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Capacity Case Illustrates Witness Weight

This unpublished opinion provides an opportunity to discuss the types of witnesses that are often involved in lack of capacity and undue influence cases, and how they are weighed at the trial level.

The case of is called In Re Estate of Aurelia Rokosky (click on the name to read the case).

Aurelia lived alone on Grosse Ile. She apparently had no spouse or children.  But she had a friend who lived nearby until 1994 when this friend moved to Portland, Oregon.  In 1976 Aurelia prepared a will leaving everything to this Portland friend.

In 2008, when Aurelia was 86, she developed a new friendship with a person in Michigan. This Michigan friend helped Aurelia with her shopping and housework.  In 2010, this Michigan friend began helping Aurelia with her bill payment and finances.

Aurelia also had a neighbor (“Neighbor Bill”) with whom she had a good relationship until mid-2010. Before their friendship broke off, Neighbor Bill observed that Aurelia suffered from significant confusion, that she was unable, for instance, to operate her television, and that she repeated herself frequently. Their relationship ended, Neighbor Bill claimed, because Aurelia became paranoid.  At one point in late 2010, Neighbor Bill called the local police department because he was afraid that Aurelia was not safe living alone, but the police found her home and living situation to be in reasonable order.

On January 24, 2011, Aurelia saw a lawyer and had a will prepared leaving everything to the Michigan friend. The lawyer testified that she was clear and coherent at their meeting, and that she had testamentary capacity.

That same day, when Aurelia arrived home, she called Neighbor Bill several times, each time in an agitated state, and each time explaining that she had arranged for her estate to pass to the Michigan neighbor at her death.

A few days later, Neighbor Bill and others who knew Aurelia became concerned that they had not heard from or seen Aurelia. The police were called.  Aurelia was found in her home in her bathtub fully clothed.  It is unclear how long she had been in the tub, and she was taken to a hospital where a doctor evaluated her cognition and deemed her to be “profoundly confused.”

Aurelia was discharged from the hospital to a long term care facility where she lived the remainder of her life and died in August, 2013.

Also, it is important to note that in September 2011, Aurelia met with a second lawyer and executed a ladybird deed leaving her home to Michigan friend at her death. That deed was deemed invalid, and that decision was not appealed.  But the second lawyer also testified that as of September 2011, when Aurelia met with him, she had testamentary capacity.

And finally, the Portland friend, in contesting the validity of the will, employed an expert witness, a geriatric psychiatrist, who reviewed the Aurelia’s medical records and opined that Aurelia lacked testamentary capacity on January 24, 2011 (the date of the will) and for every day thereafter.

After receiving all of this testimony, the trial court admitted the 2011 as valid on summary disposition, and the Portland friend appealed.

So, to sum it up, besides the presumably self-serving testimony of the parties themselves:

  • There are two lawyers who met with Aurelia and who testified that Aurelia had testamentary capacity in January 2011 and in September 2011.
  • There is a police report that indicates that Aurelia’s home was reasonably maintained in mid-2010.
  • There is an uninterested fact witness, Neighbor Bill, who testified as to Aurelia having clear signs of cognitive impairment before the 2011 will was executed, and that Aurelia became severely agitated and confused on the very date she signed the will, leading to hospitalization a few days later.
  • There is the evidence that the Michigan friend, a fact witness who seeks to have the will upheld, cannot dispute, which is that she was helping Aurelia with her daily activities, including her finances, before the will was signed.
  • There is a medical opinion from four days after the will was signed, when Aurelia was in the hospital, that she was demented and severely confused.
  • There is an expert opinion that she lacked testamentary capacity on the date the will was signed.

Indeed it is difficult to understand how a trial judge would think that, with all this evidence, this case could be decided on summary disposition. And you will not be surprised to learn that the Court of Appeals reversed that order and remanded the case for trial.  But this case illustrates some important points about how these cases can be viewed at the trial court level, and what witnesses carry the most weight, including:

(1) Trial judges often place great weight on the testimony of the lawyers they know. Capacity is, after all, a legal question and lawyers who regularly prepare estate plans are considered experts in evaluating whether their clients meet the standards of testamentary capacity.

(2) Capacity is presumed. The burden is on the contestant to overcome the presumption of capacity.  In any case where there is a lawyer who prepared the document, this presumption and the testimony of an experienced estate planning attorney, carries great weight.

