In re Guardianship/Conservatorship of HAROLD WILLIAM GERSTLER.
ANGELEE GERSTLER, Appellant. JANICE ROWLAND and TAMMY DYKSTRA, Guardian/Conservator of HAROLD WILLIAM GERSTLER, Appellees,
Allegan Probate Court LC Nos. 16-060110-CA; 16-060111-GA
Before: Gleicher, P.J., and M. J. Kelly and Cameron, JJ.
issue presented is whether the probate court erred by
appointing a public guardian and conservator for Harold
Gerstler, bypassing Gerstler's daughter, Angelee
Gerstler. The Estates and Protected Individuals Code (EPIC),
MCL 700.1101 et seq., establishes an order of
priority that must be followed when a probate court selects a
guardian and conservator for a protected person. MCL
700.5313; MCL 700.5409. Angelee was at the top of the list,
and no evidence suggests that she was incompetent to serve or
otherwise unsuitable for the position. The probate court
failed to make any factual findings in this regard, however,
and refused to apply the statutory priority framework. We
vacate the guardianship and conservatorship orders and remand
for further proceedings consistent with this opinion.
Gerstler is 75 years old and suffers from dementia. He and
his wife, Penni, lived for many years in Texas while Harold
worked as a mechanical engineer for a steel company. He and
Penni retired to California. Angelee Gerstler is Harold's
adult daughter and only surviving child. Angelee lives in a
home in Texas that Harold and Penni helped her purchase.
There is no dispute about Harold's current need for a
guardian and conservator.
Rowland is Harold's sister and a resident of Allegan
County, Michigan. Before the events giving rise to this case,
Harold had no ties to Michigan other than the presence of
Rowland and another sister.
2013, Harold and Penni signed California "statutory
durable powers of attorney" granting Angelee the power
to carry out real estate transactions on their behalf. Two
years later, Harold signed another California statutory
durable power of attorney empowering Angelee to engage in his
real estate transactions and "banking and other
financial institution transactions."
early 2016, a neurologist determined that Harold suffered
from Alzheimer's disease. Penni died that same year, on
October 4, 2016.
before Penni's death, Rowland brought Harold to Michigan.
The circumstances surrounding this trip are unclear. On
October 11, 2016, one week after Penni died, Rowland
persuaded Harold to sign a power of attorney in Rowland's
favor. That document enabled Rowland to control Harold's
finances and estate. A short time later, Rowland sent Angelee
this text message:
Angie, this is your Aunt Janice' [sic]. As you may know
by now, I have durable and medical power of attorney for your
dad's money and estate. I want you to be comfortable with
this, knowing that this is not for my benefit. This is for
your dad's care. The money transfer from Texas to his
Raymond James account here will be completed by the end of
today. I need to put you down as beneficiary and therefore I
need your Social Security number. I have your phone
number and address already. I have a meeting with the
Financial people tomorrow and would like to finish the
paperwork. Please give me a call. . . . [Emphasis added.]
Apparently, Angelee balked at these demands.
November 4, 2016, Rowland filed in California a "Request
for Elder or Dependent Adult Abuse Restraining Order,
" asserting that Angelee was engaged in "financial
abuse, " "talked [Harold] into giving her his
money, " and attempted to "coerce" Harold to
move to Texas. For good measure, Rowland alleged in an
attachment that Angelee "has 5 children (4 are
illegitimate) by different fathers, " that one was
"give[n] to the father, " a second "given up
for adoption, " another "taken" by child
services due to Angelee's "drug use, " and that
Angelee "is currently unemployed by choice." There
is no proof of any of these allegations in the record, which
includes multiple pages of California social services reports
and several guardian ad litem reports authored in Michigan.
We recount them only because Rowland's troubling
accusations help explain the decisions initially made by the
request for a California restraining order is notable for two
additional reasons. First, it fails to mention that Harold
had twice granted Angelee powers of attorney before
Harold's dementia diagnosis, specifically authorizing
Angelee to make financial and real estate transfers on his
behalf. Second, the form Rowland filled out in support of her
request for a restraining order includes Angelee's
correct address on Rolling Forest Lane in Hockley, Texas.
and appropriately, California launched an investigation into
Rowland's charges. Ultimately, the allegations were found
"unsubstantiated, " but that determination came
long after the Allegan Probate Court's wheels had firmly
turned in Rowland's direction.
