Probate Court Did Not Follow Statute When Removing Husband As Guardian

The probate court failed to abide by the requirements in the Estates and Protected Individuals Code (EPIC) when it removed a husband as the guardian of his incapacitated wife, the Michigan Court of Appeals has ruled.

As a result, the Court of Appeals in In re Guardianship of AMS (Docket No. 372183) reversed and remanded the Midland County Probate Court’s decision to appoint the Office of Midland Public Guardian (the appellee in this case) as the wife’s “professional guardian.”

Thomas Seabrook sought to be the guardian of his wife, AMS, who was incapacitated. AMS’s two daughters, Theresa Lee Pickering and Kristin Renee Burghardt, also filed separate petitions nominating themselves to be appointed guardian of their mother. The probate court ultimately appointed Seabrook as guardian and, afterward, AMS was relocated to a nursing facility.

Pickering then filed a petition to “modify or terminate” Seabrook’s guardianship, claiming that he was “uncooperative” and “had effectively alienated” AMS’s family. She asked the probate court to modify Seabrook’s guardianship powers to allow unrestricted visits from family members. Notably, the options for 1) terminating the guardianship, 2) removing Seabrook as guardian and 3) appointing a new guardian were not check-marked on the petition. She also sent a letter to the probate court indicating her intent to pursue full guardianship and asked the court to appoint a guardian if it denied her request for full guardianship.

The probate court held a hearing on Pickering’s “petition to modify the guardianship,” at which Seabrook’s attorney indicated that he was not prepared for a removal hearing. Seabrook’s attorney suggested a removal hearing be scheduled for a late date and that discovery be permitted. The probate court disagreed and said it would be “ruling on this.” The guardian ad litem (GAL) who had been appointed for AMS “deferred to the court’s discretion.”

The probate court subsequently removed Seabrook as AMS’s guardian. The court appointed the Office of Midland Public Guardian (the appellee in this case) as AMS’s professional guardian.

Seabrook appealed the decision, arguing the probate court abused its discretion by changing the proceedings from a modification hearing to a removal hearing without providing him and AMS the notice required by statute, among other things.

The Court of Appeals agreed.

“The notice of the hearing issued to [Seabrook] and AMS indicated a modification rather than a removal,” the Court of Appeals wrote. “It was only upon the commencement of the hearing that the probate court appeared to shift the proceedings from modification to removal. This deviation was not consistent with MCL 700.5311(1). Furthermore, there is no evidence to suggest that AMS received personal service in accordance with MCL 700.5311(2).”

Judge Stephen L. Borrello, Judge James Robert Redford and Judge Sima G. Patel were on the panel that issued the unpublished opinion.

Notice Requirements Not Satisfied

The Court of Appeals began its analysis by examining EPIC, MCL 700.1101 et seq., which governs the appointment and removal of guardians for incapacitated persons. The appeals court noted that, under MCL 700.5310(2), “any … person interested in the ward’s welfare may petition for an order removing the guardian, … modifying the guardianship’s terms, or terminating the guardianship.”

The Court of Appeals further observed that MCL 700.5311 requires certain notice requirements to remove a guardian. In relevant part, the statute says: “(1) In a proceeding for the … removal of an incapacitated individual’s guardian, other than the appointment of a temporary guardian or temporary suspension of a guardian, or to designate a standby guardian or change the designated standby guardian, notice of hearing must be given to each of the following: (a) The ward or the individual alleged to be incapacitated and that individual’s spouse, parents, and adult children. (b) A person who is serving as the guardian or conservator or who has the individual’s care and custody. [Emphasis added.]”

In addition, the Court of Appeals pointed out that MCL 700.5311(2) requires “[n]otice must be served personally on the alleged incapacitated individual. Notice to all other persons must be given as prescribed by court rule. Waiver of notice by the individual alleged to be incapacitated is not effective unless the individual attends the hearing or a waiver of notice is confirmed in an interview with the visitor.”

Here, the notice issued to Seabrook and AMS “indicated a modification rather than a removal,” the Court of Appeals explained, noting the probate court “appeared to shift” the proceeding from modification to removal at the commencement of the hearing. According to the appeals court, this was “inconsistent” with MCL 700.5311(1).

