Every month I summarize the most important probate cases in Michigan. Now I publish my summaries as a service to colleagues and friends. I hope you find these summaries useful and I am always interested in hearing thoughts and opinions on these cases. PROBATE LAW CASE SUMMARY BY: Alan A. May Alan May is a shareholder who is sought after for his experience in guardianships, conservatorships, trusts, wills, forensic probate issues and probate. He has written, published and lectured extensively on these topics. He was selected for inclusion in the 2007-2014 issues of Michigan Super Lawyers magazine featuring the top 5% of attorneys in Michigan and has been called by courts as an expert witness on issues of fees and by both plaintiffs and defendants as an expert witness in the area of probate and trust law. Mr. May maintains an “AV” peer review rating with Martindale-Hubbell Law Directory, the highest peer review rating for attorneys and he is listed in the area of Probate Law among Martindale-Hubbell’s Preeminent Lawyers. He has also been selected by his peers for inclusion in The Best Lawyers in America® 2015 in the fields of Trusts and Estates as well as Litigation – Trusts & Estates (Copyright 2014 by Woodward/White, Inc., of SC). He has been included in the Best Lawyers listing since 2011. He is a member of the Society of American Baseball Research (SABR). For those interested in viewing previous Probate Law Case Summaries, go online to: http://kkue.com/resources/probate-law-case-summaries/ DT: September 18, 2015 RE: In re Conservatorship of Shirley Bittner STATE OF MICHIGAN COURT OF APPEALS “Alan, you cannot write about baseball all your life” - Mrs. Pollinger - 12th Grade English Comp - Mumford High - 1959 BASEBALL LORE: James Charlton and Sally Cook have a little 120 page book called “How to Speak Baseball.” It was published in 2014 and defines a lot of baseball terms that the fans should know. Most fans will be acquainted with a majority of the terms, and I suspect the little book is for the younger fan. 201 West Big Beaver, Suite 600, Troy, Michigan 48084 | Phone: 248.528.1111 | Fax: 248.528.5129 | www.kempklein.com STATE OF MICHIGAN COURT OF APPEALS Case –continued– Nevertheless, in going through the book, I found some terms that were somewhat archaic that I did not recognize, which might be of interest to the reader. Bird Dog – A baseball scout. Can of Corn – An easy fly ball to catch. Easier to catch than a sack of potatoes. Crank – A 19th Century term for a fan of the team. Dead Red – When a batter gets a pitch that he expects. Golden Sombrero – When a batter is said to wear when he strikes out 4 times in a row, if only the ball were a piñata. Gonfalon – Another name for pennant, as in winning the pennant. On the Interstate – A batter hitting between 100 and 200 on the scoreboard a batting average of .195 looks like I-95. Rabbit Ears – A player who is easily upset when he hears names the other team is calling him. (Ben Bradlee, Jr., in his biography of Ted Williams “The Kid”, says that the Kid had Rabbit Ears. Tools of Ignorance – A catcher’s protective equipment. Two O’clock Hitter – A hitter who hit well in batting practice at a time when games used to start at 3:00. You Can’t Walk Off The Island – An adage referring to Latino ballplayers from the islands. In the film, Moneyball, Miguel Tejada, in justifying his high strike-out rate, said “you can’t walk off the island.” REVIEW OF CASE: Referenced Files: Conservatorship - Necessary Grounds Which Must Be Established - Inability to Manage - Waste - Self-Reliance – Least Intrusive - Definition Standard of Review - Appointment of Removal Clear and Convincing Proof - Definition of Clean and Convincing Proof - Finding of Fact – Requires Clear Error Inability to Manage - Consistency 2 STATE OF MICHIGAN COURT OF APPEALS Case –continued– The Bittner case is a published case, which any probate lawyer involved with guardianships and conservatorships should read. In it, the Court sets down specifics which should be the guideline for the practitioner who is either the petitioner or the respondent. Mom basically took care of her own affairs, and involved the daughter, Suzanne. Mom did not like what Suzanne was doing and filed a petition against her for an accounting and for conversion. Suzanne responded with a Petition for Conservatorship. The conservator did not want a conservatorship, mom did not want a conservatorship, a PhD court appointed examiner did not want the conservatorship, the guardian ad litem did not want the conservatorship, but the Court felt it was necessary and appointed one. The Court of Appeals reversed. Most of the facts of this case will be found in the legal review. The Court sets up a standard of proof for the establishment of