Opinion
No. 347977 No. 347978
05-14-2020
In re GUARDIANSHIP OF DAVID P. VANPOPPELEN. DENNIS J. VANPOPPELEN, Petitioner-Appellee, v. IVY VANPOPPELEN, Appellant, and MARTIN J. BROSNAN, Guardian, Appellee, and WYATT R. VANPOPPELEN, JUNE VANPOPPELEN, and CHRISTOPHER VANPOPPELEN, Other Parties. In re CONSERVATORSHIP OF DAVID P. VANPOPPELEN. VINCENT W. VANPOPPELEN, Petitioner-Appellee, v. IVY S. VANPOPPELEN and WYATT R. VANPOPPELEN, Appellants, and CHRISTOPHER VANPOPPELEN, DENNIS J. VANPOPPELEN, and MARTIN J. BROSNAN, Conservator, Appellees, and SOCIAL SECURITY ADMINISTRATION, Other Party.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Macomb Probate Court
LC No. 2017-223825-GA Macomb Probate Court
LC No. 2017-223826-CA Before: JANSEN, P.J., and METER and CAMERON, JJ. PER CURIAM.
In these consolidated appeals, appellants Ivy S. VanPoppelen ("Ivy") (Docket Nos. 347977 and 347978) and Wyatt R. VanPoppelen ("Wyatt") (Docket No. 347978) appeal as of right the probate court's orders appointing Martin J. Brosnan ("Brosnan"), a public administrator, as guardian and conservator of their father, David P. VanPoppelen ("David"), and denying Wyatt and Ivy's petitions for appointment in those roles.
The probate court issued the orders on remand from this Court. In the prior appeals, this Court vacated the probate court's prior orders appointing Brosnan as David's guardian and conservator on the ground that "the existing record does not support [Ivy and Wyatt's] disqualification" as guardians and conservators, given that "the probate court based its decision on an improper factor ('young age') and speculation rather than actual evidence of insuitability [sic]." In re Guardianship of David P VanPoppelen, unpublished per curiam opinion of the Court of Appeals, issued December 4, 2018 (Docket Nos. 340224 & 340226) ("VanPoppelen I"), pp 2, 9. On remand, the probate court issued expanded findings of fact and again concluded that Ivy and Wyatt were unsuitable to serve as guardians and conservators, and again appointed Brosnan as David's guardian and conservator. We affirm in both dockets.
I. RELEVANT PROCEDURAL HISTORY AND BACKGROUND
In VanPoppelen I, unpub op at 2-3, this Court summarized the background facts of this case as follows:
In 2016, David was diagnosed with early onset dementia. He continued to live alone and remained employed until March 2017, when June VanPoppelen [("June")], David's ex-wife and the mother of their children, 26-year-old Wyatt and 19-year-old Ivy, brought David to live with her in the couple's former marital home. June arranged for David to execute a durable power of attorney, which she used to sell his condominium. She also changed at least one of the passwords on his financial accounts. David's brothers (Vincent and Dennis VanPoppelen) believed that June was preventing David from seeing them outside her presence, and suspected that she was taking advantage of David's incapacitated condition. Vincent and Dennis filed petitions for conservatorship and guardianship, respectively. June, Ivy, and Wyatt each filed competing petitions.
The court conducted an evidentiary hearing and took testimony from Vincent, Dennis, Chris, June, Wyatt, Dennis's wife Debbie VanPoppelen, and Chris's wife Pat VanPoppelen; at the time of the hearing, June, Wyatt and Ivy were unrepresented by counsel. The evidence revealed significant distrust between June and David's brothers. June claimed that on the advice of her prior counsel, she prohibited the brothers from visiting David. The brothers expressed fears that June would use David's assets to help pay the significant college debt that she and the children had accumulated. Despite the brothers' antipathy toward June, they agree that she provided David with good care and that he was comfortable, happy and stable in her home.
* * *
The court ultimately invalidated June's power of attorney because David was not competent to execute it in March 2017. The court found that June was not an appropriate choice for fiduciary because she interfered in David's relationship with his brothers and David needed the support of all family members. The court also noted that June refused to definitively promise that she would continue caring for David if his brothers were named guardian and conservator.
