In Michigan, the State Public Administrator Act provides for “the administration of the estates of deceased persons in certain cases.”
PA’s are appointed quite frequently as Guardian and/or Conservator for legally incapacitated individuals, and as Personal Representative in decedents’ estates. There is some dispute regarding whether a PA is even qualified under the law to serve as an individual’s Guardian/Conservator, as stated above, the Act only provides for the appointment of a PA in deceased persons estates.
A visit to any local probate court will illustrate how routinely courts appoint PA’s to serve in these roles. Many of these same attorneys continue to receive these appointments on a regular basis, even after having been terminated by the Attorney General’s office as PA.
There are two main reasons a PA may be appointed to serve as Guardian, Conservator or Personal Representative. First, there simply may be no suitable individual seeking such appointment.
For example, there are times a deceased individual’s body must be claimed from the morgue, but no family can be located. In that case, a probate estate will be opened for the sole purpose of appointing a PA, who will then have the authority to make the necessary arrangements for the body.
Another example is that an individual is alive, but incapacitated, and requires a guardian or conservator to manage their affairs, but there is no family involved who want to make these decisions. Or, there may have been a loved one assisting an incapacitated individual with their needs, but that loved one passed away before the incapacitated person, leaving the ward unprotected.
Sometimes there is a family member interested in serving, but the court finds that individual unsuitable. This is an unfortunate fact, but often enough, family members are suspected of or found to have improperly managed a vulnerable person’s assets, or even improperly cared for the ward.
Julie was involved in a case once where a man was caring for his aging mother suffering from dementia, but left her alone in his home for hours at a time, allowing her to fall and seriously injure herself repeatedly.
Upon Julie’s cross-examination, this gentleman admitted that his mother had probably fallen at least twenty times while in his home! Many of those times she was injured and even required hospital admissions. Apparently, it never occurred to him that she should not be left alone, or he preferred to preserve her assets for his inheritance, rather than hire someone to care for her in his absence.
This is the type of case where Adult Protective Services becomes involved and a PA appointed to protect the ward from a family member’s negligence or abuse.
A probate judge may also refuse to appoint a family member who has a criminal history, bankruptcy, repeated violations of their fiduciary duties or requirements of the court, or other history suggesting they are not suitable to serve in a trusted role managing the care or finances of another.
The other main reason PA’s get appointed is the judge learns there is a dispute among family members regarding who should serve in one of these fiduciary roles (remember from one of the previous newsletters that a fiduciary is one who serves in a trusted role for another).
It is not unheard of that a probate matter comes to court carrying the heavy baggage of sometimes decades-old family tensions, and the parties let all their resentments and frustrations against each other spill out in open court. Once a judge sees accusations flying between siblings or other relatives, appointing a PA is their means of protecting the estate.
Some people say that the judges are too quick to appoint a PA, even if only one party is making baseless claims against another, but in all fairness, judges can only assess the situation from a great distance, and the risk of not appointing an independent third party can be quite high. No judge wants to have a case in their courtroom where one party runs off with the funds!
There are many reasons why you want to avoid having a PA appointed for you or your estate, and we will go over those reasons in detail in a coming issue! Stay tuned for that information, and if you want to plan ahead to make things easier on the ones you care about, please give us a call for your free consultation!