in Re Guardianship of Milan Kapp
338013
| Mich. Ct. App. | Jan 4, 2018Background
- Janet and Milan Kapp (both in their 90s) live together; four adult daughters are split into two factions: Mila and Bonnie (appellants) vs. Lorrie and Sandy (respondents).
- In June 2016 Janet and Milan executed estate-planning documents appointing Lorrie powers of attorney; daughters disputed capacity and alleged misappropriation of about $50,000.
- Mila and Bonnie filed petitions seeking guardianships and conservatorships for both parents; the probate court appointed a public administrator (Barbara Andruccioli) after guardian-ad-litem reports indicated cognitive/medical issues and serious family conflict.
- Multiple contested filings and hearings followed; the court ordered facilitation/mediation for visitation and care disputes but parties frequently did not comply.
- Andruccioli resigned; the probate court appointed successor public administrator Thomas Fraser as guardian and conservator and denied several supplemental petitions by Mila and Bonnie; they appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appointment of public administrator without evidentiary hearing | Mila/Bonnie: Court had to follow statutory priority (adult children) under MCL 700.5313 & 700.5409 and hold an evidentiary hearing on suitability | Court/public administrator: Court has discretion to appoint professional guardian when no suitable person in priority; parties acquiesced and sought public administrators in filings | Affirmed. Issue unpreserved/waived; court properly exercised discretion to appoint professional guardian given family hostility and prior findings |
| Denial of supplemental contempt petition without oral argument | Mila/Bonnie: Denial without oral argument denied due process and abused discretion | Court: Contempt/visitation issues were premature because parties failed to attend court-ordered facilitation; earlier petition had been heard and dismissed without prejudice | Affirmed. No abuse: visitation/contempt matters were to be addressed in facilitation and prior hearing had already occurred |
| Failure to address supplemental petitions to modify conservatorship at hearing | Mila/Bonnie: Court denied due process by not addressing supplements modifying conservatorship | Court: Main issue at hearing was successor appointment; appellants had acquiesced to successor public administrator; appointment resolved the matter | Affirmed. No abuse of discretion; appellants acquiesced to the appointment |
| Requirement to hold evidentiary hearing before bypassing statutory priority | Mila/Bonnie: Statutes require priority and thus an evidentiary hearing before appointing professional guardian/conservator | Court: No authority requires an evidentiary hearing; statutes use discretionary language and permit passing over persons in priority for best interest reasons | Affirmed. No statutory or precedent-based requirement for an evidentiary hearing; appointment was within probate court discretion |
Key Cases Cited
- Dell v. Citizens Ins. Co. of Am., 312 Mich. App. 734 (2015) (preservation rule for appellate review explained)
- Rivette v. Rose-Molina, 278 Mich. App. 327 (2008) (plain-error standard articulated)
- Richard v. Schneiderman & Sherman, P.C. (On Remand), 297 Mich. App. 271 (2012) (plain error affecting substantial rights affects outcome)
- Sweebe v. Sweebe, 474 Mich. 151 (2006) (definition of waiver/intentionally relinquished rights)
- Bailey v. Jones, 243 Mich. 159 (1928) (waiver by acts indicating intent to relinquish a right)
- People v. Carter, 462 Mich. 206 (2000) (acquiescence to court's treatment of an issue constitutes waiver)
- In re Baldwin Trust, 274 Mich. App. 387 (2007) (standard of review for probate court discretionary rulings)
- Peterson Novelties, Inc. v. City of Berkley, 259 Mich. App. 1 (2003) (court will not search for authority to support a party's position)
- In re Williams Estate, 133 Mich. App. 1 (1984) (selection of guardian/conservator largely within probate court discretion)