Court Of Appeals Reverses Trial Court’s Guardianship Order Due To Lack Of Clear And Convincing Evidence
Opinion Approved for Publication: October 24, 2025 (Yates, Swartzle, Garrett)
COA Docket Nos. 373743 & 373744
Kalkaska County Probate Court
Elizabeth Parker of Speaker Law Firm represented the Appellant.
Holding: The Court reversed and remanded the Trial Court’s finding that GM was an incapacitated individual subject to a guardianship and conservatorship because DHHS did not prove by clear and convincing evidence that both MCL 700.5306 and MCL 700.5401 were met.
Facts: In February 2024, police performed a welfare check on GM and detected a strong odor of feces outside her home. GM told the police that there were many dogs inside her home, some of which died from parvo virus. She stated that she allowed the dogs to defecate inside the home to prevent the spread of parvo virus. Police observed that the inside of GM’s home was in disarray and filthy. GM’s son who lived in Germany commented that GM was not mentally well and could not take care of the dogs, and that he believed the home was uninhabitable. Thus, DHHS’s Adult Protective Services became involved, and the police executed a search warrant and removed the dogs from GM’s home.
In March 2024, DHHS filed a petition to establish a guardianship and a conservatorship over GM; the proposed guardian and conservator was a resident of Ohio whom DHHS alleged was GM’s friend, but GM denied knowing her. A GAL was appointed for GM, and the Trial Court had her undergo a psychological evaluation. This evaluation revealed that GM attended the University of Michigan, UCLA, the University of San Francisco, Northwester California University School of Law, and Magna Carta College of Law. The evaluator concluded that GM was exceptionally tangential and exhibited some delusional thinking, but overall had either average or above-average cognitive abilities, though there was some indication of cognitive decline. This was because she had an extensive educational history, so she should have had a higher cognitive function to begin with. The evaluator further diagnosed GM with an unspecified neurocognitive disorder and a hoarding disorder based on speaking with GM’s son, who said the condition of her home had always been a concern. He thus concluded that GM was a legally incapacitated person, and that a guardianship and conservatorship were warranted.
GM obtained a second opinion through another psychological evaluation. The evaluator concluded that GM was cognitively functioning at either an average or above-average level, but that her social skills were a relative weakness. The evaluator also concluded that there was insufficient evidence to support a guardianship or conservatorship but recommended that GM establish a power of attorney and seek counseling.
The GAL recommended that the Trial Court determine whether GM has always been this way or whether GM was losing the ability to care for herself and her home due to cognitive decline and mental health challenges. The DHHS caseworker testified that GM’s home was in disarray and dirty when she visited, that GM took in two tenants with criminal records, and that GM may not have the ability to manage her finances properly. The Trial Court ultimately found that there was more than sufficient clear and convincing evidence that GM needed a guardian and relied entirely on the first psychological evaluation. The Trial Court thus granted the petitions for both a guardianship and conservatorship over GM, and assigned her daughter, April, both roles. GM then appealed to the Michigan Court of Appeals.
Key Appellate Rulings:
An individual can only be found to be incapacitated under MCL 700.1105(a) if MCL 700.5306 is met in its entirety.
Under MCL 700.5306(1), “the 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, with each finding supported separately on the record.” MCL 700.5306(1). Further, an “‘[i]ncapacitated individual’ means an individual who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions.” MCL 700.1105(a).
In this case, the evaluator concluded that GM was an incapacitated individual, yet found that her cognitive functioning was average or above average. The Court noted that if this finding is accepted deeming a person of average cognitive functioning nonetheless legally incapacitated, then the majority of Americans will be categorized as such. In addition, a decline in cognitive abilities does not warrant a finding of legal incapacitation if one’s cognitive performance is still average. Further, the diagnoses from the first evaluator did not meet the clear and convincing evidence standard. Therefore, the Court found that clear and convincing evidence was not proven to warrant a guardianship, as there was insufficient evidence that GM was an incapacitated individual under MCL 700.1105(a).
In order for a conservatorship to be established, clear and convincing evidence that leaves the Court with the firm belief or conviction as to the truth of the allegation sought to be established must be shown under MCL 700.5401.
A trial court can appoint a conservator if it makes both of the following findings if “(a) the individual is unable to manage property and business affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance,” and “(b) the individual has property that will be wasted or dissipated unless proper management is provided, or money is needed for the individual’s support, care, and welfare or for those entitled to the individual’s support, and that protection is necessary to obtain or provide money.” MCL 700.5401(3).
In this case, DHHS did not prove by clear and convincing evidence subpart a of MCL 700.5401. Though GM has had a lifelong difficulty properly caring for herself physically and financially, the evidence presented was “insufficient to show that GM was so incapable as to warrant either a guardianship or conservatorship.”
