Opinion

In Re: I.M.R.

Court: Superior Court of Pennsylvania
Filed: Jun 7, 2023
Status: Unpublished
On the bench: Bowes, J.
Cited by: 0 cases
Authority: More cited than 23.4%

The opinion

J-A23044-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN RE: I.M.R., AN ALLEGED : IN THE SUPERIOR COURT OF

INCAPACITATED PERSON : PENNSYLVANIA

APPEAL OF: WILLIAM CARDWELL :

: No. 728 MDA 2022

Appeal from the Decree Entered April 8, 2022

In the Court of Common Pleas of Huntingdon County Orphans’ Court at

No(s): 2021-281

BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED: JUNE 7, 2023

William Cardwell appeals from the April 8, 2022 decree adjudicating

I.M.R. to be a totally incapacitated person and appointing Huntingdon-

Bedford-Fulton Area Agency on Aging (“the Agency”) as the permanent

plenary guardian of the person and estate of I.M.R. We affirm.

In a prior memorandum, we detailed the factual and procedural history

of this case as follows:

I.M.R. was born in November 1938. In 2014, I.M.R.

displayed symptoms of cognitive decline and memory loss that

would eventually be diagnosed as vascular dementia, a

progressive condition which impairs her ability to function

independently. Immediately prior to September 2021, she

resided with her adult son, Appellant, who exercised power of

attorney on her behalf. The agency became involved with the

family on September 13, 2021, after a stranger discovered I.M.R.

wandering alone, unable to state her name, and indicating that

____________________________________________

* Former Justice specially assigned to the Superior Court.

J-A23044-22

she did not want to live with her son. N.T., 12/20/21, at 24.

Appellant refused to cooperate fully with the Agency’s subsequent

investigation of the incident. Id. at 25-27.

On December 6, 2021, the Agency sought and received the

appointment of an emergency plenary guardian of both the person

and estate of I.M.R. Thereafter, on December 15, 2021, the

Agency filed a petition to adjudicate incapacity and to appoint a

permanent plenary guardian for the person and estate of I.M.R.

The petition alleged that I.M.R. needed daily care and supervision

to ensure her safety, and it averred that no alternative to the

appointment of a guardian had been considered.

Following four non-consecutive evidentiary hearings, the

orphans’ court entered the above-described decree adjudging

I.M.R. to be totally incapacitated and appointing the Agency as

the permanent plenary guardian of both the person and estate of

I.M.R. Appellant timely filed a notice of appeal, and the orphans’

court filed a Pa.R.A.P. 1925(b) order directing him to file and serve

a Rule 1925(b) statement within twenty-one days of the order.

In Re: I.M.R., 728 MDA 2022 (Pa.Super. filed March 16, 2023)

(nonprecedential memorandum at 1-2).

Appellant initially failed to file the statement within the allotted

period, and the orphans’ court found all issues waived and declined to

address the merits of any of the issues presented. Id. at 2-3. However,

this Court determined that, because the orphans’ court’s Rule 1925(b)

order was facially deficient, Appellant’s failure to strictly comply with

Rule 1925(b) did not render his claims waived on appeal. Id. at 7.

Hence, we remanded the matter for the preparation of a supplemental

orphans’ court opinion, which the orphans’ court filed on April 11, 2023.

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J-A23044-22

Appellant presents five issues for our review.[1]

1. Did the orphans’ court abuse its discretion or make an error of

law when it granted the Huntingdon- Bedford- Fulton Area Agency

on Aging’s motion for access to records without giving [I.M.R.] or

William Cardwell an opportunity to respond?

2. Did the [orphans’] court abuse its discretion or make an error

of law when it granted emergency guardianship without a hearing

when there was no adequate proof of an actual emergency?

3. Did the [orphans’] court abuse its discretion or make an error

of law when it prohibited Shaun O’Toole, Esq., [I.M.R.’s] previous

attorney, from representing [her] . . . in this matter?

4. Did the [orphans’] court abuse its discretion or make an error

of law when it failed to appoint William Cardwell as guardian of

[I.M.R.’s] person despite no Area Agency on Aging observ[ations]

inside their home; only one caretaker witness who observed

William Cardwell and [I.M.R.] together inside the home over a

span of a few months; and [evidence that I.M.R.] walk[ed] away

from the home on one brief occasion three months before the

guardianship petition was filed?

5. Did the [orphans’] court abuse its discretion or make an error

of law when it failed to appoint William Cardwell as guardian of

[I.M.R.’s] estate in light of four witnesses and the estate planning

documents presented clearly stating [I.M.R.’s] desired intention

for William Cardwell to inherit everything from her and the ability

to make gifts to himself?

Appellant’s brief at 4-6 (cleaned up) (unnecessary capitalization omitted).

Appellant’s claims challenge the orphans’ court’s finding of incapacity

and subsequent appointment of a guardian, which we review for legal error or

____________________________________________

1 As we noted in our prior memorandum, we do not address the sixth issue

that Appellant raised in his statement of questions presented, concerning the

March 19, 2022 invalidation of a transfer of land, because Appellant failed to

appeal the order that is the genesis of that claim.

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J-A23044-22

an abuse of discretion. In re Duran, 769 A.2d 497, 506 (Pa.Super. 2001).

As we have explained,

The appointment of a guardian lies within the discretion of the trial

court and will be overturned only upon an abuse of discretion.

Discretion must be exercised on the foundation of reason. An

abuse of discretion exists when the trial court has rendered a

judgment that is manifestly unreasonable, arbitrary, or capricious,

has failed to apply the law, or was motivated by partiality,

prejudice, bias, or ill will.

Id. (cleaned up).

Pursuant to Chapter 55 of the Probate, Estates, and Fiduciaries Code

(“PEF Code”), an orphans’ court may appoint a guardian of the person and/or

estate upon clear and convincing evidence of incapacity. See 20 Pa.C.S.

§ 5511(a). The PEF Code defines incapacitated person as “an 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. § 5501.

As to the orphans’ court’s determination of incapacity and appointment

of a guardian, the PEF Code further provides, in pertinent part, as follows:

(a) Determination of incapacity.--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.

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J-A23044-22

(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.

....

plenary guardian of the person only upon a finding that the person

is totally incapacitated and in need of plenary guardianship

services.

....

(e) Plenary guardian of the estate.--A court may appoint a

plenary guardian of the estate only upon a finding that the person

is totally incapacitated and in need of plenary guardianship

services.

20 Pa.C.S. § 5512.1.

For the following reasons, we discern no error or abuse of discretion on

the part of the orphans’ court. In the supplemental opinion, the orphans’ court

thoroughly distilled the relevant evidence concerning: (1) I.M.R.’s cognitive

impairment; (2) the effect of those impairments on I.M.R.’s ability to

communicate decisions, manage financial resources, and insure her physical

health and safety; (3) Appellant’s suspect care of I.M.R.’s physical and

financial needs, including the alleged misappropriation of the $250,000

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J-A23044-22

proceeds from her late-husband’s life insurance policy; and (4) Appellant’s

persistent obstinacy, which not only frustrated the Agency’s ability to serve

I.M.R.’s needs, but also led to the suspension of Appellant’s visitation

privileges from the residential facility that cared for I.M.R. after she was

removed from Appellant’s home. As the learned President Judge George N.

Zanic concluded in the supplemental opinion filed in this case,

The focus of this case should be I.M.R. However, [Appellant]

has continuously attempted to make it about himself. Time and

time again he has shown that his true concern is maintaining

control over I.M.R. and her assets, rather than acting in her best

interest. I.M.R. is incapacitated and in need of a guardian. That

guardian needs to be someone other than [Appellant], so that he

can no longer exploit her.

See Orphans’ Court Supplemental Opinion, 4/11/23, at 61.

