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PROBATE 86: The probate court may appoint a public administrator as guardian.

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.

Guardian/Conservator

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.

Probate Court

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.

Contact Aldrich Legal Services

Speak to a Pro: (734) 404-3000

REAL ESTATE 89: RM had not included any language in the deed providing that the property was a joint tenancy with full rights of survivorship, the property instead became a tenancy in common.

RM drafted the deed without seeking counsel and mistakenly believed that, if either she or FK died, the property would fully pass to the surviving tenant. FK’s will provided that if his wife predeceased him—which she did—the personal representative of his estate should sell any residual property that he owned and divide the cash proceeds equally among his surviving children.

FAMILY LAW 83: A trial court can terminate a parent’s rights and permit a stepparent to adopt a child.

A trial court has discretion to terminate a parent’s rights and permit a stepparent to adopt a child when the conditions of MCL 710.51(6) are met. MCL 710.51(6)(b) requires the petitioner to establish that the other parent had the ability to visit, contact, or communicate with the children, and substantially failed or neglected to do so for a period of two years.

PROBATE 53: The trust agreement included an Incontestability Provision.

A settlor’s intent is to be carried out as nearly as possible. Generally, in terrorem clauses are valid and enforceable. However, a provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding contesting the trust or another proceeding relating to the trust.

FAMILY LAW 82: Court stated it would terminate the personal protection order (PPO) after the parties present documentation of the initiation of the divorce proceedings.

However, the trial court concluded that these matters should, in fact, be in the province and the jurisdiction of the Family Division and in that respect, having issued a personal protection order, the Court stated it would terminate the personal protection order after the parties present documentation of the initiation of the divorce proceedings.

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