(3) Testamentary capacity is a low standard.

(4) The “lucid moment” concept is far from dead. Even though Aurelia was deemed incompetent only a few days after the execution of the will, and even though she spent those few intervening days in a confused and agitated state, and even though there is ample evidence of age-related cognitive decline even before the will was signed, the trial judge presumably had no problem concluding that she was clear and coherent at the moment she signed the will, as her attorney testified.

These are the types of witnesses that often exist in lack of capacity/undue influence cases. What we can take away from this example, I think, is that challenging documents prepared by an experienced lawyer is tough sledding, but can be accomplished.  As in this case, expert opinions have become standard practice, and are often critical to surviving summary disposition.  Solid testimony from an uninterested fact witness can also be very valuable.  And, as I have suggested before, surviving summary disposition is often the first objective.  When a case is heading to a jury, the parties each face significant risk and the possibility of settlement increases accordingly.

Test of Capacity is a Function of Complexity

Party A argued that because a person executed a financial power of attorney and patient advocate designation in June of 2013, the trial court should have found that said person must have been competent to execute a shareholder’s proxy signed in December of that same year. But the trial court found otherwise.

In affirming the trial court, the Court of Appeals says: Not only is it reasonable for the trial court to have concluded that the person’s capacity diminished in the intervening months, but – wait for it –  – –  it is also true that a proxy is a different thing than a power of attorney and therefore the test for capacity is not the same.

That, my friends, is a proposition that is commonly argued, but heretofore not so clearly stated in Michigan law. The proposition that the test of capacity is a function of the complexity of the decision being challenged comes up in litigation all the time. And this is a published decision.  (emphasis added)

Menhennick Family Trust v Timothy Menhennick (click on the name to read the case) purports to be about the meaning of a statute in the Business Corporation Act, but the holding primarily turns on the issue of capacity. Several large chunks of this relatively short opinion clearly state the rules relating to a finding of capacity and how that test can vary with the decision at issue.  Well worth the read.

This is an important decision for probate litigators. I know I will be citing this decision in cases to come, and I am sure others will as well.

Medical Experts Carry Conservatorship Case

medical expert

Nice analysis in this recent unpublished COA opinion. Click here to read In Re Conservatorship of Stephen Michalak.  Congrats to my colleague Valerie Kutz-Otway for her successful advocacy on behalf of her client, Mr. Michalak.

The case suggests an issue that I think we all struggle with at times, the extent to which the determination of capacity is a legal or medical matter. While the correct answer is clearly – it’s a legal determination made by the probate judge – as the analysis suggests, the line is fuzzy at best.  Courts often rely extensively on medical opinions to make their findings, and the use of medical experts is becoming more and more important in our practices.  This opinion only bolsters the proposition that medical opinions carry a lot of weight – especially, where, as in this case, they remain uncontroverted by offsetting medical proofs.

It is worth note that in this case that the COA does not order that the conservatorship be terminated, but only remands the matter and instructs the trial judge to consider a less restrictive arrangement, which could be a limited conservatorship or, although not suggested by the COA, perhaps the execution of a new power of attorney by Mr. Michalak appointing someone other than the petitioner-child.

This case relies heavily on the Bittner decision, discussed in a prior post (click here to read about Bittner) and displays some of the same dynamics – probate judges seeing problems with vulnerable adults and moving to put the matter under their watch so as avoid further mischief – an understandable and somewhat noble sentiment.  But the COA here, as in Bittner, pushes back against this inclination; reminding us once again that the balance of dignity and independence against safety and convenience remains the tricky sticky wicket at the heart of our common efforts.  For more on my thoughts on “the balance” click here.

Litigation Strategies Part VII: The Hands that Rock the Cradle

Petitions, motions, discovery. It all matters.  But when it comes to winning the guardianship/conservatorship case, there is an additional element – managing the court-appointed players.  Specifically, the guardian ad litem (“GAL”) and doctor (usually a psychologist but sometimes psychiatrist) who conducts the independent medical evaluation.


While all judges are different, most judges give great weight to the recommendations of the GAL, and in more than a few counties, the judge will practically defer to the report and recommendations of the GAL when making a decision.

