Meritless is Good. Frivolous would have been Better.

This is a Chalgian and Tripp case just handed down from the Court of Appeals. Unpublished.  Click here to read In Re Conservatorship of Ueal E. Patrick.

Ueal is a prominent business man in Jackson. He was involved in litigation.  Ueal’s health was declining and the stress of the litigation was making it worse.  In the context of working with him on a separate trust matter, we suggested that it might be beneficial to have his child Mark act as his conservator so that he (Mark) could handle the litigation.  Mark was already deeply involved in the management of the business, and very sophisticated in business matters.  In addition, predating all this was a power of attorney created by Ueal, appointing Mark as his agent, and nominating Mark as conservator should that become necessary.

A hearing was held at which several attorneys were present. The opposing parties did not contest that the appointment of a conservator was appropriate.  They simply opposed the appointment of Mark.  They presented no evidence, called no witnesses, merely made legal arguments.

On appeal, the appellant argued that the trial court erred in finding Ueal to be a person in need of a conservator, even though they stipulated to it in their pleadings and in court. They argued that the trial court erred by not requiring an independent medical exam be conducted to determine the amount of weight that should be given to Ueal’s nomination of Mark.  And they argued that Mark should not have been appointed because he had a conflict of interest with respect to the other matters being separately litigated.

The COA goes through each of appellant’s arguments, systematically pointing out the deficits in their reasoning. At various points the COA labels their arguments “abandoned,” “without merit,” and “meritless.” I beat up on our COA enough in this forum.  They got this one right.  I appreciate it.

Thanks to our John Mabley for doing an excellent job briefing the case and helping the COA clearly see the deficiencies in appellant’s positions.

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Another Brody Bombshell

This is a published Court of Appeals opinion involving the appointment of a conservator over an adult under EPIC. Click here to read In Re Conservatorship of Rhea Brody.

This case comes out of same family that was involved in the In Re Rhea Brody Living Trust, which case is the topic of the post earlier this month. That prior case dealt with the Rhea Brody Trust, and offered the surprising revelation that a contingent beneficiary of a Trust could contest the actions of the Trustee even while the trust remained revocable.  Click here to read that post.  This second Brody case deals with the appointment of a conservator for Ms. Brody.

The litigants in the case are aligned similarly. In the Trust matter, husband and son were aligned in defending the removal of husband as Trustee, which arose as a result of favorable business dealings between the husband as trustee and the son; which dealings were perceived as being done to the detriment of the daughter, a contingent beneficiary.  In this case, husband and son oppose appointment of a conservator, which appointment is supported by daughter.  The court appointed an attorney who was also acting as Trustee of Rhea’s Trust to serve as her conservator.  The COA affirms.

The husband, as appellant, contests pretty much every aspect of the trial court’s decision, except the finding that Rhea was incompetent. The conclusions of the COA are intriguing.  Look for this case to be cited often by litigators seeking to impose conservators and desiring to by-pass priorities of appointment.  To some extent, perhaps a large extent, this case is the counter balance to In Re Bittner, a relatively recent published opinion addressed in the post “Bittner’s Bite” (click on name to read that post).  In Bittner, the COA chastised a trial judge for imposing a conservator where the requirements of EPIC were not met.  Here, the COA goes to great lengths to justify the appointment over seemingly problematic facts.

One issue relates to whether the evidence supported the finding that appointment of a conservator was necessary to provide for management of assets and avoid waste. In this case the evidence is that husband was agent under a valid POA for Rhea, and further, that all of her assets (except one IRA) were joint with husband.  Further, husband alleges that the IRA was set up to make minimum required distributions annually.  The basis for finding necessity appears to be the conclusion that husband wasn’t really managing these matters, but rather that he had “abdicated” his role to the son, and that son was a potentially devious manipulator of the situation.  The COA goes so far as to suggest that the appointment of a conservator was necessary so that someone independent could review the tax returns.

Which leads to another conclusion of law by the COA in this matter: that the appointment of a conservator does not require a finding that there has been waste of assets, only that such waste could occur in the future. So reasonably founded speculation is enough.

