Attorneys – Guardian – Delegation

Where billing disputes between a plaintiff guardian and a defendant insurance company have given rise to important questions of whether and when professional guardians may use employees to perform guardianship tasks on their behalf, a professional guardian cannot, without complying with MCL 700.5103, lawfully delegate to employees their final decision-making authority over a guardianship “power” that is explicitly listed in MCL 700.5314 or over any guardianship task that alters or impairs an incapacitated individual’s rights, duties, liabilities or legal relations, but a professional guardian may lawfully have employees assist in exercising a guardianship power and may have employees perform any other guardianship task on behalf of the professional guardian.

“This case raises the important questions of whether and when professional guardians may use employees to perform guardianship tasks on their behalf. While these specific cases are billing disputes between a professional guardian and a no-fault insurer, the issue presented has significant practical implications for the thousands of Michiganders under the care of a professional guardian who, by virtue of their legal incapacitation, are among the most vulnerable groups in our society. The amicus briefs filed in these cases reflect the differing views as to whether the use of employees to perform guardianship tasks serves the interests of vulnerable adults who are subject to a professional guardianship. While this is an important and nuanced policy issue, it is not our role to make this policy choice. Rather, our job is to ascertain and carry into effect the scheme adopted by our Legislature.

“We hold that a professional guardian of an incapacitated individual must execute a power of attorney that complies with MCL 700.5103 to lawfully delegate to employees the authority to make any final decision to exercise a guardianship ‘power’ that is explicitly listed in MCL 700.5314 or to delegate any other final decision that would alter or impair an incapacitated individual’s rights, duties, liabilities, or legal relations. However, a professional guardian need not comply with MCL 700.5103 to use employees to perform any other guardianship task or duty on the guardian’s behalf. Moreover, a professional guardian may use employees to assist in exercising a guardianship power or to assist in deciding how to exercise these powers without complying with MCL 700.5103. A professional guardian who lawfully uses employees nonetheless retains the ultimate legal responsibility for ensuring that all statutory and fiduciary duties owed to an incapacitated individual are fulfilled and that they receive proper care.

“We hold that a professional guardian cannot, without complying with MCL 700.5103, lawfully delegate to employees their final decision-making authority over a guardianship ‘power’ that is explicitly listed in MCL 700.5314 or over any guardianship task that alters or impairs an incapacitated individual’s rights, duties, liabilities, or legal relations. However, a professional guardian may lawfully have employees assist in exercising a guardianship power and may have employees perform any other guardianship task on behalf of the professional guardian. We vacate the decision of the Court of Appeals and the decisions of the Oakland County Probate Court granting Findling’s motions for partial summary disposition and denying Auto-Owners’ countermotions for partial summary disposition in both docket numbers and remand both cases to the Oakland County Probate Court for further proceedings in light of this opinion.”

In re Malloy Guardianship; MiLW 06-108049, 31 pages; Michigan Supreme Court opinion; Cavanagh, J., joined by Clement, J., Zahra, J., Viviano, J., Bernstein, J., Welch, J., Bolden, J.; on appeal from the Court of Appeals; Erin J. Rodenhouse for appellant; Jordan M. Ahlers for appellee.

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