So that means to the lawyer needs to do everything within their power to get the GAL on their side, or at least neutralize them. Start communicating early – but don’t be pushy.  Typically GALs begin their investigation at the last minute, and prepare their reports the day before a hearing.  But that doesn’t mean you can’t have a friendly conversation early on to let them know what the case is about (a la your spin), and let them know that you and your clients are available when needed if more information would be helpful.

While the Court Rules allow an attorney to call the GAL as a witness and cross examine the GAL on their report – the goal is to avoid that. In most counties, the same GALs appear over and over before the same judge.  They have a relationship.  Beating up on the judge’s friend doesn’t necessarily advance your case – even if you do a great job of it.

The Doc

Likewise, even when you bring your own medical expert to court, the judge in most counties is going to give greater weight to the doctor they commonly appoint than to the experts retained by the parties, who the judge may perceive as hired guns.

Accordingly, as with the GAL, the sooner you establish communications with the court-appointed medical expert, the better. Unless the Court specifically orders attorneys not to communicate with the doctor, I highly recommend sending the doctor a letter outlining the case (a la your spin) and offering to provide more information or discuss the matter with them at a convenient time.

Another term to know in this context is “historian.” When doctors evaluate people for cognitive impairment, they almost always turn to the person who came with the impaired adult to the appointment for information that is used in their report to verify whether the things the impaired adult describes are consistent with what is actually going on. In the medical reports, this person is often called the “historian.”

While the doctor may appreciate that in a contested matter everyone has a different perspective, and may believe that s/he can glean helpful facts from the historian without adopting the historian’s perspective on the case, if the doctor likes the historian, the doctor will often present an opinion that is at least not adverse to that historian’s legal position.

SO – if at all possible, you want your client to be the historian. If that cannot be accomplished, your carefully crafted written summary to the doctor is all the more important, and may need to include information undermining the credibility of the person who the doctor can expect to meet when the impaired adult is brought to the appointment (aka, the historian).


Appreciate the important role played by the GAL and the court-appointed doctor in guardianship/conservatorship cases. Winning without them is an uphill battle.  Bring them on board early and keep the lines of communication open.  In these types of cases, they are the hands that rock the cradle. Recognize that they may well control the outcome of the case from behind the bench – and act accordingly.

Playing with Knives

There’s a saying among litigators. It goes like this: Lawyers play with knives but never get cut.

The idea (or image) is two lawyers facing each other holding knives, with their clients in between. When the case is over, the clients are bloodied but the lawyers remain unscathed. It’s a coarse image – but there is a truth in it that allows the saying to survive.

Litigation is a mean game – at times brutal. It is common for clients to dislike (at times, vehemently dislike) the opposing party’s attorney. And it is sometimes hard for clients to understand how the lawyers in the case remain collegial throughout the process. They wonder: Why is my lawyer talking to that other lawyer about his/her kids or their practice? Why doesn’t my lawyer see what an a-hole s/he is?

But lawyers are like that. Civility and professional courtesy is part of our creed, or way of thinking. It is an integral part of how the system works (See “The Romance of the Law” below).

However there can be rare cases where the lawyers are cutting each other. Lawyers don’t like these cases, and Judges like them even less. Yet, in certain situations, if the attorney is going to adequately represent their client, it can’t be avoided.

In my practice this dynamic can come up in contested guardianship/conservatorship matters.

It is common in these matters to have a vulnerable adult who can be manipulated – and who will voice the preferences of whoever they are physically in the presence of (or under the control of) at the time. As a result, the person(s) or faction that has the most physical access to the vulnerable adult while the litigation is pending can often assert that they are acting in a manner consistent with the desires of the vulnerable adult, even though the truth is that: were the vulnerable adult allowed to spend sufficient time with the other parties, that vulnerable adult’s views would change to align with those parties. The upshot is that s/he that controls the vulnerable adult can take the vulnerable adult to a lawyer who can claim to represent the vulnerable adult, advocate for the objectives of the controlling faction, and use the vulnerable adult’s money to pay the costs of litigation.

Of course, an attorney should not do this. They should carefully assess whether their purported client has the capacity to retain legal counsel at all; and if so, take steps to separate the client from members of the faction to determine whether or not the expressions of the vulnerable adult client are in fact their own preferences, or simply the result of manipulation of the controlling faction. Where the attorney fails to protect their client in this way, the attorney representing the non-controlling faction may be forced to raise the issue to the court.

