In Re Guardianship of David P Vanpoppelen ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re GUARDIANSHIP OF DAVID P.
VANPOPPELEN.
DENNIS J. VANPOPPELEN, UNPUBLISHED
February 24, 2022
Petitioner,
and
IVY S. VANPOPPELEN,
Appellant,
v No. 353319
Macomb Probate Court
SHANE CHILDERS, Successor Guardian for LC No. 2017-223825-GA
DAVID P. VANPOPPELEN,
Appellee.
-1-
In re CONSERVATORSHIP OF DAVID P.
VANPOPPELEN.
VINCENT W. VANPOPPELEN,
Petitioner,
and
IVY S. VANPOPPELEN,
Appellant,
v No. 353320
Macomb Probate Court
SHANE CHILDERS, Successor Conservator for LC No. 2017-223826-CA
DAVID P. VANPOPPELEN,
Appellee.
In re CONSERVATORSHIP OF DAVID P.
VANPOPPELEN.
VINCENT W. VANPOPPELEN,
Petitioner,
and
IVY S. VANPOPPELEN,
Appellant,
v No. 356664
Macomb Probate Court
SHANE CHILDERS, Successor Conservator for LC No. 2017-223826-CA
DAVID P. VANPOPPELEN, WYATT R.
VANPOPPELEN, and JUNE VANPOPPELEN,
Appellees.
-2-
Before: GADOLA, P.J., and MARKEY and MURRAY, JJ.
PER CURIAM.
In case nos. 353319 and 353320, appellant, Ivy S. VanPoppelen, appeals as of right the
orders of the probate court appointing Shane Childers as successor guardian and successor
conservator of appellant’s father, David P. VanPoppelen. In case no. 356664, appellant claims an
appeal of the probate court’s March 1, 2021 order denying appellant’s motion for restitution and
awarding David’s former guardian and conservator, Martin Brosnan, attorney fees and costs in the
amount of $2,670 as a sanction for appellant filing a frivolous motion. We affirm in part and
remand for further proceedings.
I. FACTS
These consolidated appeals arise from the probate court’s appointment of a guardian and
conservator of David P. VanPoppelen. Appellant, her brother Wyatt VanPoppelen, and their
mother June VanPoppelen (the VanPoppelen family) oppose the appointment of the guardian and
conservator, and contend that if appointment of a guardian and conservator is necessary, appellant
and Wyatt are entitled to be appointed to those roles.
Appellant and Wyatt are the adult children of David and June. David and June divorced in
2014, after which June remained in the marital home. In 2016, David began to show signs of early
onset dementia. He moved back to the marital home with June, who became his caregiver. June
helped David apply for disability benefits and manage his medical treatment, and David granted
June power of attorney.
In 2017, two of David’s brothers, Dennis and Vincent VanPoppelen, petitioned in the
probate court for appointment as David’s guardian and conservator, respectively. In response,
June and appellant filed petitions seeking appointment as David’s guardian, and Wyatt filed a
petition seeking appointment as David’s conservator. Following an evidentiary hearing, the
probate court appointed Martin J. Brosnan, a public administrator, as David’s guardian and
conservator. Although appellant and Wyatt had statutory priority for appointment, the probate
court found that appellant and Wyatt were not suitable as fiduciaries because they were young
(June then age 19, Wyatt then age 26), inexperienced, and susceptible to June’s influence. The
probate court also nullified June’s power of attorney, finding that David had lacked the mental
capacity to grant it.
Appellant appealed to this Court challenging the probate court’s order appointing Brosnan.
This Court vacated the probate court’s order, concluding that the probate court record was
insufficient to support the finding that appellant’s and Wyatt’s youth and inexperience rendered
them unsuitable for appointment as David’s guardian and conservator. This Court remanded the
matter to the probate court for further consideration of the children’s suitability to serve as guardian
and conservator of their father. In re VanPoppelen, unpublished per curiam opinion of the Court
of Appeals, issued December 4, 2018 (Docket Nos. 340224, 340226), p 8-9. This Court also
concluded that the probate court did not err by finding that David had lacked the mental capacity
to validly grant power of attorney to June. Id. at 6-7.
