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STATE OF MICHIGAN 

COURT OF APPEALS 

In re Conservatorship of STEPHEN MICHALAK. 

STEPHEN 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UNPUBLISHED 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: OWENS, P.J., and HOEKSTRA and BECKERING, JJ. 

PER CURIAM. 

 Over petitioner Stephen Michalak’s objections, Saginaw Probate Court Judge Patrick J. 

McGraw appointed Barb Tomcal of Circle of Life Services, Inc. as full conservator of his estate 

on February 25, 2015. On September 4, 2015, the court denied Michalak’s petition to terminate 

the conservatorship. Michalak now appeals as right from the order denying his petition to 

terminate the conservatorship. For the reasons explained in this opinion, we vacate the trial 

court’s decision and we remand to the trial court for a determination of the least restrictive means 

of protecting Michalak’s assets in light of Michalak’s specific capabilities and limitations. 

 Michalak is 89 years old, and the father of two adult children. In 2013, Michalak’s wife 

of 66 years passed away. Following her death, Michalak suffered from depression and spoke of 

committing suicide in order to be with his wife. In addition to his depression, Michalak had 

several other health problems commonly associated with aging, including motor problems as 

well as cognitive and memory difficulties. After a fall in his home in early 2014, Michalak spent 

several months in nursing home facilities. During that time, he signed a power of attorney 

appointing his son Ronald as his attorney in fact. 

 Upon his discharge from the nursing home in August of 2014, Michalak returned to his 

home to find that many of his valuables had been removed from his house by his son and, when 

he reviewed his finances, he discovered that his son had taken monetary “gifts” from Michalak’s 
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estate in a total amount of $36,000 for himself, his sister and their respective spouses.1

 Michalak 

revoked his son’s power of attorney. 

 A few months later, Michalak’s son filed a petition to have himself appointed as 

Michalak’s conservator, claiming that—by reason of mental illness, mental deficiency, and 

physical illness or disability—Michalak was unable to manage his property and business affairs 

effectively, such that the property would be wasted or dissipated unless proper management was 

provided. Michalak strongly opposed the appointment of a conservator, testifying at the hearing 

that he could manage his own affairs and that he had done so for some time. No medical 

evidence regarding Michalak’s mental capacity was presented at the hearing. Both Michalak’s 

son and son-in-law testified at the hearing; but, their testimony largely centered on Michalak’s 

ability to care for himself at home, including things like cooking and driving.2 They suggested 

that his short term memory was “extremely poor” in recent years, but they offered no evidence to 

suggest that Michalak had mismanaged his assets. 

 Ultimately, the probate court granted the petition to establish a conservatorship. The 

court made this appointment based on a finding of “mental deficiency.” The court declined to 

appoint Michalak’s son as conservator given the “disharmony” in the family, and instead 

appointed Barb Tomcal of Circle of Life Services, Inc. When making this appointment, the trial 

court specified that the appointment would only be for a period of one year because the court 

wanted “some more information,” such as medical evaluations of Michalak. 

 Michalak later filed a petition to terminate the conservatorship. In connection with this 

petition, he provided three medical opinions to the trial court. The first, from a primary care 

physician, Dr. Brent Boggess, indicated that Michalak suffers from “mild dementia,” but that he 

“is capable of living independently and managing his own financial affairs.” The second doctor, 

Dr. Usha Movva, a geriatric specialist, noted signs of decline in Michalak’s memory and 

recommended neuropsychological testing to evaluate the extent of his memory loss and its effect 

on his day to day life. The third doctor, neuropsychologist Dr. William MacInnes, subjected 

Michalak to a battery of tests and concluded that Michalak’s performance on the tests “is 

indicative of some mild-to-moderate cognitive deficits” that did “not rise to the level of 

dementia.” While concluding that Michalak would “need assistance with tasks dependent on 

sequencing, mental speed, planning and short-term memory,” MacInnes opined that Michalak 

could remain relatively independent and manage his finances with “some intervention and 

compensatory devices.” Notably, MacInnes opined that Michalak was “grossly capable of 

making informed decisions” and he recommended only that someone “assist him with managing 

finances.” 

 

1

 Michalak’s son provided no justification for taking money from the estate other than to assert 

that he believed Michalak’s estate could afford to make “gifts.” 

2

 Michalak’s son also petitioned for the appointment of a guardian for Michalak. The trial court 

granted this request. The guardianship is not at issue in this appeal. 
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 The trial court considered this medical evidence and determined that a full 

conservatorship remained appropriate. In doing so, the trial court dismissed Boggess’s opinion 

primarily because the doctor did not detail what testing was employed. The court also largely 

dismissed Movva’s opinion, stating that it was “not much help as it looks like she punted to a 

neuropsychologist.” Turning to MacInnes’s opinion, the trial court detailed many of MacInnes’s 

observations and findings, including MacInnes’s positive findings regarding Michalak’s 

capabilities. The court described MacInnes’s findings as “inconsistent” insofar as MacInnes 

described Michalak as capable of managing his finances but also recommended assistance in 

light of Michalak’s mild to moderate cognitive deficits. Ultimately, because MacInnes opined 

that Michalak needed “assistance,” the trial court determined that the full conservatorship 

remained appropriate. Notably, despite the medical evidence that Michalak could manage his 

finances with “assistance,” the trial court did not consider whether some lesser intervention than 

a full conservatorship would be sufficient to protect Michalak’s assets. Instead, the trial court 

reasoned that “it is clear if [MacInnes] is recommending assistance with finances” then the full 

conservatorship remains necessary. Michalak now appeals as of right. 

