Category: Conservatorship

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Now Offering Probate & Estates Mediation Services

Roth Law is pleased to announce that Attorney Gregory J. Roth is now offering his services as a probate & estates mediator. Mr. Roth brings his extensive experience in probate & estates law to the mediation table. As an alternative to often protracted and expensive litigation, mediation can benefit parties to probate & estates disputes.

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Since 2001, Mr. Roth has has held a variety of roles in the probate & estates petition and litigation process. In the public sphere, he has been appointed by the probate court as guardian ad litem as well as attorney for incapacitated and protected individuals. He has also served as fiduciary for wards in the probate court, with appointments as guardian, conservator, special conservator, and special fiduciary.

Privately, Mr. Roth has represented family members in protective proceedings as well as decedent and trust administration and litigation matters, whether as petitioners, respondents, fiduciaries, or interested persons. Additionally, Mr. Roth has prosecuted and defended creditor claims against probate estates.

Mr. Roth’s breadth of experience with probate & estates administration and litigation lends itself to effective and balanced mediation in all probate court matters and ensures that all parties will be treated fairly. Adding to nearly fifteen years of concentrated probate experience, Mr. Roth has completed the 40-hour civil mediator training course and is seeking qualification on the Oakland County Probate Mediator and Oakland County Civil Mediator lists.

Mediation referrals are being accepted in the following areas:

Guardianship ● Conservatorship
Decedent Estates
Wills ● Trusts ● Powers of Attorney
(medical, financial, “living will”, HIPAA release)
Settlement Protection (for minors)
Wrongful Death Distribution ● Elder Protection

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Recording Letters of Conservatorship

In Michigan, appointment as conservator legally vests the conservator with title to all of the protected individual’s assets or those assets specified by the court (if less than all assets). The former is a full conservatorship; the latter, a limited conservatorship. Letters of Conservatorship, as generated by the court, are the evidence of transfer of the protected assets.[1]  Once the assets are so vested, a ward cannot legally transfer or assign the assets. In many cases, the conservator is restricted from selling real estate without an order of the court.

Letters May be Recorded

In Michigan, title to real estate is conveyed through deeds. Generally, these deeds are recorded with the local register of deeds in the county where the real estate sits, in order to give notice to third parties that the transfer has taken place. This notice can have an important effect on the rights of parties to the real estate and thus it is often advisable to have deeds recorded although recording is not required for legal transfer.

Conservatorship by itself does not evidence a transfer of real estate to the conservatorship estate, and without more, there is no record of the conservatorship “transfer” in the local register of deeds office.  However, conservatorship letters may be filed or recorded with the county register of deeds in order to give record notice of title as between the conservator and the protected individual.[2]

Recording is not a Requirement

That being said, the recording of conservatorship letters is not required in Michigan and is, more often than not, not done. This may be because many practitioners and fiduciaries are unaware of the ability and maybe the benefit, of doing so. In the absence of recording, the general public is not put on notice that a fiduciary is in charge of a specific piece of property. This can lead to title issues.  In some cases, one with which the writer had direct experience, properties can be sold with any knowledge of a conservator being in charge, leading to sales that have circumvented court restrictions and have occurred without court knowledge or involvement, thereby defeating the purpose of the court restrictions in the first place. GJR

Footnotes

  1. MCL 700.5420(1).
  2. MCL 700.5420(2).
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Guardianship and Conservatorship Training, for Free!

So you have been appointed as guardian for an individual or as conservator over their estate (finances). Now what do you do? 

As a fiduciary, you are responsible for the best interests of the ward and for complying with state and local requirements. Doing the wrong thing, or even nothing at all when you have a duty to act, can be detrimental to the ward and can land you in legal trouble. So how do you know what to do, and do it correctly?

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Help is often available at your local courthouse.

Many probate courts offer free guardianship and/or conservatorship classes. For the courts that offer it, this basic training is generally encouraged and is sometimes required depending on the case and the judge. Here are some courts that offer free training programs (this list will be periodically updated as information becomes available):

Take the time to look into these or other classes offered at your local county courthouse. Although not a substitute for personalized legal advice from a qualified attorney, these programs are a good starting point for questions and concerns about serving as a guardian or conservator. Both you and your ward will benefit. GJR