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PROBATE 7: Are your adult children suitable to serve as your guardian and conservator?

If you become incapacitated, you will need someone to make decisions on your behalf.  These are decisions regarding what medical treatment you receive, paying bills, managing your bank accounts and potentially selling assets. Tales of people abusing their power of attorney designations are common.   Many people designate their children, but is this the best choice?

In this case, the parents are in their mid-nineties and live together in their own home. They have four adult daughters. These daughters have seemingly divided themselves into two factions regarding the care of their parents and the management of their parents’ finances.

In June 2016, the parents executed various legal documents regarding the management of their affairs with the assistance of an attorney. The meeting with the attorney apparently had been arranged by daughter L.  The parents both granted daughter L durable power of attorney over medical decisions and also granted her general power of attorney for financial decisions. The attorney informed the daughters by letter of the estate plan at the request of the parents. The letter explained that their objectives were to stay in their own home, qualify and obtain Veteran’s benefits if possible, and to place in trust $50,000 that allegedly had been removed from their accounts and was being held by daughter M on their behalf.

After being advised of the estate plan, daughter M and daughter B filed four petitions in the probate court. They sought the appointment of a guardian for both parents, asserting they suffered mental illness, mental deficiency, and physical illness or disability. The petition asked the probate court to appoint daughter M and daughter B as co-guardians. The second petition requested that they be appointed as co-conservators for the estate, alleging that their parents were mentally and physically unable to manage her own affairs.

The probate court appointed a public administrator as guardian ad litem for both parents, and directed her to file a report regarding all petitions.

The public administrator recommended court-appointed guardianships and conservatorships in the four cases, and also recommended court-ordered mediation.

MCL 700.5106(1) generally permits a probate court to appoint a professional guardian or conservator when appropriate.

However, MCL 700.5106(2) states the following: (2) The court shall only appoint a professional guardian or professional conservator as authorized under subsection (1) if the court finds on the record all of the following:

(a) The appointment of the professional guardian or professional conservator is in the ward’s, developmentally disabled individual’s, incapacitated individual’s, or protected individual’s best interests.

(b) There is no other person that is competent, suitable, and willing to serve in that fiduciary capacity in accordance with section 5212, 5313, or 5409.

In this case, the record demonstrated that this is a highly contentious and antagonistic family situation. After holding numerous hearings on numerous petitions filed by the parties, the probate court explained that there is no one in priority who is suitable to serve as guardian.  Under these circumstances, the probate court appointed a successor public administrator as guardian and conservator.

In this case, none of the parent’s children were found suitable to serve as guardian.  Given the emotional nature of these disputes and their financial impact on all involved, it is important to work with experienced lawyer before you make any decisions. 

Aldrich Legal Services is established and respected. We have earned a reputation for integrity, professionalism and trusted service. We work closely with each of our clients and offer a warm, yet highly professional office where you can feel comfortable discussing your estate goals.

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