The court's full explanation for not naming Wyatt or Ivy as David's guardian and conservator was:
Regarding Ivy and Wyatt, they both seem like lovely people. We've heard testimony from everyone that they're good kids, and I have not a doubt how much they love their father. However, I think they are inappropriate at this time just due to their young age. And, the fear that this Court has that they're going to [be] put in the middle. We clearly have a lot of contention on both sides. And, I do
not want to see two young people being pushed, and prodded, and pulled.
Therefore, I am finding that Ivy and Wyatt are not appropriate at this time.
The court opined that "Dennis and Vincent would be most appropriate as Guardian and Conservator," but concluded that "we need to have a Public Administrator" because "the contentious nature of what's going on here" would "cause so much upheaval that it's just going to topple, and everything's going to be turned upside down." The court appointed an independent third party, . . . Brosnan, as David's guardian and conservator. The record reflects that June continues to care for David, and David remains in her home.
In VanPoppelen I, this Court noted that Ivy and Wyatt, as David's adult children, were "in the top priority position to serve as David's guardian and conservator" under MCL 700.5313(3)(b) and MCL 700.5409(1)(d). VanPoppelen I, unpub op at 7. This Court further noted, however, that those statutes disqualify a person from serving as guardian or conservator if the person is not competent, suitable, and willing to serve in a fiduciary capacity. Id. This Court ultimately held that the probate court failed to make sufficient findings of fact to establish that Ivy and Wyatt were unsuitable, noting that their youth and inexperience and the possibility that they would be "put in the middle" of disputes between June and David's brothers did not demonstrate their lack of suitability. Id. at 8-9. In so holding, however, this Court noted that it was possible that there were "facts of record" that substantiated "that neither Ivy nor Wyatt [were] able to suitably provide for [David]." Id. at 8. Accordingly, this Court remanded to the probate court for further proceedings, stating:
Because the probate court based its decision on an improper factor ("young age") and speculation rather than actual evidence of insuitability, we vacate its order appointing an independent guardian and conservator, and remand for further proceedings. On remand, the probate court should reevaluate Ivy's and Wyatt's suitability to serve as guardian and conservator based on evidence of their individual and collective abilities (or inabilities) to undertake responsibility for their father's care and control. Rather than hypothesizing potential negative consequences that might attend Ivy's and Wyatt's appointment, the probate court should reference and cite facts of record substantiating Ivy's and Wyatt's unsuitability before again appointing a third-party guardian and conservator. [VanPoppelen I, unpub op at 9.]
On remand, the probate court again denied Ivy and Wyatt's petitions for appointment as David's guardians and conservators. These appeals followed.
II. STANDARD OF REVIEW
"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). "An abuse of discretion occurs when the court's decision falls outside the range of reasonable and principled outcomes." In re Conservatorship of Brody, 321 Mich App 332, 336; 909 NW2d 849 (2017). "[T]he probate court's findings of fact are reviewed for clear error." Bittner, 312 Mich App at 235-236. "A probate court's 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 Portus, 325 Mich App 374, 381; 926 NW2d 33 (2018). In reviewing a probate court's ruling, we must defer to its findings "on matters of credibility" and "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 Redd Guardianship, 321 Mich App 398, 412; 909 NW2d 289 (2017), quoting In re Erickson Estate, 202 Mich App 329, 331; 508 NW2d 181 (1993). Issues regarding statutory interpretation are reviewed de novo. Bittner, 312 Mich App at 236.
III. ANALYSIS
"The Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., establishes an order of priority that must be followed when a probate court selects a guardian and conservator for a protected person." In re Guardianship/Conservatorship of Harold William Gerstler, 324 Mich App 494, 497; 922 NW2d 168 (2018). MCL 700.5106 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.
(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.
