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The Michigan Court of Appeals recently answered these questions.&nbsp; In re Guardianship of AMS, No 372183, 2025 WL 452248 (Mich Ct App Feb 10, 2025) (unpublished).

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AMS was married to Thomas, and she had two daughters, Theresa and Kristin. The daughters each petitioned for guardianship and nominated themselves to serve as guardian, but husband Thomas was appointed her guardian.&nbsp;Daughter Theresa filed a petition to modify the guardianship because she alleged Thomas as guardian was restricting access to her mother.&nbsp;In her petition, Theresa sought unrestricted access to her mother and did not ask for Thomas’s removal as guardian.

At the hearing on Theresa’s petition, the court removed Thomas as guardian and appointed a professional guardian.&nbsp;Thomas appealed.&nbsp;

The Court of Appeals addressed the procedural requirements before a probate court can remove a guardian.&nbsp;The probate court removed Thomas as guardian when there was not a pending petition asking the court to remove him. Rather, Theresa’s petition was asking the court for unrestricted access to AMS. Thomas argued that Michigan statute/EPIC, MCL 700.5311, has notice requirements for the removal of the guardian which include notice to the guardian as well as personal service of the petition seeking removal of the guardian on the ward (here AMS).&nbsp;Thomas argued he was never served with a petition seeking his removal as guardian (because that was outside the scope of what Theresa was asking of the court), and AMS was not personally served with Theresa’s petition (which was undisputed).&nbsp;The Court of Appeals reversed the probate court’s removal of Thomas as guardian because proper notice was not provided to Thomas or AMS.&nbsp;

The Court of Appeals also addressed the standard for removal of a guardian.&nbsp;“[T]o remove a guardian under MCL 700.5310, the probate court must find that the guardian is no longer suitable or willing to serve.” “[T]he EPIC thus makes clear that the guardian's focus of concern must be on the ward, that decisions made on behalf of the ward must be in the interests of the ward and not the guardian, and that the guardian must be qualified to achieve the purposes set forth in EPIC.” “[S]ince a suitable guardian is one who is qualified and able to provide for the ward's care, custody, and control, it logically follows that particularly relevant evidence would include (1) evidence on whether the guardian was still qualified and able, and (2) evidence on whether the guardian did, in fact, satisfactorily provide for the ward's care, custody, and control in the past.” (Internal quotations omitted.)&nbsp;

The Court of Appeals determined that the probate court had to conduct the above analysis and determine whether Thomas was suitable before removing him as guardian, and the probate court was ordered to do so on remand.

Finally, the Court of Appeals agreed with Thomas that the probate court could not appoint a professional guardian for AMS without first establishing that no other individuals with priority of appointment were either willing or able to serve as guardian.&nbsp;Michigan statute/EPIC provides the priority list for appointment as guardian at MCL 700.5313. The statutory scheme prioritizes the appointment of a family member over a professional guardian.&nbsp;Thus, even if there was a basis to remove Thomas as guardian on remand, the probate court would need to analyze whether Theresa or Kristin were suitable to serve as guardian if they remained interested in doing so before the court could appoint a professional guardian.&nbsp;

If you have a guardianship or other probate court issue, contact Laura Morris at <a href="mailto:lmorris@wnj.com">lmorris@wnj.co</a><a href="mailto:lmorris@wnj.com" target="_blank" rel="noreferrer noopener">m</a>, 616-752-2407 or another member of Warner’s Probate Litigation Practice Group.

Michigan Probate Litigation Cases & News

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Laura E. Morris

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Probate Litigation

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When Can a Probate Court Remove and Replace the Legal Guardian for an Adult?

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When Can a Probate Court Remove and Replace the Legal Guardian for an Adult?

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