In Re CONSERVATORSHIP OF BITTNER
312 Mich. App. 227
| Mich. Ct. App. | 2015Background
- Shirley Bittner (74) granted daughter Stacey a durable power of attorney and named her co-trustee; later revoked Suzanne’s powers after alleging Suzanne misappropriated funds.
- Suzanne petitioned to appoint a conservator, alleging Shirley was unable to manage her finances due to cognitive decline; probate court ordered evaluation and appointed a guardian ad litem.
- Guardian ad litem Phillips recommended against conservatorship, finding Shirley largely aware of finances and adequately protected by the POA and Stacey’s assistance.
- Psychologist Dr. Rudolph found low‑average to borderline cognitive functioning, poor arithmetic and memory issues, and recommended against conservatorship while endorsing limited assistance (testamentary capacity intact).
- Probate court appointed Stacey conservator nonetheless, relying on Dr. Rudolph’s findings to conclude Shirley was "unable to manage property and business affairs effectively."
- Court of Appeals reversed, finding the clear-and-convincing standard unmet and that the probate court failed to consider statutory mandates favoring the least intrusive protective measures.
Issues
| Issue | Plaintiff's Argument (Suzanne) | Defendant's Argument (Shirley) | Held |
|---|---|---|---|
| Whether clear and convincing evidence shows Shirley is "unable to manage property and business affairs effectively" under MCL 700.5401(3)(a) | Shirley’s cognitive deficits (memory, arithmetic, judgment) support inability and need for a conservator | Shirley can pay bills, understands assets, sought Stacey’s assistance and used POA—deficits do not rise to legal "inability" | Reversed — court held evidence (tests and observations) did not meet the clear-and-convincing standard to show legal inability |
| Whether Shirley’s property "will be wasted or dissipated" absent a conservator under MCL 700.5401(3)(b) | Conservator needed to prevent dissipation given cognitive decline | No evidence of waste under Shirley’s regimen; alleged dissipation was by Suzanne, not Shirley; POA and safeguards exist | Reversed — no clear-and-convincing proof property would be wasted; record favored that assets were protected |
| Whether probate court complied with statutory directive to choose least intrusive protective measures (MCL 700.5407(1), 700.5408) | Appointment of conservator appropriate given risks | Court should have used limited alternatives (protective orders, limited conservatorship) consistent with promoting independence | Reversed — court failed to consider or make findings about less intrusive alternatives; conservatorship was not narrowly tailored |
Key Cases Cited
- In re Williams Estate, 133 Mich. App. 1 (1984) (standard of review for appointment/removal of fiduciary)
- Maldonado v. Ford Motor Co., 476 Mich. 372 (2006) (definition of abuse of discretion)
- In re Townsend Conservatorship, 293 Mich. App. 182 (2011) (fact‑finding review standard in conservatorship cases)
- In re Martin, 450 Mich. 204 (1995) (clear and convincing evidence standard explanation)
- People v. White, 307 Mich. App. 425 (2014) (law‑of‑the‑case doctrine application)
- In re Lundy Estate, 291 Mich. App. 347 (2011) (use of reporter’s comments to aid statutory interpretation)