Redd v. Carney (In re Redd)
321 Mich. App. 398
| Mich. Ct. App. | 2017Background
- Dorothy Redd, age 93, was found incapacitated and Gary Redd (her son) was appointed guardian in 2014; Gary also held her power of attorney prior to guardianship.
- Family disputes arose alleging Gary prevented Dorothy from visiting and was exerting undue influence; the probate court entered orders to facilitate visitation and financial accounting but initially refused to remove Gary.
- In 2016, after testimony about a physical altercation and extensive witness testimony (17 witnesses, at least 10 indicating undue influence or interference), the probate court found Gary was impeding Dorothy’s relationships and unsuitable as guardian.
- Dorothy testified she wanted Gary to remain guardian, but the court concluded the ward’s choice is honored only if the chosen person is suitable and willing to serve.
- The probate court removed Gary as guardian and appointed Nichole Legardy (Gary’s daughter) and co-guardian Carney; Gary appealed only the guardianship removal.
Issues
| Issue | Plaintiff's Argument (Gary) | Defendant's Argument (Nichole/moving party) | Held |
|---|---|---|---|
| Standard for removing a ward-preferred guardian | Probate court applied wrong standard; implied discretionary/unclear standard used | Removal should occur if guardian no longer "suitable or willing"; court may find that fact | Court: Removal standard is that guardian must be "no longer suitable or willing" under MCL 700.5310/700.5313; affirmed |
| Meaning of "suitable" | Not defined; Gary argued court misapplied concept | "Suitable" means qualified and able to provide for ward's care, custody, and control | Court: "Suitable" = fit/qualified to provide for ward’s care, custody, control |
| Burden/standard of proof to show unsuitability | Probable that higher standard (clear and convincing) should apply because initial guardianship requires clear and convincing proof of incapacity | Legislature omitted a standard for removal; default civil standard applies | Court: Preponderance of the evidence is the proper standard to prove a guardian is not suitable |
| Whether factual findings supported removal / need to remand to different judge | Contends evidence did not support removal; judge demonstrated bias requiring remand | Record shows multiple witnesses (including Gary’s daughter and coguardian) that Gary impeded visitation; judge acted within discretion | Court: No clear error in factual findings; removal affirmed; no remand for recusal warranted |
Key Cases Cited
- In re Bibi Guardianship, 315 Mich. App. 323 (review standard for probate dispositional rulings)
- McCormick v. Carrier, 487 Mich. 180 (statutory construction and use of context)
- Macomb Co. Prosecutor v. Murphy, 464 Mich. 149 (purpose of guardianship provisions)
- In re Williams Estate, 133 Mich. App. 1 (interpretation of discretionary language in guardianship statute)
- Mayor of Cadillac v. Blackburn, 306 Mich. App. 512 (default civil standard when statute is silent)
- In re Erickson Estate, 202 Mich. App. 329 (deference to probate court credibility findings)
- In re Moss, 301 Mich. App. 76 (bifurcated standards in EPIC contexts)
- Donkers v. Kovach, 277 Mich. App. 366 (omission in statute construed as intentional)
- Fradco, Inc. v. Dep't of Treasury, 495 Mich. 104 (interpretation of "shall" as mandatory)
- Bayati v. Bayati, 264 Mich. App. 595 (standards for remand/reassignment of judge)