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In re Guardianship/Conservatorship of Gerstler

Court of Appeals of Michigan

June 5, 2018

In re Guardianship/Conservatorship of HAROLD WILLIAM GERSTLER.

          Allegan Probate Court LC Nos. 16-060110-CA; 16-060111-GA

          Before: Gleicher, P.J., and M. J. Kelly and Cameron, JJ.

          Gleicher, P.J.

         The 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.


         Harold 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.

         Janice 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.

         In May 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."

         In early 2016, a neurologist determined that Harold suffered from Alzheimer's disease. Penni died that same year, on October 4, 2016.

         Shortly 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.

         On 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 probate court.[1]

         Rowland's 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.

         Predictably 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.

         On 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 facility.

         Rowland 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.

         The 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.

         Prins 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.

         Prins 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.

         Rowland 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 Michigan.

         The 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 attorney.

         Prins 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 conservator.

         At a 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.

         Baier, 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, " ...

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