Grandma on Ice: What State Decides Granny’s Fate?
In re Mary Avery, an alleged Incapacitated Person is a kind of jurisdictional tour de force. It’s the kind of case which law professors would pick for moot court competitions. We write about it because the facts of Mary Avery’s recent life could happen to any of us.
We don’t know where Mary Avery started life. But she married and raised two kids. One lives in Harrisburg and the other in Bronx, NY. In 2000, Mary’s husband died and she moved to South Carolina. She lived there with a woman named Edna. In 2010 her relationship with her son fell apart and they stopped contact until 2021. Mary reached out to that son saying Edna was ill and she felt overwhelmed. The son and his wife drove to find her in a bad way and they brought her back to Pennsylvania. Edna died a few weeks later in South Carolina. Days later Mary gave her son a plenary power of attorney. At the same time she had cognitive tests and the reports indicated she had Alzheimers and was having sleep issues. After three months of residence with her son and daughter in law, Mary was moved to a senior facility in Berks County. As she was approaching six months of residence in Pennsylvania, her daughter came to take her to the Bronx for a Thanksgiving holiday. All good until the Monday after Thanksgiving when Mary called the care facility to say she would be living in New York with daughter.
Lawyers will be able to smell the issue. Twenty-one years in South Carolina. 170+ days in Pennsylvania and perhaps a week in New York. We should add that son sold her South Carolina home after bringing her to Pennsylvania so South Carolina is not really in the jurisdictional running.
Mary informed her facility she would not be returning and then published revocations of the power of attorney and a fresh power in favor of the Bronx based daughter. She would live with her. Her son filed in Berks County to have her capacity reviewed and seeking a temporary guardianship. A hearing was set a month later. Neither Mary nor her daughter participated. The court ordered Mary back to her Pennsylvania residential care and she was delivered. Her daughter then filed a response indicating Mother Mary was not incapacitated and, if that was wrong, daughter and not son should be her guardian.
A hearing on capacity was held in July 2022 and the court found guardianship merited. Daughter asked for reconsideration of that order and a new judge was assigned. He held a new hearing but re-affirmed both the guardianship and appointment of Mary’s son as guardian.
Son next filed to secure reimbursement of $80,000 in legal fees paid seeking the guardianship appointment. Daughter responded it was excessive. The hearing on that was in November 2024. The court denied the counsel fee request and the son asked it be granted status as an interlocutory appeal under Pa. R.A.P. 342 (a)(5).
Again, at 66 pages this is a legal historian’s feast. It culminates in a reversal with a remand to decide whether Pennsylvania became Mary’s domicile during her 178 day stay.
There is a legal glitch in all of this. The original case was an emergency guardianship and not a permanent one. But the matter went to two hearings before two judges, each of whom found Mary incapacitated. Mary had a court appointed lawyer. Mary didn’t appeal the guardianship findings nor did her daughter. But, on this counsel fee reimbursement matter, the Superior Court seems trapped in search of her domiciliary intent because they say it goes to subject matter jurisdiction. If Mary didn’t intend to live in Pennsylvania, the Commonwealth should stand aside on the topic of guardianship.
Whenever I see a remand I want to ask what the trial judge is supposed to do. We should note that despite signing two different powers of attorney and being essentially twice found incapacitated, she has her own counsel on appeal and her position and her daughter’s is that she’s “fine.” Is that issue to be re-visited a third time? And are we really going to focus on domiciliary intent? We have seen cases of adult kids kidnapping their elders, but in this case, Mary came to Pennsylvania, lived for two months with her son’s family and then moved into a life care community in Berks County. Had she been a captive, would she not have called the Bronx daughter from the facility and said “Get me outta here!”
Adult children are not above intimidation and coercion when dealing with failing parents. But, when you see two judges, two hearings and a court appointed attorney deployed to protect a sui juris adult from unwarranted guardianship, you wonder whether this is the case you want to build precedent on.
The proper place of a guardianship is a real problem. Like Mary Avery, lots of elders head South; sometimes for sun, other times for tax relief. When stoves are left on or elders need more care, the first step is often “parent sharing” where the parent is shuffled from one adult child’s home to another with “rest home” stops added for special needs. There is no domiciliary intent in these transactions. Often the elder parents would be happy to live permanently with one child. But that child’s spouse and kids find that granny cramps their style. And so, it’s off to the next kid or the assisted living facility across the river in Trenton, NJ. Mary may still be accumulating masterpoints in her bridge tournaments but it’s likely that she doesn’t recall what assisted living place she occupied in 2022, let alone whether it met her domiciliary intent.
In re Mary D. Avery, 2026 Pa. Super 124