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In re Bittner

Court of Appeals of Michigan

September 8, 2015

In re Conservatorship of SHIRLEY BITTNER. SUZANNE BITTNER-KORBUS, Petitioner-Appellee,
v.
STACEY BITTNER, Conservator for SHIRLEY BITTNER, Respondent-Appellant

         As Amended September 15, 2015.

          Macomb Probate Court. LC No. 2013-211281-CA.

         For SUZANNE BITTNER-KORBUS, Petitioner-Appellee: WILLIAM CASHEN, SHELBY TOWNSHIP, MI.

         For STACEY BITTNER CONSERVATOR, Respondent-Appellant: LIISA R. SPEAKER, LANSING, MI.

         Before: RONAYNE KRAUSE, P.J., and GLEICHER and STEPHENS, JJ.

          OPINION

Page 270

          [312 Mich.App. 229] Elizabeth L. Gleicher, J.

         Over Shirley Bittner's strenuous objection, the probate court appointed her daughter, Stacey Bittner, as conservator of

Page 271

Shirley Bittner's estate. Stacey Bittner also opposed the appointment. And so did the guardian ad litem appointed by the probate court, as well as the court-appointed psychologist who evaluated Shirley Bittner. The probate court nevertheless determined that Shirley Bittner's memory problems, arithmetic inadequacies, and mild cognitive deficits rendered her unable to manage her property and business affairs.

         The probate court made no finding that Shirley Bittner's property would be wasted or dissipated absent [312 Mich.App. 230] appointment of a conservator and overlooked consideration of the statutory directive that protective orders encourage " maximum self-reliance and independence" by restricting an individual's rights only to the extent necessary to safeguard an individual's estate. MCL 700.5407(1). The evidence demonstrates that Shirley Bittner had proactively entered into a voluntary arrangement that adequately protected her assets and allowed her a meaningful measure of autonomy. We reverse.

         I

         Shirley Bittner is 74 years old. For convenience and clarity, in the balance of this opinion we will use her first name. We refer to her three daughters, Suzanne Bittner-Korbus, Shirleen Vencleave, and Stacey Bittner, as Suzanne, Shirleen, and Stacey.

         Shirley's husband of more than fifty years passed away in October 2011. Stanley Bittner had single-handedly managed the couple's financial affairs. Newly widowed, Shirley developed serious health problems that required surgery, medications, and a temporary stay in a nursing home. She emerged from this ordeal with some confusion. Shirley decided to entrust the management of her finances to Suzanne, and granted Suzanne a durable power of attorney. Shirley revised her living trust to designate Suzanne as a co-trustee with authority to act independently.

         In June 2013, Shirley petitioned the probate court for an accounting and a protective order. The petition averred that Suzanne had diverted a considerable amount of Shirley's money to herself, converted many of Shirley's accounts to joint tenancies, and withdrew funds without Shirley's authorization. Shirley revoked Suzanne's power of attorney and co-trustee status, the [312 Mich.App. 231] petition asserted, but Suzanne failed to return all the money she misappropriated and refused to " undo the joint tenancy creations . . . ." Shirley demanded an accounting, restoration of her assets, and imposition of a surcharge. In September 2013, the probate court entered a temporary restraining order and authorized discovery.

         Two months later, Suzanne filed a petition seeking appointment of a conservator for Shirley. The petition alleged that Shirley was unable to manage her property and business affairs effectively because of mental illness and mental deficiency. In support of this allegation, Suzanne claimed that " Shirley believes that all her money is gone, she is spending time with her daughter Shirleen and her grandson who have previously stolen from her, [and] she does not remember things she did." Suzanne requested that a public administrator act as conservator of Shirley's estate.

         Shirley responded to the petition by denying that she needed a conservator and insisting that the petition was " simply a last minute frivolous effort to distract from Petitioner Suzanne Bittner-Korbus' illegal behavior[.]" (Emphasis omitted.) Further, Shirley's answer maintained, the petition lacked any " allegations that Shirley is not managing her assets appropriately or

Page 272

that her management is adversely affected by some 'mental illness.'"

         The probate court ordered that Shirley undergo an independent medical examination with psychologist Terry Rudolph, Ph.D., and appointed attorney Helene Phillips as Shirley's guardian ad litem. Attorney Phillips met with Shirley on January 30, 2014. According to Phillips's report, Shirley expressed a correct understanding of a conservatorship and its attendant responsibilities, denied that she lacked the " mental capacity [312 Mich.App. 232] to handle her estate," and explained in detail the basis for her belief that Suzanne had helped herself to some of Shirley's assets. The report continued:

I went over the financial documents form with her and on the most part she was able to provide me with the majority of her financial information. Her daughter Stac[e]y corrected a few accounts and added a few accounts. She informed me that she was paying all her own bills and that at times her daughter Stac[e]y was helping her.

         Subsequently, Phillips interviewed Stacey. Phillips concluded:

After my meeting with Shirley Bittner, conversation with daughter Stac[e]y and conversations with both Suzanne's attorney and Shirley's attorney I do not believe that Shirley Bittner falls under the code's requirements of being a person who needs protection and is not in need of a conservator. I would recommend that the court not approve this conservatorship. I have some minor concerns with Shirley Bittner's full knowledge of her assets but I believe ...

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