Plan To Be 100

In a truly amazing (albeit unpublished) opinion from the Michigan Court of Appeals, two members of one COA panel jump all over a trial judge for engaging in what some in the elder law community might see as “business as usual.”  If you’re a fan of guardianship reform, the case of In Re Conservatorship of DPV is required reading.  [Click on the name to read the case.]

Revisiting the Last Resort

This is the fourth appellate opinion in the series.  That is, this same matter/family has been in the COA three times before.  I first posted about this case in December, 2018 and then again in May, 2020.

The 2020 post was called “Another Stop at the Last Resort” [click on the name to read the post].  In that case, the COA affirmed the trial court which refused to appoint the ward’s adult children as guardian and conservator, using seemingly disingenuous grounds to bypass their priority.

Since then, the battle between the public fiduciaries and the family has raged on.

Among the points of contention was the manner in which the professional conservator split a parcel of land owned by the ward.  In the division process, the public conservator made mistakes, including failing to obtain township approval.  When family members complained about these errors, they were repeatedly sanctioned, told they lacked standing, and even held in contempt.

These sanctions are the topic of this appeal.  And, in reversing the trial court, the panel of the COA goes all the way and says what needs to be said.

Wait. What?

Hear this:

There was no abuse of the judicial process here on the VanPoppelens’ part. Rather, the VanPoppelens fought for several years for the freedom to manage DPV’s assets, just as they provided hands-on personal care for their loved one. For years, the family had to fight to ensure DPV’s finances were being properly managed while watching DPV’s assets being unnecessarily drained by private conservator and guardian fees. And when they raised legitimate concerns that DPV’s assets were not properly managed, the court accused the VanPoppelens of harassment and abuse of the judicial system.

OMG

And this:

The probate court stretched and strained for excuses to appoint a private conservator/guardian, unnecessarily diverting fees away from the assets needed for DPV’s in-home care. The probate court then expressed shock, annoyance, and anger at DPV’s closest family members for monitoring the conservator/guardian’s actions and discovering his errors.

This opinion also provides a good explanation about standing in conservatorship proceedings, correcting the trial judge for suggesting the ward’s children lacked standing to object.

Some of My Best Friends

I have no yank with public guardians/conservators.  I know several of them, and they are generally good folk doing a tough job for not a lot of pay.

And I understand why the trial court’s turn to them.  Some families simply can’t get the job done without drama and the pain and cost that goes with it.

But the law says what it says.  Families have the first shot.  Guardianship reform laws were passed for a reason.  And, as we discussed in prior posts on this family’s tribulations, trial courts don’t follow the law because the COA doesn’t hold them to it.

Well, this one did.

Long View

So now we have a COA case in which one panel tells it like it is.  Could this be the start of something big, or is it just a one-off unpublished opinion/rant following which it’s back to business as usual?

We’ll see, but my money is on business as usual.

Some Fun Facts

• Only two of three COA judges on this panel signed onto this rant/opinion. The third did not join the opinion but concurred only in the result.
• Of the two that signed onto the opinion, one was Elizabeth L. Gleicher, chief justice of the COA.
• None of parties were represented by counsel in the appeal, except the appellee (the successor conservator) who is a lawyer and who represented himself.

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