In this recently released unpublished opinion, Spouse A is conservator over Spouse B. Niece has herself appointed next friend for Spouse B and initiates a divorce proceeding against Spouse A.
Spouse A points out that MCR 2201(E) does not allow a next friend to be appointed over an incompetent person when there is a conservator already in place. Specifically, it says:
(a) If a minor or incompetent person has a conservator, actions may be brought and must be defended by the conservator on behalf of the minor or incompetent person.
(b) If a minor or incompetent person does not have a conservator to represent the person as plaintiff, the court shall appoint a competent and responsible person to appear as next friend on his or her behalf, and the next friend is responsible for the costs of the action.
And yet, this panel of the COA affirms the trial court’s decision to allow a next friend to be appointed when a conservator already existed. In explaining the result, the COA says “MCR 2.201(E) grants the trial court discretion to appoint a next friend for an incompetent person even if the incompetent person already has a conservator.”
I mean, I get why this conservator is not suitable to initiate a divorce action, if it is shown that a divorce is in the ward’s best interest. But wouldn’t the correct (easy/direct/obvious) course be to seek the conservator’s removal and replacement? And doesn’t MCR 2.201(E) pretty clearly indicate that that is the only course allowed? What am I missing?
I’ve read a lot of cases in which the Court of Appeals contorts itself to justify upholding a decision from the trial court. This opinion might take the cake.