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Woman’s Daughters – Not Husband – Were Properly Appointed As Co-Conservators

Posted on Wednesday, May 29, 2019

A probate court did not err in appointing the daughters of a woman with Alzheimer’s disease and dementia as her co-conservators rather than appointing her husband, the Michigan Court of Appeals has ruled.

In In re Conservatorship of Elaine Straith (Docket No. 346103), the Court of Appeals also held the probate court properly revoked the husband’s appointment as his wife’s durable power of attorney.

According to the Court of Appeals, the probate court correctly applied the Estates and Protected Individuals Code (EPIC). Specifically, the Court held:

  • The probate court made the proper factual findings under MCL 700.5401.
  • The probate court correctly applied the order of priority in MCL 700.5409.
  • The husband misinterpreted MCL 700.5503 when asserting that he had priority of appointment under the statute.
  • The husband incorrectly claimed that he must be appointed conservator because spouses automatically owe each other a fiduciary duty and his wife could not revoke his prior appointment as durable power of attorney.

“[T]here was good cause not to appoint [the husband] as conservator, and [the daughters] hold the highest priority for appointment as conservators,” the Court of Appeals held. “We conclude that the probate court did not err in its appointment of [the daughters] as co-conservators of Straith and its revocation of prior durable powers of attorney for finance.”

Necessary Conservatorship

The respondent and Straith were married in 2007. In 2018, Straith was diagnosed with Alzheimer’s disease and late-onset dementia. The respondent is in remission from cancer and is disabled by the amputation of his right arm and partial paralysis on his right side. Before her diagnoses of Alzheimer’s and dementia, Straith had granted the respondent durable power of attorney.

Because of Straith’s illnesses, it was undisputed that she needed to have a conservator and guardian appointed. The only question was who should serve in those roles.

The petitioners are two of Straith’s adult children. They claimed the respondent verbally and physically abused their mother, endangered her with unsecured weapons and unsecured medication, restricted her communication with family and refused to allow social interaction. The petitioners also asserted the respondent drank daily and was restricting their access to their mother’s need to pay medical bills and care.

In particular, petitioner Kelly Leonard noted that, when Straith returned home after visiting her for five days, the respondent called Leonard and asked her to come get Straith because Straith was crying and said she wanted to live with Leonard. Leonard returned and picked up her mother and, since that time, Straith has lived with Leonard.

The respondent denied the petitioners’ allegations. He claimed the petitioners improperly cut him off from Straith.

The probate court ultimately appointed the petitioners as Straith’s co-guardians and co-conservators. The probate court also revoked the respondent’s durable powers of attorney.

The respondent appealed.

Sufficient Factual Findings

The respondent argued on appeal that the probate court did not follow the statutory requirements in MCL 700.5401(3) because it did not make any factual findings that Straith’s property would be wasted or dissipated under the respondent’s management.

“We disagree,” the Court of Appeals said, noting that MCL 700.5401(3) says: “The court may appoint a conservator or make another protective order in relation to an individual’s estate and affairs if the court determines both of the following: (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. (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.”

In this case, there was no dispute that MCL 700.5401(3)(a) was satisfied, the Court of Appeals stated. “The use of the word ‘or’ … is disjunctive, and it generally indicates a separation between two independent alternatives. … Thus, the trial court needed either to find that Straith had ‘property that will be wasted or dissipated unless proper management is provided,’ or find that Straith needed money for her support, care, and welfare, ‘and that protection is necessary to obtain or provide money.’ The probate court made factual findings that respondent restricted Straith’s funds from being used by petitioners to pay for Straith’s medical bills and care …. This constitutes a finding that money was needed for Straith’s support, care, and welfare, and that protection was necessary to ensure the money was available.”

Accordingly, the Court of Appeals held the probate court was not required to make additional factual findings that Straith’s assets were in danger of being wasted or dissipated under the respondent’s management. “Proper factual findings were made by the probate court permitting petitioners’ appointments of conservatorship under MCL 700.5401.”