Although Michigan courts have yet to directly address this topic, some interesting work has been done in California. A report from the Estate Planning, Trusts and Probate Law section of the California State Bar; includes the following:


The existing statutory law concerning the appointment of an attorney by the court for a proposed conservatee who appears with a lawyer who contends that he or she is the proposed conservatee’s lawyer, is very unclear. Probate Code §§ 1470 and 1471 provides statutory authorization for the court to appoint an attorney to represent a proposed conservatee when the conservatee lacks counsel to represent himself or herself. Neither code section addresses a situation where a lawyer contends that he or she represents a proposed conservatee, but the court has serious doubts about whether the proposed conservatee has the capacity to hire the would-be attorney as the proposed conservatee’s attorney. The right to choose one’s counsel is a right with which courts are reluctant to interfere.

Unfortunately, it is common for the perpetrator of elder fiduciary abuse (“perp”) to arrange for a lawyer to represent a proposed conservatee in opposing the appointment of a conservator, or in seeking to have the perp appointed as the conservator. See, e.g., Conservatorship of Chilton, 8 Cal.App.3d 34, 86 Cal. Rptr. 860 (Second Dist. 1970), where (according to the Court of Appeals) Attorney Arditto really was the lawyer for the perp, although he pretended to be the lawyer for the proposed conservatee. Arditto litigation in opposition to the conservatorship, and took other steps that were supportive of the financial abuser, who also entered into a subsequently voided marriage with the incompetent.

The case of Conservatorship of Chilton, 8 Cal.App.3d 34, 86 Cal. Rptr. 860 (Second Dist. 1970) stands for the proposition that the lawyer who appears “for” the proposed conservatee, to oppose a conservatorship, can be acting in reality for the perpetrator against the best interests of the manipulated and incompetent proposed conservatee.


Emphasis added. Click here to read the report.

These situations seem to be a natural byproduct of the increasing number of contested guardianship/conservatorship matters. At this stage, Michigan courts don’t seem comfortable addressing this issue – and the attorney who makes accusations about opposing counsel can be seen as crossing that critical line by using their knife to slash fellow counsel. But litigation can be a rough sport – and when these situations arise, there may be no other options.


This Could Get Interesting

The Michigan Supreme Court is considering a case involving the issue of a medical provider and Michigan law regarding surrogate decision-making. Specifically, Margaret Roush was a resident of the Laurel’s of Carson City, a skilled nursing facility. Click here for Court of Appeals decision.

Ms. Roush had nominated a patient advocate. On October 24, 2012, that nominated patient advocate agreed that Ms. Roush should remain in the facility’s care. However, a dispute arose as to whether that nominated patient advocate’s authority had been properly invoked (that is, whether two doctors had certified Ms. Roush unable to make her own decisions). The resulting retention of Ms. Roush continued until November 21. In the intervening period, two doctors did in fact find Ms. Roush unable to participate in her decision making, but additional medical evidence was also produced to support the proposition that Ms. Roush was capable of making her own decisions; and, importantly, on November 12, Ms. Roush formally revoked the existing patient advocate designation.

Ms. Roush was ultimately allowed to leave the facility, and died a short time later in her home.

The facility was sued for false imprisonment and intentional infliction of emotional distress, among other things, which claims arose out of the period during which Ms. Roush was forced to remain in the facility after the dispute arose, and after she revoked the patient advocate designation. The case was dismissed at trial court on summary disposition in favor of the facility/defendant. The Court of Appeals, in its unpublished decision, reversed the trial court, finding that sufficient questions remained to preclude summary disposition to the defendant. The Michigan Supreme Court is now considering whether or not it will review the decision of the Court of Appeals.

Wherever it goes from here, if nothing else, this case reminds healthcare providers of the sticky situations they can find themselves in when the laws regarding surrogate decision-making are not carefully adhered to. A few years back, many nursing homes were cited for failing to use the proper procedure to rely on a patient advocate’s direction. That is, they were commonly deferring to nominated patient advocates for medical decision-making, before and without having two doctors formally certify the patient as unable to make their own decisions. And all of this falls within a long history of the medical community refusing to accept the technicalities of the legal process whereby one person can make decisions about the care of another (surrogate decision-making).


