Petition for guardianship; MCL 700.5306(5); Venue; MCL 700.5302; MCR 2.223(A); Effect of a valid patient advocate & power of attorney (POA); In re Guardianship of JEK (Unpub)

The court held that the probate court abused its discretion in dismissing the petition for guardianship based on improper venue or the fact that the existence of a valid POA was not contested. At issue in this appeal was a petition for appointment of a guardian for petitioner’s mother, LAV. The court noted that improper “venue is not a grounds for dismissal” and the probate court appeared “to have dismissed the petition at least in part because of improper venue based on its question and response to petitioner’s answers that LAV was living outside of the county. Once there were indications that venue was improper, either a party needed to move to change venue or the probate court needed to consider a change of venue with notice and an opportunity to be heard. Because neither occurred, [its] dismissal of the action was an error of law and therefore an abuse of discretion.” The court also concluded that it abused its discretion in dismissing the petition on the merits. “Petitioner’s case was premised on a lack of a valid POA or, alternatively, an abuse of that power.” While he conceded the issue of a valid POA at the hearing, the existence of a valid POA “does not necessarily mean that a guardianship is needless[.]” The court noted that the “probate court could appoint a guardian for LAV in place of a POA if, as petitioner alleged, that POA was not acting in LAV’s best interests.” Thus, the dismissal of the petition based on the existence “of a valid POA, without regard to the appropriateness of that POA’s assistance, was an abuse of discretion.” Reversed and remanded.