-3-
On remand, the probate court issued expanded findings of fact, again concluded that
appellant and Wyatt were unsuitable to serve as guardian and conservator, and again appointed
Brosnan as David’s guardian and conservator. Appellant and Wyatt appealed the probate court’s
order. This Court affirmed the order appointing Brosnan as David’s guardian and conservator,
finding that the record supported the probate court’s expanded findings that appellant and Wyatt
were not suitable to serve as guardian and conservator. In re VanPoppelen, unpublished per curiam
opinion of the Court of Appeals, issued May 14, 2020 (Docket Nos. 347977, 347978).
Meanwhile, in March 2019, Brosnan petitioned the probate court for authorization to
partition real property that David and Vincent jointly owned in Pentland Township, Luce County.
The property consisted of six contiguous parcels with a total size of 110 acres; the petition sought
to divide the 110 acres with David and Vincent each receiving approximately 55 acres. The
probate court granted the petition. Brosnan and Vincent executed quitclaim deeds to divide the
property, and the deeds were filed with the Luce County Register of Deeds.
Thereafter, Brosnan submitted to the probate court an account of David’s assets for the
period of August 25, 2018 to August 24, 2019. The VanPoppelen family filed objections to the
account, challenging various aspects of the report including the balance of an investment account,
the amounts paid to paralegals and bookkeepers, and the amounts received from the sale of two
parcels of real property in Canada that David co-owned with Vincent. By order dated March 9,
2020, the probate court allowed the account.
In February and March, 2020, Brosnan filed petitions to modify the guardianship and
conservatorship, requesting to be released from the appointments on the basis that his relationship
with appellant, Wyatt, and June had broken down. Brosnan asserted that difficulties with the
VanPoppelen family, including the family’s objections to the accounting, prevented him from
effectively performing his duties. The VanPoppelen family responded by challenging Brosnan’s
performance as a fiduciary and alleging various inaccuracies in the reporting of David’s assets.
The VanPoppelen family requested that the probate court dissolve the guardianship and
conservatorship or appoint appellant and Wyatt to those roles. The probate court granted
Brosnan’s petitions and permitted him to resign, and appointed attorney Shane Childers as David’s
successor guardian and conservator. Appellant appealed the orders of the probate court appointing
Shane Childers as David’s successor guardian and conservator (case nos. 353319 and 353320).
Brosnan filed an account of David’s assets for the period of August 25, 2019 to March 9,
2020, and another account for the period of March 10, 2020 to July 15, 2020.1 The VanPoppelen
family filed objections to the accountings challenging the accuracy of the amounts represented.
The probate court entered orders allowing the accounts.
The VanPoppelen family thereafter moved for an order of restitution to be imposed against
Brosnan, asserting that Brosnan caused David’s investment accounts to lose value in the amount
of $129,456.97. The VanPoppelen family argued that David’s assets should have been placed in
investments protected from stock market volatility, and that losses to David’s account when the
1
Childers asserts that the COVID-19 stay-at-home mandates prevented Brosnan from transferring
responsibility for David’s assets to Childers until July 15, 2020.
-4-
stock market declined sharply in March 2020 were due to Brosnan’s negligent management.
Brosnan argued that the motion was improper and frivolous, that the VanPoppelen family lacked
standing to bring the motion because Brosnan owed them no duty under the conservatorship, and
that their claims were barred by res judicata and collateral estoppel because the probate court
already had resolved their objections to the accountings in its previous orders. Brosnan requested
imposition of a sanction against the VanPoppelen family in the amount of $2,670. The probate
court found that the VanPoppelen family lacked standing to bring the motion, and that the motion
was barred by res judicata and collateral estoppel because the court already had allowed Brosnan’s
accounts. By order dated March 1, 2021, the probate court granted Brosnan’s request for sanctions
in the amount of $2,670 on the basis that the motion was frivolous. On March 19, 2021, appellant
claimed an appeal to this Court of the probate court’s March 1, 2021 order (case no. 356664).
Shortly before the probate court issued the order imposing sanctions, on February 26, 2021,
the VanPoppelen family moved for correction of the 2019 division of the 110 acres located in
Pentland Township, after learning that the Pentland Township tax assessor’s records listed David
as the owner of only 30 acres instead of the nearly 55 acres he should have received in the partition.
