New Court of Appeals opinion shows just how ugly and expensive conservatorship fights can be.

The Court of Appeals opinion in Linda DeJong-Strait v Penny McDonald (link: http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20160216_C324133_48_324133.OPN.PDF) gives family members some sobering advice before they enter a conservatorship battle.

 

The simplified background: In 2011, Henry DeJong amended his estate plan to disinherit his daughter, Penny. At the same time, named his other children, Linda and Kathy, as his new successor trustees, medical power of attorney, and attorney-in-fact. In 2013, Linda and Kathy arrange for Henry to live in an assisted living facility’s dementia unit. Henry was displeased. He removed Linda and Kathy—and he nominated Penny’s husband, Terry, in a new power of attorney. Linda and Kathy filed a petition in probate court to reinstate their dad’s 2011 estate plan. Henry, Penny, and Terry hired a lawyer to object to the petition. Ultimately, a conservator was appointed for Henry, and Penny was added back in as a beneficiary of Henry’s trust.

 

The Court of Appeals opinion focuses on who is responsible for a $19,000 legal bill. Henry’s conservator argued that Penny and Terry should have to share in the bill. Penny and Terry argued that the lawyer “really” represented Henry. The probate court—and the Court of Appeals—ruled that Penny, Terry, and Henry were all partially responsible for the bill. The courts observed that the attorney appeared on behalf of Penny, Terry, and Henry. The attorney sat next to Terry in the court hearings. Some of his billings involved conversations with Penny and Terry. And Penny ultimately benefited from the lawyer’s work (she was written back into Henry’s trust). So the courts agreed that they should be jointly responsible for his work.

 

We can learn two big lessons from this case. The first is: In a guardianship or conservatorship dispute, each party should really think about having their own lawyer. Getting on the hook for another party’s fees could be the least of your problems. When one party’s competence is already in question, the court and your opponents could ask, “Who’s really in charge? Are you just using dad to bankroll your legal efforts?” And the lawyer faces possible removal due to conflicts of interest. The second lesson is this: Guardianship and conservatorship disputes can be ugly and expensive (sometimes we compare them to a divorce, where, instead of the parents fighting over the kids, the kids are fighting over their parents). Just one faction of the family spent $19,000 in attorney fees in this case. Before disinheriting a family member, or removing them from a position of trust, a person should think about how ugly and expensive it may be for the family. And if a guardianship and conservatorship looks like it’ll get ugly, the family should consider trying facilitative mediation early before their legal bills get out of hand.