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Adult Children’s Guardianship & Conservatorship Petition Improperly Rejected

Posted on Thursday, February 7, 2019

A guardianship and conservatorship petition filed by the adult children of a protected individual should not have been disqualified based on sheer speculation that they were “too young” and might be “pushed, and prodded, and pulled” by other family members, the Michigan Court of Appeals has ruled.

After David VanPoppelen was diagnosed with early onset dementia, his adult children petitioned the Macomb County Probate Court to be named as his guardian and conservator. Finding the children were “just too young” and at risk of being put in the middle of family squabbles with relatives, the Probate Court instead appointed an independent third party as David’s guardian and conservator.

The Court of Appeals vacated the order of appointment and remanded the case for consideration of the adult children’s suitability to serve.

“While the probate court’s concern for the welfare of the ward’s adult children is commendable, the existing record does not support their disqualification,” the Court of Appeals wrote in In re Guardianship of VanPoppelen (Docket No. 340224). Judges Patrick M. Meter and Elizabeth L. Gleicher joined the unpublished decision. Judge Christopher M. Murray concurred in part and dissented in part.

Competing Petitions

June VanPoppelen was David VanPoppelen’s ex-wife and mother of their children: 26-year-old Wyatt and 19-year-old Ivy. After David was diagnosed with early onset dementia, June brought David to live with her in the couple’s former marital home. June then 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, Vincent and Dennis VanPoppelen, believed that June was keeping David from seeing them and suspected she was taking advantage of his incapacitated condition. Another brother, Chris Van Poppelen, apparently did not share these concerns. Accordingly, Vincent and Dennis filed petitions to be David’s guardian and conservator. June then filed a competing petition, as did Ivy and Wyatt, who sought to be their father’s co-guardians and co-conservators.

The Macomb County Probate Court held an evidentiary hearing and heard testimony from Vincent, Dennis, Chris, June, Wyatt, Debbie VanPoppelen (Dennis’s wife) and Pat VanPoppelen (Chris’s wife). June, Wyatt and Ivy were unrepresented by counsel at the hearing. The evidence showed a high level of distrust between June and David’s brothers. The brothers expressed concern that June would use David’s assets to help pay the debt that she and the children had accumulated. The brothers, however, acknowledged that June took good care of David and that he was comfortable and happy.

Wyatt testified that he had a full-time job, lived on his own and had $40,000 in college debt. Ivy did not testify. According to their affidavits, Wyatt earned a degree in Biopsychology, Cognition and Neuroscience from the University of Michigan and Ivy was a student at Alma College. While David’s brothers agreed that Wyatt and Ivy were “great” kids, they testified it would be too difficult for them to serve as guardian and conservator. In particular, the brothers were concerned the children would be subject to “undue pressure” from June.

Upon considering the testimony, the Probate Court invalidated June’s power of attorney, finding that David was not competent to execute it at the time. The Probate Court then ruled that June should not serve as guardian and conservator because she interfered in David’s relationship with his brothers.

The Probate Court also declined to appoint Wyatt or Ivy as their father’s guardian and conservator. “We’ve heard testimony from everyone that they’re good kids, and I have not a doubt how much they love their father,” the Probate Court said. “However, I think they are inappropriate at this time just due to their young age. And, the fear that this Court has that they’re going to [be] put in the middle. We clearly have a lot of contention on both sides. And, I do not want to see two young people being pushed, and prodded, and pulled.”

Although Dennis and Vincent were deemed “most appropriate” to serve as guardian and conservator of their brother, the Probate Court held that an independent third party was necessary because “the contentious nature of what’s going on here” would “cause so much upheaval that it’s just going to topple, and everything’s going to be turned upside down.” Accordingly, the Probate Court appointed a professional administrator as David’s guardian and conservator.

EPIC: Requirement Is “Adulthood”

Noting that David was clearly incompetent to select his own fiduciary, the Court of Appeals held the petitions filed by Ivy and Wyatt should not have been disqualified for the speculative reasons cited by the Probate Court.

The Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq, establishes an order of priority when selecting a guardian and conservator for a protected person, the Court of Appeals explained. “Pursuant to MCL 700.5313(3)(b) and MCL 700.5409(1)(d), David’s adult children, Ivy and Wyatt, 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 Court of Appeals pointed out that Ivy and Wyatt were deemed by the Probate Court “unsuitable” to serve “due to their young age.” However, the age of an adult is inappropriate grounds for disqualification under EPIC. “As adults, Ivy and Wyatt are fully qualified to serve as guardians and conservators for their father. … Adulthood is all that is required under EPIC.”

Further, the Court of Appeals noted the Probate Court feared that Ivy and Wyatt would be “put in the middle” and disqualified them because it did not “want to see two young people being pushed, and prodded, and pulled.” While this was a legitimate concern, “no evidence supported that Wyatt and Ivy would be unsuitable for the positions or unable to manage the tasks required of them,” the Court of Appeals said, emphasizing the burden of proof regarding unsuitability is preponderance of the evidence.

The possibility that Ivy and Wyatt could be “put in the middle” of family disputes was insufficient, standing alone, to disregard their priority for appointment under EPIC, the Court of Appeals explained. “Whomever the court appointed, including a third party, would be ‘put in the middle’ of any disputes between June and David’s brothers. … Before eliminating Wyatt and Ivy as candidates for appointment …, the probate court was required to determine whether either or both were able to provide for their father’s care, custody and control despite any pressures that might be brought to bear. No evidence supports that these two college-educated young people would be unable to perform the tasks that would be required of them.”

According to the Court of Appeals, there may indeed be facts showing that neither Ivy nor Wyatt could suitably provide for their father – facts that had to be identified by the Probate Court on remand. “EPIC permits the court to name David’s children as his co-guardians and to appoint an independent person as conservator. Alternatively, the court could appoint the children as temporary guardians and conservators and require oversight and frequent reports. We leave those choices to the probate court and require only that its decision set forth the facts on which it is based.”

While it was indisputable that an independent third party possesses more experience than Ivy or Wyatt and may be less susceptible to pressure, “the priorities established under EPIC do not permit the probate court to bypass adult children on this ground alone,” the Court of Appeals wrote. “The Legislature has directed that unless incompetent or unsuited to serve, the adult children of an incapacitated parent must be appointed in lieu of a professional. … Simply put, there is no weighing involved; by listing the priorities, the Legislature eschewed a ‘best interests’ approach in favor of a decision process anchored in family relationships. That these adult children might be confronted with conflicting views, or that more experienced individuals might be found, does not disqualify them from serving their father as his guardians or conservators. And at this juncture, the record reflects nothing more.”

Therefore, because the Probate Court “based its decision on an improper factor (‘young age’) and speculation rather than actual evidence of unsuitability, we vacate its order appointing an independent guardian and conservator, and remand for further proceedings,” the Court of Appeals concluded. “On remand, the probate court should reevaluate Ivy’s and Wyatt’s suitability to serve as guardian and conservator based on evidence of their individual and collective abilities (or inabilities) to undertake responsibility for their father’s care and control. Rather than hypothesizing potential negative consequences that might attend Ivy’s and Wyatt’s appointment, the probate court should reference and cite facts of record substantiating Ivy’s and Wyatt’s unsuitability before again appointing a third-party guardian and conservator.”

Regarding the power of attorney that had been executed, the Court of Appeals upheld its invalidation. “[I]n order to be legally valid, the individual executing a power of attorney must ‘possess[] the mental competence to reasonably understand the nature and effect of his action.’ … [T]he probate court did not err in finding that David was not competent to execute a power of attorney in March 2017.”

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