PROBATE 20: The age of an adult is not a proper ground for disqualification under EPIC.

In 2016, David was diagnosed with early onset dementia. He continued to live alone until his ex-wife and the mother of their children brought David to live with her in the couple’s former marital home. June arranged for David to execute a durable power of attorney, which she used to sell his condominium. She also changed at least one of the passwords on his financial accounts. David’s brothers believed that June was preventing David from seeing them outside her presence, and suspected that she was taking advantage of David’s incapacitated condition.

The brothers filed petitions for conservatorship and guardianship, respectively. June and her children each filed competing petitions.

The court conducted an evidentiary hearing and took testimony from the whole family. The evidence revealed significant distrust between June and David’s brothers. June claimed that on the advice of her prior counsel, she prohibited the brothers from visiting David. The brothers expressed fears that June would use David’s assets to help pay the significant college debt that she and the children had accumulated. Despite the brothers’ antipathy toward June, they agree that she provided David with good care and that he was comfortable, happy and stable in her home.

The court ultimately invalidated June’s power of attorney because David was not competent to execute it in March 2017. The court found that June was not an appropriate choice for fiduciary because she interfered in David’s relationship with his brothers and David needed the support of all family members. The court also noted that June refused to definitively promise that she would continue caring for David if his brothers were named guardian and conservator.

The court’s explanation for not naming the children as David’s guardian and conservator was due to their young age, 26 and 19.

The court appointed an independent third party as David’s guardian and conservator. The record reflects that June continues to care for David, and David remains in her home.

The children appeal, claiming that either they or June should have been named as David’s guardian and conservator.

The Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., establishes an order of priority that must be followed when a probate court selects a guardian and conservator for a protected person.

MCL 700.5313(2)(b) and (c) permit a person to choose his or her guardian. MCL 700.5313(2)(d) and MCL 700.5409(1)(b) give high priority in guardianship and conservatorship actions to individuals designated by the incapacitated person “as a patient advocate” or as an “attorney in fact in a durable power of attorney.” But in this case, the probate court found that David was not competent to execute a power of attorney in March 2017.

Pursuant to MCL 700.5313(3)(b) and MCL 700.5409(1)(d), David’s adult children were then in the top priority position to serve as David’s guardian and conservator. Yet, the probate court passed over them in favor of a hired custodian.

The age of an adult is not a proper ground for disqualification under EPIC. As adults, the children are fully qualified to serve as guardians and conservators for their father. Adulthood is all that is required under EPIC.

Because the probate court based its decision on an improper factor “young age” and speculation rather than actual evidence of insuitability, the appeals court vacated the trial court's order appointing an independent guardian and conservator, and remanded for further proceedings.

An important component of most comprehensive estate plans is the power of attorney designation. This gives someone authority to make decisions on your behalf if you cannot. Our estate planning attorneys at Aldrich Legal Services can give you the legal guidance you need to make an important decision like this.

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