Moreover, there was no indication that AMS had received personal service, as required by MCL 700.5311(2), the Court of Appeals observed. “Such requirements are mandated, as underscored by the use of the term ‘must.’ … Pickering submitted a letter to the probate court requesting the appellant’s removal as guardian, and the GAL recommended the possibility of such removal. However, another court-filed document by Pickering indicated a desire for modification rather than removal. Despite this, neither the GAL’s report nor Pickering’s letter absolved the probate court of its obligation to provide notice under MCL 700.5311. Therefore, on remand, both [Seabrook] and AMS must receive the necessary notice prior to convening a removal hearing.”

‘Suitability’ Analysis

Next, the Court of Appeals addressed Seabrook’s claim that the probate court erred by not conducting a “suitability analysis” before removing him as guardian.

Although this issue was not raised in the lower court proceedings, “this Court reviews unpreserved issues in guardianship cases for plain error affecting substantial rights,” the Court of Appeals said. “A party must establish four elements in order for this Court to reverse: ‘1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) the plain error affected substantial rights, and 4) once [an appellant] satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted when the plain, forfeited error seriously affected the fairness, integrity or public reputation of judicial proceedings.’”

According to the Court of Appeals, although EPIC includes “some provisions” governing the removal of a guardian, it does not establish a “specific standard” for doing so. “[T]o remove a guardian under MCL 700.5310, the probate court must find that the guardian is no longer suitable or willing to serve.’ … (emphasis added). The applicable standard is a preponderance of the evidence.”

In this case, the probate court “rightfully issued terse findings regarding [Seabrook’s] removal,” the Court of Appeals stated. “The court correctly described the situation as inappropriate and unacceptable. However, the probate court made no references to [Seabrook’s] suitability, the applicable statutory framework, or the standard of review. While the lack of visitation justly raised concerns, it was the only issue highlighted by the court, and [Seabrook] indicated a willingness to concede this point.”

Even though the statute “does not prescribe specific wording, the probate court needs to determine a guardian’s unsuitability,” the Court of Appeals explained. “We find the court’s findings in this regard unconvincing. Removal falls within the discretion of the probate court … but the court must still follow the proper analysis set forth by the EPIC and this Court. By not engaging in the proper analysis, the probate court plainly erred, and this error affected [Seabrook’s] substantial rights because he was removed as AMS’s guardian.”

The EPIC “was established to protect the rights of vulnerable third parties who cannot advocate for themselves,” the Court of Appeals emphasized. “On remand, the probate court must follow the EPIC and determine whether [Seabrook] was suitable before removing him as guardian.”

Guardianship Priority

The Court of Appeals continued by finding the probate court should not have appointed a professional guardian without first establishing – on the record – that no other individuals with priority were either willing or suitable to serve as AMS’s guardian. “Since this issue is unpreserved, we review it for plain error affecting substantial rights,” the appeals court noted.

MCL 700.5313(2) and MCL 700.5313(3) list those individuals who have guardianship priority, including “[a] person previously appointed, qualified, and serving in good standing as guardian for the legally incapacitated individual in this state or another state,” the Court of Appeals said. “Pursuant to MCL 700.5313(4), if none of the individuals ‘designated or listed in subsection (2) or (3) are suitable or willing to serve, the court may appoint any competent person who is suitable and willing to serve, including a professional guardian as provided in section 5106.’”

“However,” the Court of Appeals continued, “before the court may appoint a professional guardian under MCL 700.5106(1), the court must engage in the following analysis: … (2) The court shall only appoint a professional guardian or professional conservator as authorized under subsection (1) if the court finds on the record all of the following: (a) The appointment of the professional guardian or professional conservator is in the ward’s, developmentally disabled individual’s, incapacitated individual’s, or protected individual’s best interests. (b) There is no other person that is competent, suitable, and willing to serve in that fiduciary capacity in accordance with section 5212, 5313, or 5409. [MCL 700.5106(2) (emphasis added).]”

While the probate court expressed “grave concern” about the lack of family visitation and the GAL’s difficulty in visiting AMS, it “neglected to consider whether there were other competent, suitable, and willing individuals with priority, such as AMS’s two daughters and sister,” the Court of Appeals said. “Although the court’s focus on AMS’s welfare was commendable, that focus alone did not fulfill the statutory requirements. As a result, the probate court’s rulings constituted clear error that affected the [Seabrook’s] substantial rights because the appellee replaced him as AMS’s guardian.”

On remand, “the probate court must make the necessary findings before appointing a professional guardian,” the Court of Appeals held.