Thursday, August 16, 2018
On June 5, 2018, a Michigan Appellate Court issued an order demonstrating the tension between two concerns, respect for autonomy and a goal of protection, that can arise when a court is asked to determine who will be appointed a guardian or conservator. The case strikes me as a good vehicle for classroom discussion.
The appellate court concludes that the trial court abused its discretion by appointing a professional fiduciary, in lieu of the alleged incapacitated person's adult daughter, where there was a failure to make specific findings to explain why the state law''s "order of priority and preference" was not followed. The opinion for In re Guardianship of Gerstier notes:
While the probate court's focus on [the father's] welfare is commendable, the court missed a critical step in the analysis. When Milbocker [a private, professional guardian] resigned as [the father's] guardian and conservator, [the daughter] petitioned to be appointed to fill those roles. At that juncture, the probate court was required to reconsult the statutory framework before appointing another public administrator. The court never articulated any findings regarding [the daughter's] competence and suitability to serve. Absent those findings, the court erred by appointing [a new professional guardian].
The history recounted by the appellate court suggests that the man's daughter, living in Texas, and the man's sisters, living in Michigan, were both seeking control over the father's estate, with the sister making allegations that the daughter's personal and financial history made her an inappropriate choice. The daughter made counter allegations about the sister's motives and behavior. In addition, the father had signed conflicting POAs. In 2013 and again in 2015, the father identified the daughter in two powers of attorney as his preferred agent; however, in 2016, after being diagnosed with Alzheimer's disease and after his wife died, the father began living in Michigan with his sister, where he signed a new POA designating that sister as the agent.
Michigan law grants priority to "a person nominated as guardian in a durable power of attorney or other writing." Further, in the absence of an effectively designated individual, the statute provides an ordered list of preferences, beginning with the spouse and next with "an adult child of the legally incapacitated adult."
The Michigan appellate remanded the case to the trial court with directions to reconsider the appointment of a new guardian and conservator and to make "specific findings of fact" regarding the daughter's "competence, suitability and willingness" to serve. Further, the court directed that if the sister provided evidence during the remand, the court must "weight her credibility carefully in light of incorrect information she provided in her initial petition...."
Reading between the lines of the court history here, one can see how the trial court decided to go with a professional guardian, probably seeing appointment of a "neutral" professional as the safer option where money seemed to be the main focus of the control issues. (The father seemed to be comfortable traveling between his daughter in Texas and his sisters in Michigan.) State guardianship/conservatorship laws that have adopted lists of preferred individuals, however, require additional steps to explain why party autonomy will not be respected, or why the state's preference list will not control. Such laws significantly alter the discretion once accorded to the court under many state's older appointment laws. Will more careful adherence to the laws change the result in this case on remand? For the classroom exercise, ask students what they predict will be the trial court's next ruling.