in Re Conservatorship of Rhea Brody ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
In re CONSERVATORSHIP OF RHEA BRODY.
MARY LYNEIS, as Conservator for RHEA FOR PUBLICATION
BRODY, September 19, 2017
9:00 a.m.
Appellee,
v No. 332994
Oakland Probate Court
ROBERT D. BRODY, LC No. 2015-367333-CA
Appellant,
and
JAY BRODY,
Interested Party,
and
GERALD BRODY and CATHY B.
DEUTCHMAN,
Interested Parties-Appellees.
Before: O’BRIEN, P.J., and JANSEN and MURRAY, JJ.
PER CURIAM.
In this estate case involving Rhea Brody’s personal assets, Rhea’s husband, appellant
Robert Brody, appeals as of right the probate court’s order appointing Mary Lyneis as Rhea’s
conservator. Rhea’s daughter, Cathy B. Deutchman, filed the petition for conservatorship, which
was opposed by Robert and Jay Brody, the son of Robert and Rhea. We affirm.
-1-
I. APPOINTMENT OF A CONSERVATOR
Robert argues on appeal that the probate court abused its discretion by appointing a
conservator to manage Rhea’s estate and affairs under MCL 700.5401. We disagree.
This Court reviews a probate court’s appointment of a conservator for an abuse of
discretion. In re Conservatorship of Shirley Bittner, 312 Mich App 227, 235; 879 NW2d 269
(2015). “An abuse of discretion occurs when the court’s decision falls outside the range of
reasonable and principled outcomes.” Id. This Court reviews the probate court’s factual
findings for clear error and its legal conclusions de novo. Id. at 235-236. “A finding is clearly
erroneous when a reviewing court is left with a definite and firm conviction that a mistake has
been made, even if there is evidence to support the finding.” In re Townsend Conservatorship,
293 Mich App 182, 186; 809 NW2d 424 (2011) (quotation marks and citation omitted). “The
reviewing court will defer to the probate court on matters of credibility, and will give broad
deference to findings made by the probate court because of its unique vantage point regarding
witnesses, their testimony, and other influencing factors not readily available to the reviewing
court.” In re Erickson Estate, 202 Mich App 329, 331; 508 NW2d 181 (1993).
Article V of the Estates and Protected Individuals Code (EPIC), MCL 700.5101 et seq.,
provides protection for individuals under disability. The standards governing conservatorship
appointments are described in MCL 700.5401, which, in relevant part, provides:
(3) The court may appoint a conservator or make another protective order
in relation to an individual’s estate and affairs if the court determines both of the
following:
(a) The individual is unable to manage property and business affairs
effectively for reasons such as mental illness, mental deficiency, physical illness
or disability, chronic use of drugs, chronic intoxication, confinement, detention by
a foreign power, or disappearance.
(b) 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.
These prerequisites must be established by clear and convincing evidence. MCL 700.5406(7).
The clear-and-convincing-evidence standard is “ ‘the most demanding standard applied in civil
cases . . . .’ ” Bittner, 312 Mich App at 237, quoting In re Martin, 450 Mich 204, 227; 538
NW2d 399 (1995). Clear and convincing proof
produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established, evidence so clear, direct and weighty
and convincing as to enable [the factfinder] to come to a clear conviction, without
hesitancy, of the truth of the precise facts in issue. [Martin, 450 at 227 (quotation
marks and citations omitted; alterations in original).]
-2-
Robert does not dispute that MCL 700.5401(3)(a) is satisfied, as Rhea’s frontal temporal
dementia renders her unable to manage her property or business affairs effectively. On appeal,
Robert argues only that the probate court clearly erred in its conclusion that Rhea “has property
that will be wasted or dissipated unless proper management is provided.” We hold that the
circuit court did not clearly err when it found that Rhea had property that would be wasted or
dissipated without proper protection and oversight, or abuse its discretion when it appointed a
conservator to oversee Rhea’s estate.
