CASE LAW UPDATE

NEW LEGISLATION

CASE LAW

 

 

Rev. 7\15\25

 

CASE LAW UPDATE
By
Hon. Michael J. McClory
Wayne County Probate Court


I. INTRODUCTION


II. CASE LAW

  1. MENTAL HEALTH – TRANSPORT ORDER – PERSON REQUIRING TREATMENT
    In re MAT, - Mich App - ; - NW 2d – (2024), #369,255, rel’d 10\15\24
  2. CLAIMS – PRIORITY – CONSERVATORSHIP – DECEDENT ESTATE – MEDICAID
    In re Nothnagel Estate, - Mich App - ; - NW 2d – (2024), #367,551, rel’d 11\21\24
  3. DECEDENT – DEFENDANT – PROPER PARTY
    Lashbrook v Grasak, - Mich App - ; - NW 2d – (2025), #369,669, rel’d 1\16\25
  4. PERSONAL REPRESENTATIVE – APPOINTMENT – RELATION BACK DOCTRINE
    Eversole v Nash, - Mich App - ; - NW 2d – (2024), #366,556, rel’d 6\13\24
  5. GUARDIAN – APPOINTMENT – BYPASSING STATUTORY PRIORITY
    In re CY Guardianship, - Mich App - ; - NW 2d – (2025), #370,828, rel’d 6\12\25
  6. GUARDIAN – SPECIAL IMMIGRANT JUVENILE STATUS – INTERPRETER\ REQUIRED FINDINGS
    In re DRRR Guardianship, - Mich App - ; - NW 2d – (2025), #372,523, rel’d 6\17\25


III. NEW LEGLISATION


IV. CONCLUSION

I. INTRODUCTION

II. NEW LEGISLATION


INTESTATE SUCCESSION – ASSISTED REPRODUCTIVE TECHNOLOGY\SURROGACY – CHILD OF MARRIED PARENTS

2024 PA 27, Eff. 4\2\25

  1. This legislation was part of a series of bills – the Assisted Reproduction and Surrogacy Parenting Act (ARSPA) – which authorizes commercial surrogacy agreements. 2024 PA 27 makes several changes to EPIC sec. 2114 primarily related to the new surrogacy laws.
  2. A child conceived via an agreement compliant with the ARSPA is considered a child of their intended parent\parents for intestate succession purposes. MCL 700.2114(1)(e).
  3. Language deleted which presumed that a child born during a marriage was the issue of that marriage, and that only one of the parties to the marriage could contest this and the right to do so ended at their death.
    Observation: This is highly useful so that a decedent’s actual heirs may be determined under these circumstances.
  4. Inheritance by or through a child by either natural parent or the child’s kindred precluded unless natural parent openly treated the child as theirs and did not refuse to support child.
    MCL 700.2114(4).
    Observation: Expands the scope of those disinherited to include the natural parent’s relatives (i.e., kindred).


III. CASE LAW

  1. MENTAL HEALTH – TRANSPORT ORDER – PERSON REQUIRING TREATMENT
    In re MAT, - Mich App - ; - NW 2d – (2024), #369,255, rel’d 10\15\24
    1. This 3-0 decision by the Court of Appeals affirmed an order for involuntary mental health treatment of the Washtenaw County Probate Court issued against the Appellant Respondent.
    2. MAT commenced with a petition for request for examination, i.e. a “transport\pick up order”. This order was issued based on the father’s testimony at a hearing. The individual was taken to a hospital and evaluated; a hearing on the request for a mental health treatment order was held at which a licensed psychologist who examined the Respondent testified that she did not understand the need for treatment and was a danger to herself and others. The trial judge found the Respondent to be a person requiring treatment under the Mental Health Code and issued a combined 60\180 day hospitalization\assisted outpatient treatment order (AOT). After its ruling, the Respondent requested a jury trial which was denied as untimely.
    3. The Appellate Panel rejected Respondent’s argument that failure to receive notice of the transport order hearing violated her due process rights. There is no statutory or court rule requirements that she be provided with notice, as the notification provisions of MCL 330.1453(1) for a full hearing on a petition for involuntary mental health treatment are not applicable. The Appeals Court also rebuffed Respondent’s contention that her initial hospitalization exceeded 24 hours in violation of MCL 330.1435(3) and .1438. There was no plain error by the Trial Court, since the record supports a determination that the examination was conducted timely.