The VanPoppelen family believed that Vincent and Brosnan wrongly executed deeds that failed to
convey David’s rightful share of the real property. They requested that the probate court issue an
order requiring Brosnan to correct the error at his own expense. The VanPoppelen family also
moved to terminate the conservatorship and guardianship or, in the alternative, to appoint appellant
and Wyatt to these roles.
Childers confirmed to the probate court that the Pentland Township tax assessor’s records
incorrectly listed Vincent as the owner of 80.36 acres, and David as the owner of 30 acres, and
that the error appeared to be attributable to incomplete tax parcel identification numbers on the
two quitclaim deeds that Brosnan and Vincent had executed to divide the 110-acre parcel. After
learning of the VanPoppelen family’s motion for correction, Childers consulted Brosnan, who
assured Childers that the parcels were properly partitioned in accordance with the court’s order
and provided Affidavits of Scrivener’s Error stating that the Tax Parcel Identification numbers on
the deeds were incomplete, but the deeds stated the correct property descriptions. Childers
informed the probate court that he also had consulted Krystal Bertram, a senior title examiner at
Transnation Title Agency, to investigate the legal descriptions in the quitclaim deeds and that
Bertram found that the deeds accurately conveyed 54.87 acres to David. Childers also informed
the probate court that he had learned that he should apply to the Township for a parcel split or
boundary adjustment to correct the tax roll inaccuracies.
The VanPoppelen family rejected Childers’s explanation of a scrivener’s error; they
requested the probate court order a survey of the property and also order Vincent to tender a new
quitclaim deed granting David his rightful share of the 110 acres. Brosnan responded that the
VanPoppelen family’s motion should be dismissed because the family members lacked standing
to bring a motion on David’s behalf, and that the motion was barred by res judicata and collateral
estoppel because the land division was previously approved by the probate court. Brosnan
requested that the VanPoppelen family again be ordered to pay sanctions in the amount of $2,670,
on the ground that their motion was frivolous.
At the hearing on the motion held May 24, 2021, Wyatt informed the probate court that the
error was in the quitclaim deed, as well as in the tax assessor’s records. Childers acknowledged
-5-
that although the deeds had the correct description they listed incorrect tax parcel identification
numbers, causing the inaccurate tax rolls. The probate court determined that the tax roll
discrepancy was a simple error that would be resolved when the tax assessor’s records were
updated, and further found that the VanPoppelen family lacked standing to bring the motion and
that the trial court had previously determined this issue. The probate court allowed the
VanPoppelen family the option of paying for a survey to verify that the deeds actually conveyed
to David his full share, but they declined that option. The probate court also found that the
VanPoppelen family’s motion was frivolous and by order dated May 25, 2021, again awarded
Brosnan attorney fees and costs of $2,670 as a sanction for the frivolous motion. The probate court
also denied the VanPoppelen family’s request that the conservatorship and guardianship be
dissolved, concluding that the family’s frivolous motions demonstrated that the family lacked the
level of sophistication necessary to manage David’s finances.
The VanPoppelen family thereafter filed an objection to Childers’s first annual accounting,
asserting that the Pentland Township tax records now listed Vincent as a co-owner of David’s 55
acres. The probate court overruled the family’s objections and deemed them frivolous on grounds
of res judicata. On June 3, 2021, the probate court ordered the VanPoppelen family to pay Childers
$175 in attorney fees, and issued an order allowing Childers’s amended first annual account.
This Court consolidated the three appeals into the matter now before this Court. In re
VanPoppelen, unpublished order of the Court of Appeals, entered August 24, 2021 (Docket Nos.
353319, 353320, 356664).
II. DISCUSSION
A. APPOINTMENT OF SUCCESSOR GUARDIAN AND CONSERVATOR
Appellant contends that the probate court erred by appointing Childers as David’s
successor guardian and conservator instead of appointing appellant and/or Wyatt to those roles in
accordance with their statutory priority for appointment. We review the probate court’s
dispositional rulings for an abuse of discretion and review the probate court’s underlying factual
findings for clear error. In re Portus, 325 Mich App 374, 381; 926 NW2d 33 (2018). Specifically,
we review a probate court’s appointment or removal of a fiduciary for an abuse of discretion. In
re Conservatorship of Shirley Bittner, 312 Mich App 227, 235; 879 NW2d 269 (2015). A probate
court abuses its discretion if its decision falls outside the range of reasonable and principled
outcomes. In re Gerstler, 324 Mich App 494, 507; 922 NW2d 168 (2018). A factual finding is
clearly erroneous if this Court is left with a definite and firm conviction that the probate court has
made a mistake, even if there is evidence to support the finding. In re Conservatorship of Brody,
321 Mich App 332, 336; 909 NW2d 849 (2017). We review de novo questions of statutory
interpretation. In re Portus, 325 Mich App at 381.