The probate court thoughtfully considered Rhea’s circumstances and the nature of each of
the assets in Rhea’s personal estate—comprising a Fifth Third bank account for tax refunds, an
individually-held IRA, a jointly-held Chase Bank account, and jointly-owned homes in Michigan
and Florida—before concluding that the requirements of MCL 700.5401(3) had been met by
clear and convincing evidence. The Fifth Third bank account, containing only $580.60 at the
time of the hearing, existed for depositing tax refunds. Lyneis testified that, as special
conservator, she was responsible for reviewing Rhea’s personal tax return and paying any tax
liabilities, which included Rhea’s potentially-substantial income from the Rhea Trust. Rhea
risked negative tax consequences for failure to file her signed return and pay any liabilities.
While the probate proceedings were ongoing, Jay completed Rhea’s tax return but refused to
provide it to Lyneis for review. Without the ability to review Rhea’s tax return, Lyneis was
unable to verify whether any refund was properly deposited into the Fifth Third account. Assets
involving tax liabilities and refunds, including the Fifth Third account dealing with refunds,
risked waste or dissipation without proper management.
The probate court noted that Rhea’s IRA required an election of annual distributions.
The probate court noted that with no one in place to authorize mandatory distributions, Rhea’s
IRA would be subject to tax penalties, which created a risk of waste and dissipation of the IRA
funds. Robert argues that the probate court could not have found the IRA subject to waste or
dissipation as a result of tax penalties because automatic distributions from the IRA had been set
up to occur automatically for years, and Rhea’s IRA requires “minimal involvement.”
Respondent fails to explain how the fact that an asset requires only minimal oversight renders the
asset less likely to fall victim to waste or dissipation. Further, Robert’s argument is not
supported by the record. Although Lyneis testified that the annual distribution was deposited
into the Rhea Trust for 2015, there was no evidence regarding annual distributions, automatic or
otherwise, before 2015. Further, there is no evidence that appropriate distributions are
guaranteed to occur absent intervention.
Rhea shares an interest in two homes, one in Michigan and one in Florida, with her
husband Robert. The two also share a Chase Bank account, which is used to fund payments on
the Florida home. The Brody family bookkeeper, Bonnie Dellinger, testified that she actively
requested funds from Rhea’s trust account to fund the Chase Bank account and satisfy mortgage
payments on the Florida home. Because the Florida home is not regularly used, it is particularly
susceptible to waste. Rhea herself is incapable of traveling to the Florida home. The probate
court reasoned that, without management of mortgage payments or oversight of home
maintenance, both the Michigan home and the Florida home risked waste or dissipation.
Robert suggests that it was improper for the probate court to consider joint assets when
evaluating the risk of waste or dissipation because a conservator would be unable to change the
-3-
nature of jointly-owned property. Robert cites for authority our Supreme Court’s 1988 opinion
in In re Wright Estate, 430 Mich 463, 469-470; 424 NW2d 268 (1988), wherein the Court held
that while “a conservator has the power to collect, hold, and retain assets of the estate, he may
not change the nature of joint accounts created by the disabled adult before the adult was
declared incompetent.” (Quotation marks and citations omitted.) Robert misinterprets the
Court’s holding in that case. Although Wright precludes a conservator from changing the nature
of joint accounts after the conservator’s appointment, it does not limit a conservator’s power to
manage the accounts or preclude joint assets from being considered at the conservatorship
hearing. See id. Under MCL 700.5419, “[a]ppointment of a conservator vests in the conservator
title as trustee to all of the protected individual’s property . . . held at the time of or acquired after
the order.” (Emphasis added.) The probate court did not err when it considered whether the
jointly-held assets would be subject to waste or dissipation in satisfaction of MCL
700.5401(3)(b).1
Dellinger testified that she stopped managing payments for Rhea’s expenses in January
2016, when Lyneis was appointed special conservator. Dellinger was concerned that without a
conservator, Rhea’s expenditures would not receive continued oversight. The probate court
agreed, stating, “If no one is making decisions, it is a certainty, frankly, that property will be
wasted or dissipated.” Given these facts, the probate court did not clearly err in finding that, as a
result of Rhea’s inability to manage her property and business affairs, Rhea’s property would be
wasted without proper management.
