Bones to Advocates in MSC Guardianship Case

By Doug Chalgian on May 30, 2024

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The Michigan Supreme Court has issued a decision in two guardianship matters: In Re Molloy and In Re Jenkins. Click on the names to read the combined decision.

I wrote about these cases when the Court of Appeals issued a published decision in 2022.  Click here to read that prior post.

Attorney Darren Findling of Oakland County (aka “The Probate Pro”) operates a professional guardianship entity and was appointed guardian in both matters.  Because both matters arose in the context of car accidents, so-called “PIP benefits” were available to pay the guardianship fees for both wards. Auto Owners was in the insurer in both cases.

But when Findling filed his statement for services, Auto Owners balked.  The insurance company asserted that they did not have to pay Findling’s fees because Findling didn’t personally do the work.  They argued that, under Michigan law, a guardian is an individual person and that the court appoints that person to perform the tasks associated with being the guardian. The insurer said that because Findling delegated pretty much everything to his employees (who were not the appointed guardians), they didn’t have to pay.

This raised the question of whether a guardian can delegate its duties to agents, and if so, to what extent.

The trial court granted Findling summary judgment, finding that the ability of a professional guardian to delegate its duties was essentially unlimited.  In a published decision, the COA affirmed the trial court.  But Auto Owners did not go away and sought leave to the Michigan Supreme Court.  What’s fun (or at least curious) is that, in their effort to get the COA decision overturned, the insurer got help from some strange bedfellows.

A Probate Firestorm

As the Michipremes soon found out, questions about professional guardians and the manner in which they run their businesses invite responses from entrenched interests on both sides.

In the context of the leave to appeal, in addition to the litigants, amicus briefs were filed by the Probate Section of the State Bar as well as the Michigan Guardianship Association.  These groups endorsed the decision of the COA, and supported the idea that a professional guardian should be allowed to delegate essentially all of its required duties. Implicit in their position is the concern that, without such a holding, professional guardians in Michigan would likely cease to exist.  And then where would we be?

Meanwhile, amicus briefs from Legal Services of Michigan and the Michigan Elder Justice Initiative argued that the only reasonable construction of the law is that the person appointed guardian must personally perform the tasks assigned to them, that vulnerable people need and deserve personal attention, and (implicitly) that the demise of the professional guardianship industry would be a positive development.

We Get It!

The Michipremes decided not to grant leave, but issued an opinion notwithstanding (wait, what?).  In said lengthy opinion, the MSC goes overboard (IMO) to show that they really really really appreciate how important it is for our legal system to protect vulnerable adults.  There can be no doubt about that!  And that’s sincere!!

But in the End

After the bones are thrown to the advocacy community, the MSC vacates the COA decision and remands the matter to the trial court with the following direction:

We hold that a professional guardian cannot, without complying with MCL 700.5103, lawfully delegate to employees their final decision-making authority over a guardianship “power” that is explicitly listed in MCL 700.5314 or over any guardianship task that alters or impairs an incapacitated individual’s rights, duties, liabilities, or legal relations. However, a professional guardian may lawfully have employees assist in exercising a guardianship power and may have employees perform any other guardianship task on behalf of the professional guardian.

So basically, a professional guardian can delegate whatever they want to delegate except perhaps decisions such as whether to move a ward or end their life.  The COA decision, although technically vacated, is for all practical purposes affirmed.  This is a win for the Michigan Guardianship Association, and a loss to the advocates.

Not saying I think it should have been decided otherwise.  Just saying.




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mm By: Doug Chalgian
Doug Chalgian

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