Additionally, and perhaps most concerning, are the findings of the COA with respect to the priority of appointment. The COA cites MCL 700.5409(1)(a)  for the proposition that an independent fiduciary has priority over a spouse and agent under a POA where the POA nominates the agent as conservator. MCL 700.5409(1)(a) says:

(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.

I have always understood this section to mean that a conservator previously appointed by another court would have priority. In this case, the COA seems to say that a professional fiduciary appointed as Trustee over the ward’s Trust by this same Court meets that definition.  The COA states:

Under MCL 700.5409, a protected individual’s spouse is entitled to consideration for appointment as conservator, and is granted priority over all other individuals except “[a] conservator, guardian of property, or similar fiduciary appointed or recognized by the appropriate court of another jurisdiction in which the protected individual resides,” MCL 700.5409(1)(a), and “[a]n 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,” MCL 700.5409(1)(b). As Rhea’s husband, Robert was an individual entitled to priority consideration. However, Robert was not entitled to consideration unless the probate court considered an independent fiduciary and found him or her unsuitable. Lyneis, as trustee and independent fiduciary, had statutory priority over Robert, despite Robert’s marriage to Rhea. MCL 700.5409(1).

Wait – WHAT? Where is the other jurisdiction?

Further, and maybe even more unsettling, the COA says:

The statute’s priority classifications are merely a guide for the probate court’s exercise of discretion.

Really?  This statement seems to fly in the face of a long line of cases that require a finding of unsuitability – including, perhaps ironically, the case of In re Guardianship of Dorothy Redd, which is the topic of the other post I wrote today, a case issued by a separate panel of the COA on the same date as this matter.

That said, the COA goes on to say that the husband is unsuitable, again, because the son is a manipulative fellow and may use his influence over husband to Rhea’s detriment in the future.

There are other issues addressed in this case, but I think I’ve hit the ones that seem most significant, and that are those most likely to be cited by litigators in the future.

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Seeing Redd

Here’s another important published opinion on the topic of adult guardianships. The case is about the removal of a guardian of an adult ward appointed under EPIC.

The case deals with the very common, and therefore very important, situation in which a guardian is using its position to undermine healthy family relations. In this case, the facts relied upon by the trial court and the COA are that the existing guardian was actively interfering with visitations, and taking steps to cause the ward to be distrustful of other family members.  These alienation cases go on all the time.  It is helpful to have an opinion that clarifies that such behavior is a basis for removal of a fiduciary.  It is likely that this case will be cited frequently where such facts arise, and I suspect that the finding that such behavior disqualifies a guardian will be offered by extension to cases involving conservators and other fiduciaries.  And that’s good.  We need this law.

So basically the trial court removed a guardian for the reason that he was undermining family relations, and the COA affirms. Click here to read In re Guardianship of Dorothy Redd.

In reaching its decision, the COA holds that the standard for removal is “suitable and willing to serve.” This finding is an important clarification of MCL 700.5310 which is silent on the requirement for removal.

The COA also finds that the standard of proof for removing a guardian for unsuitability is not clear and convincing evidence, but rather a preponderance. Interestingly, in reaching this conclusion the COA indicates that the standard for proving unsuitability in the initial appointment hearing is clear and convincing evidence.  This reading of the priorities in a guardianship proceedings seems inconsistent with the conclusions regarding priorities and unsuitability reached by a separate panel discussing these issues in the context of a conservatorship, as addressed in my other post of today’s date regarding In Re Conservatorship of Rhea Brody.

So, it’s a big day in the world of litigating guardianships and conservatorships. These two published cases (Brody II and Redd) will be cited in the future, each for their own important conclusions of law.  Probate litigation in the age of living to be 100, where the fun never ends.

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Attorney-Fiduciary Relationships

A new published circuit court case addresses the often confused issue of who an attorney hired by a fiduciary represents and is accountable to. This is technical stuff, so if you’re not in the mood or you don’t do this type or work, spare yourself and read no further.

