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STATE OF MICHIGAN COURT OF APPEALS

RUTH A. BUKO, Court Appointed Attorney for BRENDA S. CUPP, a Protected Individual, Petitioner-Appellee, and DANA BROWNING, as Guardian of BRENDA S. CUPP, Petitioner-Appellant,

UNPUBLISHED December 21, 2010

v JON B. MUNGER, as Trustee of the BRENDA S. CUPP IRREVOCABLE SPECIAL NEEDS TRUST, Respondent-Appellee, and ELEVERT WILSON and LAUREN M. UNDERWOOD, as Court Appointed Special Fiduciary, Intervenors.

No. 290708 Oakland Probate Court LC No. 2007-313285-CA

Before: K. F. KELLY, P.J., AND WILDER AND GLEICHER, JJ. PER CURIAM. Petitioner-appellant, Dana Browning, appeals as of right the probate court's February 10, 2009, order awarding attorney fees and costs to petitioner-appellee, Ruth A. Buko, and the February 10, 2009, order transferring conservator funds into a Michigan D4A special needs trust and closing the Michigan conservatorship. Browning also raises claims of error related to prior orders of the court. We vacate the probate court's January 9, 2008 order removing Browning as co-conservator, vacate the portions of the two February 10, 2009 orders that mandate the transfer

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of conservator funds into a Michigan D4A special needs trust, and remand for resolution of the attorney fee issue in accordance with this opinion. First, Browning argues that the probate court erred in appointing Buko as attorney for the ward, Brenda S. Cupp. Browning further contends that the probate court continued in its error by failing to discharge Buko when it became clear as the months wore on that her services were unnecessary. We agree with the latter argument. The trial court's decision to appoint an individual to represent the rights of the ward is reviewed for an abuse of discretion. In re Williams Estate, 133 Mich App 1, 11; 349 NW2d 247 (1984). According to Dr. David Drasnin's psychological report, Cupp is on the lower end of intellectual and cognitive functioning and requires close supervision for most activities of daily living. Cupp was involved in a car accident in June 2007 and sustained a head injury that may have exacerbated her already existing impairments. In that regard, Browning, Cupp's sister, petitioned for, and was awarded, temporary guardianship over Cupp on August 22, 2007. The next day, Browning took Cupp to Kentucky to live with Browning and her husband. A few weeks later, Buko contested the guardianship. Buko was Cupp's attorney in a concurrently pending no-fault case. The probate court ultimately appointed Buko to represent Cupp in the guardianship proceedings. The court also granted Buko's petition to appoint a temporary conservator for Cupp. At a November 26, 2007 trial on the guardianship and conservatorship petitions, the probate court appointed Browning and public administrator, Jon Munger, as coguardians and co-conservators of Cupp. MCL 700.5305 addresses the court-appointment of an attorney for incapacitated individuals. MCL 700.5305(3) provides, in relevant part: "If the individual alleged to be incapacitated wishes to contest the petition, to have limits placed on the guardian's powers, or to object to a particular person being appointed guardian and if legal counsel has not been secured, the court shall appoint legal counsel to represent the individual alleged to be incapacitated." MCL 700.5305(3) supports the conclusion that the probate court did not abuse its discretion in its initial appointment of Buko. At least early on in the proceedings, the probate court could have reasonably believed that Cupp wished to contest the guardianship proceeding. Buko informed the court that Cupp, her client in the concurrently pending no-fault case, informed her that she was absolutely opposed to a guardianship or conservatorship. Additionally, Buko advised the court that Cupp informed her that she (Cupp) did not want any help from Browning and did not want to live in Kentucky with Browning. Buko also asserted that Cupp wanted Buko as her lawyer. Buko informed the court that Cupp "mildly has some difficulties," but with the help of her friends, she was doing well. For her part, Cupp advised the court that she wanted to live in Michigan and keep her apartment here, but she was willing to go back and forth to Kentucky to visit. Insofar as Browning suggests that Cupp's alleged agreement to enter into the guardianship should have been given more weight, Cupp's wishes should certainly be taken into account, but they should not be dispositive in light of Cupp's intellectual and cognitive disabilities. After all, Cupp's disabilities were precisely why Browning moved for a guardianship in the first place. Based on the information available to the probate court in October 2007 when it appointed Buko as Cupp's attorney, the court reasonably concluded that Cupp was contesting the guardianship proceeding. Under such circumstances, the probate court "shall" appoint counsel to -2-

