In its recently published opinion, In re Guardianship of Dorothy Redd, __ Mich App __; __ NW2d __ (2017) (Docket 335152), the Court of Appeals addressed the standard for removal as well as the burden of proof for removing the guardian of an adult. The case involved Dorothy, an incapacitated elderly woman, Gary, her son, and Nichole, Gary’s daughter and Dorothy’s granddaughter. Gary had served as Dorothy’s guardian for 2 years. Nichole then petitioned for his removal and replacement as guardian because he was allegedly no longer suitable based on his actions in the proceeding 2 years. Nichole’s allegations were predominately centered around disputes within the family and focused on Gary having repeatedly prevented Dorothy from seeing members of their family including her other children. The Probate Court granted Nichole’s petition to remove Gary as guardian and ruled that even though Gary was Dorothy’s clear preferred guardian, her preference was trumped by his unsuitability. Gary’s appeal followed.
The Estates and Protected Individuals
Code (“EPIC”) deals with, among other things, the appointment of guardians for
incapacitated individuals. EPIC provides a list of people who can be appointed
as a ward’s guardian, including someone who the ward chooses. It also provides
the caveat that the preferred guardian must be “suitable and willing to serve”.
EPIC also provides that a guardian can be removed if they are no longer
suitable to serve. Gary’s suitability was the focus of Nichole’s Probate Court
petition and Gary’s appeal.
EPIC does not specifically addresses
the standard for a guardian’s removal, so the Court of Appeals dug into the
issue in its opinion in Redd. The Court held that the standard for appointing a
guardian under EPIC was the same as the standard for removing a guardian and
that to remove a guardian, a Probate Court “must find that a guardian is no
longer suitable and willing to serve.” The next relevant question, is whether a
guardian is suitable.
EPIC does not define the term
“suitable” so the Court of Appeals turned to a combination of the statutory
purpose of a guardian and the legal dictionary definition of the term. EPIC
provides that a guardian’s purpose and role is to provide “for the ward’s care,
custody and control.” Black’s Law Dictionary defines “suitable” as “fit and
appropriate for [the] intended purpose.” Taken together, the Court of
Appeals concluded that a suitable guardian “is one who is qualified and able to
provide for the ward’s care, custody and control.”
Next, the Court of Appeals analyzed
the burden of proof that a petitioner is required to show to demonstrate that a
guardian is not suitable and should be removed. EPIC instructs a Probate Court
to use the clear and convincing standard when determining whether or not a
person needs a guardian. But the statutes do not provide instruction as to the
evidentiary standard for removing a guardian. The Court of Appeals interpreted
that omission as intentional and concluded that the clear and convincing
standard did not apply to the removal stage. Citing Mayor of Cadillac v
Blackburn, 306 Mich App 512, 522; 857 NW2d 529 (2014), the Court of Appeals
concluded that because relevant statutes do not state which standard of
evidence a Probate Court should require for the removal of a guardian, the
default standard of a preponderance of the evidence should be applied.
The Court of Appeals concluded that
the Probate Court in Redd correctly applied the preponderance standard and that
it did not clearly err in its findings of facts. The Probate Court’s decision was
affirmed, however Gary subsequently filed an application to the Michigan
Supreme Court which is currently pending.
Labels: Adult Guardianship, Estates and Protected Individuals Code, Oakland County, probate appeal, Remove Guardian, Suitable Guardian
