The Statutes and Case Law Behind the Appointment of a Conservator in Michigan

Conservator Appointment in Michigan

Unfortunately, there are times when a person is not able to manage their own financial affairs.  If the person has failed to adequately plan with a Power of Attorney, a person, called a “conservator” can be appointed by the probate court in which the individual resides.

Upon the filing of a petition and after notice and hearing in accordance with MCL 700.5401, the court may appoint a conservator or make another protective order to assist in the issue. Before appointing a conservator or issuing a protective order, the court must “carefully and thoughtfully consider whether arrangements less intrusive than a conservatorship will adequately protect an individual’s property as well as his or her autonomy.” In re Bittner Conservatorship, 312 Mich App 227, 242-243 (2015).

The Probate Court must determine the following:

“(a) The individual is unable to manage property and business affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance.

(b) The individual has property that will be wasted or dissipated unless proper management is provided, or money is needed for the individual’s support, care, and welfare or for those entitled to the individual’s support, and that protection is necessary to obtain or provide money.” MCL 700.5401(3).

Some appeal courts have examined what is meant by clear and convincing evidence. For example, In re Brody Conservatorship, 321 Mich App 332, 337 (2017), the court held:

“The prerequisites [listed under MCL 700.5401(3)] must be established by clear and convincing evidence. MCL 700.5406(7). . . . Clear and convincing proof ‘produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.’”

“Difficulties with math and memory [that] plague many elderly (and not so elderly) individuals []. . . [are] irksome attendants to the aging process [and] are not necessarily disabling. Poor subtraction skills and relatively low cognitive-ability testing scores hardly render a person mentally ill or mentally deficient, or even incapable of making rational decisions regarding one’s bounty. . . . [C]lear and convincing evidence that a person ‘is unable to manage property and business affairs effectively’ requires more than low marks on arithmetic or memory tests, or inconsistent ineptitude in balancing a checkbook.”

The appointment of a conservator may be appropriate even if the individual does not suffer from one of the conditions listed above. In re Townsend Conservatorship, 293 Mich App 182, 188 (2011). “But not any condition suffered by an individual will justify the appointment of a conservator.” When determining for purposes of MCL 700.5401(3)(b) whether an individual has property that will be wasted or dissipated unless proper management is provided, the court may consider both individually-held assets and jointly-held assets.

“The court may appoint a conservator in relation to the estate and affairs of an individual who is mentally competent, but due to age or physical infirmity is unable to manage his or her property and affairs effectively and who, recognizing this disability, requests a conservator’s appointment.” MCL 700.5401(4).

The Probate ProSM – A Division of The Darren Findling Law Firm, PLC can assist in answering any questions that you may have in regard to the establishment of a conservator.

Give us a call at (877) YOUR-FIRM or email at info@theprobatepro.com.