Court of Appeals Addresses Standard and Burden of Proof for Removal of an Incapacitated Adult's Guardian | Speaker Law
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Court of Appeals Addresses Standard and Burden of Proof for Removal of an Incapacitated Adult's Guardian

Posted on Tuesday, May 8, 2018

In its recently published opinion, In re Guardianship of Dorothy Redd, __ Mich App __; __ NW2d __ (2017) (Docket 335152), the Court of Appeals addressed the standard for removal as well as the burden of proof for removing the guardian of an adult. The case involved Dorothy, an incapacitated elderly woman, Gary, her son, and Nichole, Gary’s daughter and Dorothy’s granddaughter. Gary had served as Dorothy’s guardian for 2 years. Nichole then petitioned for his removal and replacement as guardian because he was allegedly no longer suitable based on his actions in the proceeding 2 years. Nichole’s allegations were predominately centered around disputes within the family and focused on Gary having repeatedly prevented Dorothy from seeing members of their family including her other children. The Probate Court granted Nichole’s petition to remove Gary as guardian and ruled that even though Gary was Dorothy’s clear preferred guardian, her preference was trumped by his unsuitability. Gary’s appeal followed. 

The Estates and Protected Individuals Code (“EPIC”) deals with, among other things, the appointment of guardians for incapacitated individuals. EPIC provides a list of people who can be appointed as a ward’s guardian, including someone who the ward chooses. It also provides the caveat that the preferred guardian must be “suitable and willing to serve”. EPIC also provides that a guardian can be removed if they are no longer suitable to serve. Gary’s suitability was the focus of Nichole’s Probate Court petition and Gary’s appeal. 

EPIC does not specifically addresses the standard for a guardian’s removal, so the Court of Appeals dug into the issue in its opinion in Redd. The Court held that the standard for appointing a guardian under EPIC was the same as the standard for removing a guardian and that to remove a guardian, a Probate Court “must find that a guardian is no longer suitable and willing to serve.” The next relevant question, is whether a guardian is suitable.

EPIC does not define the term “suitable” so the Court of Appeals turned to a combination of the statutory purpose of a guardian and the legal dictionary definition of the term. EPIC provides that a guardian’s purpose and role is to provide “for the ward’s care, custody and control.” Black’s Law Dictionary defines “suitable” as “fit and appropriate for [the] intended purpose.”  Taken together, the Court of Appeals concluded that a suitable guardian “is one who is qualified and able to provide for the ward’s care, custody and control.”

Next, the Court of Appeals analyzed the burden of proof that a petitioner is required to show to demonstrate that a guardian is not suitable and should be removed. EPIC instructs a Probate Court to use the clear and convincing standard when determining whether or not a person needs a guardian. But the statutes do not provide instruction as to the evidentiary standard for removing a guardian. The Court of Appeals interpreted that omission as intentional and concluded that the clear and convincing standard did not apply to the removal stage. Citing Mayor of Cadillac v Blackburn, 306 Mich App 512, 522; 857 NW2d 529 (2014), the Court of Appeals concluded that because relevant statutes do not state which standard of evidence a Probate Court should require for the removal of a guardian, the default standard of a preponderance of the evidence should be applied.

The Court of Appeals concluded that the Probate Court in Redd correctly applied the preponderance standard and that it did not clearly err in its findings of facts. The Probate Court’s decision was affirmed, however Gary subsequently filed an application to the Michigan Supreme Court which is currently pending. 

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