Under the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., the
probate court “may appoint a guardian if the court finds by clear and convincing evidence both
that the individual for whom a guardian is sought is an incapacitated individual and that the
appointment is necessary as a means of providing continuing care and supervision of the
incapacitated individual . . . .” MCL 700.5306(1). MCL 700.5313 establishes priority for the
appointment of guardians and provides, in relevant part:
-6-
(2) In appointing a guardian under this section, the court shall appoint a person, if
suitable and willing to serve, in the following order of priority:
(a) A person previously appointed, qualified, and serving in good standing
as guardian for the legally incapacitated individual in another state.
(b) A person the individual subject to the petition chooses to serve as
guardian.
(c) A person nominated as guardian in a durable power of attorney or other
writing by the individual subject to the petition.
(d) A person named by the individual as a patient advocate or attorney in
fact in a durable power of attorney.
(3) If there is no person chosen, nominated, or named under subsection (2), or if
none of the persons listed in subsection (2) are suitable or willing to serve, the court
may appoint as a guardian an individual who is related to the individual who is the
subject of the petition in the following order of preference:
(a) The legally incapacitated individual’s spouse. This subdivision shall be
considered to include a person nominated by will or other writing signed by a
deceased spouse.
(b) An adult child of the legally incapacitated individual.
(c) A parent of the legally incapacitated individual. This subdivision shall
be considered to include a person nominated by will or other writing signed by a
deceased parent.
(d) A relative of the legally incapacitated individual with whom the
individual has resided for more than 6 months before the filing of the petition.
(e) A person nominated by a person who is caring for the legally
incapacitated individual or paying benefits to the legally incapacitated individual.
(4) If none of the persons as designated or listed in subsection (2) or (3) are suitable
or willing to serve, the court may appoint any competent person who is suitable and
willing to serve, including a professional guardian as provided in section 5106.
A probate court may appoint a conservator if a person is “unable to manage property and
business affairs effectively” for reasons including “mental illness, mental deficiency, physical
illness or disability” and the “individual has property that will be wasted or dissipated unless proper
management is provided, or money is needed for the individual’s support, care, and welfare or for
those entitled to the individual’s support, and that protection is necessary to obtain or provide
money.” MCL 700.5401(3). MCL 700.5409 establishes priority in the appointment of
conservators and provides:
-7-
(1) The court may appoint an individual, a corporation authorized to exercise
fiduciary powers, or a professional conservator described in section 5106 to serve
as conservator of a protected individual’s estate. The following are entitled to
consideration for appointment in the following order of priority:
(a) A conservator, guardian of property, or similar fiduciary appointed or
recognized by the appropriate court of another jurisdiction in which the protected
individual resides.
(b) An individual or corporation nominated by the protected individual if he
or she is 14 years of age or older and of sufficient mental capacity to make an
intelligent choice, including a nomination made in a durable power of attorney.
(c) The protected individual’s spouse.
(d) An adult child of the protected individual.
(e) A parent of the protected individual or a person nominated by the will
of a deceased parent.
(f) A relative of the protected individual with whom he or she has resided
for more than 6 months before the petition is filed.
(g) A person nominated by the person who is caring for or paying benefits
to the protected individual.
(h) If none of the persons listed in subdivisions (a) to (g) are suitable and
willing to serve, any person that the court determines is suitable and willing to
serve.
(2) A person named in subsection (1)(a), (c), (d), (e), or (f) may designate in writing
a substitute to serve instead, and that designation transfers the priority to the
substitute. If persons have equal priority, the court shall select the person the court
considers best qualified to serve. Acting in the protected individual’s best interest,
the court may pass over a person having priority and appoint a person having a
lower priority or no priority.
