Storm Clouds in Elder Law Land

It seems to me that we are living through what could be a case study on the way the law evolves to address a rapidly changing social environment. More people are living longer.  More people are experiencing age-related cognitive impairments.  At the same time family dysfunction seems to be the rule, not the exception.

As a result, the law in the arena of adult guardianships and conservatorships is experiencing stress and litigants are experiencing a high degree of instability with respect to the process and outcomes in the trial courts. Trial courts hardly know what to do with these cases. They need clearer direction.  The issues that are coming up are difficult and deeply personal, factually unique in each case.  The laws only offer general guidelines about how to resolve these conflicts.  It is time for our appellate courts to figure out how these laws can best be construed to provide just results notwithstanding the complex issues, and to make practical compromises to allow the system to work in larger counties. More laws, I think, are not the answer.

My thoughts on this topic were triggered by a recent unpublished opinion, In re Conservatorship of Janet Kapp (click on the name to read the case). The case itself is insignificant, but offers a good example of the issues that commonly arise in these matters – both in terms of the facts that are coming into court, and the legal challenges that trial courts are struggling to address.  But the problem has been festering for some time.  In fact, I wrote an article for the State Bar Journal several years ago on the topic: Adult Guardianships, the New Divorce (click on the name to read the article).  It was evident then that we were facing a storm, now it seems the storm has arrived.

The issues include:

What does a Court have to do before passing over a family member with priority and appointing a professional fiduciary?

What role does family dysfunction play in this decision? Is it good enough for the trial judge to say: “You all can’t get along, so I’m appointing someone from outside the family”?

What role does alienation of affection play? Where a family member keeps other family members away, is that per se a basis for passing over that family member, or must a court look into whether that decision is rationally based? [On this point it is interesting that legislation is being proposed to create a process to address family visitation rights for vulnerable adults.  Click here to read that proposed legislation.  I personally see this effort as well-meaning but misguided.  We don’t need more laws, and the process proposed by the legislation is, to my mind, unworkable.  Trial courts have this power now (click here to see blog post Seeing Redd, for instance).]

What role do existing estate planning documents play? In this new Kapp case we see the trial court simply blowing past the existing documents, based on a Guardian ad Litem’s conclusion that the older adults were probably impaired when they were signed.  Is that ok?

How much discretion do trial courts have in this context to avoid holding an evidentiary hearing?

In numerous unpublished opinions, the Court of Appeals has been all over the board on all of these issues. As for published opinions, in the last three years alone we have seen wild fluctuations from, for instance, the Bittner case (click here to read Bittner’s Bite) to the rather incredible legal conclusions reached in Brody (click here to read Another Brody Bombshell).  Trial courts need guidance, but we need to appreciate this guidance has to allow for practical implementation – a workable system.  It is one thing for an experienced and engaged trial judge in a small county to hold a two day (or more) trial on the issue of suitability, and another thing to tell larger counties with busy dockets and a high percentage of pro per litigants to do the same.

Some help may be coming. The Michigan Supreme Court has agreed to take up Brody, and the Probate Section of the State Bar has been approved to file an Amicus Brief (proud to say that Chalgian and Tripp has been retained by the Section to prepare that brief).  But I wouldn’t expect too much.  While this case opens the door to the MSC to address many of these issues, they are likely to offer only some direction on the narrow issues in the appeal.

Finally, there’s an old saying: “May you live in interesting times,” and I’ve always felt that one of the things I enjoy about my chosen practice area is that it’s changing so rapidly, and the law is struggling to keep up – which makes for interesting times indeed for those of us who work with aging issues and vulnerable adult exploitation in particular. But when I looked up the saying on Wikipedia, I found this explanation of the saying, which suggests I may want to temper my enthusiasm:

“May you live in interesting times” is an English expression purported to be a translation of a traditional Chinese curse. While seemingly a blessing, the expression is always normally used ironically, with the clear implication that ‘uninteresting times’ of peace and tranquillity are more life-enhancing than interesting ones, which from historical perspective usually include disorder and conflict.

Read More

Lay Witness Testimony Regarding Cognitive Impairment

In the recently unpublished Court of Appeals case of Rebecca L. Clemence Revocable Trust (click on name to read the case), the trial judge essentially granted summary disposition in a trust contest case, without summary disposition even having been requested. In doing so, the trial judge expressed frustration that the matter had continued for so long and that, in the judge’s opinion, inadequate evidence of wrongdoing had been discovered.

The Court of Appeals reversed and remanded.

What I find helpful about the case is the COA’s discussion of lay witness testimony as evidence regarding incapacity. We have discussed before the growing inclination of court’s to look for medical evidence as the last word on incapacity and vulnerability.  One of the challenges of handling capacity and undue influence cases is that very few people happened to have medical evaluations done contemporaneously with the event in question.

