Protective order; MCL 700.5401(3); In re Estate of Schroeder; MCL 700.5401(3)(a) & (b); In re Estate of Vansach; Transferred property; MCL 700.5408; Department of Health & Human Services (DHHS); Guardian ad litem (GAL)

The court held that petitioner-wife adequately established the requirements under MCL 700.5401(3)(a) to transfer nearly all of her husband’s (Sizick) assets and income for petitioner’s support. But the court vacated the trial court’s finding as to MCL 700.5401(3)(b). It also remanded as to the identification, value, and ownership of the transferred property. The court affirmed the order as to the finding under MCL 700.5401(3)(a), vacated as to MCL 700.5401(3)(b), and remanded for further findings under (b) and to identify the property being transferred under MCL 700.5408. Respondent-DHHS appealed the protective order entered by the trial court, which granted a transfer of Sizick’s “assets and income, an expansion of the power of attorney to implement the order, and equitable relief in favor of” petitioner. The court found it was “clear from the record that Sizick suffers from multiple health conditions that require continuous nursing care, making it unlikely that he will ever return to independent living. In light of the fact that witness testimony and the GAL’s report were unchallenged regarding Sizick’s health issues, the trial court did not err in determining Sizick was unable to manage his property or business affairs because of mental deficiency and physical illness under MCL 700.5401(3)(a).” As to MCL 700.5401(3)(b), the DHHS’s principal argument was that “under Schroeder the trial court erred in making the need determination in the absence of a final Medicaid determination.” The court reluctantly agreed. Based on Schroeder, which is binding, it reversed “the probate court’s ruling on the basis of need, and remand for a redetermination.” In addition, it was “unclear what assets or property are included in trial court’s ‘countable assets’ calculation, whose ownership interest is included in” the calculation or petition, and whether the “order transferred property independently owned by petitioner. Therefore, to the extent the trial court on remand grants a new protective order, evidence should be presented regarding the ownership interest and value of the assets being transferred.”