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Michigan Probate Litigation Cases & News

February 12, 2019

Letting the Parent Decide Whether to See a Child in a Guardianship Case

Suppose that a parent has two adult children who don’t get along. One child is serving as guardian for the parent, and the parent lives with that child. The other child perceives that he has limited or no access to the parent. The non-guardian child may petition the probate court to order visitation between the child and parent, or to remove the guardian for cause. However, what if the parent doesn’t want to have contact with the non-guardian child?
 
That issue was raised in In re Guardianship of Elaine Jaye, Docket No. 342197, 2019 Westlaw 320600 (Mich. Ct. App. Jan. 24, 2019) (unpublished). Karen Jaye was serving as guardian for her mother Elaine, and Elaine lived with Karen. Elaine’s son Chris (Karen’s brother) petitioned the probate court to remove Karen as guardian, based in part on his claim that Karen was denying him contact with Elaine. Chris asked the probate court to either remove Karen as guardian or order her to permit visitation between Chris and Elaine.
 
The probate court took testimony from an attorney appointed to represent Elaine in a separate case. That attorney testified that Karen was doing a good job as guardian, and Elaine was well cared for. The attorney also testified that Elaine had sufficient mental capacity to express whether she wanted to have contact with Chris, and she had made it clear that she wanted nothing to do with him. Ultimately, the probate court declined to remove Karen as guardian or order visitation, but the court did encourage Karen to “allow visits with Chris and not to deny any visitation that Elaine requested.” Id at *3.
 
Chris appealed. He argued that the case was analogous to In re Redd Guardianship, 321 Mich App 398, 407; 909 NW2d 289 (2017), where the guardian (son) was removed for impeding his mother’s relationship with other family members. The Michigan Court of Appeals disagreed. “This case is not like Redd. Unlike in Redd, here there was no testimony or evidence that Karen was unduly influencing Elaine and impeding her relationship with Chris. ... According to [Elaine’s former attorney], Elaine was mentally sharp and made it ‘abundantly clear that she wanted nothing to do with’ Chris.” Id at *6.
 
What is to be learned from this case? A person for whom a guardian is appointed should be granted autonomy commensurate with her abilities. This principle is reflected in the Michigan guardianship statutes: “The court shall design the guardianship to encourage the development of maximum self-reliance and independence in the individual [for whom a guardian is appointed].” MCL 700.5306(2). If the evidence shows that the ward’s desire to interact with family members is being thwarted by a difficult guardian, then the probate court should take corrective action. But if the evidence shows that the ward does not want to interact with certain family members, then the probate court should honor the ward’s wishes.
 
If you need assistance with a probate court matter, please contact Warner attorneys David Skidmore (dskidmore@wnj.com) or Laura Morris (lmorris@wnj.com).

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