MCL 700.5106(1) provides the circumstances in which the court may appoint a
professional guardian or professional conservator, and provides, in relevant part:
(1) Subject to subsections (2) and (3), the court may appoint or approve a
professional guardian or professional conservator, as appropriate, as a guardian or
conservator under this act, or as a plenary guardian or partial guardian as those
terms are defined in section 600 of the mental health code, 1974 PA 258, MCL
330.1600.
-8-
(2) The court shall only appoint a professional guardian or professional conservator
as authorized under subsection (1) if the court finds on the record all of the
following:
(a) The appointment of the professional guardian or professional
conservator is in the ward’s, developmentally disabled individual’s, incapacitated
individual’s, or protected individual’s best interests.
(b) There is no other person that is competent, suitable, and willing to serve
in that fiduciary capacity in accordance with section 5212, 5313, or 5409.
In this case, appellant contends that the probate court abused its discretion by appointing
Childers as successor guardian and conservator, and that the probate court instead was required by
EPIC to give priority to appellant and Wyatt because there was no evidence that they were
unsuitable for those appointments. When a guardian resigns or is removed, the probate court is
required to appoint a successor guardian consistent with the statutory scheme for initial
appointment. See In re Gerstler, 324 Mich App at 512-513. That is, MCL 700.5313 does not
differentiate between an original appointment of a guardian and the appointment of a successor
guardian. Similarly, MCL 700.5409 does not differentiate between an original appointment of a
conservator and the appointment of a successive conservator.
We conclude that when appointing a successor guardian and conservator for David, the
probate court was obligated to assess anew appellant’s and Wyatt’s suitability for the roles of
David’s guardian and conservator. See In re Gerstler, 324 Mich App at 512-513. At the May 24,
2021 hearing,2 the probate court explained its reasons for the appointment of Childers as
conservator instead of appointing appellant or Wyatt, stating that the VanPoppelen family’s habit
of filing meritless motions and objections indicated that they lacked the sophistication to manage
David’s finances, and that appellant and June would have a conflict of interest because their
caregiving services were compensated from David’s assets.
The probate court’s finding that appellant and Wyatt lacked sufficient sophistication to
manage David’s finances is not clearly erroneous. The record indicates that appellant and Wyatt
are vigilant in their concern for the preservation of David’s assets but, together with June, fail to
understand the law and procedures mandated by the EPIC and the court rules, resulting in needless
litigation. For example, when early in the proceedings their attorney moved to withdraw as the
family’s counsel, a step the VanPoppelen family apparently agreed with, June filed a lengthy and
argumentative response asserting that the attorney did not actually represent the entire family and
that the attorney had not performed adequately. When in 2020 the value of David’s stocks
decreased, apparently due to the advent of the pandemic, the family filed a motion asserting
mismanagement by Brosnan. When Brosnan moved to withdraw as guardian and conservator, a
step that the VanPoppelen family apparently agreed with, the family responded by challenging
Brosnan’s performance as a fiduciary and alleging various inaccuracies in the reporting of David’s
2
Although this hearing was held after the probate court’s March 9, 2020 orders appointing Childers
as successor guardian and conservator, we consider the probate court’s findings at the later hearing
to the extent that they explain its previous decision.
-9-
assets. When the family learned of inaccuracies in the tax records regarding the division of the
Pentland Township property, the family leapt to the conclusion that there had been
mismanagement by the conservator, filing numerous motions with the probate court rather than
working with the successor conservator to correct the problem. We therefore conclude that the
probate court duly considered appellant’s and Wyatt’s priority for appointment as conservators,
and did not clearly err by finding that they were not suitable. The probate court therefore did not
abuse its discretion by appointing Childers as David’s successor conservator.
However, the probate court failed to support its finding that appellant and Wyatt are
unsuitable to serve as David’s guardians. Before the probate court, David’s guardian-ad-litem and
Childers both stated that they had no objection to appellant’s or Wyatt’s appointment as David’s
guardian or co-guardians. They agreed that David received good care in the family home, and
there is no evidence on the record that David has been neglected or harmed in the family’s care.
