COA Dives into Temporary Fiduciaries

By Doug Chalgian on May 30, 2023

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I would be going too far to say that this recently released Court of Appeals opinion is one of the most important cases of the year.  But for those of us who handle a lot of guardianship and conservatorship matters, it may be one of the most helpful.

If you do this work, you know that probate courts frequently (and often with little prompting) appoint “temporary” fiduciaries at an initial (often non-evidentiary) hearing.  And it’s common for these “temporary” appointees to end up staying involved and driving the narrative for the duration of the case.  It is also typical for these appointees to be professional fiduciaries and to be people that the trial judge regularly appoints.  In this way, the appointment of temporary fiduciaries in adult guardianship and conservatorship cases has evolved to become a process by which trial courts make an end run around EPIC’s prohibitions for appointing fiduciaries outside the chain or priorities, and without making required findings.

In the unpublished case of In Re Guardianship and Conservatorship of JEK (click on the name to read the case) the COA calls out a local judge for using this process. And in the course of doing so, the COA provides a helpful discussion on when and how temporary fiduciary appointments are supposed to be employed in adult guardianship and conservatorship cases.

Temporary Guardian

The COA recites the four findings necessary to appoint a temporary guardian.  Per MCL 700.5312, they are:

(1) the individual must be proven to be incapacitated,

(2) the individual must not have a guardian appointed already,

(3) an emergency must exist, and

(4) there must not be any other person who “appears to have authority to act in the circumstances . . . .”

In this case, where a patient advocate designation was in place, the COA says that was reversible error for the trial judge to appoint a temporary guardian because the existence of that document precluded a finding that no person “appears to have authority to act.”

In analyzing this element of apparent authority, the COA clarifies that any challenges to the validity of the patient advocate designation, or to whether the patient advocate was acting in the ward’s best interest, are not relevant in the context of appointing a temporary guardian.  While such challenges could provide grounds for voiding or otherwise skirting around a patient advocate designation in a hearing for a full guardian, in a proceeding for the appointment of a temporary guardian, the existence of a validly executed patient advocate designation is all that matters.  The Court explains:

MCL 700.5506 contains particular rules for such, or whether the patient advocate was adequately fulfilling their duties under the statute, the original document providing authority to the advocate, and the ward’s best interests. The wording of MCL 700.5312(1) does not require such in-depth considerations of the patient advocate’s duties and powers; instead, it requires only that there must not be any other person who “appears to have authority to act in the circumstances . . . .” Therefore, regardless of whether the trial court might eventually have determined respondent was not fulfilling his duties as JEK’s patient advocate, respondent still “appear[ed] to have authority to act” at the time the trial court established the temporary guardianship.

For these reasons, the COA vacated the temporary guardianship.

Special Conservator

The same trial judge in the same case appointed the same lawyer as “special conservator.”

Again, the COA found error.

As the opinion clarifies, EPIC provides no process for the appointment of a temporary conservator, and a “special conservator” is not the same thing.  Rather, EPIC only uses the term “special conservator” to mean someone who is appointed to perform an act approved as a “protective order” when a protective order is used by the court in lieu of the appointment of a conservator.  MCL 700.5408.

As such, in this case, the COA explains to trial judges everywhere that you can’t appoint a special conservator, when what you are trying to do is appoint a conservator to hold things in place on a temporary basis while a petition for the appointment of a conservator is pending.

And it gets better.  The COA also says that the trial court can’t appoint any type of conservator without weighing evidence and making findings. They opinion states:

During the hearing on December 1, 2022, the trial court did not “determine” the statutory requirements were met before establishing the special conservatorship. Indeed, the trial court would have been hard-pressed to determine anything, considering it did not allow admission of evidence or weigh any of the evidence attached to the parties’ filings. Although the statute only mentions the trial court holding a “hearing,” and not an evidentiary hearing, MCL 700.5401(1), the trial court undoubtedly still was required to make “determinations” on the record provided before affecting JEK’s businesses and properties, MCL 700.5401(3). Here, the trial court completely failed to do so. In short, the trial court established a special conservatorship and set aside JEK’s appointment of respondent as his attorney-in-fact without making any factual findings under MCL 700.5401(3).


I get why judges do this.  It’s expedient.  It often makes good sense.  But I like this opinion because I don’t like it when trial courts do it to me.  Just too bad it’s not published.


364111 and 364112

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mm By: Doug Chalgian
Doug Chalgian

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