Robert also argues that the probate court erred in appointing a conservator to act on
behalf of Rhea because Robert, who held a durable power of attorney (DPOA) was already in a
position to prevent waste and dissipation of Rhea’s estate. At the very least, according to Robert,
he should have been given priority over Lyneis as a potential conservator.
The existence of a DPOA does not prohibit the appointment of a conservator, and
selection of an individual to be appointed as an incapacitated person’s conservator is a matter
committed largely to the discretion of the probate court. In re Williams Estate, 133 Mich App 1,
11; 349 NW2d 247 (1984). The statute governing appointment of a conservator, MCL
700.5409(1), allows a court to determine if the individuals who fall within the statutory priority
guidelines are “suitable.” Additionally, MCL 700.5409(2), grants the probate court authority to
pass over “a person having priority and appoint a person having less priority or no priority” for
the role of conservator if good cause exists. The statute’s priority classifications are merely a
guide for the probate court’s exercise of discretion.
Under MCL 700.5409, a protected individual’s spouse is entitled to consideration for
appointment as conservator, and is granted priority over all other individuals except “[a]
conservator, guardian of property, or similar fiduciary appointed or recognized by the
1
The parties dispute whether the Fifth Third bank account was held by Rhea individually or held
jointly by Rhea and Robert. In light of our determination that the probate court properly
considered both Rhea’s individually-held assets and her jointly-held assets, we conclude that the
distinction is irrelevant.
-4-
appropriate court of another jurisdiction in which the protected individual resides,” MCL
700.5409(1)(a), and “[a]n 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,” MCL 700.5409(1)(b). As Rhea’s
husband, Robert was an individual entitled to priority consideration. However, Robert was not
entitled to consideration unless the probate court considered an independent fiduciary and found
him or her unsuitable. Lyneis, as trustee and independent fiduciary, had statutory priority over
Robert, despite Robert’s marriage to Rhea. MCL 700.5409(1).
Additionally, considering the evidence before it, the probate court found Robert
unsuitable for the conservatorship. The probate court found that Robert had abdicated his
responsibilities under the DPOA and failed to act on Rhea’s behalf to protect her estate assets.
The record supports the probate court’s finding. Robert is over 91 years old and requires a
caregiver. Testimony established that Robert, who relied on others to help with his own
financial decisions, did not handle matters using the DPOA. According to Dellinger, Jay was
acting on Robert’s behalf to make decisions for the Rhea Trust. Witnesses also testified that Jay
exhibited controlling behavior over Robert. Given these facts regarding the relationship between
Jay and Robert, it was not unreasonable to infer that Jay would attempt to influence Robert’s
decision-making with respect to Rhea’s estate in the future. The probate court did not abuse its
discretion when it selected Lyneis, an independent fiduciary, over Robert as conservator.
Robert also argues that the probate court’s appointment of a conservator was an abuse of
discretion because there was no evidence that any asset of the estate had already been wasted or
dissipated. However, the Legislature’s use of the word “will” to modify “be wasted or dissipated
unless proper management is provided” in MCL 700.5401(3)(b) supports the probate court’s
decision to focus on the likelihood that assets will be prospectively wasted or dissipated if a
conservator is not appointed. See In re DeCoste Estate, 317 Mich App 339, 346; 894 NW2d 685
(2016) (explaining that the drafters of a statute are “assumed to have intended the effect of the
language plain expressed,” and this Court must give every word of the statute its plain and
ordinary meaning). The probate court properly concluded that it was unnecessary to find any
waste or dissipation had already occurred. Rhea’s disability made her unable to manage her
property and business affairs effectively. Although she had appointed Robert as her agent under
the DPOA, he had abdicated these duties. Moreover, in addition to protecting against waste or
dissipation of the assets currently in the estate, Lyneis testified that a conservator could protect
the estate by interacting with the health insurance company, serving as the social security payee,
and managing credit card bills and car lease payments. We are not left with a definite and firm
conviction that the probate court erred in finding that a conservator was appropriate to fulfill
these responsibilities.
