A probate court should not have appointed a conservator for a 74-year-old woman who suffered some minor memory problems and math difficulties, the Michigan Court of Appeals ruled in In re Conservatorship of Shirley Bittner.

Although the Court of Appeals issued the Bittner decision (Docket No. 320688) in 2015, the opinion remains the driving force behind the principle that probate courts can - and should - consider “an appropriate alternative to a conservatorship” to protect individuals, rather than stripping persons of all control over their finances.

The Bittner case began in 2013 when 74-year-old Shirley Bittner petitioned the Macomb County Probate Court for an accounting and a protective order. Shirley claimed that her daughter, Suzanne, who was her designated power of attorney, had converted several accounts to joint tenancies and had withdrawn funds without her approval. When she demanded an accounting and the restoration of her assets, the probate court issued a temporary restraining order.

Suzanne then asked the probate court to appoint a conservator for her mother. Shirley objected to the appointment of her other daughter, Stacey, as her conservator. Stacey also opposed the appointment, as did the guardian ad litem and the court-appointed psychologist who had evaluated Shirley.

Despite the objections, the probate court appointed Stacey as Shirley’s conservator. According to the probate court, Shirley’s memory problems, math difficulties and mild cognitive deficits made her unable to manage her property and finances.

The Court of Appeals reversed the probate court’s order in a published opinion written by Judge Elizabeth L. Gleicher. Judge Amy Ronayne Krause and Judge Cynthia Diane Stephens joined the decision.

Conservatorship Inappropriate

In Bittner, the Court of Appeals noted that difficulties with math and memory affect both elderly individuals and not-so-elderly persons. “These irksome attendants to the aging process are not necessarily disabling,” the Court observed.

According to the Court of Appeals, clear and convincing evidence to order a conservatorship requires “more than low marks on arithmetic or memory tests, or inconsistent ineptitude in balancing a checkbook.”

In this case, the probate court failed to find, as required by the Estates and Protected Individuals Code (EPIC), that Shirley’s property would be wasted without the appointment of a conservator and did not consider the statutory directive that protective orders should restrict an individual’s rights only to the extent necessary to safeguard the estate, the Court of Appeals explained. Rather, the evidence showed that Shirley’s affairs were well-managed through a proactive arrangement with Stacey, who had replaced Suzanne as power of attorney, the Court of Appeals noted. “The evidence substantiates that Shirley pays her bills on time, lives within her means, satisfactorily manages her household, and … maintains an adequate ability to make responsible decisions.”

While Shirley admittedly exhibited some deficits in her memory, math, motor skills and executive functioning, “she understood her sources of income and economic responsibilities,” the Court of Appeals concluded. “We are definitely and firmly convinced that the probate court erred by finding that the evidence satisfied that a conservatorship was appropriate.”

Conversion Claim

In addition to the probate matter, Shirley had filed a conversion lawsuit against Suzanne in Macomb County Circuit Court. After the Bittner conservatorship appeal was decided, Shirley passed away and Stacey stepped in for her mother in the conversion action.

The trial court dismissed the conversion claim, finding it was premature because a question existed about whether Shirley was competent or needed a conservator. The Court of Appeals reversed in an October 2017 unpublished decision (Docket No. 333137).

In its ruling, the Court of Appeals explained that MCL 700.1104 defines fiduciary as “a personal representative, funeral representative, guardian, conservator, trustee, plenary guardian, partial guardian [or] successor fiduciary.” The Court pointed out that, while MCL 700.1104 does not define an attorney-in-fact as a fiduciary, the statute says, “not limited to.”

“An agent with a power of attorney could be interpreted as a fiduciary under the exclusive jurisdiction under MCL 700.1302, if it ‘concern[s] an estate within the court’s jurisdiction,’” the Court of Appeals wrote. “Similarly, concerning concurrent jurisdiction, an agent under a power of attorney, MCL 700.1303(1)(j), would fall under probate court jurisdiction, but only if ‘it is in regard to an estate of a decedent, protected individual, ward or trust.’”

In this case, Stacey sought the return of property and an accounting by Shirley’s former agent, Suzanne, who operated pursuant to her power of attorney at the time. Stacey asserted the funds in dispute were in bank accounts solely in Shirley’s name. If that was true, the Court of Appeals  explained, then pursuant to MCL 700.1303(j) “the allegations would not concern a trust and the probate court would lack concurrent jurisdiction.”

Suzanne, however, argued the funds in dispute concerned trustee fees from preserving the assets of Shirley’s trust.

“There was not an established conservatorship over Shirley, which would classify her as a ‘protected person,’” the Court of Appeals said. “A pending petition for conservatorship does not constitute an established and valid conservatorship. Therefore, [Stacey’s] claim was not regarding ‘an estate of a … protected person’ under MCL 700.1303(1). If Shirley’s assets were not connected to her trust, in accordance with MCL 700.1302(d) and MCL1301(1)(j), the probate court did not have exclusive or concurrent jurisdiction, regardless of a pending conservatorship petition.”

The Court of Appeals concluded, “We do not necessarily hold that summary disposition could not at some point be deemed proper, but we hold that it was here granted prematurely. Therefore, we reverse and remand for further proceedings.”