In Estate of Tyler Jacob Maki (click on the name to read the case); the Court of Appeals affirms the trial court, and in doing so, holds that an attorney who is hired by a conservator cannot be sued for negligence by a subsequently appointed conservator. This is true because there is no attorney-client relationship between the subsequent conservator and the attorney, and also because the ward is not a third-party beneficiary of the contract between the first conservator and the attorney.

This issue comes up periodically. It is not unimportant.  At times appellate courts generate decisions that feed into the confusion.  However, this Court reaches the conclusion that I think most probate practitioners believe is the right result, and the result intended by MCR 5.117(A).  Presumably, this decision can be extended to cases in which other types of fiduciaries retain lawyers.

A lot more could be said about this issue and this case. I will limit my thoughts to these few additional points:

In a footnote the COA recognizes the apparent injustice in the result – the result being that if a person who is under the protection of the court has a fiduciary, and that vulnerable person is injured as a result of the bad acts of their court-appointed fiduciary, and that harm could have been avoided if the lawyer representing the fiduciary (and being paid by the ward) had taken steps to protect the ward, a subsequent fiduciary appointed to clean up the mess can’t seek recovery from the lawyer even if they could show that the lawyer’s conduct was negligent. The COA says, that may not be good public policy, but public policy is not their job.  Take it up with the legislature.

Second point, the COA glosses over the fact that the conservator, who stole money from the ward, was apparently not sufficiently bonded. I don’t know the facts and there is very little in the opinion to go on.  But when you read this opinion you can’t help but wonder: How did this ever turn into a malpractice action against the lawyer? Or, said another way: Why didn’t the bonding company make the ward whole?  As best I can make out from the opinion, the reason that the conservator was apparently not sufficiently bonded is because the lawyer didn’t report the money from a personal injury settlement paid to the ward on the inventory or accountings because the lawyer, knowing that the settlement was subject to a confidentiality provision, didn’t think he had to.  Well, if that is what happened, there’s something very wrong with this picture.  Clearly the Trial Court would have been informed of the settlement, and clearly there are ways to set a sufficient bond without putting the amount of the settlement in the record.

Finally, in its decision, this Court spends time distinguishing between “standing” and the “real party in interest” rule which, for litigators, may be worth a read.

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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.

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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.

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Roush II: The Plot Thickens

A little drama is stewing in the elder law world.

I wrote about the Roush case when it came out. Click here to read that post appropriately titled “This Could Get Interesting.”

Since then, the matter has been taken up by the Michigan Supreme Court. And the MSC requested that the Elder Law Section of the State Bar file a brief setting forth what they believe the correct result should be.  That was done.

Awkward. Now some of the very same Section Council members who voted for the brief to be submitted (or at least chose not to vote against it as it was unanimously approved), are wondering if they made a mistake – as other advocates in the aging community are suggesting that the position taken in the Section’s brief interprets the controlling law in a way that is less than stridently protective of individual rights.

No Man’s Land. The issue  – and it’s an important one – comes about because Michigan’s patient advocate designation (“PAD”) law has long been recognized as unique (surprising even) in its express direction that a person can revoke their PAD even if they lack capacity to make their own medical decisions.  That is, even after two doctors have triggered the patient advocate’s authority by certifying that the patient lacks the ability to understand the implications of their own medical treatment decisions, that patient may nonetheless revoke the authority of the patient advocate.  The question in Roush is:  So what then?  What happens during the period after a person who has been deemed unable to make their own decisions revokes the PAD – and before a Court can appoint a guardian (or at least decide if one is needed)?  Is the person to be given all their natural rights to accept or reject medical care, as any competent person would have?  Or are their rights frozen until a Court decides who is in charge – themselves or someone else?  What’s a hospital (or in this case, nursing home) to do?

Many advocates would say the rights of that individual are restored in full. But the Elder Law Section’s position, as argued in the brief, is that those rights are not restored until a Court says so.

The Section’s brief was prepared by our very capable colleague Jim Steward and his colleague Angela Hentkowski (a very excellent lawyer in her own right). Click here to read the brief.

Oral arguments are scheduled for March.

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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).


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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.

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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.


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