The portion of this case which I will keep in my notes, provides authority for the proposition that the observations of lay witnesses are admissible evidence of incapacity and, if sufficient, can preclude summary disposition. Specifically, this portion of the opinion is on point:

Certainly it would be easier to prove whether Rebecca possessed testamentary capacity or was vulnerable to undue influence if the probate court could review medical records contemporaneous with her estate plan amendment. But such records are not the only method of proof. A lay witness may place his or her opinions into evidence as long as they “are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” MRE 701. And our Supreme Court has specifically found lay opinion testimony admissible to establish a decedent’s testamentary capacity. See In re Moxon’s Estate, 234 Mich 170, 173-173; 207 NW 924 (1926) (holding that a lay witness “who [has] had the opportunity to observe and talk to [the decedent]” may form “impressions” of the decedent’s testamentary capacity and may cite examples for the factfinder’s consideration);

Proving that an older person suffered from cognitive impairments at that time they executed a document being contested is central to nearly every will and trust contest or case of financial exploitation. Lack of Capacity and Undue Influence remain the most common theories of probate and elder law litigation.  These are often fact-rich cases and discovery is frequently extensive.  Trial judges may have limited patience and are under pressure to close cases expeditiously.  Many trial judges also have a strong inclination to require medical evidence in cases where cognitive impairment is a factor, but such evidence is not always available.  As a result, introducing lay testimony to establish cognitive decline is necessary, and often the best evidence available.  In those cases, it is not unusual when presenting such lay witnesses, for the opposing counsel to assert that the lay witness has no medical training and therefore their testimony should not be allowed.  This case supports the proposition that such objections should not prevail.  Lay people can observe behavior in older adults that suggests impairment, and those observations can be admitted and relied upon by a fact-finder.


Read More

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.

Read More

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.

Read More

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.

Read More

Peter’s Principles and Our Evolving Understanding of Exploitation

I heard Dr. Peter Lichtenberg speak the other day about his research on financial vulnerability in older adults, and more specifically, how and why he developed the Lichtenberg Financial Decision-Making Rating Scale. It’s probably the fourth time I’ve heard him talk about this research – and I think it’s finally starting to sink in.

For those of you who don’t know, Dr. Lichtenberg, Ph.D. is the Director of the Institute of Gerontology at Wayne State University. He is a national expert and a true Michigan treasure.

So, at the risk of oversimplifying his work, two takeaways from his research are:

  1. Beyond Cognitive Decline.

Historically research on older adults and vulnerability to exploitation has been overly focused on linking vulnerability to cognitive impairments, and particularly age-related dementing conditions such as Alzheimer’s Diseases. Dr. Lichtenberg’s research indicates that vulnerability is as closely linked to social isolation and lack of empowerment as it is to organic conditions of the brain.

2.  Financial Capacity is an Early Victim of Cognitive Impairment.

In terms of the impact of age-related cognitive impairment and vulnerability to financial exploitation, Dr. Lichtenberg’s research concludes that financial capacity is among the first skills to be compromised in the dementing process. People can become vulnerable to exploitation even before it is clear they are cognitively impaired.

The academic community and the legal community are both evolving to address the same social problem, a problem that is exploding along with the number of persons living into the 80’s and beyond. We’re both learning.  What I love about Dr. Lichtenberg’s research is that it gives us lawyers better tools to educate judges and juries about exploitation – and to push back against the barriers to culpability that have entered into this area of the law from archaic legal concepts that are historically associated with capacity in the context of contracts, wills and trusts.   Vulnerability and incapacity are two very different things, and we need to work to elevate awareness of this distinction.

To read more about Dr. Lichtenberg’s research, click here.

To explore the Lichtenberg Financial Decision-Making Rating Scale, click here.

Read More

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.

Read More

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.

Read More

Ombudsman Finds New Home

As of October 1, 2016, the State Long Term Care Ombudsman office will move from being within State government to a nonprofit wholly outside State government. That’s a good thing, and a long time coming.

The Michigan Long Term Care Ombudsman Program has been housed within the Aging and Adult Services Department of the Michigan Department of Health and Human Services; formerly known as the Office of Services to the Aging. In the future, the program will be run by the Michigan Advocacy Program, an organization that operates various legal services and advocacy organizations in Michigan, including the Michigan Elder Justice Initiative; and which already houses two local LTC Ombudsman programs.

For obvious reasons, in most states, the State LTC ombudsman is housed outside state government: to maintain independence and avoid conflicts of interest. Michigan’s State LTC ombudsman was outside state government until 2004.  At that time the organization which held the State LTC ombudsman contract was in disarray, and the program was ineffective.  Accordingly, the decision was made to bring the program into the State. But even then it was recognized that this arrangement was less than ideal, and that the objective would be to remove the program to an independent organization when possible.  That time has finally come.

