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### STATE OF MICHIGAN

COURT OF APPEALS

In re Conservatorship of STEPHEN MICHALAK.

STEPHAN PP MICHALAK,

Petitioner-Appellant, UNPUBLISHED December 1, 2016

v No. 329198 Saginaw Probate Court CIRCLE OF LIFE SERVICES CONSERVATOR, LC No. 15-132724-CA

Respondent-Appellee.

Before: O WENS , P.J., and H OEKSTRA and B ECKERING , JJ.

O WENS

, P.J., (D ISSENTING .)

I respectfully dissent. The issue before the trial court was whether Mr. Michalak’s disability had ceased. If it had, the trial court would be req uired to terminate the conservatorship. MCL 700.5431.

The majority asserts that “there is no evidence that Michalak ever mismanaged his finances.” To the contrary, there was evidence that, prior to the appointment of a conservator, Michalak did not know the extent of his assets, claiming they w ere worth about $70,000, rather

than the actual value of about $1,000,000, and that the bank wo uld not cash a check he had
written because “the name and the date were so far off.” Subse quent to the appointment of a conservator, Michalak told Dr. Movva that he “used to have [one ] million dollar, now it is less than 90,000,” he “paid the same bill three times in one month,” and he claimed “that someone else has used his credit card,” which subsequent credit card st atements showed was untrue. Dr. MacInnes found Michalak to require “some intervention and compe nsatory devises [sic] to manage his finances.

Based on the foregoing, it is clear that there was insufficien t evidence presented that Michalak’s previously established disability had ceased, and, i n fact, the evidence showed that it continued. Therefore, the cour t did not err i n declining to te rminate the conservatorship.

The majority vacates and remands with instructions to the tria l court to “determine the least restrictive means of protecting Michalak’s assets in ligh t of Michalak’s specific capabilities and incapacities”; in other words, to consider a limited conser vatorship or other protective order.-2- Indeed, had I been the trial j udge I probably would have appoin ted a limited conservator with authority over all of Michalak’s assets, reserving to Michalak the right to spend a limited amount, such as $25 or $50 per week, without approval of the co nservator. 1 However, I was not the trial judge and did not obser ve Michalak and the witnesses as did he.

Based on the evidence before the trial court that Michalak’s d isability continued rather than ceased, I cannot find that the trial judge abused his disc retion. Therefore, I would affirm.

/s/ Donald S. Owens

1 It appears from the evidence that while this is a full conserv atorship in law, it is a limited conservatorship in practice, thanks to the efforts of the conse rvator to encourage Michalak’s maximum self-reliance and independence by permitting him to hav e use of a checkbook and credit card. While “90% of the [credit card] charges are from restaurants,” this shows that his conservator has given him the opportunity to exercise discretio n in the spending of money for his day-to-day living expenses (primarily restaurant meals) while h is very significant assets are protected and important bills are paid for him by his conservat or.