Thus, after reviewing the certified record, the parties’ briefs, and the

orphans’ court’s comprehensive sixty-one-page supplemental Rule 1925(a)

opinion addressing the identical issues that Appellant presented in his brief,

albeit in a slightly different order, we adopt the trial court’s rationale as our

own and for the reasons cogently explained in the supplemental opinion, we

affirm the April 8, 2022 decree adjudicating I.M.R. to be a totally incapacitated

person and appointing the Agency as the permanent plenary guardian of the

person and estate of I.M.R.2

____________________________________________

2 President Judge Zanic’s analysis of Appellant’s third issue, concerning the

denial of Appellant’s request to have Attorney O’Toole appointed as counsel

(Footnote Continued Next Page)

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J-A23044-22

____________________________________________

for I.M.R., incorporated the court’s January 24,2022 order stating that

Attorney O’Toole was ineligible to serve as I.M.R.’s counsel in the

competency/guardianship matter due to both a conflict of interest between

Appellant and I.M.R. and the fact that Attorney O’Toole was a necessary

witness. Citing Pennsylvania Rules of Professional Conduct 1.7 and 3.7,

entitled “Conflict of Interests: Current Clients” and “Lawyer as Witness”,

respectively, the court provided the following rationale:

Attorney O’Toole represented [I.M.R.] with respect to estate

planning that occurred in or about 2018. That estate planning,

though, was done in coordination with [Appellant], and included

the power of attorney in favor of [Appellant] that is one of the

many matters at issue here. Given the significant level of

involvement in those affairs testified to by [Appellant], there was,

at minimum, a quasi (if not actual) attorney-client relationship

between Attorney O’Toole and [Appellant] at that time. This

finding is supported by the fact that when the emergency

guardianship was initiated the first person [Appellant] contacted

to contest it was Attorney O’Toole (meaning that while there may

not be a formal, current attorney-client relationship between

them, there is still arguably a quasi one). . . . Attorney O’Toole

cannot represent both [I.M.R.’s] interests and [Appellant’s]

interests, as they are not congruent. (For example, if it is in

[I.M.R.’s] best interest to have a guardian appointed, and to have

that guardian be someone other than [Appellant], that position is

diametrically opposed to [Appellant’s] interests in remaining the

caregiver and power of attorney for her.) This is a clear conflict

of interest that violates Rule 1.7.

....

[As to the likelihood of being a necessary witness, h]ere,

Attorney O’Toole drafted the power of attorney and other estate

planning documents that are at issue, as they establish what right,

power, and authority [Appellant] has with respect to [I.M.R.’s]

property—property that [Appellant] is alleged to have

misappropriated and converted to his own use. More significantly,

though,[Attorney O’Toole] is the only disinterested party with

knowledge of [I.M.R.’s] capacity both in 2018 and at the current

time (in light of his estate planning meetings with her in 2018 and

his recent meeting with her on January 10, 2022, regarding the

(Footnote Continued Next Page)

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J-A23044-22

Decree affirmed.

Judge McCaffery joins.

P.J.E. Stevens concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/7/2023

____________________________________________

proposed Engagement Letter), and thus the changes, if any, in

her condition during that period.

Order, 1/24/22, at 3-5 (cleaned up). We adopt the foregoing analysis as well.

-8-

Circulated 05/31/2023 09:48 AM

IN THE COURT OF COMMON PLEAS OF HUNTINGDON COUNTY,

PENNSYLVANIA

ORPHANS' COURT DIVISION

IN RE: IVA M. ROUSH, CP-31-OC-281-2021

CP-31-00-281-2021

an incapacitated person 728 MDA 2022

AMENDED OPINION

AMENDED IN

OPINION IN SUPPORT OF ORDER

SUPPORT ORDER

PURSUANT

TOTO Pa.R.A.P.

Pa.RA.P, 1925(a)

19256)

Petitioner William Cardwell, the son of incapacitated person Iva

lva M. Roush

("I.M.R."), appeals from the Final Decree entered by this Court on April 8, 2022,

("IM.R."),

which:

which: ((1)

1) adjudged I.M.R.

L.M.R. to be totally incapacitated; and

and (2)

(2) appointed the

Huntingdon- Bedford- Fulton Area Agency on Aging to be the plenary permanent

Huntingdon-Bedford-Fulton

guardian of both IM.R's

I.M.R.'s person and estate

estate.

This Court originally filed its Opinion in Support of Order Pursuant to

Pa.R.A.P.

Pa.R.AP. 1925(a)

1925(a) on March 27, 2022. Because Petitioner had not, either within the

established 21- day deadline or as of the filing of such opinion, fled

21-day filed aaStatement of

Errors Complained

Complained of On Appeal, this Court originally proceeded on the basis that

•• z0 •3

Aq pan.aaS

ol xoglieW asnoq:ano:) Aq panaaS

he had waived all issues. Pursuant to the Superior Court's order of March 16,

a 2023, this Court hereby submits this Amended Opinion in Support of Order

g .0 g

%5 Pursuant to Pa.R.A.P.

Pa.R.A.P. 1925(a), which amends and supplements its original, and

01SdSn

6 9

•

addresses Petitioner's late- filed Statement.

8 $ 50 late-filed

3 t , c

z I. ISSUES RAISED

-0

8' On Appeal,

Petitioner's even-later-filed

Appeal, filed June 13, 2022,'

ISSUES RAISED

even-later- filed Amended Statement of Matters Complained of

2022, 1raises the following issues

issues (text

(text as in the original):

�

0 3

1. The trial court abused its discretion and/or made an error of

law when it granted

Agency

granted the Huntingdon-

Agency on Aging's

Iva

Bedford- Fulton Area

Huntingdon-Bedford-Fulton

Aging's Motion for Access to Records without giving

an opportunity to respond.

rt va M. Roush

•

0 1Petitioner

petitioner filed his original statement of errors on May 31, 2022, followed by his his amended statement. The

5 Court makes no finding with regard to whether Petitioner's original late-filed

late- filed statement or his even-later-filed

•'+(De amended statement

amended statement should

should apply

apply here. Since they

here. Sin� they are

are largely

l•'l!•ly the same,

1hr .. me, the Court proettd<

th• Cou, � proceeds on

on the basis of

the basis of the

the

amended statement.

aw«Mamo nu_tprjL N

LLg r

•t

Kelsey Dunn Register of Mils

letsey Wills

v nd Clerk of the on#ans'

ts'dcenafte Orphans' co

Court

i• (d}

{/ Huntingdon County, Pens/eanit

Huntington county. Pennsylvania

Z. The

The trial court abused its discretion and/or made an error of

law when it granted the Huntingdon-Bedford-Fulton

Huntingdon- Bedford- Fulton Area

Agency on Aging's

Aging's Motion for Access to Records without giving

William Cardwell an opportunity to respond.

3. The trial court abused its discretion and/or made an error of

law when it granted Emergency Guardianship without a a

hearing

hearing when there was no adequate proof of an actual

emergency.

4, The trial court abused its discretion and/or made an error of

law when it granted Emergency Guardianship without any

medical expert

expert testimony or any medical evidence showing aa

need for guardianship.

5. The trial court abused its discretion and/or made an error of

law when it prohibited

prohibited Shaun O'Toole, Esq., Iva M. Roush's

previous attorney, from representing Iva lva M.

M. Roush in this

matter.

matter

6. The trial court abused its discretion and/or made an error of

law when it failed to appoint William Cardwell as guardian of

lva M. Roush's person despite no Area Agency on Aging

Iva

observing

observing inside their home; only oneone ((1)

1) caretaker witness

who observed William Cardwell and Iva va M. Roush together

inside the home over aaspan of aa few months; and Iva M. Roush

walking away from the home on one one ((1)

1) brief occasion three

months before the guardianship petition was filed?

7. The trial court abused its discretion and/or made an error of

law when it failed to appoint William Cardwell as guardian of

Iva

lva M. Roush's estate in light of four (4)

(4) witnesses and the

estate planning

planning documents presented clearly stating Iva M.

Roush's desired intention for William Cardwell to inherit

everything

everything from her and the ability to make gifts to himself?

8 The trial court abused its discretion and/or made an error of

law when it voided the deed signed by William Cardwell in

light

light of the fact that the Area Agency

Agency on Aging never requested

'I that William Cardwell be removed as power of attorney of Iva

M. Roush and the Court did not remove him prior to signing

the deed?

II.

I. PROCEDURAL

PROCEDURAL HISTORY RELEVANT

HISTORY AND RELEVANT FACTS

FACTS

1. I.M.R. is currently 84 years old, having been born on November 27, 1938.

IM.R.is 1938

,',·

2. This matter first came to the attention of the Court on September 22, 2021,

when

when the

the Huntingdon- Bedford- Fulton Area

Huntingdon-Bedford-Fulton Area Agency on Aging

Agency on Aging (the

(the "Agency")

"Agency")

filed aapetition

petition for access to I.M.R.'s

L.M.R's medical and financial records pursuant

to the Pennsylvania

Pennsylvania Older Adult Protective Services Act, 35P.S.

35 P.S. $$

§§

10225.101, et seq. (the ""OAPSA"),

seq. (the OAPSA"), and the guardianship support agency

provisions of 20 Pa.

provisions C.S. ch. 55

Pa.CS. 55 (such

(such petition, the

the ""Records

Records Petition.") The

The

Records Petition was granted

granted by

by this Court ex parte the same day.

On December 6, 2021, the Agency

3. 0n Agency filed a

a petition

petition to adjudicate incapacity

and to appoint

appoint an emergency I.M.R.'s person

emergency and permanent guardian of IM.R's

and estate

estate (the

(the ""Emergency

Emergency Petition").

Petition"). The Emergency Petition was

supported by

supported by aasigned

signed statement provided

provided by I.M.R.'s

IM.R.'s treating physician,

Dr. Amy

Amy Sellers, who opined

opined that I.M.R.

