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Michigan Probate Litigation Cases & News

January 18, 2019

Michigan Court of Appeals Addresses Mechanics of Transferring Guardianship from Michigan to Another State

An elderly parent who requires assistance may have an adult child who lives outside of Michigan. The parent and child may desire to move the parent to where the child lives, so the child can provide assistance. However, that process can be complicated if a Michigan probate court has already appointed another person as the parent’s Michigan guardian.
 
That was the issue in In re Guardianship of Alice Krause, Docket No. 341153, 2018 WL 6815181 (Mich. Ct. App. Dec. 27, 2018) (unpublished), a decision recently issued by the Michigan Court of Appeals. There, Alice Krause’s guardian, daughter, and court-appointed attorney agreed to a transition plan for moving Alice from Michigan to North Carolina on a trial basis. The agreement called for the Michigan probate court to hold a hearing after Alice had been in North Carolina for 180 days and decide whether to continue the Michigan guardianship or transfer the guardianship to North Carolina. However, the probate court refused to enter an order giving effect to the transition plan, because it believed that it would lose jurisdiction over Alice if she went to North Carolina, even on a trial basis.
 
Alice’s guardian appealed, and the Michigan Court of Appeals ruled that the probate court’s belief that it would lose jurisdiction over Alice was erroneous. First, the guardianship provisions of the Estates and Protected Individuals Code indicate that the Michigan probate court retains jurisdiction, even if the ward moves to another state, until it decides otherwise. See MCL 700.5317(2) (“If the court in the county where the ward resides is not the court in which acceptance of appointment is filed, the court in which a proceeding is commenced after the appointment in appropriate cases shall notify the other court, in this or another state, and after consultation with that court, shall determine whether to retain jurisdiction or transfer the proceeding to the other court, whichever is in the best interests of the ward. After this determination is made, the court accepting a resignation or removing a guardian shall direct this fiduciary to prepare and submit a final report to both courts.”). Therefore, the transfer of jurisdiction over a guardianship would be “contingent upon the occurrence of a final accounting and resignation by the guardian in the court in which the letters of authority were issued.” Id at *2, quoting In re Thomas Estate, 211 Mich. App. 594, 598-599; 536 N.W.2d 579 (1995). Second, North Carolina would be required to honor the Michigan guardianship orders under the Full Faith and Credit Clause of the United States Constitution. Third, under North Carolina law, it would not accept transfer of a guardianship from Michigan unless and until the Michigan probate court entered an order transferring the guardianship to North Carolina. The Michigan Court of Appeals remanded the case to the probate court for a determination whether the transition plan was in Alice’s best interests.
 
What is to be learned from this case? Transfer of a guardianship from Michigan to another state is feasible, but it must be done in a way that is consistent with the guardianship laws of both Michigan and the transferee state. Parties should consider developing a transition plan with a trial period, so that the Michigan probate court will have an opportunity to consider the ward’s response to the move before permanently transferring the guardianship. It would be ideal if all interested persons could agree to the transition plan, as in the Krause case.
 
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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