In re CONSERVATORSHIP OF RHEA BRODY.
ROBERT D. BRODY, Appellant, MARY LYNEIS, as Conservator for RHEA BRODY, Appellee, and JAY BRODY, Interested Party, and GERALD BRODY and CATHY B. DEUTCHMAN, Interested Parties-Appellees.
Probate Court LC No. 2015-367333-CA
Before: O'Brien, P.J., and Jansen and Murray, JJ.
estate case involving Rhea Brody's personal assets,
Rhea's husband, appellant Robert Brody, appeals as of
right the probate court's order appointing Mary Lyneis as
Rhea's conservator. Rhea's daughter, Cathy B.
Deutchman, filed the petition for conservatorship, which was
opposed by Robert and Jay Brody, the son of Robert and Rhea.
APPOINTMENT OF A CONSERVATOR
argues on appeal that the probate court abused its discretion
by appointing a conservator to manage Rhea's estate and
affairs under MCL 700.5401. We disagree.
Court reviews a probate court's appointment of a
conservator for an abuse of discretion. In re
Conservatorship of Shirley Bittner, 312 Mich.App. 227,
235; 879 N.W.2d 269 (2015). "An abuse of discretion
occurs when the court's decision falls outside the range
of reasonable and principled outcomes." Id.
This Court reviews the probate court's factual findings
for clear error and its legal conclusions de novo.
Id. at 235-236. "A finding is clearly erroneous
when a reviewing court is left with a definite and firm
conviction that a mistake has been made, even if there is
evidence to support the finding." In re Townsend
Conservatorship, 293 Mich.App. 182, 186; 809 N.W.2d 424
(2011) (quotation marks and citation omitted). "The
reviewing court will defer to the probate court on matters of
credibility, and will give broad deference to findings made
by the probate court because of its unique vantage point
regarding witnesses, their testimony, and other influencing
factors not readily available to the reviewing court."
In re Erickson Estate, 202 Mich.App. 329, 331; 508
N.W.2d 181 (1993).
V of the Estates and Protected Individuals Code (EPIC), MCL
700.5101 et seq., provides protection for
individuals under disability. The standards governing
conservatorship appointments are described in MCL 700.5401,
which, in relevant part, provides:
(3) The court may appoint a conservator or make another
protective order in relation to an individual's estate
and affairs if the court determines both of the following:
(a) The individual is unable to manage property and business
affairs effectively for reasons such as mental illness,
mental deficiency, physical illness or disability, chronic
use of drugs, chronic intoxication, confinement, detention by
a foreign power, or disappearance.
(b) The individual has property that will be wasted or
dissipated unless proper management is provided, or money is
needed for the individual's support, care, and welfare or
for those entitled to the individual's support, and that
protection is necessary to obtain or provide money.
prerequisites must be established by clear and convincing
evidence. MCL 700.5406(7). The clear-and-convincing-evidence
standard is " 'the most demanding standard applied
in civil cases . . . .' " Bittner, 312
Mich.App. at 237, quoting In re Martin, 450 Mich.
204, 227; 538 N.W.2d 399 (1995). Clear and convincing proof
produce[s] in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be
established, evidence so clear, direct and weighty and
convincing as to enable [the factfinder] to come to a clear
conviction, without hesitancy, of the truth of the precise
facts in issue. [Martin, 450 at 227 (quotation marks
and citations omitted; alterations in original).]
does not dispute that MCL 700.5401(3)(a) is satisfied, as
Rhea's frontal temporal dementia renders her unable to
manage her property or business affairs effectively. On
appeal, Robert argues only that the probate court clearly
erred in its conclusion that Rhea "has property that
will be wasted or dissipated unless proper management is
provided." We hold that the circuit court did not
clearly err when it found that Rhea had property that would
be wasted or dissipated without proper protection and
oversight, or abuse its discretion when it appointed a
conservator to oversee Rhea's estate.
probate court thoughtfully considered Rhea's
circumstances and the nature of each of the assets in
Rhea's personal estate-comprising a Fifth Third bank
account for tax refunds, an individually-held IRA, a
jointly-held Chase Bank account, and jointly-owned homes in
Michigan and Florida-before concluding that the requirements
of MCL 700.5401(3) had been met by clear and convincing
evidence. The Fifth Third bank account, containing only
$580.60 at the time of the hearing, existed for depositing
tax refunds. Lyneis testified that, as special conservator,
she was responsible for reviewing Rhea's personal tax
return and paying any tax liabilities, which included
Rhea's potentially-substantial income from the Rhea
Trust. Rhea risked negative tax consequences for failure to
file her signed return and pay any liabilities. While the
probate proceedings were ongoing, Jay completed Rhea's
tax return but refused to provide it to Lyneis for review.
Without the ability to review Rhea's tax return, Lyneis
was unable to verify whether any refund was properly
deposited into the Fifth Third account. Assets involving tax
liabilities and refunds, including the Fifth Third account
dealing with refunds, risked waste or dissipation without
probate court noted that Rhea's IRA required an election
of annual distributions. The probate court noted that with no
one in place to authorize mandatory distributions, Rhea's
IRA would be subject to tax penalties, which created a risk
of waste and dissipation of the IRA funds. Robert argues that
the probate court could not have found the IRA subject to
waste or dissipation as a result of tax penalties because
automatic distributions from the IRA had been set up to occur
automatically for years, and Rhea's IRA requires
"minimal involvement." Respondent fails to explain
how the fact that an asset requires only minimal oversight
renders the asset less likely to fall victim to waste or
dissipation. Further, Robert's argument is not supported
by the record. Although Lyneis testified that the annual
distribution was deposited into the ...