LM.R. ""should

should not be left alone,"

alone," "suffers

from

from mild-moderate

mild-moderate dementia && gets

gets confused easily," is "[n]ot capable of

is "[not

higher[-] level executive functioning," and

higher[-Jlevel and "needs

"needs care including help with

[activities of daily living]

[activities living] && monitoring so she does not wander off." The

granted the emergency guardianship ex parte the same day,

Court granted day. It

appointed the Agency

appointed Agency as the emergency guardian of I.M.R.'s

LM.R's person and

appointed Ray

estate, and appointed Ray A. Ghaner, Esq.,

Esq., to represent IM.R.

I.M.R.z

4. On December 7, 2021, the Agency filed aapetition to extend the emergency

guardianship. That

guardianship. That petition

petition was granted, and

was granted, and the

the emergency

emergency guardianship

guardianship

was 2021.

was extended until December 28, 2021

5. On December 8, 2021, Shaun E. O'Toole, Esq., filed aapraecipe for entry of

appearance, seeking to represent LM.R.

appearance, I.M.R. in lieu of Attorney Ghaner.

6. On December 10, 2021, Roberto D. Ugarte, Esq., filed aapraecipe for entry of

appearance, representing

appearance, representing Petitioner.

This was done per

This

2 per the Court's standard practice,

practice, which is to appoint

appoint counsel for the alleged incapacitated

person in

person in all guardianship cases, unless they are already represented by counsel.

guardianship casts, counsel, The Court notes here that

Attorney

Attorney Ghaner did not have an opportunity to address the scope and nature of his meetings with his client,

I.M.R.,

LM.R., until much later in the case than usual.

usual, This is because of the unusual progression of this matter.

matter,

However,

However, Attorney

Attorney Ghaner did inform the Court that he had met with I.M.R.

IM.R. twice prior to the second hearing

in this matter on February 1, 2022, N.T.,

February1,2022. NT., February 1, 2022, Hearing, at 67

1 202Z, 67. Attorney Ghaner addressed the

matter of his meetings with I.M.R,

LM.R. in detail at the third hearing, 2022. See61,

hearing held on February 8, 2022. infra,

See ¶ 61, infra

On December 15, 2021, Attorney O'Toole filed a

7. 0n a petition for reconsideration

of the emergency

emergency guardianship, asserting, inter alia, that in 20181.M.R.

2018 I.M.R. had

executed aageneral

general power

power of attorney in favor of Petitioner

Petitioner (the

(the "Alleged

"Alleged

POA"),

POA"), and that Petitioner had been serving as I.M.R.'s

IM.RR's caregiver prior to the

emergency guardianship.

emergency That same

guardianship. That same day,

day, the

the Agency filed aapetition

Agency filed petition

seeking to have IM.R.

I.M.R. be adjudicated as fully incapacitated and to be

appointed as plenary I.M.R.'s person and estate

plenary guardian of IM.R's estate (the

(the

"Guardianship Petition").

8. On December 16, 2021, Attorney

Attorney Ugarte filed, on behalf of Petitioner, an

emergency petition

emergency petition to remove the Agency as guardian and to conduct aa

review hearing.

hearing. Petitioner asserted that he had full authority over I.M.R.'s

IM.R.'s

property

property and healthcare decisions pursuant to the Alleged POA, that he

served as I.M.R.'s caregiver, and then asserted aalitany of deficiencies with

IM.R.'s caregiver,

the Emergency Petition and the Agency's actions in general.

On December 20, 2021, the first hearing was held in this matter, addressing

9. 0n

the Emergency

Emergency Petition, Attorney O"Toole's

O'Toole's proposed representation of

I.M.R.,

L.M.R., and Petitioner's emergency petition to remove the Agency as

guardian (such

guardian (such hearing, the

the ""First

First Hearing").

10. The Court first addressed Attorney O'Toole's

O"Toole's praecipe for entry of

appearance. The Court extensively queried Attorney O"Toole

appearance, O'Toole regarding

whether he had undertaken actions that might satisfy the requirements of

Pa.R.O.C.P.

Pa.R.O.C.P 14.4(b),

14.4(b), including whether he had aacurrent engagement letter

with I.M.R.

IM.R. regarding the guardianship proceeding and whether he had met

with I.M.R.

IM.R. Attorney

Attorney O'Toole represented

represented that he did not have aacurrent

engagement letter with I.M.R.,

LM.R., had not met with her since 2018 when he

prepared

prepared the Alleged

Alleged POA, and had minimal knowledge of the matter. He

had simply

simply been contacted by

by Petitioner, notified by him that I.M.R.

I.M.R. had

been "taken"

been "taken" by

by the Agency,

Agency, and requested by Petitioner to intervene.

Because Attorney O'Toole had not complied with Rule 14.4(b), as well as

Attorney 0"Toole

l had potential

potential conflicts arising from his preparation of the Alleged POA and

i contacts with

contaLts with Petitioner, the

the Court did not

not allow him

him to represent

represent I.M.R.

I.M R at

the First Hearing. It did, however, did allow him to be present so he was

aware of the proceedings. N.T., First Hearing, at 2-9,

proceedings. NT, 2-9. The Court further

directed the Agency to assist Attorney 0"Toole

O'Toole in arranging aameeting with

I.M.R. and ordered Attorney

Attorney O'Toole, if he was satisfied after such meeting

that I.M.R.

IM.R. wished to have him represent her, to comply with the

requirements of Rule 14.4(b).

14.4(b). N.T., First Hearing, at 104.

11. The first witness for the Agency was Bonnie Sue Parks.

a. Ms.

Ms. Parks primarily

primarily works at the Giant store in

in Smithfield Township,

Huntingdon

Huntingdon County,

County, but also makes additional income on the side as an

informal home health aide/caregiver. She met Petitioner through her

employment at Giant, and Petitioner made arrangements with her to

provide

provide care for I.M.R,

1.M.R. at his home in the James Creek area of

Huntingdon

Huntingdon County.

County.'3 She was initially

initially paid in

in cash, but was also later

paid in-kind (Petitioner

paid in-kind (Petitioner gave her aacar, and she

she "worked off" the

"worked off the value of

the car). Id,

Id. at 10-11, 17-18

10-11,17-18

b. Ms. Parks would go to the home two to three times aaweek, staying

anywhere from 45 minutes to two hours. Ms. Parks's primary task was

to give I.M.R.

I.M.R. showers, but she also assisted with many other tasks,

including

including laundry,

laundry, dressing, medication, changing bedclothes, and

preparing

preparing meals. The other residents of the home were Petitioner and

his mechanic, known to her only as

as ""Bil"

Bill." Id,

Id. at 10-11, 13.

c. Per Ms. Parks, the condition of the home was quite poor.

Q: And so IIknow this will be difficult but I'd like

hike you to

describe the condition of the home va

Iva lives in.

A: The home is dirty.

0: Is

ls it fair to say that you've described it as aa quote,

unquote

unquote shit hole?

I' A: IIcan't say shit hole but it does---it

does— it is dirty.

l Q: There a

a lot of dog feces throughout the home?

specifically,

3 Tussey Lane in Lincoln Township,

Specifically, 3016 Tussey Township, Huntingdon County, with aamailing address of 3016

Tussey Lane, James Creek, PA 16657

Creek,PA 16657.

A: Yes.

Q: Cats throughout the home?

A: There is only one cat.

Q: The kitchen, has that been described as aahog pen?

A: Ihave went out there, yes, and it has been very dirty.

Ihave dirty

Q: Is

ls that because there are aalot of dirty dishes?

A: Dirty dishes. The floor is very dirty at times.

Q: How about spoiled food in crockpots, things like that?

A: Ihave seen that, yes,

Ihave yes.

Id. at 12

Id, 12 (testimony

(testimony of Ms. Parks on direct examination by the Agency's

counsel, Michael M. Kipphan, Esq.)

d. Ms. Parks further testified that I.M.R.

IM.R. did not have the level of care she

needed, and the level of care she did receive from Petitioner was poor.

Q: To your

your knowledge,

knowledge, Bonnie, have there been times when

va's been left alone?

Iva's

A: Yes, there has been aafew times I

Yes,there I have went out there and

she has been alone.

Q: Does that concern you when you see that?

A: Yes, it does, because she =like IIsaid, she is not able to

she---hike

I' take care of herself and she f falls.

lls.

a She has no phone to

contact anybody with.

with

Q: Have you

you come to the home and found Iva covered in

feces before?

A: I

I have come there and like

hike her diaper that she wears has

in it, yes

had feces in yes.

:, Q:

0: How are Iva's

lva's meds managed? You put them in aaseven

'I day box and

and [Petitioner]

[Petitioner] gives them to her?

A: He either gives them to her or sets them on the table

when she gets up in

in the morning. Then she gets them.

them

:Q• Would it be fair to say that Iva

lva can't take care of her own

meds?