We also reject Robert’s argument that the probate court improperly shifted the burden of
proof from Cathy to Robert when it asked Robert’s attorney, “why do you care,” and “you’re the
one objecting to it. I’m, I’m asking you for your reason for opposing [a] conservator. . . .”
Robert takes the probate court’s remarks out of context. The probate court’s inquiry was in
direct response to Robert’s argument before the probate court. Robert claimed to oppose the
appointment of a conservator because, when compared to the Rhea Trust, Rhea’s personal estate
was insignificant. The probate court merely asked Robert why he had bothered to oppose the
petition if the assets were that insignificant. Later, the probate court judge stated, “These assets
-5-
regardless of how small people seem to view the estate, require, uh, decisions being made and
there’s a question, therefore, as to who has the legal authority to make decisions.” The probate
court demonstrated that it understood the proper burden of proof when it stated on the record that
Robert and Jay had no obligation to testify or present a defense.
In sum, the probate court did not clearly err in finding that Rhea’s property would be
wasted or dissipated without proper management. Because there was clear and convincing
evidence to support this conclusion, the probate court acted within its discretion in appointing a
conservator under MCL 700.5401.
II. COURT-APPOINTED GUARDIAN AD LITEM
Next, Robert argues that the court-appointed guardian ad litem (GAL), William J.
Petersmark, failed to fulfill his statutory duties under MCL 700.5406(4).
Robert failed to challenge the GAL’s performance in the probate court, and this issue is
unpreserved. In re Smith Trust, 274 Mich App 283, 285; 731 NW2d 810 (2007). Although this
Court may address an unpreserved issue if it involves a question of law and the necessary facts
have been presented, Smith v Foerster-Bolser Constr, Inc, 269 Mich App 424, 427; 711 NW2d
421 (2006), we decline to fully address this issue because the record is simply undeveloped.
Robert argues that the GAL failed to consider whether an alternative to conservatorship may be
appropriate, but cites only the lack of explicit written consideration of the matter in Petersmark’s
report. Petersmark’s failure to specifically note the full extent of consideration is not evidence
that Petersmark failed to carry out his statutory obligation. Petersmark’s report indicated that he
complied with the duties of a GAL as required by statute and court rule, which would have
included consideration of whether there was an alternative to conservatorship under MCL
700.5406(4)(a), and whether limiting the scope or duration of the conservator’s authority under
MCL 700.5406(4)(b) was appropriate before ultimately recommending a conservatorship
without limitation. Petersmark was discharged before the conservatorship hearing, and did not
testify regarding his thought processes or conclusions. On this record, we cannot conclude that
Petersmark failed to perform his statutory duties.
III. COURT-APPOINTED ATTORNEY
Robert also raises two complaints regarding the probate court’s appointment of an
attorney for Rhea, arguing that the probate court denied Rhea her right to retain an attorney of
her choosing, and that appointed counsel failed to vigorously represent Rhea’s interests at the
conservatorship hearing. Even assuming that Robert has standing to challenge an alleged
deprivation of Rhea’s constitutional rights, Robert’s claims fail because he has not demonstrated
that Rhea possessed any such rights in the probate court. Robert asserts that there is a
constitutional right to retained counsel under Const 1963, art 1, § 13, which states that “[a] suitor
in any court of this state has the right to prosecute or defend his suit, either in his own proper
person or by an attorney.” However, Robert fails to explain how this constitutional provision
guarantees any individual, especially a nonsuitor, the right to an attorney, or how the probate
court’s decision to appoint an attorney for Rhea violates this constitutional provision. Indeed,
Robert concedes that the appointment was an exercise of the probate court’s discretion. Further,
although the right to the effective assistance of counsel applies in criminal prosecutions, Const
-6-
1963, art 1, § 20, child protection proceedings, MCR 3.915(B)(1), and paternity proceedings,
Haller v Haller, 168 Mich App 198, 199; 423 NW2d 617 (1988), Robert makes no claim that
there is a constitutional right to the effective assistance of counsel in probate.
