our civil law

and requires that the fact-finder be able to come to the clear conviction,

without hesitancy, of the truth of the precise fact in issue.” In re estate of

Heske. 647 A.2d 243, 244 (Pa. Super. 1994) (internal citations and

quotations omitted). The court may appoint a plenary guardian only

upon finding the AIP is totally incapacitated and in need of such

services. 20 Pa.C.S.A. § 5512.1(c).

Mindful of the above authority, we consider Attorney Dempsey’s

argument that the orphans’ court “abused its discretion and erred as a matter

of law by depriving [M.A.] of the right to choose his own counsel.” Attorney

Dempsey’s Brief at 15; see id. at 15-20. Attorney Dempsey relies on this

Court’s decision in Rosengarten.

In Rosengarten, the AIP, Ms. Rosengarten, suffered from bipolar

disorder and had stopped taking her medication. Rosengarten, 871 A.2d at

1251. The orphans’ court appointed counsel and ultimately found Ms.

Rosengarten to be incompetent. Id. The court appointed a guardian of the

estate and person, who filed a petition seeking to sell Ms. Rosengarten’s

residence. Id. Ms. Rosengarten hired her own attorney, who filed an answer

and new matter objecting to the sale, seeking removal of the guardian, and

asking that her father be appointed guardian of the estate. Id. The answer

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and new matter also raised specific allegations of financial misconduct by the

current guardian and maintained that Ms. Rosengarten’s mental health had

improved as a result of her taking medication, and thus a review hearing was

warranted to the issue of her continued incapacity. Id. The orphans’ court

did not hold the requested hearing; instead, it held a hearing on the guardian’s

petition to sell the home, which it granted. Id. at 1252. The court did not

allow Ms. Rosengarten’s chosen counsel to participate. Id.

On appeal, this Court reversed and remanded. Id. at 1250. We first

concluded the trial court erred in failing to conduct the requested review,

particularly where there were allegations regarding the guardian’s

misconduct. Id. at 1254. We held the failure to conduct a review hearing

violated 20 Pa.C.S.A. § 5512.2(a), which requires a hearing when the

incapacitated person or other “interested person” alleges “a significant change

in the person’s capacity.” 20 Pa.C.S.A. § 5512.2(a); id. We recognized that

the failure to hold a review hearing ignored the incapacitated person’s “stated

preference,” in violation of 20 Pa.C.S.A. § 5502. Id. We opined:

The dangers of the incompetency statute have been recognized

since its inception. In re Bryden's Estate, 211 Pa. 633, 633, 61

A. 250, 250 (1905) (statute allowing for declaration of

incompetency “is a dangerous statute” and is “to be administered

by the courts with the utmost caution and conservatism.”). It is

basic to our jurisprudence that a person’s property is theirs

to dispose of as they wish, even if it results in poverty. Id.

As the Court stated in Bryden, “[T]he basic principle involved, as

laid down in Lines v. Lines, 142 Pa. 149, 21 A. 809, [is] that a

man may do what he pleases with his personal estate during his

life. He may even beggar himself and his family if he chooses to

commit such an act of folly.” Id. Recently, in In re Hyman, 811

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A.2d 605, 608 (Pa.Super.2002) (quoting Estate of Haertsch,

415 Pa.Super. 598, 609 A.2d 1384, 1386 (1992)), we noted that

the incompetency statute “places a great power in the court. The

court has the power to place total control of a person’s affairs in

the hands of another. This great power creates the

opportunity for great abuse.” The above cited and other

provisions of Chapter 55 are tailored to ensure that the

incapacitated person’s wishes are honored to the maximum extent

possible. In this case, the guardian and the orphans’ court

violated this mandate at nearly every conceivable opportunity.

Chapter 55 must be interpreted and the courts’ actions

guided by a scrupulous adherence to the principles of

protecting the incapacitated person by the least restrictive

means possible. This concept is embodied in our Supreme

Court’s decision in In re Peery, 556 Pa. 125, 727 A.2d 539

(1999). In that case, the alleged incapacitated person was

mentally impaired, but the orphans’ court concluded that a

guardianship was not warranted because the person had a support

system in place that met her financial and physical needs and

which she preferred over a guardianship. The Supreme Court

lauded the orphans’ court’s implementation of the incapacitated

person’s desire to continue with the existing support system and

quoted with approval the orphans’ court’s statement that it would

abide by the incapacitated person’s wishes as long as they were

rational and did not result in harm to her.