A: Correct.

,11: 6

...

Q: How does lva

Iva get

get around? Does she need a

a walker?

A: She—yes she, does walls

She-yes walk sometimes without her walker

but she is very unstable.

Q: Based on your

your observations is she aafall risk?

A. Yes.

Q: Has Iva

lva shared with you that she also hallucinates about

people

people in trees and things like that?

'I' A: Yes, she has.

has.

Q: And have you noticed that she has some cognitive

thinking disabilities?

. ..

Yes.

THE COURT: Can I

I ask, ma'am, when was the last time you

saw Iva?

THE WITNESS: It would have been the day that they came to

get

get her which IIthink was December 6

6th.

THE COURT: Okay. And when you saw her was this one of

Okay.

the days

days when her diaper was full of feces?

THE WITNESS:

WITNESS No, no.

THE COURT: When was the last time that happened?

THE WITNESS: That's when

when she

she was

was sick and

and she was

was having

the diarrhea, so at times she couldn't get her

diaper down fast enough.

diaper enough

THE COURT: Okay.

Okay. When you're not there, do you know

who takes care of her?

I THE WITNESS:

WITNESS: [Petitioner]

[Petitioner] had told me that his mechanic Bill

has cleaned her upup.

Id. at 12-14

Id, 12-14 (testimony

(testimony of Ms.

Ms. Parks on direct examination by Attorney

Kipphan,

Kipphan, with follow-up by the Court).

e. Upon

Upon examination by I.M.R.'s counsel, Attorney Ghaner, Ms. Parks gave

by IM.R.'s

I.M.R.'s cognitive issues and daily life.

further detail about IM.R's

Q• Ms.

Ms. Parks, Mr.Mr Kipphan asked you about cognitive

disabilities. What sort of shortcomings do you see [va

Iva

having?

A: She does not remember-you

remember—you know, you can say

something to her and within aa half hour she don't

remember what you've

you've told her. Very often she has said

about people

people out in the trees fighting. She had said about

people being there that I

people being I know that wasn't there. She's

very

very hallucinating.

Q: Can you

you have aanormal conversation with her like you

and I

I are having

having right now?

A: You can but then she steers off and she has no idea what

she's talking about.

Q: She gets confused?

A: Very easy,

easy.

Q: Does she forget

forget things

things during the conversation that

you—

you-

A: Yes.

Q: Does she forget

forget things

things like whether or not she's eaten

that day?

day

A: Yes, she has.

Q: Does she forget

forget whether or not she's had her medications

those days?

A: No.

No, She does remember she takes her medicine because

every time I've

every I've went out, I've asked her, have you taken

your

your medicine and she's always said yes.

yes. When I I woke

up, you know, it was on the table. I

up, you tools it. She always

I took

tells

tells you exactly

you exactly how

how many

many pills she took.

took.

0: Where was she residing

residing when you were providing care

for her?

l A: She lived inin the home

home with

with [Petitioner].

[Petitioner]. She had

had aa

il bedroom there. When IIwould go in, if she wasn't sitting

at the table, she was usually in her bed

Id. at 15-16

Id, 15-16.

11 f.f Cross-examination of Ms.

Ms. Parks by Petitioner's counsel did not reveal

additional significant

significant details. Ms. Parks did clarify that she had begun

working for Petitioner in March of 2021, had begun caring for L.M.R.

working I.M.R.

after I.M.R.

LM.R. had come from the hospital,

hospital, and that Petitioner had had

another person

person coming in to help I.M.R.

LM.R. for a

a short time after she first

came home from the hospital.

hospital, With regard

regard to the condition of the home,

Ms. Parks said that she had mentioned to Petitioner about cleaning the

house, and specifically

specifically the kitchen, on a

a few occasions, and in response

Petitioner had asked his mechanic to vacuum, and Ms.

Ms. Parks to wash the

dishes. Id,

dishes. Id. at 17-23

17-23.

9. At the outset of her testimony, Ms. Parks indicated that she was

concerned about the potential for retaliation from Petitioner. Id,

Id. at 10.

Her demeanor reflected that.

12. Next to testify was Brenda Hughes, aaProtective Service Worker for the

12.

Agency.

Agency. Ms.

Ms. Hughes

Hughes testified that I.M.R. first came to the attention of the

agency via aareport from the Pennsylvania State Police on September 13,

2021, after an incident in which I.M.R.

1M.R. had been found wandering down the

road by aastranger and transported to the Huntingdon PSP station.

She was unable to state her name.

name. She was saying she did not

want to live with her son,

son. She also said she was headed to New

York. There were also concerns about, you know, home

conditions, exploitation, that she's alone for long periods of

time and the son would not go pick her up at the police station.

station

Id. at24.

Id, at 24. Eventually

Eventually arrangements were made that day for Ms. Parks to

pick

pick up

up I.M.R.,

IM.R., spend the day with her, and then take her home.

13. Ms.

Ms. Hughes when to Petitioner's home the next day to interview him and

and.

I.M.R.,

L.M.R. and to observe the conditions there. To say the visit was not

successful would

would be

be an

an understatement.

understatement

Q; What investigation did you undertake based on the

report

report of need?

A: What investigation?

Q: Did you interview-

interview—

A: Idid aaface-to-face visit.

1did

Q: With Iva?

lva?

A; Well,

Well, unfortunately

unfortunately II couldn't meet

meet with Iva alone.

with lva

Mr.

Mr. Cardwell would

would not

not allow that.

that.

Q: Did you ask to

Did you to meet

meet with Iva alone?

with lva

A: Yes,

Yes, I did.

I did.

0: Did Mr. Cardwell refuse that?

A Yes,

Yes, he did.

he did

Q: Did he tell you why you were not allowed to meet with

her alone?

A: No.

No. He just said that's not going to happen.

Q: So when you met with her it was—

was-

A: With him.

Q: —with

0 with him.

him. And

And what

what was

was the outcome

outcome of that meeting?

meeting?

A Well, she had acknowledged that she took aawalk the

other day, the day before, and she had said she was going

York. And then she also said that

to see her sister in New York

she was going to go to the hospital and I I asked was she

not feeling

feeling well and she said no, that she wants to go to aa

nursing

nursing facility because she can't take care of herself and

needs

needs help.

,, help

...

Q: Were you

you able to observe Ms.

Ms. Roush's ambulation?

A: No too much, no. I

I mean, she came out to the porch.

porch. She

was using her walker I believe.

I believe

Q: Did you also ask to see the home?

A: I

I can't say as I

I got that far.

far He was being so resistive, I

wasn't pushing it any further

further.

Q: Was he being intimidating?

A: Yes, not only to me but also to Mrs. Roush.

THE COURT: What do you mean by that? Can you describe

I that? You say he was being

being intimidating to

Me. Roush.

Ms.

THE WITNESS: Well, when she said about wanting to go to the

nursing facility.

facility. He said, you don't want to go

to a

a nursing facility and you have no money.

You only get Social Security and who's going

to visit you in the nursing facility and you

don't know anyone in the nursing facility and

what about your cat?

Id. at 25-27.

Id,

14. With respect

14.With respect to Petitioner's statements to I.M.R.

IM.R. that she

she "has

"has no money,"

the Agency

Agency had conducted an investigation of I.M.R.'s

IM.R.'s financial situation as

it could with the records it had been able to access using the Records

best it

Petition. That investigation gave significant cause for concern regarding the

possible

possible dissipation

dissipation and misappropriation of IM.R.'s

I.M.R.'s assets by Petitioner.

Petitioner

Per Ms. Hughes's

Hughes's testimony,

testimony, I.M.R.

IM.R. had realized $$500,000

500,000 in income or

assets in September

September 2018, yet by October 2021 she had less than

than $$2,000

2,000 in

her bank account

account (which

(which was aajoint account with Petitioner).

Petitioner). That was the

same account that her monthly Social Security payments were directly

Id. at 27-28.

deposited into. Id,

15. Ms. Hughes had significant concerns regarding I.M.R.'s

15.Ms. IM.R's safety in the home,

based in part

part on the reports

reports from Ms. Parks, but also on statements made to

her by

by Petitioner. When she raised the issue of the walkaway incident,

incident, "[h]e

"[hJe

didn't seem to think it was aabig

big deal. He said she had aadestination in mind.

She was going to New York." Id,

Id. at 29. More concerning was the following:

Q: Following

Following the incident in which Ms. Roush wandered

from the home, did Mr. Cardwell tell you that his cure

was to lock her in the house when he was gone?

A. Yes.

Yes

Id.

16. In addition to her testimony

testimony regarding Petitioner's demeanor during her

I.M.R., Ms. Hughes

attempt to interview IM.R., Hughes testified regarding actions taken by

Petitioner to hamper

hamper her investigation

investigation into the matter generally

generally.