a conservatorship and the Court of Appeals also sets up the standard of review for the appointment for the removal of a fiduciary. The standard of review is abuse of discretion. Although the Court does not say so, because they do reverse, there is a conclusion without overt criticism that there was an abuse of discretion. The Court cites the case of In re Williams Estate, 133 Mich App 1. Findings of fact, however, are reviewed for clear error. The Court cites In re Townsend Conservatorship, 293 Mich App 182. The Court makes no reference to any clear error. Regarding the appointment of conservatorship, and the legal grounds for establishing same, the Court cites the two grounds under MCL 700.5401(1) and then it cites MCL 700.5407(3), MCL 700.5419(1), and MCL 500.700.5408 relative to the doctrine of self-reliance. The Court of Appeals makes clear that in terms of MCL 700.5401(1), there are two requirements. The first is classically called inability to manage affairs and the second is that there must be prospective waste proven. The Court of Appeals agrees with the Lower Court that the psychologist, who examined the prospective ward, utilized the wrong standard, but this is not a dispositive factor in making its opinion to reverse. The Court of Appeals finds as follows, relative to inability to manage ones affairs: 1. There must not be just inability, but consistent inability. 2. Seeking of aid shows competency. 3. Understanding that the person that you have chosen is mismanaging and may had stolen from you, denigrates a finding of inability to manage affairs. 4. The Court should not infer facts, but should find facts as to what the doctor meant. 5. Using someone to assist you is no more evidence of incompetency than a lawyer using a legal assistant. Separate and apart from the inability to manage is waste and the Court of Appeals finds that the Lower Court didn’t even go into waste, and that, in the instant case, there were safeguards built in to protect waste. As to the separate ground of self-maintenance, the Court of Appeals admits that there was no published decision defining self-reliance and declares that the Lower Court is mandated that it 3 STATE OF MICHIGAN COURT OF APPEALS Case –continued– carefully and thoughtfully consider whether arrangements less intrusive than a conservatorship will adequately protect the individual’s property and her autonomy. The Court cites MCL 700.5408(1), which talks about the ability to ratify an agreement and in this case they are ratifying the power of attorney arrangement. The Court of Appeals lays heavy emphasis upon the annotations under self-reliance, which are not binding, but are an aid in the interpretation of statutes and cites In re Lundy Estate, 291 Mich App 347. The matter was remanded, but I suspect is was only to dissolve the conservatorship and ratify the power of attorney arrangement. AAM:kjd Attachment 812169 4 STATE OF MICHIGAN COURT OF APPEALS In re Conservatorship of SHIRLEY BITTNER. SUZANNE BITTNER-KORBUS, FOR PUBLICATION September 8, 2015 Petitioner-Appellee, 9:10 a.m. v No. 320688 Macomb Probate Court STACEY BITTNER, Conservator for SHIRLEY LC No. 2013-211281-CA BITTNER, Respondent-Appellant. Before: RONAYNE KRAUSE, P.J., and GLEICHER and STEPHENS, JJ. GLEICHER, J. Over Shirley Bittner’s strenuous objection, the probate court appointed her daughter, Stacey Bittner, as conservator of Shirley Bittner’s estate. Stacey Bittner also opposed the appointment. And so did the guardian ad litem appointed by the probate court, as well as the court-appointed psychologist who evaluated Shirley Bittner. The probate court nevertheless determined that Shirley Bittner’s memory problems, arithmetic inadequacies, and mild cognitive deficits rendered her unable to manage her property and business affairs. The probate court made no finding that Shirley Bittner’s property would be wasted or dissipated absent appointment of a conservator, and overlooked consideration of the statutory directive that protective orders encourage “maximum self-reliance and independence” by restricting an individual’s rights only to the extent necessary to safeguard an individual’s estate. The evidence demonstrates that Shirley Bittner had proactively entered into a voluntary arrangement that adequately protected her assets and allowed her a meaningful measure of autonomy. We reverse. I. Shirley Bittner is 74 years old. For convenience and clarity, in the balance of this opinion we will use her first name. We refer to her three daughters, Suzanne Bittner-Korbus, Shirleen Vencleave, and Stacey Bittner, as Suzanne, Shirleen, and Stacey. -1- Shirley’s husband of more than fifty years passed away in October 2011. Stanley Bittner had single-handedly managed the couple’s financial affairs.