      The Court of Appeals found no clear error was committed by the trial court in finding, based on clear and convincing evidence, that the Respondent was a “person requiring treatment” pursuant to MCL330.1401(1)(a)&(c), which state:

      (a) An individual who has mental illness, and who as a result of that mental illness can reasonably be expected within the near future to intentionally or unintentionally seriously physically injure himself, herself, or another individual, and who has engaged in an act or acts or made significant threats that are substantially supportive of the expectation.
      ***
      (c) An individual who has mental illness, whose judgment is so impaired by that mental illness, and whose lack of understanding of the need for treatment has caused him or her to demonstrate an unwillingness to voluntarily participate in or adhere to treatment that is necessary, on the basis of competent clinical opinion, to prevent a relapse or harmful deterioration of his or her condition, and presents a substantial risk of significant physical or mental harm to the individual or others.
      They also noted that hearsay evidence is permitted. In addition, the Respondent was examined by a licensed psychologist, who testified that she did not understand her need for treatment, became frustrated during the interview, and made statements that she wanted herself and her family dead.

      The jury trial demand argument was also rejected, as it was made after testimony was received in the hearing and therefore untimely per MCR 5.740(B).

    4. This decision provides useful guidance on the procedural requirements regarding “transport\pick up” orders and what constitutes clear and convincing evidence for adjudicating an individual as a “person requiring treatment” under the Mental Health Code.
    5. Application for leave to appeal was not filed.

B. CLAIMS – PRIORITY – CONSERVATORSHIP – DECEDENT ESTATE – MEDICAID
In re Nothnagel Estate, - Mich App - ; - NW 2d – (2024), #367,551, rel’d 11\21\24

  1. In a unanimous opinion, the Court of Appeals reversed and remanded a decision of the Benzie County Probate Court directing that appellee-attorney’s claim under EPIC’s conservatorship section, MCL 700.5429(6), be paid from the decedent’s estate, and ordered that DHHS’ higher priority claim be allowed pursuant to MCL 700.3805.
  2. The counselor in Nothnagel provided $22,876.20 in legal fees while the decedent was alive for services concerning his Medicaid eligibility. He did not file a claim against the conservatorship during the individual’s lifetime but did so in the decedent estate. DHHS submitted a claim of $181,910.35 for Medicaid services in the probate case. The lawyer objected to the petition for complete estate settlement where the personal representative had listed him as a lower creditor to DHHS and entitled to no monies due to insufficient assets. Following hearings and briefs, the Probate Court ruled that despite the priority provision of MCL 700.3805, compensation of the attorney’s claim would be permitted pursuant to MCL 700.5429(6). DHHS appealed.
  3. The Appellate Panel ruled that it was error for the Probate Court to provide payment of the lawyer’s fees pursuant to MCL 700.5429(6), as MCL 700.3805 is the applicable priority of claims provision for decedent estates. Although the services were provided before the individual’s death, the claim was not submitted until after he passed away and was filed in the decedent estate. As a result, it is of a lower priority than the DHHS claim and there were no assets remaining after reimbursement payment for Medicaid services. MCL 700.5429 applies only when seeking payment from a conservatorship or the individual directly. Further, even assuming arguendo that MCL 700.5429(6) was applicable, it does not address the priority of “advisable” claims, but MCL 700.5429(4) enunciates the priority of claims, and DHHS is still a superior creditor to the lawyer under this provision.
  4. The big takeaway from Northnagel: if you are a creditor in a conservatorship, file your claim while the ward is alive to maximize your potential for receiving payment. If that had been done here, the lawyer’s fees would have been paid as the Medicaid estate recovery claim could not be submitted until an estate proceeding had been commenced.
  5. Application for leave to appeal was not filed.

C. DECEDENT – DEFENDANT – PROPER PARTY
Lashbrook v Grasak, - Mich App - ; - NW 2d – (2025), #369,669, rel’d 1\16\25

  1. In this case, the Court of Appeals unanimously affirmed the ruling of the St. Clair County Circuit Court dismissing plaintiff’s suit against the deceased defendants.
  2. The instant proceeding concerned a car crash that caused the plaintiff serious injuries and resulted in the defendant’s deaths. After filing a lawsuit, plaintiff requested an extension of the summons, claiming he was unaware that defendants were dead when the case was opened. Based on evidence presented, the trial court determined that plaintiff knew the defendants were dead when the action was commenced and that the only by opening estates could service be properly effectuated. As a result, the motion for alternative service was improper, and the case was dismissed (the statute of limitations had also expired. Plaintiff appealed.
  3. The Appellate Panel rejected plaintiff’s argument that MCR 2.202(A) was misapplied by the trial court, who dismissed the case instead of permitting him to substitute the estates as parties. They noted it was well established under Michigan jurisprudence that as a matter of law a deceased person cannot be sued; the cause of action must be brought against their estate, not the decedent. Williams v Grossman, 409 Mich 67, 81; 293 NW 2d 315 (1980). MCR 2.202(A) was inapplicable, and even if did, the decedent’s estates were the proper parties to replace the deceased individuals. Substitution was legally impossible since at the time of dismissals no personal representatives had been appointed at the time of dismissal. It was not an abuse of discretion by the trial court to refuse to order substitution since no proper parties existed to take the place of the deceased defendants.
  4. The lesson of this case: Make sure you open an estate before you commence a wrongful death or other action against a decedent. You have standing to initiate estate proceedings since a right or cause of action exists that cannot be enforced without probate administration and the appointment of a personal representative.
  5. Application for leave to appeal was not filed.