Bittner’s Bite

So we have a new published opinion on a probate court case – something unusual these days.  In Re Conservatorship of Shirley Bittner was published September 8, 2015.  Click here to read the case.

In Bittner, the probate court imposed a conservatorship over the vulnerable adult, and did so over what the Court of Appeals calls her “strenuous objections.”

The subject of the petition was Shirley Bittner.  The petition was brought by her daughter Suzanne.  Shirley was a 74 year-old widow.

Suzanne had been granted power of attorney over Shirley by Shirley, and had been made co-trustee of Shirley’s trust; that is until Shirley concluded that Suzanne had misused those powers for her own benefit.  At that time Shirley petitioned the Court to recover the property she believed had been misappropriated by Suzanne.  Suzanne countered with a Petition to have a third party (public fiduciary) appointed as Shirley’s conservator.  Meanwhile Shirley appointed a second daughter, Stacey, as her agent under a new power of attorney.

The probate court took evidence and appointed Stacey (the new agent under power of attorney) as conservator.

Appointment of a conservator is a two-prong test.

1. Is the person unable to make their own decisions (are they sufficiently impaired to invoke the Court’s jurisdiction to take away their rights)?; and

2. If the Court does not act, will this person’s resources be mismanaged?

Both prongs must be met to impose a conservatorship over an adult.

The Court of Appeals reviewed the decision of the trial court and reversed.

As to the first prong, the Court of Appeals found that the evidence was marginal.  Shirley clearly had some impairments, but it was not so clear that those impairments rose to the level necessary to impose a conservatorship over her.

As to the second prong, the Court of Appeals found no evidence that anything was being mismanaged, at least now that Stacey was acting has power of attorney.

The case is important, as it fires a shot across the bow of the trial courts that are routinely imposing conservatorships over older adults.  And importantly, by analogy, the case will serve the same purpose with respect to the imposition of guardianships.

But nothing is simple in terms of this area of the law.  As to the law, there is no question that the Court of Appeals is right on.  No doubt courts are way too quick to impose guardianships and conservatorships without sufficient legal basis.  That said, it is also true that there is a great deal of mischief in the world of vulnerable adults.  Once one child is taking advantage of mom, one wonders whether the next child is likely to do so and/or whether in time mom will be persuaded to create yet another power of attorney appointing the daughter who allegedly misappropriated assets, or yet another child who may or may not be acting in mom’s best interests.  Mom is vulnerable – that’s the point.  So, left unchecked, these cases can go on and on.  Where there is money and family dysfunction, there is a high likelihood of further issues.  I would suggests that there is something to be said for probate judges who have seen enough of these cases to want to simply grab control, create a conservatorship, and thereby put themselves in the position of monitoring what goes on in the future; and by doing so, shut the door to future mischief.

Accordingly, I appreciate the Court of Appeals upholding the rules.  I greatly respect my many colleagues who recognize that taking away the rights of an adult should only be done as a last resort.  But I worry about law that makes trial judges less willing to step in and grab control when it is clear that the mayhem has begun.

Only in Ann Arbor?

The first time I met my client was early one morning at the Starbucks on Main St. in Ann Arbor. He had flown in the night before, and I had driven down that morning from East Lansing. The Starbucks is a couple blocks from the Courthouse where we had a hearing about his mother, who is the subject of the case.

Waiting there for my client to arrive, I felt like I was from another planet; dressed in a white shirt, jacket and tie; sitting among all these Ann Arborites in their carefully calculated attire – calculated to look like “oh I just threw this on.” I was goggled at a little, but treated with respect and smiled upon. They felt safe here. And I thought, many of these people in another life had lived in the world I came from, and most of them had certainly come from homes where their parents dressed as I dressed. I was not so much a threat as a novelty.

Anyhow my client’s mother is severely demented and lives in Ann Arbor. My client, her only child, lives in another state. She was a fiercely independent woman, but as she has declined, he has become more involved. The main problem has arisen as a result of a group of “friends” – some old, some new. These friends have taken it upon themselves to “protect” his mother’s integrity – as they see it. Whether they have other designs is an issue, but not in this post.

