A and W are the adult children of David and June. David and June divorced in 2014, after which June remained in the marital home. In 2016, David began to show signs of early onset dementia. He moved back to the marital home with June, who became his caregiver. June helped David apply for disability benefits and manage his medical treatment, and David granted June power of attorney.
In 2017, two of David’s brothers petitioned in the probate court for appointment as David’s guardian and conservator. In response, June and the adult children filed petitions seeking appointment as David’s guardian and conservator.
Following an evidentiary hearing, the probate court appointed a public administrator as David’s guardian and conservator. Although appellant and Wyatt had statutory priority for appointment, the probate court found that appellant and Wyatt were not suitable as fiduciaries because they were young (age 19 and 26), inexperienced, and susceptible to June’s influence. The probate court also nullified June’s power of attorney, finding that David had lacked the mental capacity to grant it.
Estate and Protected Individuals Code
Under the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., the probate court may appoint a guardian if the court finds by clear and convincing evidence both that the individual for whom a guardian is sought is an incapacitated individual and that the appointment is necessary as a means of providing continuing care and supervision of the incapacitated individual.
The court shall appoint a person, if suitable and willing to serve, in the following order of priority:
(a) A person previously appointed, qualified, and serving in good standing as guardian for the legally incapacitated individual in another state.
(b) A person the individual subject to the petition chooses to serve as guardian.
(c) A person nominated as guardian in a durable power of attorney or other writing by the individual subject to the petition.
(d) A person named by the individual as a patient advocate or attorney in fact in a durable power of attorney.
In this case, the adult children contend that the probate court abused its discretion by appointing public administrator as successor guardian and conservator, and that the probate court instead was required by EPIC to give priority to the children because there was no evidence that they were unsuitable for those appointments.
The probate court’s finding that the children lacked sufficient sophistication to manage David’s finances is not clearly erroneous. The record indicates that they are vigilant in their concern for the preservation of David’s assets but, together with June, fail to understand the law and procedures mandated by the EPIC and the court rules, resulting in needless litigation. For example, when the family learned of inaccuracies in the tax records regarding the division of property, the family leapt to the conclusion that there had been mismanagement by the conservator, filing numerous motions with the probate court rather than working with the successor conservator to correct the problem.
However, the probate court failed to support its finding that the children are unsuitable to serve as David’s guardians.
Giving You the Knowledge
Tales of people abusing their power of attorney designations are common. Therefore, it is important to work with experienced lawyers before you make any decisions.
Deciding who will be your patient advocate or who will responsibly handle your finances if you cannot is not a decision to be taken lightly. We will take the time to listen to all your concerns and help you construct an estate plan that meets your needs.