Probate

Issues: Petition to modify a guardianship and conservatorship; The Estates & Protected Individuals Code (EPIC)(MCL 700.1101 et seq.); The probate court's subject-matter jurisdiction over "a proceeding that concerns a guardianship, conservatorship, or protective proceeding"; MCL 700.1302(c); Appointment of a conservator; MCL 700.5401(3); Petition to remove the conservator; MCL 700.5415(1)(d); Appointment of a successor conservator; MCL 700.5414; Conflict of interest; MRPC 1.9(a); Prohibition against enlarging the record on appeal; Kent Cnty. Aeronautics Bd. v. Department of State Police

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Conservatorship of Sivers

e-Journal Number: 58893

Judge(s): Per Curiam – Donofrio, Fort Hood, and Shapiro

 

The court held that because the petitioner's claims of the current conservator-Poelker (her former counsel) having a conflict of interest were unsubstantiated, the probate court did not abuse its discretion in denying petitioner's petition to modify or terminate the conservatorship. After a long history of probate court proceedings involving various guardian, conservator, and other appointments, petitioner sought to again modify the guardianship and conservatorship of her mother to remove Poelker as conservator. Poelker countered that petitioner's 2009 power of attorney was revoked by her mother, and even if it wasn't revoked in that manner, it was revoked by her actions, or by Poelker's express revocation as conservator. Poelker also argued that petitioner's conflict of interest claim was disingenuous because once she became appointed conservator (and later guardian), she stopped representing petitioner, and she never breached any attorney-client relationship. She also sought sanctions against petitioner's current counsel. The probate court denied petitioner's petition, finding that the power of attorney had been revoked, and that there was no conflict in allowing Poelker to continue in her role as guardian and conservator. It also imposed sanctions against petitioner's current attorney in the form of an "oral reprimand." On appeal, the court rejected petitioner's argument that the probate court abused its discretion in denying her petition because "there is an ongoing conflict of interest" either between Poelker and petitioner's mother, or between Poelker and petitioner, as her former client. It held that the guardian ad litem's statement in a 2010 report that petitioner's mother "recently revoked Petitioner's Power of Attorney when Petitioner tried to take control of her finances" did not support her claim, and her "acquiescence to this assertion, when it clearly, negatively impacted her rights, is tantamount to an admission that the assertion was true." Further, "even if the power of attorney was never revoked by [petitioner's mother], it was expressly revoked by Poelker" as conservator. Finally, the court found no conflict of interest between Poelker and petitioner, noting that Poelker "does not have an attorney-client relationship with anyone" in the case as it stands now, she is "'not represent[ing] another person in the same or a substantially related'" matter, and "her position as conservator is not 'materially adverse to the interests of the former client [petitioner].'" Affirmed.

 

Full Text Opinion
Back to e-Journal Mobile
News/Moves | Classifieds | Contacts | Full Version

© 2015 State Bar of Michigan