These friends have surrounded this woman and are actively putting up blockades to her family’s efforts to protect her, and to exercise the powers granted to them by her estate planning documents, particularly the medical and financial power of attorneys. They believe they are speaking for this demented woman and protecting her independence and integrity.

The problem is that they don’t get it. They don’t see where the disease is going. They have seen popular portrayals of dementia in films, and have done on-line research in the kinds of places they (Ann Arborites) would go to find information consistent with their world view. They have explored “alternative medicine” treatment options, one even claims to have a Native American insight, and have concluded that she has a 50% chance of beating this disease. In other words, they are, at best, well-meaning but woefully misled meddlers; preventing the family from taking the steps that need to be taken to secure a comfortable future as this wonderful woman goes down the troubling path that her dementia is inevitably going to lead her. In a year or two, when this woman doesn’t know who these friends are and can’t take care of her basic needs; these people will be more sophisticated on the topic of age-related cognitive decline, but it will be too late – and they will be gone. The opportunity to help this woman transition to an environment in which her quality of life is preserved for the long term is now. And we are wasting precious time on this pointless litigation.

I also can’t help but think how outraged these people would be if someone from the other side of the political spectrum were to decide that they would cure an aging parent with prayer. But they can’t see that they are just as confused and misled.

I don’t mean to offend my friends from AA – or maybe I do – just a little. I suppose this type of thing could happen anywhere. People everywhere seem to be becoming aware of age-related cognitive decline, but the level of sophistication among lay people is worrisome. In part I attribute these misconceptions to the popular media portrayals of this horrible disease (an old woman sitting happily in a chair, looking delightful, and waiting to have someone read to her – really?). But, it seemed to me, that the package of issues in this case has a particularly unique Ann Arbor bent.


Why the “Lucid Moment” Needs to End

There’s a case I read a couple years ago that bothers me and that I’ve been wanting to comment on it since.  It is an unpublished decision in which the trial court held that a trust amendment was invalid due to lack of capacity and undue influence.  The Court of Appeals reversed the trial court. It is called Estate of Edward E. Lerg, COA case 293012, January 27, 2011.  Click here to read it.

What bothers me about the case is what bothers me about the legal concept called the “lucid moment.”  The problem I have with the lucid moment is twofold:

(1) It is out of touch with the modern understanding of dementing illnesses.  That is, we’ve come a long way toward understanding cognitive impairment.  One thing we know for sure is that people with dementing diseases don’t get better – only worse.

(2) It supports that concept that the scope of relevant/admissible evidence in capacity contests is limited to the moment of execution.  Again, I would suggest that this is completely inconsistent with the way dementing conditions work, and would, if adhered to, negate most of the best evidence available in these cases.

Mr. Lerg was diagnosed with dementia in 2005 as determined by a medical professional with a high level of expertise in such matters.  The doctor found that he had moderate to severe dementia and that the dementia was then to the point that Mr. Lerg had poor insight and judgment.  Mr. Lerg executed a trust amendment in 2006.  He was evaluated again by the same expert in 2007 and was found to have substantially declined.

While I agree that a well presented case with significant counterbalancing evidence could have been presented to overcome the medical evidence, that’s not how this case played out or how this opinion reads.  Rather, the Court of Appeals reversed the trial court by severely discounting the doctor’s opinion, stating that such evidence (the Doctor’s findings) is of “very little probative value.”  That statement is incredible to me and is, I would suggest, attributable to the archaic concept of a “lucid moment” (although that language was not expressly used by the Court). What’s more, the Court of Appeals cited a 1965 case for the scary proposition that: testamentary capacity “is judged as of the time of the execution of the instrument, and not before or after, except as the condition before or after is competently related to the time of execution.”

At least in the context of dementing illnesses (as opposed, for instance, to mental illness or alcoholism), it is time for the law to catch up with science and for Court’s to recognize that although persons with dementia may be better some days than others, they don’t improve over time, they only get worse.  Evidence of where they were in terms of cognitive impairment a year before they executed the document in question, and where they were a year after, should be extremely probative of the question of their capacity at the time of execution.  Further, if someone is significantly impaired and has a “good day” or “good hour” that “good day” or “good hour” must be seen in the context of their impairments.  That is, if I don’t recall what I did yesterday and won’t remember tomorrow what I am doing today, how can it be said that I fully understand the implications of my actions today?