November 22, 2016, Rowland filed a petition in the Allegan
Probate Court, seeking appointment as Harold's guardian.
The petition identified Angelee as Harold's daughter, but
listed her address as "17600 Badtke Road" in
Hockley, Texas, and her telephone number as
"unknown." Angelee did not receive this petition,
as the address Rowland identified belongs to an industrial
averred that the emergency appointment of a temporary
guardian was necessary so that Harold's investments could
be transferred to an Edward D. Jones account in Douglas,
Michigan. She announced her intention to sell Harold's
California property under the power of attorney he had
granted her, but acknowledged that Edward D. Jones's
legal department questioned Harold's mental capacity and
required a guardianship before effectuating any transfers.
Rowland's petition for conservatorship rehashed the same
information and misinformation.
probate court appointed Kenneth Prins as Harold's
guardian ad litem and conducted an emergency hearing on
December 9, 2016. Rowland, Prins and Michael McClellan, a
representative of the Michigan Department of Health and Human
Services, attended the hearing.
testified that according to Rowland, Angelee persuaded Harold
to give her at least $73, 000 in addition to monthly checks
of approximately $1, 500. Harold had an estate worth $660,
000, Rowland advised, consisting of a Texas Wells Fargo
account and a California home. Prins relayed the
"concern" of "family members" that
Angelee "is going to try to get this money and take
custody of the dad and take conservatorship and take the
money and then basically, run." Relying solely on
information provided by Rowland, Prins testified that Angelee
"has had a very difficult life, " that "[a]ll
five [of her] children were taken away from her through
adoption or Child Protective Services." Prins reiterated
Rowland's claim that Angelee "does have a drug
problem, a prescription drug problem, in the past, so
that's why we [are] here today." After expressing
that Angelee is "a little bit untrustworthy from what I
hear, " Prins told the court that Rowland took
"very good care" of Harold.
added that he had talked to Harold, who "wouldn't
mind living" in Michigan but preferred warm weather.
Harold told Prins that "if I do go to Texas . . . my
daughter says she wants $93, 000 to pay off the house, and
she can have it. . . ." According to Prins, Harold was
"just not thinking straight[.]" McClellan advised
that his counterparts in California were still investigating
Rowland's allegations. He and Prins recommended the
appointment of a temporary guardian.
explained that Harold had lived and worked in Texas, then
retired to California with his wife. She described that he
developed dementia symptoms three years previously and
currently was unable to recognize and understand common,
everyday things. Rowland went to California and decided
"to take charge" after Penni died. She obtained
Harold's power of attorney and arranged with an Edward D.
Jones agent to bring Harold's money from Texas to
probate court appointed Rowland as Harold's temporary
guardian but opted for a public conservator, Kimberly
Milbocker, "until we get this sorted out." The
court appointed Jeremy Baier to serve as Harold's
filed a GAL report three days later. For the most part, his
report recapitulated the information he provided at the
emergency hearing. He added that had since spoken with
Angelee and learned her correct phone number and address.
Angelee told him that her father bought the house in which
she lived in Texas, the home was ready for Harold to live in,
and that she wanted to be her father's guardian and
conservator. Nevertheless, Prins recommended that the trial
court appoint Rowland as Harold's guardian and
December 16, 2016 hearing, Prins advised that both Rowland
and Angelee desired appointment as Harold's guardian and
conservator. He verified that Rowland went to California and
brought Harold back to her home in Fennville, Michigan, where
Harold then resided, and that Angelee had a place for him to
live in Texas. Harold told Prins that he wanted to give
Angelee $99, 000 to pay off the debt on the Texas home, and
that he disliked winter weather and wanted to live in Texas
during the winter and with Rowland during the summer. Prins
testified that he knew that Rowland would provide Harold
excellent care. After admitting that he "didn't know
Angie very well, " Prins recommended that Rowland serve
as Harold's guardian and conservator.
Harold's attorney, testified that Harold would "much
rather be in Texas, " as he felt "more comfortable
there." He recommended that Angelee serve as
Harold's guardian, but was "not fully
convinced" that she should also be his conservator.
"[I]t may be in [Harold's] better interests, "