MCL 700.5313 establishes priority for the appointment of a guardian and provides as follows:
(1) The court may appoint a competent person as guardian of a legally incapacitated individual. The court shall not appoint as a guardian an agency, public or private, that financially benefits from directly providing housing, medical, mental health, or social services to the legally incapacitated individual. If the court determines that the ward's property needs protection, the court shall order the guardian to furnish a bond or shall include restrictions in the letters of guardianship as necessary to protect the property.
(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.
Similarly, MCL 700.5409 establishes priority for the appointment of a conservator and provides:
(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.
Thus, Ivy and Wyatt, as David's adult children, had a higher priority status than Brosnan, a professional guardian and conservator. Therefore, the probate court was permitted to appoint Brosnan as David's guardian and conservator, ahead of Ivy and Wyatt, only if (1) the appointment was in David's best interests, and (2) Ivy and Wyatt were not competent, suitable, and willing to serve in those fiduciary capacities. See MCL 700.5106(2); Gerstler, 324 Mich App at 511-512. As already discussed, the issue on remand was whether Ivy and Wyatt were "suitable" to serve in those fiduciary capacities.
In VanPoppelen I, this Court stated:
We considered the meaning of the term "suitable" to serve in Redd, 321 Mich App at 407. Looking to the responsibilities of a guardian in the statutes, this Court first reasoned "that the guardian's focus of concern must be on the ward, that decisions made on behalf of the ward must be in the interests of the ward and not
the guardian, and that the guardian must be qualified to achieve those purposes set forth in EPIC." Id. This Court then looked to the definition of "suitable" in Black's Law Dictionary (8th ed): "fit and appropriate for [its] intended purpose," and Merriman Webster's Collegiate Dictionary (11th ed): "adapted to a use or purpose," or "able/qualified." Redd, 321 Mich App at 407-408. "Taken together," the Redd Court concluded, "the statutory context and guidance from dictionaries confirm that a 'suitable' guardian is one who is qualified and able to provide for the ward's care, custody, and control." Id. at 408. [VanPoppelen I, unpub op at 8.]
On remand, the probate court concluded that neither Ivy nor Wyatt were suitable to serve as David's guardian or conservator because "[n]either of the children stepped up to assist David . . . when his condition became known" and because Ivy and Wyatt were unlikely to increase "their level of involvement" given their "lack of proximity and time limitations." The probate court found that, if Ivy or Wyatt were appointed to serve as guardian or conservator, June "would influence or interfere with their decision making" and that neither Ivy nor Wyatt would be able to act in David's best interests given that June's interests were not aligned with David's best interests. Specifically, the probate court found that June had a "controlling nature," had alienated David from his brothers, had interfered with his medical care, and had taken "over his finances." These findings were not clearly erroneous.
The record establishes that David's mental functioning began to noticeably decline in 2015. Nonetheless, during the time that David lived with Dennis from late 2015 to early 2016, neither Ivy nor Wyatt called or visited David. This was the case even though Vincent, who was frustrated by Wyatt's inattentiveness to David, asked Wyatt to visit David and "take an active part in helping." Additionally, Dennis testified that Wyatt failed to respond when Dennis tried to discuss David's situation with Wyatt over the phone. When questioned at the August 2017 evidentiary hearing, Wyatt was unable to recall how many times he had visited David in the previous three years or how often he had called David. When asked what he had done to assist David in the previous four months, Wyatt testified as follows:
Although Ivy and Wyatt present a detailed rebuttal in their appellate brief to Vincent and Dennis's testimony, they largely rely on evidence that they did not present at the evidentiary hearing below. Because "[t]his Court's review is limited to the record established by the [probate] court," we cannot consider this evidence on appeal. Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649 NW2d 783 (2002); MCR 7.210(A). --------
Well, aside from being present at home more often to help out [June], I don't know if that counts as independent or not. To just be around, anything specific, schedule, that hasn't been something that I've done.
Thus, although it is clear that both Ivy and Wyatt loved David, the record supports that they did not maintain consistent contact with him or become actively involved in his care despite being aware of his health issues. Indeed, the record supports that it would have been difficult for Ivy and Wyatt to do so given that Wyatt worked full time, that Ivy was a sophomore in college, and that they both lived a considerable distance from the home that June and David shared.