Id. at 1254-55 (emphasis added).

Regarding Ms. Rosengarten’s right to counsel of her choosing, we

observed:

First, we are not presently considering the validity of any contract

entered by Ms. Rosengarten and [chosen counsel], and in fact,

there is no evidence that one was made. Second, a contract

entered into by an incapacitated person is merely presumed to be

voidable, and this presumption is subject to rebuttal by proof that

the person was not incapacitated, see Fulkroad v. Ofak, 317

Pa.Super. 200, 463 A.2d 1155 (1983), which was an allegation

raised in this matter. Finally, this position begs the central

question, which is whether Ms. Rosengarten should have

the right to appointed counsel of her choosing. As the

above-cited case law and statutory language make

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abundantly clear, Ms. Rosengarten’s stated wishes are to

be honored to the extent possible. In the absence of some

indication that [chosen counsel’s] representation would be

harmful to Ms. Rosengarten, once Ms. Rosengarten indicated that

she wanted him to represent her, [chosen counsel] should have

been permitted to represent her voice.

The appointment of [chosen counsel] would have been particularly

appropriate herein as appointed counsel … admitted at oral

argument that she made no inquiry into and took no action on the

allegation that Ms. Rosengarten no longer was incapacitated. In

addition, at the hearing regarding the sale of the house,

[appointed counsel] did not raise a single objection to [the

guardian’s] fees and failed to articulate Ms. Rosengarten’s desires

in this matter, including her wish that her father act as guardian

to reduce costs.

Id. at 1257 (emphasis added).

In the 17 years since it was issued, there has been a dearth of published

case law interpreting Rosengarten. Similarly, there are few unpublished

cases, and those cases only discuss Rosengarten briefly.

In Estate of Crowder, 262 A.3d 549 (Pa. Super. 2021) (unpublished

memorandum),8 the orphans’ court dismissed the AIP’s petition to nullify a

health care POA, based on a finding that the AIP lacked standing, and the

issue was rendered moot by the appointment of a guardian. Crowder, 262

A.3d at *1-2. This Court, after determining the orphans’ court erred in

deeming the POA moot, held that under Rosengarten, the AIP had standing

to pursue nullification of the POA. Id. at *2-3. We noted the AIP’s statement

____________________________________________

8 Pa.R.A.P. 126(b) provides that unpublished non-precedential decisions of

the Superior Court filed after May 1, 2019, may be cited for persuasive value.

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at the guardianship hearing that he did not want the person holding the POA

to make healthcare decisions for him, and we concluded the AIP had “a

substantial, direct, and immediate interest” in the outcome of his petition to

nullify the POA. Id. at *3. We also acknowledged the AIP’s capacity to make

this decision because the orphans’ court had found him incapable of making

financial decisions but had not appointed a guardian of his person. Id.

In Sabatino, a dispute arose between court-appointed counsel for the

AIP and counsel for his service providers, who purported to be the AIP’s

counsel of choice. Sabatino, 2016 WL 6995384, at *1, 159 A.3d 602 (Pa.

Super. 2016) (unpublished memorandum). The orphans’ court distinguished

Rosengarten based on the AIP’s tendency to say what he thought the last

person speaking wanted to hear, thus raising doubts about the AIP’s capacity

to choose counsel. Id. at *3, *6-8. However, the court permitted the service

providers and their counsel to fully participate in proceedings as amicus

curiae. Id. On appeal, this Court concluded we need not reach the service

providers’ argument that the orphans’ court decision violated Rosengarten,

given that the providers were permitted to participate in the proceedings. Id.

at *9. We further rejected their argument that the allegedly erroneous

disqualification of counsel of the AIP’s choice in a guardianship proceeding

constituted structural error. Id.

In In Re Kline, 2016 WL 102755 (Pa. Super. Jan. 8, 2016), the great-

niece of the AIP appealed the order dismissing her as guardian of the person

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and estate, appointing a third party as guardian, and assessing a surcharge

for waste and mismanagement. Kline, 2016 102755, at *1. In affirming the

orphans’ court, this Court rejected the former guardian’s reliance on

Rosengarten, finding it was distinguishable where “no issue has been raised

regarding [the AIP’s] continued incapacity or ability to return home.” Id. at

*7 n.13.

