Now Accepting New Clients!

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.

Contact Aldrich Legal Services

Basic responsibilities of an executor

Originally posted on 01/11/2017 The emotional toils of dealing with the death of a loved one can be considerably difficult. Nevertheless, perseverance is paramount; especially if you are appointed to be an executor to one’s...

What you need to compliment your will

Originally posted on 02/08/2017 Making end-of-life plans usually end with a will, but they shouldn't. Some believe that simply having a will is enough. However, this post will briefly explain how having other estate planning...

The benefits of home health care providers

Originally posted on 03/22/2017 As we get older or suffer an injury, we need a little extra help. Home health care providers or caregivers can provide the assistance needed to handle your or your loved one's health and safety...

What to know about bail conditions

Originally posted on 03/06/2017 If you have been arrested and are being held on the suspicion that you have committed a particular crime, chances are that the only thing you are thinking about is getting out of jail as soon as possible and...

College students and estate planning

Originally posted on 12/16/2016 With college semesters starting up in Michigan, it may not be so easy to get college students to think responsibly. This time can be especially tough with the need of moving back to school and getting...

Three reasons to put a power of attorney in place

Originally posted on 11/08/2016 While no one wants to think of the unfortunate possibility of being incapacitated or of a time when we can't handle our own affairs, this circumstance is a real possibility. If something happens and this...

How to approach parents about estate planning

Originally posted on 12/09/2016 Family forms a strong foundation for many people's first and most intimate community. It is important to strengthen these first relationships so even uncommon questions become natural. For those...

PROBATE 44: Petition for Mental Health Treatment

Michigan’s Mental Health Code governs the civil admission and discharge procedures for a person with a mental illness. Specifically, MCL 330.1434 sets forth the procedure and content requirements for a petition for mental health treatment.

Should you get your criminal record expunged?

Originally posted on 04/12/2017 If you have been convicted of a crime, have served your sentence, and have followed all court recommendations, you should be able to put your past behind you and move on with life. Moving forward is critical...

Choosing the right executor for an estate

Originally posted on 05/28/2017 When people are thinking about planning their estate, they often think about trying to minimize the estate tax, keeping their will updated, and keeping items out of probate court; however, there is another...

Understanding how the Miranda warning works

Originally posted on 11/25/2016 Michigan residents who have seen television police shows or movies involving law enforcement have no doubt watched many dramatic scenes with officers quoting something to the effect of, "You have the...

Don't let a bad decision, unfair contract, or a messy divorce get in the way of a promising future!
Contact the experienced team at Aldrich Legal Services today to schedule your free initial
and secure reliable and trustworthy representation today!
Get the Help You Need From a Team You Can Truly Count On: (734) 404-3000