A ward subject to a guardianship or conservatorship in Michigan is not confined to silence and is still endowed with several legal rights. Generally, a ward is permitted informal and expedited access to the probate court to ask the judge to review concerns or even revisit the issue of whether a guardian or conservator is still necessary.
An individual for whom a guardian has been appointed has the following rights:
- “To periodic review of the guardianship by the court, including the right to a hearing and the appointment of an attorney if issues arise upon the review of the guardianship.” MCL 700.5306a(1)(u).
- “To, at any time, seek modification or termination of the guardianship by informal letter to the judge.” MCL 700.5306a(1)(v).
- “To a hearing within 28 days of requesting a review, modification, or termination of the guardianship.” MCL 700.5306a(1)(w).
- “To the same rights on a petition for modification or termination of the guardianship including the appointment of a visitor as apply to a petition for appointment of a guardian.” MCL 700.5306a(1)(x). This includes the right to be present at a hearing, the right to have the disability proven by clear and convincing evidence, the right to legal counsel and the right to a jury.
A protected person subject to a conservatorship has similar rights of access and to demand a hearing. “The protected individual, conservator, or another interested person may petition the court to terminate the conservatorship”, and “[a] protected individual seeking termination is entitled to the same rights and procedures as in an original proceeding for a protective order.” MCL 700.5431. However, this does not mean that the judge will grant a modification or termination on demand. The guardian, conservator or other interested person has the right to contest the petition and prove by clear and convincing evidence that supervision of the ward’s person and property is still necessary.
In Guardianship of Mark Kadans, unpublished per curiam opinion of the Court of Appeals, issued December 29, 2020 (Docket No. 352071) and Conservatorship of Mark Kadans, unpublished per cuiram opinion of the Court of Appeals, issued December 29, 2020 (Docket No. 352073), Mark filed petitions to terminate the guardianship and conservatorship over him, exercised his right to representation and have a jury trial on the merits. Mark was under the care of his brother Jeffrey and sister-in-law Jennifer, who served as his co-guardians and co-conservators. The jury trial was held in November 2019 on Mark’s petitions, but the jury returned verdicts that Mark was still mentally ill or mentally deficient and was unable to manage is property and business affairs, and that Mark was still an incapacitated person and needs a guardian to provide continuing care and support. Consistent with the verdict, the probate court judge denied both petitions. Mark appealed to the Michigan Court of Appeals.
Mark contends that the jury erred in its verdict because there was not clear and convincing evidence that he was still incapacitated and needs a guardian. “The clear-and-convincing-evidence standard is the most demanding standard applied in civil cases[.]” In re Conservatorship of Shirley Bittner, 312 Mich App 227, 237; 879 NW2d 269 (2015). “Clear and convincing proof produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the factfinder to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” Id. For a guardian to be appointed to an individual, the probate court must determine that (1) the individual is incapacitated; and (2) the appointment is necessary to provide continuing care and supervision of the incapacitated individual. MCL 700.5306(1). “Incapacitated 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).
Did the jury make a mistake? At the trial, testimony revealed that Mark was involved in an automobile accident that caused traumatic brain injury. Evidence showed that this injury impaired his ability to make informed decisions and led to dangerous choices such as disconnecting smoke detectors while cooking, jumping out of a moving car, and requiring inpatient psychiatric treatment on multiple occasions. Mark admitted under oath that he had ongoing issues with drugs and alcohol (even missing court when stopped for a DUI offense), and that he was banned from certain locations for stalking behavior. Mark did testify that he was able to live an independent life because he worked, held a driver’s license, cooked for himself and had some college education. However, further evidence showed that he was cared for and supervised at a facility, that he was resistant to taking medication without a guardianship, that he was homeless before the guardian’s intervention, and that he admitted he would not seek treatment if unsupervised. His own admissions about his future plans underscore that Mark would still engage in poor decision-making without the assistance of a guardian, and that this effect on his choices was attributable to his brain injury. The Michigan Court of Appeals found that the jury did not err because there was clear and convincing evidence that Mark was still under a disability that rendered him incapacitated.
Mark also contends that the jury erred in its verdict because there was not clear and convincing evidence that he still required a conservator. “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:”
- “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.” MCL 700.5401(3)(a).
- “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)(b).
However, “the appointment of a conservator for an individual may be appropriate even if the individual does not suffer from one of the conditions listed in MCL 700.5401(3)(a).” In re Townsend Conservatorship, 293 Mich App 182, 188; 809 NW2d 424 (2011). “[A]ny circumstance not listed in MCL 700.5401(3)(a) that prohibits an individual from effectively managing his or her property and business affairs must be of a similar nature and quality as the eight conditions listed in the statute to justify the appointment of a conservator.” Id. at 189.
It is not enough to allege that there were mistakes in balancing a checkbook or that the protected person was sometimes forgetful. Did the jury error in its verdict in this case? Evidence at trial showed that Mark required financial help from his father who otherwise supported him. Mark’s father purchased his vehicle and he lived on vacant property owned by his father. Despite evidence that he had consistent income from his social security disability payment and that he paid his cell phone from funds not controlled by the conservator, this was the only time that Mark managed his affairs independently. He was in debt for at least $16,000.00 and never able to make arrangements to stay in a place of his own without outside help from family. The Michigan Court of Appeals found that Mark never demonstrated the ability to manage his own affairs attributable to his traumatic brain injury, so jury’s verdict that the conservatorship should not be terminated was justified.
A guardianship or conservatorship need not last forever, but a ward must be able to demonstrate to the court that the physical or mental condition that rendered him or her incapacitated or in need of protection is no longer affecting the ability to make informed decisions or manage his or her own property or financial affairs. The ward benefits from the fact that the proof against him or her opposing termination of the guardianship or conservatorship must be clear and convincing. However, the judge or jury must still be convinced by legally admissible and credible evidence. Not surprisingly, a lot of information can be ascertained from the ward’s mere physical presentation to the court. A ward or interested person that is battling a motion to modify or terminate a guardianship or conservatorship can benefit from the skill and advice of a probate lawyer in their corner.
If you or a loved one have any questions about guardianships and conservatorships or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.