/ It's my understanding that Ms. Roush has aasister, is that

'1 right?

A: That's what I'm told, yes.

l 11

Q Did you ask

Did you Mr. Cardwell

ask Mr. Cardwell for

for the

the name and address

name and address and

and

phone number

phone number of the sister?

A Yes.

Yes

Q: She would be entitled to notice of today's hearing,

hearing, isn't

that right?

A: Well,

Well, as aasister, sure.

0: Did Mr.

Mr Cardwell give you that information or did he

refuse

refuse it?

A: He refused

refused.

0: Did you

you ask him on more than one occasion?

A Yes.

Yes.

Q say you

On each occasion did he say you can't have it?

A: Yes. And aa second time he told me it's none of my

business.

Q: Did

Did he

he also tell you not

tell you not to

to come back

back to

to the

the house?

A: IIcan't say

say that but I

I certainly got that message.

Q Has Mr. Cardwell provided

provided you with any medical or, I'm

sorry,

sorry, financial information?

A: No.

Q: Now I I understand that there's a Iva Roush income

a trust, lva

only trust?

A: Yes.

Yes.

Q: Have you

you been given aacopy of that?

,I A:

A: No.

No.

Q Are you

you asking

asking the Court today to direct that the Agency

receive aafully executed copy of that trust?

A Yes.

Id. at 30-31

Id 30-31 (emphasis

(emphasis added).

17. I.M.R., along with the highly suspect

17 The lack of financial information for IM.R.,

nature involving her property, rendered

nature of transactions involving rendered her

her ineligible

ineligible at

that time for medical assistance to pay for the care she needed. 'That

That

ineligibility

ineligibility could also extend for five years into the future.

Q: Why

Why was itit so difficult to get Ms. Roush approved for

medical assistance?

A: We still don't have her approved. It's so difficult because

property that was sold for $250,000

of the property $ 250,000 in January of

2020, so the County Assistance Office is going to look at

that as aasold asset and actually itit was sold under fair

market value. It's actually 280-something

280- something thousand

dollars and so because that's within the past five years,

going to have a

she's going aperiod

period of ineligibility.

Q, you're talking

So you're talking about the five year look back that

Medical employs to determine if you're

Medical Assistance employs you're

eligible for nursing care, is that right?

right

A: Yes.

Q: And as we stand here todaytoday she's not qualified because

of all the stuff that's gone?

A: More likely

likely than not, no. IIdon't have the official word

but I

I know that they have the five year look back and

she's got

she's got well

well over

over the

the $$8,000

8,000 limit

limit that

that is

is aacriteria

criteria for

for

their program.

Id. at 39-40.

Id,

18. Petitioner's cross-examination of Ms.

18. Ms. Hughes primarily focused on matters

such as the fact that the Agency was relying on Ms. Parks' testimony

regarding

regarding conditions inside the home, and that Ms.

Ms. Hughes had only been

out to the home twice

twice (on September 13

[on September 13th and December 6).

6th). Pertinent

matters that came out during her cross-examination were that the Agency

had been trying

trying to obtain bed space

space for I.M.R.

IM.R. since the September incident,

hampered initially by Petitioner's refusal to provide financial

but had been hampered

records, and then by the fact that on paper, it appeared that I.M.R.

IM.R. should

have significant

significant assets

assets (meaning

[meaning that medical assistance funding was not

available to pay care). 4 Overall, Petitioner's cross-examination

pay for her care).'

Petitioner's counsel raised an allegation that Petitioner had asked the Agency for help in March 2021, but

4 petitioner's

had been refused, insinuating that they would not help when asked, but then turned around and went after

amounted solely

amounted solely to an attack

to an attack on

on how

how the Agency proceeded.

the Agency It raised

proceeded. It raised no

matters that contradicted the evidence presented or weakened it

it to an

Id. at 31-40

appreciable degree. Id, 31-40.

19. To follow-up

19.To follow-up on Ms.

Ms. Hughes's

Hughes's testimony regarding I.M.R.'s

IM.R.'s finances,

finances, the

Agency

Agency presented the testimony

testimony of Caroline Burnell, an expert witness in

the field of financial fraud examination. Based on the records that the

Agency had been able to obtain using the Records Petition, as well as

publicly

publicly available land records, it

it was Ms. Burnell's preliminary

preliminary opinion

that: (i)

(1) there was at least $200,000

$ 200,000 0f

of I.M.R's

I.M.R.'s funds not accounted for; and

(ii) the records showed potential financial exploitation of IM.R.

I.M.R. of between

and $

$200,000 and 500,000. Id,

$500,000. Id. at 40-43.

40-43

Ms. Burnell further opined that, based on the information she had at that

20. Ms.

I' point, I.M.R. had been aavictim of financial exploitation. She based this

point, IM.R.

primarily

primarily on her findings with respect

respect to two joint bank accounts held by

I.M.R. Petitioner. [d.

L.M.R. and Petitioner Id. at 44-45.

a. The first was a

a checking account with M&T

M&T Bank. It was opened in

March 2018 and closed in November 2018,

2018. Reviewing the transaction

history, the withdrawals attributable to Petitioner exceeded the

deposited by

amounts deposited about $$61,000.

by him by about 61,000. Even taking into account

roughly

roughly $$6,000

6,000 of deposits that could not be directly attributed to either

account holder, the excess amount taken by Petitioner was

was $$55,000.

55,000.

b. When the M&T

M&'T Bank account was closed in November 2018 it had aa

balance of $180,000.

balance of $ 180,000. That amount, which

which was

was all

all the

the proceeds of aalife

insurance policy

policy that paid out to IM.R.

I.M.R. after her husband passed away,

was

was deposited

deposited into

into aanew

new account

account at

at Members

Members First

First Federal Credit

Federal Credit

Petitioner. Petitioner later raised this allegation multiple times in his own testimony in an attempt to cast the

Petitioner

Agency

Agency in aapoor

poor light. Pet Ms

Ms. Hughes's testimony, what actually happened was that when IM.R.

I.M.R. was released

from the hospital, the Agency was tasked with performing an evaluation to see what care she might need. need. This

elderly persons similarly situated in the Agency's service area.

is done for all elderly area. However, the actual investigation

eligibility determination are performed by a

and eligibility abroker working on contract funded by the Pennsylvania

Aging. This meant that once the Agency obtained the initial information, the matter was out of

Department of Aging

its hands. llL

Its Id. at 34-35

34-35. The Agency therefore had no information about whatwhat might

might have transpired between

between

II Petitioner ad

and the broker

broker,

Union the same month. By

By the end of February 2019 the balance of the

account had been depleted to $27,000

$ 27,000.

21. Ms. Burnell made clear that her report was preliminary,

21.Ms. preliminary, and that it was

based on the limited information that the Agency had been able to obtain.

"If a

If areport

report is needed for aafinal guardianship hearing, then I

I will obviously

do additional work"

work." Id. at 46.

22. Petitioner's cross-examination of Ms.

Ms. Burnell proceed in a

a similar fashion as

for Ms.

Ms. Hughes.

Hughes. Petitioner's counsel questioned Ms.

Ms. Burnell's methods,

reliance on incomplete data and information

information (i.e.,

(i.e. less than the full and

complete bank records, which Petitioner had impeded access to), and

reliance on information from the Agency,

Agency, but raised no issues that

contradicted Ms. Burnell's conclusions or appreciably weakened the

strength of her testimony. Id,

Id. at 46-50

46-50.

23.

23. The final witness for the Agency

Agency was Lori Heaton, Service Director.

Ms. Heaton's testimony focused on:

on: (i) Petitioner's conduct in impeding the

Agency's investigation of IM.R.'s

I.M.R.'s case and preventing access to IM.R.;

I.M.R.; and

(ii) Petitioner's conduct in harassing and intimidating the Agency and its

(ii)

employees. Id,

employees. Id. at 51-57. She also discussed the steps taken by the Agency

try to obtain appropriate care for IM.R.,

to try I.M.R., which were met with resistance

by Petitioner. Id,

Id. at 53-54.

24. Ms. Heaton became directly

directly involved in the matter on December 2, 2021,

when she accompanied another Agency employee on an attempt to visit

I.M.R.

I,Mg and interview her at Petitioner's home.

home, The

The visit itself was

uneventful; however, Petitioner's actions afterward were troubling, to say

the least.

Q: Can you

you give

give us some details about the [level

[level of

Petitioner's] cooperation

cooperation [in

[in the case]?

A: Yes. Again

Again all during the case IIhad been hearing about

the difficulties and cooperation by Mr. Cardwell but on

December 2nd I I went out to the home along with Belinda

Black to try

try to see lva

Iva and she was not home. We did

' speak with his mechanic, Mr. Cardwell's mechanic, Bill.

I,I He

He tried to reach

reach Mr.

