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PROBATE 26: Probate court stopped transfer because it would be detrimental to that resident.

Lisa is severely intellectually disabled and unable to care for herself or manage her estate. Her mother, Lucille, was Lisa’s predecessor guardian and cared for Lisa in her home from Lisa’s birth on February 22, 1961 through October 3, 2006, when, based upon Lucille’s declining health, Lisa transitioned to a residential treatment facility.

On March 7, 2008, Lisa was transferred to another facility. Finally, on March 1, 2009, Lisa was transferred to her current residence. Petitioner was appointed successor plenary guardian of Lisa on December 2, 2009.

On September 26, 2018, petitioner filed the petition that contended that respondent was planning to transfer Lisa from her current residence to another community placement, and sought an ex parte order denying the transfer on the ground that it would be detrimental to Lisa pursuant to MCL 330.1536.

The probate court granted ex parte relief and later held a full hearing. In lieu of testimony, respondent presented three affidavits from its employees indicating that the transfer would not be detrimental to Lisa, and therefore, respondent was statutorily entitled to move forward with the transfer.

Petitioner presented four witnesses familiar with Lisa’s situation who all testified that such a move would be detrimental to Lisa. Lisa’s lawyer-guardian ad litem indicated that, in his opinion, the probate court should favor the testimony of petitioner because of petitioner’s heavy involvement in the welfare of Lisa, and because petitioner’s history with Lisa made petitioner the most capable of predicting the outcome of a transfer.

The probate court summarized the affidavits provided by respondent and the testimony from the evidentiary hearing and concluded that the move certainly does appear to be something that would be detrimental to Lisa.

MCL 330.1536 provides:

(1) A resident in a center may be transferred to any other center, or to a hospital operated by the department, if the transfer would not be detrimental to the resident and the responsible community mental health services program approves the transfer.

(2) The resident and his or her nearest relative or guardian shall be notified at least 7 days prior to any transfer, except that a transfer may be affected earlier if necessitated by an emergency. In addition, the resident may designate 2 other persons to receive the notice. If the resident, his or her nearest relative, or guardian objects to the transfer, the department shall provide an opportunity to appeal the transfer.

(3) If a transfer is affected due to an emergency, the required notices shall be given as soon as possible, but not later than 24 hours after the transfer.

The evidence in this case primarily came from seven people: three affiants and four testifying witnesses. Of those seven people, only four of them provided evidence that they had either a history with Lisa or daily interaction with Lisa such that they might reasonably be capable of opining as to how the proposed transfer might affect Lisa’s wellbeing. All four of the witnesses demonstrated a personal history with Lisa, and all of them concluded that transferring Lisa would be detrimental. None of the affidavits provided by respondent suggested that the affiants had a history with Lisa comparable to petitioner’s witnesses.

The probate court’s finding with respect to detriment was well supported by the evidence. Being sensitive to the fact that respondent must walk the tightrope of balancing the needs of consumer, sometimes against one another, with the limited resources that it has, MCL 330.1536 is clear that respondent cannot transfer a consumer if the transfer would be detrimental to that consumer.

Aldrich Legal Services represents clients in a wide range of probate litigation matters. In addition to representing local clients, we have assisted many out-of-state clients who have required legal representation to resolve probate disputes here in Michigan. To schedule a free consultation with an experienced probate litigation lawyer at our firm, contact our law office in Plymouth, Michigan.

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