'Gerstler,' 'Redd' and the road ahead.

Byline: BridgeTower Media Newswires

By Brien Winfield Heckman

The recent activity of the Michigan Court of Appeals regarding the Estates and Protected Individuals Code, Act 386 of 1998 (EPIC), has been a welcomed change. In regard to guardianships and conservatorships for incapacitated adults, there has been little binding precedent over the last 20 years. Perhaps this is due to a feeling shared by many probate practitioners that the court will reach the ultimate decision regardless to objections, appeals, or gamesmanship. As a result, the parties do not push the issues, tend to let evidence and testimony in without objection, and tend not to appeal.

In the last year, two of the most important probate cases in recent memory have come down from the Court of Appeals: 1) Redd v. Carney (In re Guardianship of Redd), 321 Mich App 398 (2017); and 2) Rowland v. Gerstler (In re Gerstler), ____ Mich App ____ (2018). Both cases deal with the qualifications of a fiduciary. The remainder of this article deconstructs those opinions.

A summary of cases

In In re Redd, the court provided guidance on the qualifications and removal of a guardian. In upholding the removal of a guardian who had cared for the ward for two years and had been Agent-in-Fact under a P.O.A. for nine years, the Court of Appeals clarified removal of guardians. Redd at 401, and 410-412. It held the burden of arguing against suitability is on the person challenging suitability, and stated to remove a guardian, the court must find the guardian is no longer suitable and willing to serve, and defined "suitability" of a guardian as qualified and able to provide for the ward's care, custody, and control. Id. at 410-411.

In the second case, In Re Gerstler, the lower court appointed a professional fiduciary over the ward's daughter, upon hearing she had four of her five children raised by other people, and allegedly had a history of drug addiction, without specifically finding her unsuitable. Gerstler at ____. The court held "MCL 700.5106(2) requires that, in order to appoint a professional guardian or professional conservator, the probate court must find that the appointment of such a professional is in the incapacitated person's best interests and that no other person in priority under the applicable statutes for appointment of guardians and conservators is competent, suitable, and willing to serve in that fiduciary capacity." Id. at ____.

A summary of the law on appointments of guardians...

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