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A Better Partnership
September 10, 2015

COA: Courts must consider whether less intrusive arrangements are available before granting a contested petition for conservatorship

In In re Bittner, No. 320688, the Court of Appeals held that the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., mandates that a court be mindful of personal autonomy and any restrictions on an individual’s right to dispose of his or her property must be narrowly tailored to an individual’s specific incapacities and needs. Therefore, the Court of Appeals reversed the probate court’s order appointing a conservator for Shirley Bittner because other, less intrusive, arrangements were in place to aid Bittner with property management.
 
Shirley Bittner is 74 years old and suffers from mild dementia and cognitive deficits.  Shirley initially entrusted financial management of her assets to her daughter, Suzanne, and granted Suzanne a durable power of attorney. Shirley also designated Suzanne as co-trustee to her living trust with authority to act independently. Shirley later realized that Suzanne was stealing assets and removed Suzanne as co-trustee and power of attorney. Shirley’s other daughter, Stacey, took over Suzanne’s former responsibilities.  In response, Suzanne filed a petition seeking appointment of a conservator for Shirley.  The probate court granted Suzanne’s conservatorship petition and appointed Stacey as conservator. Both Shirley and Stacey appealed.

The Court of Appeals held that the probate court erred in appointing Shirley a conservator because, although some evidence supported that Shirley suffered from cognitive deficiencies, the probate court did not consider whether Shirley’s property would be wasted or dissipated absent appointment of a conservator, pursuant to EPIC, MCL 700.5401(b). The Court then concluded that under the relevant provisions of EPIC, a court is obligated to consider whether less intrusive financial management arrangements are available to the individual before appointing a conservator. The Court determined that evidence showed no indication under Shirley’s current arrangement with Stacey that money or property would be mishandled. To the contrary, the court explained, Shirley entered into a voluntary arrangement with Stacey that adequately protected her assets and allowed her a meaningful measure of autonomy. Therefore, the Court of Appeals reversed the probate court’s order granting the conservatorship petition and remanded for further proceedings.

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