Robert’s argument is also inconsistent with the record. The probate court appointed an
attorney out of concern that Rhea, who was mentally incapacitated, was unable to hire an
attorney on her own behalf. The probate court stated that if Rhea hired counsel after the
appointment, he would revisit his decision to appoint an attorney on her behalf. Robert argues
that he could have hired an attorney for Rhea as her attorney-in-fact under the DPOA, but he
never attempted to do so. Robert did not object to the performance of appointed counsel during
the conservatorship hearing, and we note that appointed counsel actively engaged in the
proceedings. Robert has not indicated what appointed counsel should have done differently.
Because Robert has failed to support his arguments, his claim is abandoned. See Houghton ex
rel Johnson v Keller, 256 Mich App 336, 339; 662 NW2d 854 (2003) (explaining that “[a]n
appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims, nor may he give issues cursory treatment with little or no
citation of supporting authority,” and “[a]n appellant’s failure to properly address the merits of
his assertion of error constitutes abandonment of the issue.”) (Citations omitted.)
IV. TRUST EVIDENCE
Next, Robert argues that the probate court improperly admitted and relied on evidence
from a concurrent proceeding in the probate court involving matters related to Rhea’s trust assets
to conclude that estate assets were at risk of waste or dissipation. However, “ ‘[a] party may not
claim as error on appeal an issue that the party deemed proper in the trial court because doing so
would permit the party to harbor error as an appellate parachute.’ ” Hoffenblum v Hoffenblum,
308 Mich App 102, 117; 863 NW2d 352 (2014) (citation omitted). Not only did Robert fail to
object to the inclusion of information about the trust proceedings at the conservatorship hearing,
Robert incorporated trust evidence into his own strategy, repeatedly referring to the trust
proceedings during cross-examination of witnesses and in closing argument. Robert’s attorney
specifically questioned Lyneis about the trust and her role as trustee, telling her, “I want to
segregate these . . . I’ve got questions for you as the conservator, I’ve got questions for you as
trustee.” Robert waived any error related to the admission of evidence regarding the Rhea Trust
when he intentionally contributed to the error at the hearing below. See Genna v Jackson, 286
Mich App 413, 422; 781 NW2d 124 (2009). However, we conclude that Robert’s argument also
fails on its merits.
Generally, all relevant evidence is admissible. MRE 402; Morales v State Farm Mut
Auto Ins Co, 279 Mich App 720, 729; 761 NW2d 454 (2008). “Evidence is relevant if it has any
tendency to make the existence of a fact that is of consequence to the action more probable or
less probable than it would be without the evidence.” Lewis v LeGrow, 258 Mich App 175, 199;
670 NW2d 675 (2003), citing MRE 401. “[R]elevant evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.” Tobin v Providence Hosp, 244 Mich App 626, 637-638; 624 NW2d 548
(2001), citing MRE 403. When a trial court serves as the trier of fact in a case, it is presumed to
consider evidence for its proper purpose. See People v Wofford, 196 Mich App 275, 282; 492
NW2d 747 (1992).
-7-
In the related trust case, the probate court found on the record that Jay was complicit in
Robert’s breaches of fiduciary duty and identified a “whole pattern of favoring Jay Brody at the
expense of Cathy . . . .” However, at the conservatorship hearing, the probate court expressly
refused to consider that complicity. The probate court stated that the evidence presented by the
parties regarding Jay’s manipulation of Robert was consistent with “what’s been going on in the
trust case. Jay Brody has a history of this behavior in the other case but that’s not evidence here.