Order Of Priority

The respondent also claimed that, by appointing the petitioners as co-conservators, the probate court did not apply the order of priority required under MCL 700.5409(1).

The Court of Appeals rejected this argument, noting the petitioners did in fact have priority under MCL 700.5409(1). That statute says: “(1) The court may appoint an individual, a corporation authorized to exercise fiduciary powers, or a professional conservator described in section 5106 to serve as conservator of a protected individual’s estate. The following are entitled to consideration for appointment in the following order of priority: (a) A conservator, guardian of property, or similar fiduciary appointed or recognized by the appropriate court of another jurisdiction in which the protected individual resides. (b) An individual or corporation nominated by the protected individual if he or she is 14 years of age or older and of sufficient mental capacity to make an intelligent choice, including a nomination made in a durable power of attorney. (c) The protected individual’s spouse.”

Here, Straith nominated the petitioners to serve as her conservators while meeting with her guardian ad litem, the Court of Appeals explained. “Her guardian ad litem testified to this …,” the Court said. The Court further pointed out that Straith’s guardian ad litem also testified about her mental state, saying: “… I do believe that she has the mental capacity to make informed decisions about where she wants to live and who she wants to live with.”

The guardian ad litem’s testimony was evidence that Straith had sufficient mental capacity to make an informed decision that she wanted the petitioners to be her co-conservators, the Court of Appeals said. “Because this evidence of Straith’s mental capacity and expressed wishes was presented before the probate court, the probate court did not clearly err in finding petitioners to hold priority under MCL 700.5409(1)(b). In contrast, respondent, as Straith’s spouse, holds a lower priority pursuant to MCL 700.5409(1)(c). The probate court’s appointment of petitioners as Straith’s co-conservators properly applied the order of priority under MCL 700.5409(1).”

In addition, the respondent’s claim that he had priority under MCL 700.5503(2) was a misinterpretation of the statute, the Court of Appeals observed. That statute says: “By a durable power of attorney, a principal may nominate the conservator, guardian of his or her estate, or guardian of his or her person for consideration by the court if a protective proceeding for the principal’s person or estate is commenced after execution of the power of attorney. The court shall make its appointment in accordance with the principal’s most recent nomination in a durable power of attorney except for good cause or disqualification.”

According to the Court of Appeals, although MCL 700.5503(2) does not define “good cause,” Black’s Law Dictionary (8th ed) defines good cause as “[a] legally sufficient reason.” Here, Straith expressed to her guardian ad litem that she did not trust the respondent to manage her assets and that she wanted the petitioners to be appointed as her co-conservators. “Additionally, the probate court found that respondent was restricting Straith’s and petitioners’ access to Straith’s assets necessary for Straith’s care. We conclude that these facts constitute a ‘legally sufficient reason’ for the probate court to decline to appoint a conservator ‘in accordance with the principal’s most recent nomination in a durable power of attorney.’”

Fiduciary & Financial Duties

Next, the respondent argued the probate court erred by not recognizing the fiduciary and financial duties imposed on the respondent and Straith by their marriage. “We disagree,” the Court of Appeals stated, noting the respondent did not cite any authority establishing that spouses automatically owe each other any kind of fiduciary duty.

The respondent further argued that Straith could not revoke her nomination of him as her durable power of attorney and, therefore, the trial court had to appoint him as conservator under MCL 700.5409(b).

The Court of Appeals rejected the respondent’s argument. “Under MCL 700.5409(1)(b), an individual may make a nomination for a conservator if that individual is ‘of sufficient mental capacity to make an intelligent choice, including a nomination made in a durable power of attorney,’” the Court wrote. “Thus, a nomination in a durable power of attorney is merely one option, and here, the evidence established that Straith was of sufficient mental capacity to make an intelligent choice. The probate court was not precluded by Straith’s marriage to respondent or by any mental incapacity Straith suffered from appointing petitioners co-conservators of Straith’s estate.”

In conclusion, the Court of Appeals held the probate court did not err by appointing the petitioners as Straith’s co-conservators and by revoking the respondent’s prior durable powers of attorney.​​​

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