Vincent and Dennis's testimony also supports the probate court's conclusion that Ivy and Wyatt would be unable to make their own decisions concerning David's care, custody, and control because June had too much influence over them. Wyatt acknowledged that June, who provided him with financial support, had "some manner" of influence over his decisions, and June agreed that she had influence over both Ivy and Wyatt. Importantly, record evidence supports that Ivy and Wyatt did nothing when June brought David to her home in March 2016, when she interfered with his medical treatment, and when she had David—an incapacitated individual—sign a power of attorney so that she could manage his finances. The record also reveals that Ivy and Wyatt's participation in the probate proceedings was limited. Indeed, Wyatt only gave brief testimony, and Ivy did not testify at all. The record reveals that Ivy and Wyatt entirely deferred to June during the probate proceedings in that they permitted her to draft pleadings, call witnesses, question witnesses, and make arguments and objections on their behalf.
Although Ivy and Wyatt argue that their alleged susceptibility to June's influence does not render them unsuitable because there was no evidence that June acted contrary to David's best interests, the record reveals otherwise. While evidence showed that June obtained appropriate medical care for David and that he was happy and well cared for in her home, record evidence also supports that June alienated David from his brothers and impeded their attempts to stay in contact with him. Indeed, Vincent testified that he filed the petition for conservatorship because of June's lack of cooperation. Furthermore, June had David execute a power of attorney when he was incapacitated and thereafter took control of his finances, changed the beneficiaries on his life insurance policy, and took steps to sell his condominium. After receiving the petitions for guardianship and conservatorship that were filed by Dennis and Vincent, June signed a purchase agreement for David's condominium.
In sum, the record evidence supports the probate court's findings that neither Ivy nor Wyatt were qualified and able to care for David's care, custody, and control. We therefore conclude that the probate court did not err by disqualifying them from serving in the fiduciary roles of guardians and conservators.
Ivy and Wyatt also argue that the probate court erred by failing to determine June's suitability to serve as guardian and conservator on remand. We disagree. "The power of a lower court on remand is to take such action as law and justice require that is not inconsistent with the judgment of the appellate court." McCormick v McCormick (On Remand), 221 Mich App 672, 679; 562 NW2d 504 (1997). "It is the duty of the lower court or tribunal, on remand, to comply strictly with the mandate of the appellate court." Rodriguez v Gen Motors Corp, 204 Mich 509, 514; 516 NW2d 105 (1994).
VanPoppelen I did not require the probate court to consider whether June was suitable to serve as David's guardian and conservator. Rather, as already stated, this Court only ordered the probate court to "reevaluate Ivy's and Wyatt's suitability to serve as guardian and conservator based on evidence of their individual and collective abilities (or inabilities) to undertake responsibility for their father's care and control." See VanPoppelen I, unpub op at 9. Indeed, in VanPoppelen I, this Court noted that, during the probate proceeding, June claimed priority status under MCL 700.5313(2)(b) and (c) and MCL 700.5409(1)(b) on the basis of a power of attorney and David's nomination of her as guardian and conservator. Id. at 6. This Court further noted that
the [probate] court ultimately invalidated June's power of attorney because David was not competent to execute it in March 2017. The court found that June was not an appropriate choice for fiduciary because she interfered in David's relationship with his brothers and David needed the support of all family members. The court also noted that June refused to definitely promise that she would continue caring for David if his brothers were named guardian and conservator. [Id. at 3.]
After reviewing "medical and psychological opinions" that were "formed close in time to David's execution of the power of attorney and request to have June named as his guardian and conservator," this Court held that it "discern[ed] no error in the probate court's finding that [David] lacked the mental competence necessary to name a power of attorney, guardian, or conservator." Id. at 6-7. Consequently, this Court further held that "June lacked any priority to serve in those roles." Id. at 7. Therefore, we conclude that the probate court did not err by failing to consider June's suitability to serve as guardian and conservator on remand.
Affirmed.
/s/ Kathleen Jansen
/s/ Patrick M. Meter
/s/ Thomas C. Cameron