Although this Court previously upheld the probate court’s 2017 determination that appellant and
Wyatt were not suitable as guardians because of their youth and because they were not actively
participating in David’s care, Childers and the guardian-ad-litem acknowledged that more recently
appellant was actively working with June to provide David’s care. We conclude that the probate
court abused its discretion by declining to appoint appellant and/or Wyatt as David’s guardians or
co-guardians without making findings, supported by the record, that they are unsuitable for that
role.3
B. IMPOSITION OF SANCTIONS
In case no. 356664, appellant contends that the probate court abused its discretion by
imposing sanctions against the VanPoppelen family after finding their motion to correct the
property records regarding the Pentland Township property to be frivolous. Appellant’s arguments
involve challenges to the probate court’s May 25, 2021 order denying her motion for Correction
of Estate Property Division, and awarding Brosnan $2,670 in costs and attorney fees as a sanction
for bringing a frivolous motion, as well as challenges to the probate court’s June 3, 2021 order
denying appellant’s renewed objection to the conservator’s financial report and motion for proper
execution of the Pentland Township property deeds, and awarding Childers $175 in attorney fees
and costs for the frivolous objections. These issues are not properly before this Court.
In case no. 356664, appellant claimed an appeal to this Court on March 19, 2021, of the
probate court’s March 1, 2021 order, which denied appellant’s motion for an Order of Restitution
of Protected Person’s Monetary Loss by Conservator, and awarded Brosnan $2,670 in costs and
3
We decline to reach appellant’s contentions that the probate court violated her constitutional
rights to due process, freedom of association, and freedom of religion by interfering with family
relationships, and whether the EPIC’s guardianship and conservatorship provisions are properly
tailored to protect vulnerable adults without encroaching on fundamental rights of family
association. Although appellant recites general principles regarding familial privacy, she offers
no specific analysis of the law to the facts of this case and cites no authority supporting her
assertion of unconstitutionality, thereby abandoning these issues on appeal. See Bank of America,
NA v Fidelity Nat’l Title Ins Co, 316 Mich App 480, 517; 892 NW2d 467 (2016).
-10-
attorney fees as a sanction for bringing a frivolous motion. The issues appellant raises on appeal,
however, relate to the sanctions imposed by the probate court in orders entered May 25, 2021 and
June 3, 2021. Although a party who files an appeal of right from a final order may raise issues
related to preceding interlocutory orders in the case, see Bonner v Chicago Title Ins Co, 194 Mich
App 462, 472; 487 NW2d 807 (1992), the party may not challenge orders subsequently entered in
the lower court. Gracey v Gross Pointe Farms Clerk, 182 Mich App 193, 197; 452 NW2d 471
(1990). Therefore, appellant’s challenges to the imposition of sanctions arising from the disputed
division of the Pentland Township property, the subject of the probate court’s May 25, 2021 and
June 3, 2021 orders, which were entered after the March 1, 2021 order appealed, are not properly
before this Court, and we decline to consider them.
C. PETITION TO DISSOLVE GUARDIANSHIP AND CONSERVATORSHIP
Appellant also contends that the probate court erred by denying the VanPoppelen family’s
petition to dissolve the guardianship and conservatorship. We disagree. The probate court
previously determined that David was incapacitated, requiring both a guardian and a conservator.
The VanPoppelen family did not present evidence before the probate court that David is no longer
incapacitated, MCL 700.5306(1), nor that David is no longer “unable to manage property and
business affairs effectively for reasons such as mental illness, mental deficiency.” MCL
700.5401(3). Rather, the family argues that a guardian and a conservator are not necessary because
the family can provide care and manage David’s assets without supervision by the court. As
discussed, however, the probate court was bound by the statutory provisions of the EPIC when
determining David’s need for a guardian and a conservator, and could not simply leave his care to
his family without complying with the statutory framework.
We affirm the probate court’s order appointing Childers as David’s successor conservator,
and also affirm the probate court’s March 1, 2021 order imposing sanctions in favor of Brosnan.
We vacate the order of the probate court appointing Childers as David’s successor guardian and
remand to the probate court for reevaluation of appellant’s and Wyatt’s suitability to serve as
David’s guardian or guardians. We do not retain jurisdiction.
/s/ Michael F. Gadola
/s/ Jane E. Markey
/s/ Christopher M. Murray
-11-