Lastly, in Estate of Wittmaier, this Court adopted the orphans’ court’s

finding that Rosengarten did not apply, where the orphans’ court had refused

to allow the AIP to change from originally retained counsel to different retained

counsel. Wittmaier, 131 A.3d 81, 2015 WL 7012971 (Pa. Super. 2015)

(unpublished memorandum), at *1-2. Citing Rosengarten, the orphans’

court recognized it, “should abide by the incapacitated person’s wishes so long

as they are rational and do not result in harm to the incapacitated person.”

Id. at *8. The orphans’ court observed the AIP had not alleged misconduct

by original counsel. Id. at *7. Rather, the AIP “will always be upset at

anybody who disagrees with what his interests or desires are.” Id. (citation

omitted). The orphans’ court found, based on hearing testimony, that the AIP

would oppose any counsel who disagreed with him, even if counsel were acting

in the AIP’s best interests. Id. at *8. The court also expressed concern

regarding errors in new counsel’s filings, and new counsel’s lack of preparation

and understanding of the seriousness of the AIP’s medical condition. Id.

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As the above cases demonstrate, the issue of the AIP’s right to counsel

in guardianship proceedings is imprecise. The PEF Code mandates that

orphans’ courts honor, to the extent possible, the wishes of the AIP. See 20

Pa.C.S.A. §§ 5502 and 5521(a). Thus, the orphans’ court must balance the

competing interests in the wishes of the AIP, the resources available, and the

best interests of the AIP. See Rosengarten, supra at 1255-57.

The facts of this case are different from Rosengarten. M.A. is elderly,

and this is not a case where his functioning was impaired by failure to take

medication and had he “started to take [his] medication properly, it would

follow that a review hearing would be in order.” Id. at 1255. This is also not

a case where M.A. wrote a “cogent and practical” letter to the orphans’ court

expressing his preferences, including a preference for counsel of his choice.

Id. at 1252. Despite the factual distinctions, we are unable to determine

whether Rosengarten applies given the deficiencies in the record.

As recounted above, many of the filings failed to conform with Orphans’

Court Rules. Marsha’s petition does not comply with Pa.O.C.R. 14.2 (detailing,

inter alia, petition content and exhibits). For example, Marsha did not include

a Pennsylvania State Police Criminal Records Check as required by Pa.O.C.R.

14.2(c)(2). In another instance, the orphans’ court’s order appointing

Attorney Henry-Taylor as counsel does not comply with Pa.O.C.R. 14.4(c), as

it does not detail the scope of her representation. While both Attorney Capone

and Attorney Dempsey challenged the orphans’ court’s jurisdiction based on

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improper service, neither filed preliminary objections as provided in Pa.O.C.R.

3.6(c) and 3.9(b)(1).

In 2020, the Administrative Office of Pennsylvania Courts and The

Advisory Council on Elder Justice in the Courts authored and distributed to the

orphans’ courts a Guardianship Bench Book. The authors stated:

In balancing an AlP’s need for protection with respect for their

autonomy, judges are required by the United States

Constitution’s guarantee of Due Process to protect the

rights of the AIP to the greatest extent possible.

Appointment of a guardian, with the resulting loss of rights for the

AIP, may not be necessary in situations where other resources are

available to assist the AIP. Even where the evidence clearly

demonstrates an incapacity, judges are required to consider

whether there is a less restrictive alternative to

guardianship that can meet the person’s needs. Judges are

required under Pennsylvania law to favor limited guardianships

over plenary guardianships in appropriate cases. Where possible,

limited guardianship orders should be framed to address the

specific areas in which the court determines, based on the

testimony and evidence, that an individual lacks the capacity to

meet the essential requirements for their well-being and is in need

of guardianship services.

The Advisory Council on Elder Justice in the Courts and The Administrative

Office of Pennsylvania Courts, Guardianship Bench Book, 5 (2020) (emphasis

added).

The PEF Code mandates, prior to an AIP being declared

incapacitated, a petitioner must prove incapacity by clear and

convincing evidence. To establish incapacity, the petitioner must

present testimony, in person or by deposition from individuals

qualified by training and experience in evaluating individuals with

incapacities of the type alleged by the petitioner, which

establishes the nature and extent of the alleged incapacities and

disabilities and the person’s mental, emotional and physical

condition, adaptive behavior and social skills. The petition must

also present evidence regarding the services being utilized to

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meet essential requirements for the alleged incapacitated person’s

physical health and safety, to manage the person’s financial

resources or to develop or regain the person’s abilities; evidence

regarding the types of assistance required by the person and as

to why no less restrictive alternatives would be

appropriate; and evidence regarding the probability that

the extent of the person’s incapacities may significantly

lessen or change.