Mr. Cardwell but was

returned to the office.

was unable

unable to.

to. So we

When

WhenIreturned to the office

office Ihad a

avery angry voicemail

'I·

message

message from Mr. Cardwell telling us that we had no

Ii business stopping

stopping by the home and to never do it

and that if we wanted to-anything

it again

to— anything from him, we were

to mail itit in writing to aa Chambersburg address address.

Subsequently he then called the office again and IIspoke

with him over the phone

phone and again he was very angry,

threatening

threatening me that we should never come back to the

home again; that it

it was not necessary. IItold him that we

just wanted to visit Mrs. Roush, discuss the case further,

just

talk

talk about any

any needs that

that she had

had and

and he said that it was

that it was

not necessary.

Q: Is anything you

ls there anything you would

would like

like to add about

cooperation

cooperation with Mr.

Mr. Cardwell?

A: Just

Just that there has been several instances of phone calls

from him demanding to know the worker's full names.

You know,

know,itit just seems to serve no other purpose but to

harass, be menacing.

menacing. He's accused they did not have

their proper

proper ID, which is not true, and-

and—

Q: After the emergency guardianship was filed, did Mr.

Cardwell file aaright

right to know demand?

A: Yes.

Q: Listing dozens

Listing dozens and dozens of requests

requests for

for information?

A: Yes, yes.

Q: Do you

you believe that was in retaliation for your

actions?

A. Yes, Ido.

Yes,I

Id. at S2, S4 (emphasis

52, 54 (emphasis added).

2S. On cross-examination, I.M.R.'s

25. L.M.R's counsel obtained clarification about the

right-to- know requests,

right-to-know requests, which included five

five (or

[or more)

more] years' worth of

records pertaining

pertaining to how many people the Agency had removed from their

homes, the salaries of all Agency employees, all complaints that have been

filed against the Agency, drug testing and criminal background check

results for all Agency employees, sources of funding for the Agency, and

Agency employees,

what legal authority

what legal authority the Agency

Agency has

has to

to do emergency guardianships. Id. at

56. Ms.

56, Ms. Heaton also provided

provided further information regarding her

communications with Petitioner.

Q: How many times have you interacted with Mr.

Mr Cardwell?

A: Five to six times actually verbally over the phone and

then we had several email exchanges.

I Q:

Have you-maybe

you— maybe close to ten times?

Yes, or more.

Q• You have been doing this [work]

[work] for almost 30 years.

Those ten times you interacted with him, how many of

those was he helpful?

A: Less than half.

Q: How many of those was he focused on what was best

for his mother?

A: In my opinion none. He did verbalize that he was

concerned that she belonged with him and not in aa

nursing

nursing facility.

facility. In fairness I

I will say the one time

that I

I did feel that he had aatrue concern was that he

wanted to make sure that her healthcare directives

were followed.

Id. at 57

57 (emphasis added).

26. Clarification questions

questions from the Court revealed the extreme nature of

Petitioner's actions toward the Agency.

THE COURT: Ms.

Ms. Heaton, were you

you able to

to get into

into the

the home

home

or were you allowed access to Ms.

Ms. Roush?

THE WITNESS: No, we weren't.

weren't

THE COURT:

THE COURT: What had to happen to get access to

Ms.

Ms. Roush.

Roush.

THE WITNESS: We had to get aaCourt Order.

,,' THE COURT:

THE COURT: Typically

Typically in these

these situations

situations when you

you come

to me with an emergency, an Order is signed

and then you do what you have to do?

THE WITNESS:

WITNESS Yes.

THE COURT: Was this different from most situations?

THE WITNESS:

WITNESS. Yes.

Yes.

THE COURT: Why?

THE WITNESS: We were very concerned about the safety of

our

our workers, so we

workers, so had to

we had to ask

ask the

the police

police to

accompany us.

THE COURT

THE COURT: And that accomplished what you needed to

accomplish?

THE WITNESS: Yes, it did.

Id. at 55

Id, 55.

27. Petitioner offered the testimony of himself in

in rebuttal of the evidence

presented

presented by

by the Agency.

Agency. Due to the allegations

allegations of financial exploitation

that were raised, as well as the presence of representatives of the

Huntingdon

Huntingdon County District Attorney's Office and two criminal investigators

from the Pennsylvania State Police in the courtroom, the Court gave

Petitioner the opportunity to meet with counsel to discuss whether to

testify,

testify, and then conducted aabrief colloquy on the record to confirm that

Petitioner both understood his Fifth Amendment rights and that the

testimony he gave could be used against him in acriminal prosecution.

in a

Petitioner confirmed that he understood his rights

rights and the possible risks

involved, and that

that he

he still

still wanted to testify. Id. at

at 64-66.

28. Petitioner's testimony on direct examination was troubling, and, at times,

28.

bizarre.

29. Petitioner had been caring for I.M.R.

IM.R. for ten years. He originally was caring

for both his parents, and they were living at their f

farm

a in Dauphin County.

His father

father (I.M.R.'s

(IM.R.'s husband) passed away in 2018, and at some point after

that, he had moved IM.R.

I.M.R. in with him at his home in

in Huntingdon County.

I.M.R. had been living with him for between two and one-half and three

.M.R.

years. Petitioner and I.M.R.

years. IM.R. met with Attorney O'Toole, and she signed the

Alleged died. Id,

Alleged POA, after Petitioner's father died. Id. at 6

67-68.

7-68

I.M.R. had only recently been prescribed medication

30. Petitioner claimed that IM.R.

for Alzheimer's, which he then clarified as being

being ""aacouple of years." He did

not believe that her condition had deteriorated that far.

far He characterized

having "good

her as having days and bad days." He confirmed that she at times has

"good days

trouble recognizing

recognizing people.

people. He described aagood day as I.M.R.

IM.R. having aa

conversation with him and telling him the

the "years and dates of her sisters-

sisters—

she had 13 brothers and sisters." Id,

Id. at 68-69. He described a "bad day" as

follows:

A: Bad day,

day. She has fits where she sees aanaked person

' outside the house.

house. Then you have to explain to her

there's no naked people

people hanging outside your house and

I she's okay.

okay. Might

Might argue with you some but she's okay.

Q: Would you acknowledge what was testified to earlier

about her visions of people in the trees?

A: Yeah, that's— normally it happens with she gets aaurinary

that's-normally

tract infection is when it

it happens most of the time.

dI. at

ld, 69.

at69

31. Per Petitioner, I.M.R.

I.M.R. had been hospitalized at the beginning of the year for

about

about aaweek,

week, and when

when she

she was

was discharged he

he tried

tried to

to get her

her into

into aa

nursing

nursing home in Carlisle. That did not happen

happen "because

"because we had something

with the insurance where we were in the wrong county or something. I

don't know." dI.

Id, at 70. The hospital did set up someone to come to the

home three times aaweek for skilled care.

care. He claimed that this continued for

many

many months,

months, until

until mid- summer, and

mid-summer, and that

that he

he had

had brought

brought in

in Ms.

Ms. Parks

Parks to

supplement

supplement the skilled care providers. Id. When the skilled care ended it

providers. Id,

was only

only himself, his mechanic, and Ms. Parks who were providing

providing care. He

confirmed that Ms. Parks came to the home three days aaweek, her primary

duty was to bathe I.M.R.,

duty IM.R. and that he had her take care of IM.R.'s

I.M.R.'s other

needs.

needs. Petitioner was very

very hands-off with respect to Ms. Parks's care for

I.M.R. "She

"She was never given aaschedule. She was told to come out there

three times aaweek,

week, make sure mom got

got aabath and if there was anything

else that mom needed, let her do it.

it. I

I mean, that's what IIwas paying her

for." at 72.

for." Id. at 72

32. Petitioner's description of the daily routine was that I.M.R. would get up on

her own, give

give herself aasponge bath, and then come out to the table for

breakfast. He would make her something to eat and giver her her

medications.

medications. If she'd been incontinent of herself overnight, he would clean

her up.

up. She would typically

typically spend the rest of the day napping and playing

with the dogs or her cat. She had previously spent a

alot of time watching

television, but that had tapered off. She did not know how to turn the

Id. at 72.73

television on herself. Id, 72-73.

33. Petitioner claimed that I.M.R. was rarely left alone in the house.

house. Either he

or his mechanic would be in the house with her.

her, But there were times that

he had to go pick up aacar or car parts and I.M.R.

IM.R. had been left on her own

own.

days he would have Ms.

One those days Ms. Parks come twice or have aafriend check

in on her. Jd.

Id. at 73-74.

34. Petitioner also claimed that he often took I.M.R.

IM.R. on errands and trips with

him

him to

to buy

buy car parts.

parts. He

He also would take

take her

her out to

to get her hair

hair done or her

her

nails done.

done. Id,

Id. at 73--74.

73-74.

35. Petitioner's description of

Petitioner's description of the

the events

events of

of September

September 6,

6th, when

when I.M.R.