D. PERSONAL REPRESENTATIVE – APPOINTMENT – RELATION BACK DOCTRINE
Eversole v Nash, - Mich App - ; - NW 2d – (2024), #366,556, rel’d 6\13\24

  1. This 3-0 ruling by the Court of Appeals reversed a decision of the Oakland County Probate Court granting summary disposition in favor of the defendants in a medical malpractice\wrongful death complaint, determining that the appointment of the plaintiff as personal representative related back in time to when she filed the complaint on the estate’s behalf.
  2. In Eversole, the decedent died on January 24, 2018. His surviving spouse filed a medical malpractice\wrongful death action on January 4, 2023, which was captioned as having been brought a personal representative of her husband’s estate. However, she had not yet been appointed personal representative. The two year statute of limitations savings period for wrongful death actions per MCL 600.5852 expired on January 18, 2023; the widow was not appointed personal representative until January 30, 2023. The trial court granted the defendants’ summary disposition motion, ruling that the relation back doctrine was inapplicable. The personal representative appealed.

  3. In its detailed analysis, the Appellate Panel noted that MCL 600.2922(2), which mandates that only a personal representative may bring a wrongful death action, was not complied with in the instant situation as the widow was not yet appointed fiduciary. Also, MCL 600.5852, the wrongful death savings provision, was not complied with.

    However, the Court of Appeals ruled that the relation back doctrine, as enunciated in MCL 700.3701, made the complaint validly and timely filed. This statute provides:

    A personal representative’s duties and powers commence on appointment. A personal representative’s powers relate back in time to give acts by the person appointed that are beneficial to the estate occurring before appointment the same effect as those occurring after appointment. Subject to sections 3206 to 3207, before or after appointment, a person named as a personal representative in a will may carry out the decedent’s written instructions relating to the decedent’s body, funeral, and burial arrangements. A personal representative may ratify and accept an act on behalf of the estate done by another if the act would have been proper for a personal representative. (emphasis added by appellate panel)

    Based on this language, the Appellate Panel held that the personal representative’s authority related back to when she filed the wrongful death act since the action benefitted the estate. They rejected the defendant’s contention that their ruling defeated MCL 600.2022(2)’s legislative intent. Rather, …MCL 700.3701 preserves an estate’s otherwise valid wrongful-death claim by providing a means to cure the initial lack of standing.” (Slip Op., pgs.11, 12).

  4. This decision provides useful guidance in this area and a “safety valve” in certain situations regarding the filing of a wrongful death lawsuit before a personal representative has been appointed. However, the best practice is to open an estate and have a fiduciary appointed first, then file the action.
  5. Application for leave to appeal was not filed.


E. GUARDIAN – APPOINTMENT – BYPASSING STATUTORY PRIORITY
In re CY Guardianship, - Mich App - ; - NW 2d – (2025), #370,828, rel’d 6\12\25

  1. This unanimous Court of Appeals decision affirmed an Oakland County Probate Court bypassing the priority under EPIC and appointing a professional guardian instead of the ward’s son.
  2. In CY, her daughters filed a guardianship petition, alleging that the son, who was her patient advocate and self-appointed power of attorney, was not acting in CY’s best interests. They cited multiple incidents, over a period of several years, of financial abuse, neglect, and coercion. CY objected, but noted that if she were deemed to need a guardian she wanted her son to serve in this capacity. The probate court granted the guardianship petition. While noting that the son had the highest priority for appointment under MCL 700.5313(2), he had repeatedly failed to cooperate with CY’s daughters, which was contrary to her best interests. Also, CY had been left without proper supervision on numerous occasions, was receiving inadequate nutrition, and found wearing a soiled diaper in an unclean residence. Since the ward did not want her daughters to serve, a professional guardian was appointed instead. CY appealed.
  3. The Court of Appeals found that the probate court did not abuse its discretion in appointing a professional guardian. It was critical to CY’s well being that a guardian other than her son be appointed due to the lack of hygiene, nutrition, and supervision while under his care. The trial court record showed that while under his care, the 93 year old ward eloped from her apartment, suffered from poor hygiene (including soiled diapers), experienced significant weight loss and could not ask for food. Also, in view CY’s extensive ailments, it was unwise for him to utilize as primary caregiver an untrained 70 year old man. The record adequately supported the probate court’s decision to bypass the statutory appointment priority and find that the son was not suitable to serve. MCL 700.5306(5); MCL 700.5313.The Appeals Court also rejected the son’s argument that the trial court abused its discretion by appointing a professional guardian without explicitly stating that doing so was in CY’s best interests. The probate court acted in accordance with MCL 700.5106(2) and explained how the appointment of a professional guardian was in her best interests. CY’s claim that this appointment was made without adequately considering whether needs were sufficiently satisfied via her patient advocate designation of her son were also not accepted. The son had “…demonstrated he was utterly unwilling or unable to address CY’s acute needs.” (Slip Opinion, pg. 7)
  4. This ruling illustrates the wisdom and benefit of EPIC including a mechanism for the probate court to bypass the statutory priority for the appointment of an adult guardian. Having CY’s son serve would have perpetuated a horrible situation with potentially fatal consequences for the ward.
  5. Application for leave to appeal was not filed.