represent the incapacitated individual. MCL 700.5305(3). Accordingly, the probate court did not abuse its discretion when it initially appointed counsel to represent Cupp. As for the probate court's decision that Buko was suitable to be the person appointed, the decision seems reasonable given that Buko was already serving as Cupp's counsel in the no-fault case, and Buko repeatedly represented to the court that Cupp wanted Buko to serve as her attorney. We are persuaded that the probate court did abuse its discretion, however, in failing to discharge Buko when it knew or should have known that her services were no longer necessary or desired. On November 6, 2007, Steve Kirschner, Cupp's guardian ad litem, submitted to the court a report stating that Cupp was doing very well in Browning's care. She was healthier and happier than she was at the beginning of the guardianship proceedings. Kirschner believed that Cupp needed a guardian and Browning should continue to serve that role. According to Kirschner, Cupp expressed a desire that Browning remain her guardian and also indicated that she did not want Buko as her lawyer. At a hearing on November 7, 2007, Kirschner reiterated his belief that Browning "has really helped" Cupp, and Cupp did not have a problem with the guardianship. Cupp herself spoke up at the hearing and stated: "I'm going to make my sister my guardian, and I no longer need Ruth Buko's services any more and I'm done with this." A few weeks later, on November 26, 2007, at the trial on the guardianship and conservatorship petitions, the probate court determined that Browning and Munger should serve as co-guardians and co-conservators. As of the time of the trial on November 26, 2007, Buko's services were neither necessary nor desired. Neither Cupp nor her guardian ad litem were contesting the guardianship. The probate court itself implicitly acknowledged that Browning was a suitable guardian when it appointed her as co-guardian and co-conservator at trial. Following that appointment, if Cupp needed legal services, Browning was ready and willing to acquire them for her. Regardless, the probate court declined Cupp's and Browning's requests to discharge Buko until July 23, 2008. Considering the totality of the circumstances, we find that the probate court abused its discretion by failing to discharge Buko as of the conclusion of the guardianship and conservatorship trial on November 26, 2007.1 Next, Browning contends that the probate court erred in removing Browning from her role as co-conservator. We agree. The trial court's decision regarding removal of a fiduciary is reviewed for an abuse of discretion. Matter of Estate of Williams, 133 Mich App at 13. Jon Munger, co-conservator at the time, petitioned the court for removal of Browning as a co-conservator on the basis that she acted erratically at Dr. Collette Belanger's office during Cupp's independent medical examination, and Munger heard second-hand that Browning intended that the money in Cupp's estate would not be used to pay Buko's legal fees. The probate court removed Browning as co-conservator and left Munger in place as sole conservator. The probate court did not articulate its reasoning behind the decision. MCL 700.5414 provides,

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Buko's status as Cupp's attorney in the no-fault case would have continued unhindered.

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in pertinent part: "The court may remove a conservator for good cause, upon notice and hearing, or accept a conservator's resignation." Regarding Browning's alleged misbehavior at Dr. Belanger's office, there was an emergency hearing held on November 16, 2007, to discuss the incident. Testimony was adduced from Cupp's friend, Tara Arwood, that Browning acted belligerently and overly aggressively at Cupp's IME and refused to permit Cupp to undergo the IME so long as Buko, Arwood and another of Cupp's friends, Cecilia Arnette, were present. For her part, Browning admits that she was upset during the incident, but contends that her anger was justifiable given that it was completely inappropriate to permit Cupp to undergo the IME while Arwood and Arnette individuals whom Browning maintained were taking advantage of Cupp

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