IM.R. walked

walked

away and was picked up

away up by

by PSP, was as follows:

A: She was mad at me because she wanted to go to New

York.

York

Q: What's in New York?

A: That's

That's where

where our our family

family isis from.

from. MomMom likes to

likes to

gamble,

gamble, so we go go up there to this place way up north.

IIgot

got to think what the hell it is. is, It's a

a reservation

casino thing up there she goes to. She'll spend eight

hours sitting at a atable. IIactually have to tell the lady

at the table to shut it down so she'll eat but she likes

to gambling. So we

to do the gambling. just had one of her

we just her brothers

brothers

or sisters passed away, so she wanted to go up north, so

I· we went up up north but before I I could do that she got mad

because I I told her

her IIcouldn't do itit that day. She

that day. got—

She got-

climbed a a little fence. Started walking down the road.

Q: What little fence is that? Inside the house?

A: We got afence so we can let the dogs out and they don't

got afence

run off. So you

you can't come in the house that way. There's

a fence like two foot, three foot high.

a high

Q: Okay.

Okay.

A: So mom crawled over the fence, decided to walk down

the road. When she walked down the road, somebody

picked

picked her up.

up. We only live on James Creek Road. We

see maybe

maybe five cars aaday down there

there.

Q: Were you home at the time?

A: No.

No. I was getting groceries. Bill [Petitioner's mechanic]

Iwas

was home. Bill's the one that called me, said Bill, your

mom walked off,off. Well, you know what happened. She

walked down the road, somebody picked her up and

dropped her off at the State Police. I

dropped I call the State Police,

Police,

alerted them before she even got there. She wasn't even

there

there when

when II called them. While II was talking to him, she

walked into the police station. Well, I I was in

in Altoona. I I

called Bonnie

Bonnie [Parks].

[Parks]. Bonnie went and picked her up

brought her

and brought her back home. Then

back home, Then the next

next day that lady

lady

[pointing at Ms. Hughes] showed up

[pointing up.

Id. at75-76.

Id, at 75-76.

36. Much of Petitioner's testimony regarding his interactions with Ms. Hughes

and the Agency

Agency focused on what he alleged were illegal or impermissible

actions by

by them

them (matters

(matters which the Court ruled were not relevant to the

question of the emergency

question emergency guardianship). It did confirm, however, that he

took posture with

took an adversarial posture with the Agency from

the Agency from the

the very start.

very start

Q: And do you

you recall at that time whether Ms.

Ms. Hughes asked

you to take a

a look around the house or to meet with your

mom?

A: No, The conversation went pretty much like

No. hike this.

this. She

come up on the porch. She said she'd like to talk to

come up on the porch. She said she'd like to talk to mom.

mom.

I went and got

got mom, put

put her on the porch and she had aa

conversation, two minute conversation, with my mom

and turned around and told me my mom needs to be in a a

nursing

nursing home. Then I I asked her, II said, who are you to

tell me in aatwo minute conversation with my mother she

belongs

belongs in aanursing home? What qualifications do you

,,'

have? In fact, I

I said to her where's your identification

because she by law-

THE COURT

THE COURT: Let's move on. I'm not concerned with that.

Id. at 77; see also generally id. at 77-78.

77-78

37. Petitioner claimed that he had no further interaction with the Agency until

they

they showed up

up with the State Police on December 6th

6 to take custody of

I.M.R. Id. at 78. He addressed the financial issues in aasuperficial manner;

I.M.R. Id,

0:Q• There's been some allegations about misappropriation of

mom's funds. Is there anything that we[sic] to have to

say about that here today?

A: There's no misappropriation of mom's funds. Whenever

mom or dad died, they were renting the farm out to

$13,000.

$13,000. When I I rented the farm out, she made

made $$25,000.

25,000.

l put

put that in a

a trust fund and that goes into her money or

into our bank account along with both of our social

securities goes into the same bank account. We have the

same bank account.

Id. at 79.

Id,

38. As far as his income, Petitioner claimed that he was retired or

38.As or ""semi-

semi-

retired," due to having

having suffered some unspecified injury in 1991. He last

worked in 2012. Id,

Id. at 68. He also claimed to be an expert in

in in-home care

and the investigation of elder abuse.

Q: Mr.

Mr Cardwell, prior

prior to your retirement and/or disability,

do you have any work history in the field of in-home

care?

A: Absolutely.

Q: What is that?

A: Iused to be acontractor

Fused acontractor for the Office of Aging.

Aging. I

I covered

eight counties.

Q; When you say aacontractor, what do you mean?

A: We did in-home care. IIhad aahundred girls working for

Il me, so I'm

l'm very

very much aware of what's going on here.

Q• How long

long did you

you work in that capacity?

A: Six years I

I think it was.

was. In those six years I

I had two

counties investigated and basically the Federal

government came in and shut them down.

Id. at 80

Id, 80.

39.

39, When Petitioner was asked by his own counsel about how I.M.R.

I.M.R. was doing

since having been placed in a

a nursing home

home (he

(he had visited her the previous

day),

day), he had trouble focusing on his mother's overall condition, and focused

instead on supposed shortcomings with both what the Agency had done

and the quality of the home they selected. Id,

Id. at 80-82.

Q• Has she-do

she— do you know whether or not she's taking her

medications or is receiving any kind of medical

treatment that she may need?

A: Well, I— when I

I-when I got to the nursing home— on the way to

home--on

the nursing come I I call the other Area of Aging and asked

them the story on the nursing home. They told me they

have Covid[sic] in the nursing home and they told me it

was aathe worst nursing in in the county. They told me it

had aa one star rating and they're seriously understaffed.

understaffed

Iasked lady[sic] at the nursing home or the Area of Aging

asked

would you put your mom there. She said absolutely not.

I.I

Q Has your— how is your mom's condition?

las your-how When's the

last time you saw your mom?

A: Yesterday.

Yesterday

Q: How is her condition?

A: Good.

Q• Did she have any kind of, you know, infections or any

kind of conditions? In good condition or no?

A. When I I finally got to see my mom aaweek later, her nose

looked like it was falling off her face.

face. So I I got the

administrator and IIasked them, what's this thing on her

face and they

they told me it was aastaph infection.

infection. She didn't

have aastaph infection when she left me but sure got one

now. So—

So-

Id. at 81-82

Id, 81-82.

40. Cross-examination of Petitioner

40.Cross-examination by the Agency's

Petitioner by Agency's counsel revealed

revealed more

bizarre claims and information that was much more concerning than what

came out in direct examination.

a.a. Petitioner claimed to be unaware that IM.R's

I.M.R.'s physician, Dr. Sellers, had

diagnosed I.M.R.

diagnosed IM.R. with dementia in 2014 and had prescribed medication

for the condition at that time. (This

(This despite supposedly having been to

every I.M.R.'s medical appointments

every one of LM.R.'s appointments since he began taking care of

her in 2012.) Id,

in 2012.) Id. at

at 84-85.

b. He could not provide

provide aafull name for IM.R.'s

I.M.R.'s sister, as he only knew her

as "Aunt Suzy." He could not provide her address despite having been to

her house "a

her house "a hundred times."

times." ""Don't

Don't ask me where

where she

she lives.

lives. IIcan only

drive there." [d,

Id. at 83-84.

83--84

c. He did not dispute Ms. Parks's description of the interior of his home.

cleaning freak." Id. at 86.

He did, however, claim that she was a ""cleaning

He (unintentionally)

d. He [unintentionally) confirmed that I.M.R.'s

LM.R.'s cat could be used as aa

source of leverage over her.

her,

Q: When your

your mom expressed

expressed some concern-strike

concern— strike that.

your mom

Was your mom worried

worried about

about what

what was

was going to

to happen

to her cat if she went to a

a nursing home?

A: My

My mom's always worried about what happens to

that cat. Everyday

Everyday she wakes up IIget a

a story about

this cat.

Q: Did you tell

Did you tell her,

her, quote, you should have fucking thought

quote, you thought

you

about that before you took off down the road and to the

State Police?

A: No.

Q: You never said that?

A: No.

Id. (emphasis added)

added).

e. He admitted that his claim that the infection on I.M.R.'s

IM.R.'s nose was staph

was false. He also

also (again,

(again, unintentionally)

unintentionally) confirmed that his focus was

I.M.R., and not

on control of LM.R., not what was best her.

best for her

Q• The staph infection that you indicated your mom has on

nose.

her nose

A: Yes.

Q: Isn't it true that the doctor there said it was cellulitis?

Isn'tit

A: They

They told me it

it was a

a staph infection. I I have not heard

the terminology

terminology cellulitis until yesterday.

Q: Who did you

you hear it from yesterday

yesterday?

A: The nurse.

Q: At the nursing

nursing home?

A: At the nursing home.

home

Q: So yesterday you were told it was cellulitis?

