In a yet unpublished opinion of the Michigan Court of Appeals, decided on September 8, 2015; the Court reversed a Probate Court’s decision to appoint a Conservator for a 74 year old woman suffering from a cognitive impairment brought about by Vascular Dementia. She underwent an independent medical examination with a psychologist who found she had poor registration and recall, as well as poor arithmetic and quantitative skills. The psychologist further concluded that her “performance on objective testing indicates problems in consistently being able to initiate and carry out the tasks necessary to effectively manage her financial affairs.” Despite these facts, the Court of Appeals in Bittner-Korbus vs. Bittner (In re Bittner), 2015 Mich. App. LEXIS 1666, reversed the Probate Court’s decision to appoint a conservator.
In order to appoint a conservator, pursuant to MCL 700.5401(1), a court must find by clear and convincing evidence (the most demanding standard of proof applied in civil cases) that both the following criteria are met:
(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.
In this case, the Court of Appeals found that being 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 court made this finding despite the fact that the woman had allegedly been taken financial advantage of by a relative who was previously acting as her Power of Attorney.
The Court of Appeals seems to imply in its opinion that a consistent inability to manage financial affairs must exist in order to rise to the level of appointment of a conservator. The Court reminds us that the legislative intent of the Estates & Protected Individuals Code is to limit a court’s authority over an adult’s assets and financial affairs and use the least intrusive means possible in providing an individual with protection. The Court goes on to encourage limited guardianships, protective orders and the establishment of trusts in lieu of conservatorships.
How could this case impact you? It could make it more difficult for you to have a conservator appointed for a loved one if that person does not exhibit a consistent inability to manage his or her finances. Therefore, an occasional lapse in judgment or having been taken financial advantage of in the past may not be enough to have a petition for conservatorship granted by the court. Prior to filing a petition for conservatorship for a loved one, maintain accurate records of the level of assistance needed from others. Share concerns with your loved one’s physicians so that he or she may also make accurate records. Keep track of the deficiencies you may be witness to, even if financial losses are prevented as a result of oversight by others. While the least intrusive means may be the best, in some circumstances, a conservator may be necessary to protect your family members from serious financial losses due to financial crimes against seniors, fiduciaries who are not acting in his or her best interests; or, most disturbingly, a relative who is in a position to take advantage of a senior and does exploit them financially.
Sandra Harrison