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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REAL ESTATE 36: Plaintiff argued that her claim was not time-barred because it did not accrue until the grandmother’s death.

Plaintiff’s interest in the subject property is best characterized as a remainder estate, because her right to possession of the property was postponed until the occurrence of a specific contingency, that being the deaths of the grandparents. Plaintiff pursued this action within the 15-year limitation period; accordingly, this action is not barred by MCL 600.5801(4).

LITIGATION 6: The terms of the agreement prevails over the course of performance.

The trial court determined that under the UCC, the express terms of the parties’ agreements prevailed over the course of their performance and course of dealing. Although a course of performance may show that parties have waived a specific contractual term under MCL 440.1303(6), the statute does not similarly provide that a course of dealing may demonstrate waiver.

PROBATE 27: Petitioner filed a petition for mental-health treatment.

In support of the allegations, petitioner attached clinical certificates from a physician and a psychiatrist who observed respondent at the hospital. Both doctors diagnosed respondent with bipolar disorder, determined that she displayed a likelihood of injuring herself and that she did not understand the need for treatment, and recommended a course of treatment that consisted of 60 days of hospitalization and 90 days of outpatient care.

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FAMILY LAW 32: Trial court committed error in failing to address whether there was an established custodial environment.

On appeal, plaintiff argues that the trial court failed to make any findings regarding (1) the child’s established custodial environment, (2) the child’s best interests regarding the grant of primary physical custody to defendant, (3) the child’s best interests with respect to parenting time, and (4) the child’s best interests pertaining to the parties’ dispute over daycare.

PROBATE 25: Daughter removed as personal representative of the estate.

the probate court determined that Daughter J had managed the estate in a manner that promoted her own interests as a beneficiary over the interests of the estate. The probate court found that such management demonstrated mismanagement of the estate and that removal of Daughter J was therefore in the best interests of the estate.

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REAL ESTATE 32: Plaintiffs and defendants executed a second easement.

Plaintiffs requested that the trial court, either through reformation of the First Easement or interpretation of the Second Easement, quiet title in favor of plaintiffs and declare them to be the owners of an easement to access Lake Superior through the ravine on defendants’ property, enjoin defendants from interfering with their use of the easement, and order compensation for damages to the stairs.

LITIGATION 4: Plaintiff claimed installation of hardwood flooring breached the condo bylaws.

Defendants completed the project. Plaintiff did not pay for any of the costs of the project. Defendants moved to compel plaintiff to pay one-half of the costs under the agreement. Plaintiff responded that defendants had materially breached the agreement in several ways, including by denying her the right to supervise the project, by refusing to give her an installation schedule, and by starting work before plaintiff approved of the start date.

FAMILY LAW 30: Discretionary trust assets cannot be reached to satisfy claims for child support and alimony.

The key difference between discretionary trusts, support trusts, and spendthrift trusts is that creditors cannot compel the trustee of a discretionary trust to pay any part of the income or principal in order that the creditors may be paid. The opposite is true of spendthrift and support trusts, which allow trust assets to be reached to satisfy creditors, including creditors seeking to satisfy claims for child support and alimony.

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FAMILY LAW 29: Quitclaim deed signed after prenuptial agreement prevails.

The court ruled that title to the land prevails and that once the deed was signed, the property became the undivided whole interest for both the decedent and appellee and became appellee’s property upon the decedent’s death. Consequently, the court concluded that the prenuptial agreement did not have any impact on the property rights of appellee in this case.

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