A: Yes.

Q: But today you're testifying it was aastaph infection?

A: That's what I

I was told.

Q By whom?

A: The coordinator up at the nursing home. When I I got to

the nursing

nursing home, the first thing I

thing I did was went to the

coordinator and he got the director of nursing and I I

handed them the power of attorney that I I had which

basically states everything my mom wants done. I I

told them Huntingdon doesn'doesn'ttrecognize this power

of attorney but everybody in the country does. I I said

if IIwas you, I

I would get

get my

my mom evaluated because you

just told me that this happened outside of your area.

Id. at 90

ld, 90 (emphasis

(emphasis added).

f.f, Petitioner confirmed that the copy of the Alleged POA that he had

provided

provided to his attorney and that had been filed with the Court, the

same document he had represented

represented to the Agency as giving him

I.M.R.'s person and property, had not been

absolute authority over IM.R.'s

,,'

effective. Id

executed by him as required for it to be effective. Id. at 90-91. The

Court left open the possibility

possibility of Petitioner locating an executed copy.

Id.

,I 41. With respect

41.With respect to the misappropriation

misappropriation issue, Petitioner initially refused to

I any specifics

discuss any specifics regarding finances without having bank records with

him, claiming

claiming that he could not remember the details. For example, he

,, initially claimed he didn't recall that I.M.R. received

received $$250,000

250,000 from aalife

insurance policy

policy after her husband died in 2018.

2018. [Id,

Id. at 92.

92. He then said

that he was

was ""aware

aware of it." Id. His testimony was similar regarding

it." Id, regarding $$250,000

250,000

that

that I.M.R.

IM.R. had

had received

received from

from the

the sale

sale of

of aaproperty.

property. He

He then

then went on to

went on to

testify

testify that he did not know how the money had been spent or where it was.

was

He also

also (inadvertently)

[inadvertently) testified once again to the degree of control he had

over I.M.R.

LM.R.

Q: Well,

Well, you do know or you

you doknow you don't know.

know. As your [sic] power

As your[sic]

of attorney

attorney I

I would assume you would be on top of those

things.

A: asking me. She's got it. If she got it, it's probably

You're asking

in the bank account and II probably either tools

took it out for

something

something or did something with it but she okayed

everything that I've done.

everything

Q: So it's still somewhere?

A: Probably.

Probably

Q: Are you handling her finances?

A: Ipaid her bills.

Q: You don't know where her money is?

A: Ipay

pay her taxes. I I pay the bills and it comes out of my

They [I.M.R.

account and her account. They [IM.R. and her husband]

had separate

separate accounts when they were married of when

dad died. When all that took place, there was 60-some

60- some

thousand dollars missing

missing out of one of dad's accounts. It

is what it is.

is, I

I didn't have control over dad's accounts

either.

,, THE

THE COURT: When did your dad pass away?

THE WITNESS: was-]I want to say it's in the

]I think it was—

September

September range 2018. He died at the

range of 2018

house.

THE COURT: Was

Was that before or after

after the

the power

power of

attorney?

THE WITNESS: After— no, I'm

After -no, I'm sorry. No, No. Yeah, it was

after because before dad died I I tried to get

her to do aa power of attorney on dad and I I

don't think she did.

did . I

I don't think she did

but at some point we had mom's name put

on everything and at some point dad tried

to get her to sign off on it and I

I told her no.

And then when dad died, she ended up with

everything

everything and then she told the attorneys

that she wants to give me everything now

while she's still alive.

THE COURT: When was that?

THE WITNESS: Back in 2018. That's when IIput everything in

a trust fund so that we

a we— the income coming in

-the in

from the house shows up as income and that's

what's on the taxes every single year.

year

Id. at 93-94

93-94 (emphasis

(emphasis added).

42. Petitioner further revealed that his recordkeeping with regard to his joint

account with I.M.R. was woefully inadequate, and that he considered all of

her assets to be his,

his.

0: So right now she gets her Social Security?

A: Yes.

Q: And

And $$25,000

25,000 aayear, is that right?

A Yes.

Q: She get any other income?

A: No.

Q• And her money

money goes

goes into a

a joint bank account with yo,

you,

is that

that right?

A Yes.

Q• It would be safe to say that the balance of you account at

least in October would have been aa couple thousand

bucks?

I A: I

l have no idea what my

my balance its. I'm 60 years old and

I I've

I've never reconciled aachecking account since then

then.

I Q:

Q Would you

you know if it

it was a

a couple thousand versus aa

,I million?

A: Probably

Probably because I I get notifications that I

I got more than

aathousand in my bank account. I I don't keep money in

the bank. II pull money in and out of banks all the time

time.

Q: Do you keep your mom's money in the bank?

A: I

I pull money out all the time. Our money— it's our

money-it's

money. It is not my mom's money. If mom needs

something,

something, IIbuy my mom whatever she needs. My

mom's not wanting for anything.

anything.""

95-96 (emphasis

Id. at 95-96 (emphasis added).

43. Petitioner

43. Petitioner confirmed that there were ten

ten dogs in the home. Id. at 96

home. Id, 96.

44. Petitioner confirmed that he contacted Attorney O'Toole for help with

44.

getting I.M.R.

IM.R. out of the Agency's custody as soon as she was removed from

his home, specifically

specifically focusing on the Alleged POAS

POA. 5 Id,

Id. at 98

98.

45. At the close of the hearing the Court denied the petitions to remove the

Agency I.M.R.'s person

Agency as guardian of IM.R.'s person and estate and to reconsider the

appointment of the

appointment Agency as emergency

the Agency emergency guardian,

guardian. The Court also stated

on the record its limited reasons for denying the petitions, and that it

believed I.M.R.'s

IM.R's dementia and need for care were sufficient to support the

guardianship.

emergency guardianship

THE COURT: I

l appreciate

appreciate the argument.

argument. However, under

the circumstances based on the testimony that

IIheard I I think there's more than enough to

deny the emergency petition to to remove the

the

current guardian.

guardian. II believe that Ms.

Ms. Roush is

at risk

risk based

based on the

the testimony.

testimony. II believe

believe she

has been at risk.

Again,

Again, IIwould imagine that the testimony will

be developed further but IIdon't think there's

any

any question

question that she has dementia.

dementia. She's in a

SThe Court notes that it did not allow further questioning or testimony on this issue given the possibility of

privileged being revealed.

privileged information being revealed, The fact that Petitioner did contact Attorney"Toole

Attorney O'Toole is relevant,

however, to question of

to the question of whether

whether he

he should have been

been permitted to represent

permitted to I.M.R.

represent IM.R

I dementia

dementia unitunit now

now which

which I think

think is

►1

appropriate based on the testimony. It sounds

as if she needs round the clock care. There's

no evidence that round the clock care has

been

been provided

provided under

under the circumstances.****

the circumstances.

Id. at

Id, 102-103.

at 102-103

46. The Court further ordered Petitioner to provided fully executed trust

46,

documents within ten days. Id,

Id. at 103.

47. Following

Following the First Hearing, aafull hearing on the Guardianship Petition was

scheduled for February 1, 2022.

48.

48. On January 13,

0n January 13, 2022, Attorney

Attorney O'Toole filed an emergency petition

petition for

for leave

leave

to serve as legal I.M.R. That petition was incomplete, as it

legal counsel for IM.R. it did

not include an engagement

engagement letter as required by Pa.R.0.C.P.

Pa.R.O.C.P. 14.4(b).

14.4(b). The

following

following day, the Court entered an order directing Attorney O'Toole to file

acopy of the engagement

acopy engagement letter as aaconfidential document and giving the

other parties

parties until January

January 21, 2022, to file any written responses to

Attorney O'Toole's petition. After review of the then-existing

Attorney O"Toole's then- existing record, the

petition,

petition, and the response

response filed by Attorney Ghaner, the Court denied

Attorney O'Toole's petition on January 24, 2022.

49. The second hearing

49, hearing in this matter

matter (the

(the ""Second

Second Hearing") occurred as

scheduled on February 1, 2022.

50,

50. The Agency

Agency presented the testimony of Dr. Brandon Michael Roscoe,

Dr.

Dr. Amy

Amy Sellers, Brittany

Brittany Bacher,

Bacher, and

and Carissa Beish.

51. Dr. Roscoe

51.Dr Roscoe is aaprimary

primary care physician

physician who specializes in geriatrics. He is

an attending physician at Mountain

attending physician Mountain6 Laurel

Laurel Healthcare and Rehabilitation

Rehabilitation

facility at

Center in Clearfield, PA, the facility at which I.M.R. was

which IM.R. was placed

placed after being

being

removed from Petitioner's home.

home. N.T.,

N.T., Second Hearing, at 6-7

6-7. He

examined I.M.R.

IM.R. in that capacity upon her admission to the f

facility,

cility,

a and

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