Uh, but this is, this is quintessential Jay Brody, frankly.” Moreover, as Robert acknowledges,
when Cathy’s questioning focused on the trustee’s monthly expense payments for the trust, the
probate court instructed her attorney, “Arguably, if you go far enough, it does have to do with the
trust, but I would like to bring it back closer to, uh, you know, the handling of her personal
estate.” The probate court limited the testimony just as Robert argues on appeal it should have
done, and Robert’s arguments are unsupported by the record.
To the extent that the trust matter and the handling of Rhea’s estate were inextricably
linked, the probate court properly allowed the introduction of evidence related to the trust matter.
Robert complains about the introduction of a letter Dellinger sent to the guardian ad litem for the
trust, which detailed Jay’s order for Dellinger to pay for Robert’s past expenses from the Rhea
Trust. Robert claims that the letter was irrelevant on a number of grounds. First, Robert claims
that the letter was not material because it only involved funds in the trust. But the record
demonstrated that income from the trust flows directly to Rhea’s personal estate. The probate
court could infer that, if Jay planned to invade the investment portfolio in the Rhea Trust to pay
Robert’s expenses, the personal income from that portfolio could be reduced and proper
management was necessary under MCL 700.5401(3)(b). Second, Robert claims the letter was
irrelevant because it involved Jay’s statement, and Robert did not intend to act on the plans. But
the record demonstrated throughout the proceedings that Jay attempted to exert control over
Robert’s decisions. The court could infer that Jay may have exerted control with respect to
repayment of Robert’s expenses as well.
Robert also complains that Cathy’s attorney improperly injected considerations of the
trust in arguments to the probate court. But it is well-settled that an attorney’s statements and
arguments are not evidence. See Guerrero v Smith, 280 Mich App 647, 658; 761 NW2d 723
(2008); Int’l Union, United Auto, Aerospace & Agricultural Implement Workers of America v
Dorsey (On Remand), 273 Mich App 26, 45; 730 NW2d 17 (2006). The probate court appointed
Lyneis to her separate roles as trustee and conservator, and was aware of the role she served in
each capacity. Robert has not offered any argument to overcome the presumption that the court
considered the evidence for its proper purpose.
V. JUDICIAL BIAS
Robert also suggests that the probate judge harbored bias against Robert and Jay as a
result of his knowledge of the trust case. Robert challenges the probate court’s reliance on
Dellinger’s letter regarding Jay’s plan to repay Robert for past expenses, as well as the court’s
reference to Jay’s and Robert’s decisions not to attend parts of the proceedings, and Jay’s
decision to withhold certain financial information from Lyneis.
Robert failed to state a claim for judicial bias in his statement of questions presented, and
this argument may be considered waived. River Investment Group, LLC v Casab, 289 Mich App
-8-
353, 360; 797 NW2d 1 (2010) (“[t]his issue is waived because plaintiff failed to state it in the
statement of questions presented in its brief on appeal.”). Regardless, it is well established that
“opinions formed by the judge on the basis of facts introduced or events occurring in the course
of the current proceedings . . . do not constitute a basis for a bias or partiality motion unless they
display a deep-seated favoritism or antagonism that would make fair judgment impossible.”
Cain v Mich Dep’t of Corrections, 451 Mich 470, 496; 548 NW2d 210 (1996) (quotation marks
and citation omitted). Here, the probate court was tasked with determining if Rhea’s estate
risked waste or dissipation. The probate court’s reference to Dellinger’s letter, which evidenced
intent to invade trust property and might affect the income to Rhea’s estate, did not demonstrate
bias or antagonism. Further, the probate court did not demonstrate favoritism when it
acknowledged the absence and lack of involvement by interested parties at various portions of
the proceedings, especially when the probate court was required to consider those particular
parties as candidates for the conservatorship appointment. The record simply does not support
Robert’s claim.
V. LIMITED CONSERVATORSHIP OR PROTECTIVE ORDER
Finally, Robert argues that the probate court should not have ordered a full
conservatorship, but should have entered a less restrictive order, such as a limited
conservatorship or a protective arrangement. Again, we disagree.