F. GUARDIAN – SPECIAL IMMIGRANT JUVENILE STATUS – INTERPRETER\ REQUIRED FINDINGS
In re DRRR Guardianship, - Mich App - ; - NW 2d – (2025), #372,523, rel’d 6\17\25

  1. This 3-0 ruling by the Court of Appeals vacated a ruling by the Macomb County Probate Court denying a minor’s motion for Special Immigrant Juvenile Status (SIJS). In an unusual move, the Appellate Panel exercised its discretion, made each required finding, granted SIJS status, and remanded to the Probate Court for entry of its special findings.

  2. A number of procedural issues arose in DRRR which ultimately led to the vacation of the trial court’s ruling denying SIJS to the minor on jurisdictional grounds. A guardianship petition was filed on January18, 2024 by the minor’s older sister. A request for an interpreter was filed on February 13, 2024 and granted that day. At a hearing on April 16, 2024 a guardian was appointed; the Court declined a request to rule on the SIJS request (this motion was originally filed in March but the submission rejected). The motion was refiled and accepted on April 16, 2024; a hearing was scheduled for May 20, 2024 – five days before DRRR’s 18th birthday.

    On May 20, 2024, the Court noted that an interpreter request had not been submitted for the hearing. The request to have a person present for the hearing who was capable of translating was rejected by the Court on the basis that they were not SCAO certified. Given until 11:30 AM to obtain a translator, the guardian’s attorney obtained one who could only appear via video as they were two hours from the courthouse. However, the lawyer was told that only an in-person interpreter would be allowed (an affidavit submitted by the lawyer states that earlier the same day the Court allowed an interpreter to participate via video). The attorney was eventually able to locate an interpreter who could appear in-person at 11:30 AM. At 11:27 AM, without explanation, the lawyer was informed that the hearing was adjourned to June 17, 2024 and subsequently adjourned to August 5, 2024. At that hearing, the SIJS motion was denied since the child was now age 18. After a reconsideration motion was denied due to lack of jurisdiction, an appeal was filed.

  3. The Appeals Court determined it was an error when the Probate Court did not permit the May 20, 2024 hearing to proceed with the Appellant’s offered interpreter. There was a process under MCR 1.111(F) under which this individual could have served as an interpreter for this hearing. In addition, once the Appellant had requested an interpreter and the Court granted the request, no subsequent requests were necessary. MCR 1.111(B)(1). Further, by refusing to allow the use of a qualified foreign language interpreter at the May 20, 2024 hearing, the Court violated MCR 1.111(F)(2). In addition to these errors, the Court inexplicably refused to resume the hearing at 11:30 AM despite the fact it had been continued since 9 AM.

    The Court of Appeals granted appellant’s request that they make the SJIS factual determination. They noted that the record was sufficient to make this ruling and doing so would promote the interests of justice. The Probate Court’s refusal to make these findings constituted an abuse of discretion. Based on the complete record, the Appellate Panel found by a preponderance of the evidence that (1) DRRR’s reunification with her father (abandonment and neglect) and mother (neglect) in Guatemala was not viable; (2) her best interests would not be served by returning her to Guatemala; and (3) it is in her best interest to remain in the United States. Return to her country of origin is not in her best interests, whether the adoption code factors, child custody factors, or a combination of factors were utilized.

  4. Key Takeaways: Following the correct hearing procedures, especially as it pertains to interpreters, is absolutely essential to ensure the due process rights of the parties are protected. A compounding series of inexplicable errors occurred in this case which easily could have been avoided and would have precluded the need to file this appeal.
  5. Application for leave to appeal was not filed.

IV. CONCLUSION

Rev. 8\27\25