The State Ombudsman administers and supports the local Long Term Care Ombudsmen, which are people who actually visit long term care facilities, support residents of those facilities, and investigate, report and resolve problems with quality of care. Currently these local ombudsmen are housed in various organizations throughout the State. The change in the arrangement with the State office will not change the situation with the local ombudsmen, at least not immediately.  However, it is possible, probably desirable, that over time the new State office will consolidate management of the local ombudsmen under one entity.

The contract is for three years, and funding will remain the same.

The person that most of us know as the State Long Term Care Ombudsman is Sarah Slocum. She has been serving in that capacity since the program first moved within State government.  Ms. Slocum is a state employee, and may remain with the State in another capacity, or may look for something else.   One would hope that if Ms. Slocum is interested in continuing as the State Ombudsman, that she would be given serious consideration by the Michigan Advocacy Program as it looks to fill that position. Ms. Slocum is very well respected and highly experienced and knowledgeable.

Read More

Roush III: Missed Opportunity and Unintended Consequences

I posted twice before on the Roush case. Click here and here for the background.

In short, the issue in this case is: When a person who has previously created a patient advocate designation is deemed unable to make their own medical decisions by two doctors, then revokes that patient advocate designation, are that person’s rights to make their own medical care decisions (a) immediately restored or (b) suspended until a court decides whether they can make their own decisions or whether a guardian needs to be appointed to make those decision for them?

By implication, the Court of Appeals, in an unpublished decision, came down on the side of “immediately restored.” The losing party then sought review from the Michigan Supreme Court, which took the matter seriously enough to request that the Elder Law and Disability Rights Section of the State Bar file an amicus brief, which they did; as did other interests including the Michigan Elder Justice Initiative.  This past Friday (May 6), the Michigan Supreme Court denied leave to appeal, leaving the Court of Appeals opinion in place.  For the moment, at least, a win for the “immediately restored” camp.

Michigan’s patient advocate law is curious in that it expressly provides that:

… even if the patient is unable to participate in medical treatment decisions, a patient may revoke a patient advocate designation at any time and in any manner by which he or she is able to communicate an intent to revoke the patient advocate designation. If there is a dispute as to the intent of the patient to revoke the patient advocate designation, the court may make a determination on the patient’s intent to revoke the patient advocate designation. If the revocation is not in writing, an individual who witnesses a revocation of a patient advocate designation shall describe in writing the circumstances of the revocation, must sign the writing, and shall notify, if possible, the patient advocate of the revocation. If the patient’s physician, mental health professional, or health facility has notice of the patient’s revocation of a patient advocate designation, the physician, mental health professional, or health facility shall note the revocation in the patient’s records and bedside chart and shall notify the patient advocate. MCL 700.5510(d)

It seems the Michigan Supreme Court would have done us all a favor by taking the case and clarifying the law on this point. Now the issue of when that revocation occurs, and what the responsibilities of the various parties are, remains illusive.  All we have is an implication, based on an unreported case that arose in the context of a motion for summary disposition.

I wonder about how institutions may react, and whether there will be unintended consequences of the Supreme Court’s decision to take a pass.

For instance, what if I run a facility that cares for persons with cognitive impairments, and one of my residents has been deemed unable to make their own medical treatment decisions, and that resident has been admitted to my facility by their patient advocate, and then what if that resident says “I want to go home”? Is that expression alone a revocation of the patient advocate designation triggering the patient’s right to leave? Or does the person have to actually say the magic words “I revoke my patient advocate designation?” Is “I want to go home” enough to trigger the obligation of the staff person to report the incident as contemplated by statute? Enough to require a hearing so that a “court may make a determination on the patient’s intent to revoke the patient advocate designation.”

If I am the facility facing the possibility of a false imprisonment lawsuit (which is how the Roush case started), I might want to act out of an abundance of caution. I might want to make sure no family member later testifies in a lawsuit against me that: “My mother told the staff she wanted to go home, and they kept her against her will.  I heard her say it in front of the staff several times.”

So, do facilities start demanding guardianships over all their impaired residents again, rolling back twenty years of progress? Do plaintiff’s attorneys start looking for these cases? Maybe I am thinking too much, which I admit I can do sometimes. But with family dynamics the way they are, and with care facilities in a defensive posture, as they are, I’m not sure.

So, in any event, to my way of thinking, by deciding not to take this important case, the Michigan Supreme Court missed an opportunity to help clarify this confusing area, and provide some direction the both the families and facilities that are trying to care for our loved ones.

Read More