in Re Conservatorship of Rhea Brody
321 Mich. App. 332
| Mich. Ct. App. | 2017Background
- Rhea Brody, suffering from frontotemporal dementia, was alleged unable to manage her property and affairs; her daughter Cathy petitioned for appointment of a conservator for Rhea’s personal estate.
- Rhea’s personal assets included a small Fifth Third account for tax refunds, an individually held IRA, a jointly held Chase account, and jointly owned Michigan and Florida homes; Rhea also had significant trust assets handled in related proceedings.
- Robert Brody (Rhea’s husband and agent under a durable power of attorney) and son Jay opposed the conservatorship; petitioners appointed Mary Lyneis (independent fiduciary/trustee) as conservator.
- Probate court found clear and convincing evidence that Rhea could not manage affairs and that assets were likely to be wasted or dissipated without oversight, and found Robert unsuitable to serve due to abdication and Jay’s influence over him.
- Robert appealed, raising claims that the conservatorship was improper (including consideration of joint assets), that the guardian ad litem and court‑appointed attorney failed their duties, that trust evidence and judicial bias tainted the process, and that a limited protective order should have been used instead of a full conservatorship.
Issues
| Issue | Plaintiff's Argument (Cathy) | Defendant's Argument (Robert) | Held |
|---|---|---|---|
| Appointment of conservator under MCL 700.5401(3)(b): whether estate property would be wasted or dissipated | Conservatorship necessary: Rhea cannot manage affairs and assets (taxes, IRA distributions, mortgage payments, maintenance) risk dissipation without oversight | Insufficient evidence of prospective waste; joint assets shouldn’t count; DPOA held by Robert should suffice | Affirmed. Court found clear and convincing evidence estate would be wasted without management; joint assets may be considered; DPOA ineffective because Robert abdicated duties and Lyneis had statutory priority |
| Whether GAL complied with MCL 700.5406(4) | GAL satisfied duties and considered alternatives in report | GAL failed to consider less restrictive alternatives; report lacks explicit analysis | Unpreserved and record undeveloped; court declined relief and did not conclude GAL failed to perform statutory duties |
| Appointment/performance of court‑appointed attorney for Rhea | Appointment appropriate because Rhea was incapacitated and could not retain counsel; appointed counsel participated | Appointment denied Rhea right to hire her own counsel and counsel did not vigorously represent Rhea | Rejected. No shown constitutional right for a nonsuitor to retained counsel in probate; Robert never attempted to hire counsel under DPOA and did not preserve performance objection; claim abandoned |
| Scope of protection: full conservatorship vs limited/protective order | Conservatorship necessary to protect multiple estate needs (taxes, benefits, insurance, payments); least‑restrictive options inadequate given facts | Less restrictive options (DPOA, limited conservatorship, protective order) would suffice | Affirmed full conservatorship. Court found DPOA ineffective due to Robert’s abdication and Jay’s influence; limited orders unlikely to meet estate management needs |
Key Cases Cited
- In re Martin, 450 Mich 204 (Mich. 1995) (defines clear and convincing evidence standard)
- In re Conservatorship of Shirley Bittner, 312 Mich App 227 (Mich. Ct. App. 2015) (courts must use least restrictive means; distinguishes need for full conservatorship)
- In re Wright Estate, 430 Mich 463 (Mich. 1988) (conservator may not change nature of joint accounts created before incapacity)
- In re DeCoste Estate, 317 Mich App 339 (Mich. Ct. App. 2016) (statutory interpretation giving plain meaning to “will be wasted or dissipated”)
- In re Erickson Estate, 202 Mich App 329 (Mich. Ct. App. 1993) (deference to probate court credibility findings)