The need for “assistance” in managing financial affairs does not necessarily demonstrate
an inability to manage finances or a mishandling of finances, and a need for some “assistance”
will not support the imposition of a full conservatorship where an individual remains capable of
making responsible decisions. Bittner, 312 Mich App at 240-241. Therefore, when determining
whether there is cause for a conservatorship, the probate court must endeavor to maintain an
individual’s autonomy by ordering the least restrictive means of protecting assets. Id. at 241-
242; see also MCL 700.5407(1) (“The court shall exercise the authority conferred in this part to
encourage the development of maximum self-reliance and independence of a protected
individual and shall make protective orders only to the extent necessitated by the protected
individual’s mental and adaptive limitations and other conditions warranting the procedure.”).
Under MCL 700.5408(1), courts may impose limited protective arrangements in lieu of a full
conservatorship. When considering whether a full conservatorship is appropriate,
a probate court should approach the task from a perspective of respect for the
individual’s right to acquire, enjoy, and dispose of his or her property as the
individual sees fit. Any restrictions on this fundamental right must be narrowly
tailored to the individual’s specific capabilities and incapacities, bearing in mind
the heightened evidentiary threshold for judicial interference. [Bittner, 312 Mich
App at 242.]
In Bittner, this Court ruled that the probate court erred by appointing a conservator when
Bittner understood her sources of income and economic responsibilities, and her financial affairs
were well managed because she had arranged for assistance from her daughter. Id. at 240-243.
This Court explained that Bittner’s “grant of a durable power of attorney to [her daughter]
-9-
confirms rather than negatives her ability to effectively manage her property and business
affairs.” Id. at 243.
Although Robert equates Rhea’s situation to Bittner’s, we believe the two cases are
distinguishable. Unlike Rhea, Bittner suffered only math and memory difficulties that “plague
many elderly (and not so elderly) individuals,” and did not have a mental disability that made her
unable to manage property or business affairs. Id. at 239. Moreover, because Bittner had never
mismanaged or mishandled her affairs in the past, and she had appointed an agent under a
DPOA, there was no clear and convincing evidence that the property would be wasted or
dissipated without proper management. Id. at 240-241. In contrast, Rhea was not aware of the
assets in her estate, let alone able to manage them. There is no evidence that Rhea continues to
possess any ability to acquire, enjoy, and dispose of her property as she sees fit. Before she was
struck with disability, Rhea appointed Robert as her agent via the DPOA. Although her act
demonstrated some self-reliance and independence, her chosen method of oversight was
rendered ineffective when Robert abdicated his duties.
The probate court specifically acknowledged that the least restrictive means of
protecting Rhea’s assets, aside from a conservatorship, would be the DPOA. However, facts in
the record called into question Robert’s ability to make decisions on Rhea’s behalf, including
Robert’s abdication of such decisions in the past and the control Jay has exerted over Robert.
Based on the testimony presented, the probate court opined that Jay was “overbearing,
manipulative, abusive toward his father . . . and he was attempting to be the one in control.” We
defer to the probate court on matters of credibility, and give broad deference to its factual
findings. Erickson, 202 Mich App at 331. We are not definitely and firmly convinced that the
probate court made a mistake when it concluded that the DPOA was insufficient to protect
Rhea’s assets.
Robert does not adequately explain how Rhea would be able to maintain oversight of
some, but not all, of her property under a limited conservatorship. Moreover, although Robert
argues that a protective order may have been less invasive, Lyneis testified that she was not sure
that some of the tasks needed by Rhea would be satisfactorily achieved with such an order. The
probate court cited evidence that a DPOA or patient advocate form would be insufficient to
manage responsibilities, such as dealing with Rhea’s insurance companies. Given these facts,
the probate court did not clearly err in finding that a conservatorship, as opposed to a limited
conservatorship or a protective arrangement, was most appropriate for Rhea.
Affirmed.
/s/ Colleen A. O’Brien
/s/ Kathleen Jansen
/s/ Christopher M. Murray
-10-