In re Estate of Jennifer L. Geror, a developmentally disabled person, ___Mich App___ (2009), #283527, 11/3/09
Return to Probate Review MenuJennifer Geror is a developmentally disabled person, and her mother, Laurie Geror, was appointed as her guardian. Subsequent to appointment, three emergency petitions were filed claiming that Jennifer’s health had been negatively affected by the action of the guardian. Attorney Wright performed legal service on behalf of Jennifer Geror in preparation for the hearing of the petitions. The probate court ordered that Wright’s attorney fees be paid by the no-fault carrier covering Jennifer Geror’s injuries. The no-fault insurance carrier appealed such order.
The Court of Appeals affirmed the probate court. They first addressed the no-fault insurance carrier’s argument that the probate court lacked jurisdiction to order them to pay attorney fees. This argument was based on the absence in the Mental Health Code of any provisions granting the probate court authority to order payment of attorney fees. While it is true that an action to appoint a guardian for a developmentally disabled person must be done pursuant to the Mental Health Code, the Court of Appeals concluded that the Mental Health Code did not control the issue. Instead, they determined the issue to be attorney fees arising from an action on an insurance contract. They opined that MCL 700.1303(1)(i) of the Estates and Protected Individuals Code (EPIC) gives the probate court jurisdiction to hear and decide a contract proceeding or action by or against an estate, trust or ward. The statute imposes no limits on the types of contract actions, and MCL 700.1303(3) states the purpose of the statute is to simplify the disposition of actions involving estates. According to MCL 1108(a) of EPIC, “ward” means an individual for whom a guardian is appointed. Jennifer Geror is a developmentally disabled person, and her mother was appointed her guardian. Therefore, Jennifer Geror is a ward, and the probate court had jurisdiction to decide this case.
The no-fault insurance carrier also contended that Wright’s attorney fees were not “allowable expenses” under no-fault. The Court of Appeals began by observing that it had previously ruled that expenses associated with both guardianship and other services can be allowable expenses. Heinz v Auto Club Ins Ass’n, 214 Mich App 195 (1995). In the present case, the probate court had observed that Wright was not seeking to recover fees as a guardian, but rather, as an attorney who provided legal services directly to Jennifer Geror, the injured individual. The issue, therefore, was whether Wright’s legal services were “reasonably necessary for an injured person’s care”. Wright, acting as Jennifer Geror’s attorney, visited Jennifer Geror’s home and, while she appeared to be healthy and receiving adequate care, Wright determined that a medical professional should assess the situation. The nurse subsequently assigned to the case produced several reports which Wright reviewed in order to make recommendations for Jennifer Geror’s care. In preparation for the hearing on the emergency petitions, Wright also attended depositions of the medical professionals who testified regarding whether Jennifer Geror’s needs were met.
The Court of Appeals held Wright’s ultimate task was to investigate the facts and determine whether Jennifer Geror was receiving the necessary care, as well as represent her interests in a dispute over who, ultimately, would provide her future care. Wright’s legal services were directly related to Jennifer Geror’s care, and therefore, Wright’s attorney fees are allowable expenses pursuant to MCL 500.3107(1)(a).
I believe we should take two things from this case. First, the probate court has jurisdiction to hear ancillary matters concerning a developmentally disabled individual if found within the concurrent jurisdiction of EPIC, MCL 700.1303. While the Court of Appeals only cites 700.1303(1)(i), MCL 700.1303(1) states that “In addition to the jurisdiction conferred by section 1302 and other laws, the court has concurrent legal and equitable jurisdiction to do all of the following in regard to an estate of a decided, protected individual, ward or trust...” The section then continues to list various matters in (a) through (k). Second, the attorney for a ward may have his or her attorney fees paid when related to an individual’s care by a no-fault insurance carrier. I believe that this principle may be extended to guardian ad litems for legally incapacitated individuals.
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Last updated 11-5-09
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