Unless the Probate Court finds that an elderly woman’s son cannot provide for her care, custody and control, the son should be appointed her permanent guardian - especially since the woman had clearly expressed a desire that her son be her guardian, according to the Michigan Court of Appeals.

In In re Guardianship of Dixie Lee Earl (Docket No. 340155, unpublished opinion), the Court of Appeals reversed the Calhoun County Probate Court’s order appointing Dixie Lee Earl’s grandson, Qwuan, as her guardian, rather than her son, Robert (Qwuan’s father).

The Court of Appeals noted the Probate Court determined that Qwuan would be “a better guardian” than Robert. However, in making this decision, the Probate Court failed to 1) discuss the applicable statutory standard, 2) state that Robert was unsuitable to serve as guardian and 3) make any factual findings to support its conclusion, the appellate court said.

It was also undisputed that Dixie had unequivocally stated that she wanted to continue living with Robert, the Court of Appeals observed. As such, Robert was entitled to be named Dixie’s permanent guardian under MCL 700.5313(2), absent a finding that he was not “qualified and able” to provide for her care, custody and control, the Court held, remanding the case for further proceedings.

Dueling Petitions

Dixie Lee Earl suffered from dementia and other medical conditions. Her relatives included her son Robert, her grandson Qwuan (Robert’s son) and her great-granddaughter Jessica (Qwuan’s daughter). Dixie had a power of attorney naming Robert as her primary attorney-in-fact and Jessica as successor attorney-in-fact.

Qwuan filed a petition in the Calhoun County Probate Court asking to be appointed Dixie’s guardian. At the time, Dixie was living with Robert but had intermittently been in a rehabilitation facility. The Probate Court appointed a guardian ad litem (GAL) and scheduled a temporary guardianship hearing.

In the GAL’s first report to the Probate Court, it was noted that Dixie had a good relationship with Qwuan but said she would rather that Robert be her guardian. Despite this, the Probate Court appointed Qwuan as Dixie’s temporary guardian, stating that “apparently [Robert] has taken some action here that is to the clear detriment to Dixie Earl in that he removed her from a facility where she was receiving 24 hour care prior to her removal.” After being appointed temporary guardian, Qwuan relocated Dixie from Robert’s home into an assisted living facility.

Robert subsequently filed his own guardianship petition, stating that he took Dixie’s care “very seriously.” He indicated that he provided for Dixie’s needs every day when she lived with him and that he was estranged from Qwuan.

The GAL filed a second report with the Probate Court, indicating that a social worker at the assisted living facility said Dixie needed 24-hour care. The GAL also reported Dixie’s statement that she “wanted to be with her family in her own home” and that she had “requested Robert’s presence.” In the GAL’s third report, it was noted that during a family visit, Dixie was “visibly upset and more disoriented than before.” The GAL stated that when she spoke with Qwuan, he said that Dixie would become upset after Robert’s visits (a claim that Robert denied). The GAL, however, did not recommend preventing Robert from visiting Dixie. In the GAL’s fourth report, it was indicated the assisted living facility had investigated an incident where Dixie had become combative. According to the GAL, the facility’s administrator said it was “impossible to conclude” that Robert’s visits were the cause of Dixie’s behavior. The fifth and final GAL report stated that Qwuan had said that while he and Robert were visiting Dixie at the same time, Robert tried to hit Qwuan with a cane, which instead touched Dixie. There were reportedly no injuries and no charges filed.

The Probate Court subsequently held a permanent guardianship hearing. Qwuan testified about Robert’s alleged failings regarding Dixie but acknowledged that Dixie had said she preferred to live with Robert. Robert also testified, denying most of Qwuan’s allegations regarding Dixie’s care and provided explanations for others. Robert testified that if a doctor said Dixie needed to be in a nursing home, then he would follow the doctor’s advice. Robert also said that when Dixie was living with him, he and outside providers had cared for her 24 hours a day.

At the hearing, Dixie’s attorney indicated that she wanted Qwuan’s temporary guardianship lifted and desired to continue living with Robert. In addition, the GAL recommended a full guardianship but did not comment on Robert’s suitability as guardian. The GAL did note, however, that Qwuan performed well as temporary guardian and recommended that he be appointed permanent guardian with a public guardian as a secondary option.

The Probate Court ruled there was clear and convincing evidence that Dixie needed a guardian and appointed Qwuan as full guardian. The Probate Court ordered that Robert be permitted to visit Dixie for up to one hour each day.

Robert appealed. He claimed the Probate Court should not have appointed Qwuan as guardian because Dixie had expressed her preference that Robert be her guardian and he was qualified and able to provide for her care, custody and control.

Missing: Findings of Fact

In reversing the Probate Court’s order, the Court of Appeals relied on the Estates and Protected Individuals Code (EPIC), which governs the appointment of guardians for incapacitated individuals.

The Court of Appeals explained that EPIC permits the appointment of a guardian for an incapacitated individual if the court finds by clear and convincing evidence that “the appointment is necessary as a means of providing continuing care and supervision of the incapacitated individual, with each finding supported separately on the record.”

The Court of Appeals further explained that EPIC sets forth an order of priority for appointing guardians. In particular, MCL 700.5313(2) says:

“(2) In appointing a guardian under this section, the court shall appoint a person, if suitable and willing to serve, in the following order of priority:

(a) A person previously appointed, qualified, and serving in good standing as guardian for the legally incapacitated individual in another state.

(b) A person the individual subject to the petition chooses to serve as guardian.

(c) A person nominated as guardian in a durable power of attorney or other writing by the individual subject to the petition.

(d) A person named by the individual as a patient advocate or attorney in fact in a durable power of attorney.”

In this case, it was undisputed that a guardian should be appointed for Dixie’s continuing care and supervision, the Court of Appeals observed. “It is also undisputed that Dixie expressed that she wanted Robert to be her guardian, and that he was willing to serve as same,” the Court wrote. “He had also been previously named as her patient advocate.”

As a result, Robert was entitled to be appointed as Dixie’s guardian under MCL 700.5313(2)(b) and (2)(d) “absent a court finding that he is not ‘qualified and able to provide for the ward’s care, custody, and control,’” the Court of Appeals concluded.

Accordingly, “we reverse the order appointing Qwuan as permanent guardian and remand to the trial court to use the proper legal standard to determine who to appoint as Dixie’s guardian, after making findings of fact regarding Robert’s suitability to serve as Dixie’s guardian,” the Court of Appeals held.