In re Conservatorship of Townsend

809 N.W.2d 424, 293 Mich. App. 182
CourtMichigan Court of Appeals
DecidedJune 23, 2011
DocketDocket No. 296358
StatusPublished
Cited by24 cases

This text of 809 N.W.2d 424 (In re Conservatorship of Townsend) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Conservatorship of Townsend, 809 N.W.2d 424, 293 Mich. App. 182 (Mich. Ct. App. 2011).

Opinion

Per CURIAM.

Appellant, Kathryn Townsend (Townsend), appeals as of right the probate court’s order appointing a conservator over her estate. At issue in this case is whether a conservator may be appointed for a reason not listed in MCL 700.5401, specifically whether a conservator may be appointed for a “vulnerable adult” and, if so, whether the evidence supported the probate court’s finding that Townsend is a vulnerable adult. We conclude that a probate court may appoint a conservator for a vulnerable adult, but under a proper definition of “vulnerable adult,” the facts do not support the probate court’s finding that Townsend is a vulnerable adult. Accordingly, we reverse.

In October 2009, Townsend’s son, appellee Larry Townsend (appellee), petitioned the probate court for the appointment of a conservator for Townsend’s estate. In his petition, appellee asserted that Townsend suffered from a diminished mental capacity and that without proper management her property would be wasted or dissipated. Appellee alleged that after the death of Townsend’s husband in 2003 and the sale of real property, Townsend had assets totaling between $700,000 and $750,000, but the subsequent “gratuitous spending” of Townsend’s money by some of appellee’s siblings, Townsend’s excessive debt accumulation, and the downturn in mutual fund share prices had left Townsend with less than $200,000. Appellee further alleged that he was concerned that the “considerable drain” on Townsend’s finances would leave Townsend destitute.

At the hearing on the petition, Townsend admitted that she financially helped her children and grandchildren. [185]*185When she loaned them money, she did not charge interest and allowed them to repay the loan as they were able, and she often accepted work in exchange for repayment of money. The testimony established that Townsend had provided financial assistance for the purchase of vehicles, wedding dresses, gas and tires, groceries, and trips, as well as in the payment of mortgage payments, property taxes, education expenses, attorney fees, and medical and dental fees. Townsend also acknowledged that she had accumulated a large amount of credit card debt and that she had been late on bill payments.

Townsend’s personal physician, Dr. Henry Danielsky, testified that Townsend scored “a perfect” 30 out of 30 on a mini mental-status examination. According to Danielsky, Townsend’s score meant that “she’s not demented and that she’s a normal human being as far as her thought goes.” He believed that Townsend’s mental capabilities were above average. Danielsky had no doubt that Townsend was able to manage her property and business affairs.

At the conclusion of the hearing, the probate court first addressed the “easier issue,” whether Townsend had property that would be wasted or dissipated unless proper management was provided. According to the probate court, the answer was “clearly yes.” It explained that Townsend had only $59,000 because she had “burned through” $440,000 in the past six years.1 The probate court then addressed the “hard question,” whether Townsend was in need of a conservator. Referring to the statutory criteria for appointment of a [186]*186conservator, MCL 700.5401(3)(a), it noted that Townsend had not disappeared and was not confined or detained by a foreign power. It further noted that there was no evidence that Townsend suffered from a mental illness or deficiency, a physical illness or disability, or a chronic use of drugs or alcohol. Nonetheless, it held that the phrase “such as” in MCL 700.5401(3)(a) did not limit the reasons for the appointment of a conservator to those listed in the statute. The probate court then proceeded to hold that Townsend was a “vulnerable adult” because she could not manage her own financial affairs; the probate court was concerned with Townsend’s inability to say no. It explained that Townsend “will give money to any child who asks for it whether it is in her best interests or not.”2 Consequently, the probate court granted appellee’s petition to appoint a conservator. This appeal ensued.

On appeal, Townsend argues that while the appointment of a conservator for a vulnerable adult may be appropriate in certain circumstances, the probate court erred by appointing a conservator for her on the basis that she was a vulnerable adult. We agree.

We review a probate court’s factual findings under the “clearly erroneous” standard. In re Bennett Estate, 255 Mich App 545, 549; 662 NW2d 772 (2003). “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.” Id. We review de novo issues of statutory interpretation. Apsey v Mem Hosp, 477 Mich 120, 127; 730 NW2d 695 (2007).

[187]*187Resolution of the issue requires us to interpret MCL 700.5401, which provides in pertinent part:

(1) Upon petition and after notice and hearing in accordance with this part, the court may appoint a conservator or make another protective order for cause as provided in this section.
(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.

The goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. Tevis v Amex Assurance Co, 283 Mich App 76, 81; 770 NW2d 16 (2009) . If the statutory language is unambiguous, the Legislature is presumed to have intended the meaning clearly expressed, and a court must enforce the statute as written. Ameritech Publishing, Inc v Dep’t of Treasury, 281 Mich App 132, 136; 761 NW2d 470 (2008). Words and phrases in a statute shall be construed and understood according to the common and approved usage of the language. Henry Ford Health Sys v Esurance Ins Co, 288 Mich App 593, 600; 808 NW2d 1 (2010) , quoting MCL 8.3a.

[188]*188Pursuant to MCL 700.5401(3)(a), a court may appoint a conservator if “[t]he individual is unable to manage property and business affairs effectively . .. .” The statute further requires that the petitioning party establish that the individual’s inability to manage his or her property and business affairs effectively is caused by a condition that the individual exhibits. In this regard, MCL 700.5401(3)(a) specifically identifies eight conditions that may affect an individual’s ability to manage his or her property and business affairs effectively: “mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance.”

However, as noted by the probate court, the phrase “for reasons such as” precedes the listing of these eight conditions.

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Bluebook (online)
809 N.W.2d 424, 293 Mich. App. 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-conservatorship-of-townsend-michctapp-2011.