20 Pa.C.S.A. § 5518 (emphasis added). The orphans’ court must “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).

The record indicates that this case proceeded without adherence to

Orphans’ Court Rules and the PEF Code. For example, the only medical

evidence of record to support a finding of M.A.’s incapacity, consists of the

letter purportedly written by M.A.’s physician, John Haretos, M.D. The

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orphans’ court appears to have accepted Dr. Haretos’ unauthenticated

determination that M.A. suffers from dementia and is incapable of caring for

himself. The court did so without ruling on Attorney Capone’s objection based

on her lack of opportunity to question Dr. Haretos, and without making

findings regarding Dr. Haretos’ expertise. See N.T., 7/26/21, at 5-7, 9-10;

see also, Pa.C.S.A. §§ 5512.1(a), 5518; Pa.O.C.R. 14.3.

The orphans’ court did not hear testimony or render findings, but

focused on family acrimony, including the validity of wills, while urging the

parties to settle. The court referenced the parties’ allegations of wrongdoing,

but did not specifically address the allegations or the suitability of the

daughters to serve as M.A.’s guardians. Although the parties arrived at an

agreement when they appeared before the court on July 26, 2021, they

continued to disagree. Consequently, the court conducted a hearing three

months later, and the agreement was amended to name a third-party,

Ameriserv, as guardian of the estate. See N.T., 11/1/21, at 2-43.

Of further significance, the court did not consider a less restrictive

alternative to guardianship, possibly the 2019 or 2021 POA, in violation of 20

Pa.C.S.A. § 5512.1(a)(3). With respect to Attorney Dempsey’s issues, the

court struck Attorney Dempsey’s appearance without hearing any evidence or

argument, and without considering the wishes of M.A. See Rosengarten,

supra; 20 Pa.C.S.A. § 5512.1(a)(1) and (2). Attorney Henry-Taylor did not

raise these considerations on M.A.’s behalf.

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For the above reasons, we are constrained to reverse and remand for

further proceedings regarding representation of M.A., including a

determination of whether M.A. is incapacitated, as follows:

• Hearings shall comply with 20 Pa.C.S.A. §§ 5501, 5502,

5518, and 5512.1(a), and all other relevant portions of the

PEF Code.

• If the parties wish to submit additional written materials

prior to the hearing, they must do so in compliance with the

Orphans’ Court Rules of Procedure.

• If Attorneys Capone and Dempsey wish to pursue claims

that they were retained by M.A., they shall submit copies of

their engagement letters in compliance with Pa.O.C.R.

14.4(b).

• The orphans’ court shall make findings of fact pursuant to

20 Pa.C.S.A. § 5512.1(a) and shall specifically determine

whether

(1) M.A. is incapacitated as alleged in the petition;

and whether

(2) M.A. has the capacity to retain private

counsel.

• If the orphans’ court finds M.A. has capacity to retain

counsel, the court shall determine M.A.’s preferred counsel

and allow representation by that counsel.

• If M.A. lacks capacity to retain counsel, the court shall

determine whether M.A.’s choice of counsel may be honored

to the extent possible, and whether any fee agreements

between Attorney Capone and/or Attorney Dempsey and

M.A. are voidable;

• If the orphans’ court finds M.A. incapacitated, the court shall

determine whether guardianship is the least restrictive

alternative. In so doing, the orphans’ court shall rule on the

validity of the 2019 and 2021 POAs.

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• In light of competing allegations of the sisters’ wrongdoing,

the orphans’ court shall make specific findings as to the

suitability of M.A.’s current living situation; whether

Adraine’s receipt of $1,500.00 per month constitutes an

appropriate charge against the estate, and, if it does not, to

determine the appropriateness of a surcharge, and whether

the appointment of an independent guardian is necessary.

Accordingly, we vacate the orders of July 27, 2021, December 10, 2021,

and January 20, 2022, and remand for further proceedings.9

Orders vacated. Case remanded for further proceedings consistent with

this Opinion. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/17/2022

____________________________________________

9 Given our disposition, we need not address Attorney Dempsey’s second

issue.

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