 On appeal, Michalak argues that the trial court erred by continuing the full 

conservatorship when unrefuted medical evidence indicated that Michalak was capable of 

making informed decisions and managing his finances. At a minimum, Michalak argues that the 

trial court should have acknowledged his remaining capabilities and considered less restrictive 

methods of protecting his assets than the continuation of a full conservatorship. Given the 

medical evidence of Michalak’s ability to manage his finances with assistance, we find it 

appropriate to remand so that the trial court may determine the least restrictive means of 

protecting Michalak’s assets in light of Michalak’s specific capabilities and limitations. 

 “[A]ppeals from a probate court decision are on the record, not de novo.” In re Temple 

Marital Trust, 278 Mich App 122, 128; 748 NW2d 265 (2008). We review the probate court's 

factual findings for clear error. In re Townsend Conservatorship, 293 Mich App 182, 186; 809 

NW2d 424 (2011). “A finding of fact is clearly erroneous when no evidence supports the 

finding or, on the entire record, this Court is left with a definite and firm conviction that a 

mistake has been made.” King v Mich State Police Dep’t, 303 Mich App 162, 185; 841 NW2d 

914 (2013). Issues involving statutory interpretation are reviewed de novo. In re 

Conservatorship of Shirley Bittner, 312 Mich App 227, 236; 879 NW2d 269 (2015). 

 The Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq. sets forth the 

standards for the appointment of a conservator and the termination of a conservatorship. A 

protected individual may petition to terminate a conservatorship pursuant to MCL 700.5431, 

which states: 

The protected individual, conservator, or another interested person may petition 

the court to terminate the conservatorship. A protected individual seeking 

termination is entitled to the same rights and procedures as in an original 

proceeding for a protective order. Upon determining, after notice and hearing, 

that the minority or disability of the protected individual has ceased, the court 

shall terminate the conservatorship. Upon termination, title to the estate property 

passes to the formerly protected individual or to successors subject to the 
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provision in the order for expenses of administration and to directions for the 

conservator to execute appropriate instruments to evidence the transfer. 

According to the plain language of MCL 700.5431, the trial court shall terminate a 

conservatorship upon determining that the “disability of the protected individual has ceased.” As 

defined by statute, the “protected individual” is “a minor or other individual for whom a 

conservator has been appointed or other protective order has been made as provided in [MCL 

700.5401 et seq].” MCL 700.1106(v). A protected individual’s disability has “ceased” when the 

disability has “come to an end” or “no longer continues.” Merriam-Webster’s Collegiate 

Dictionary (2014). For purposes of EPIC, the term “disability” refers to “cause for a protective 

order as described in [MCL 700.5401].” MCL 700.1103(n). Consequently, when considering a 

petition to terminate a conservatorship under MCL 700.5431, the trial court must determine 

whether cause for the conservatorship under MCL 700.5401 has come to an end. 

 Under MCL 700.5401(3), the court may appoint a conservator if the court determines 

both of the following: 

(a) The individual is unable to manage property and business affairs effectively 

for reasons such as mental illness, mental deficiency, physical illness or disability, 

chronic use of drugs, chronic intoxication, confinement, detention by a foreign 

power, or disappearance. 

(b) The individual has property that will be wasted or dissipated unless proper 

management is provided, or money is needed for the individual's support, care, 

and welfare or for those entitled to the individual's support, and that protection is 

necessary to obtain or provide money. 

In regards to the first requirement in particular, “[t]he plain language of MCL 

700.5401(3)(a) requires a determination that an ‘individual is unable to manage property and 

business affairs effectively,’ and that this disability arises from causes such as ‘mental illness’ or 

‘mental deficiency.’” In re Conservatorship of Shirley Bittner, 312 Mich App at 238, quoting 

MCL 700.5401. See also In re Townsend Conservatorship, 293 Mich App at 188-189. 

 Whether a person is unable to manage funds involves consideration of whether an 

individual can conscientiously and competently manage her affairs, think and act appropriately 

regarding finances, and act as a responsible custodian for funds. See In re Conservatorship of 

Shirley Bittner, 312 Mich App at 238-239. Notably, in a case decided after the trial court’s 

decisions in the present dispute, this Court has recently held that “problems” commonly 

associated with aging, such as lessened cognitive ability and memory difficulties, do not 

necessarily evince a mental deficiency or an inability to manage financial affairs. Id. at 238-240. 

In particular, this Court explained: 

 Difficulties with math and memory plague many elderly (and not so 

elderly) individuals. These irksome attendants to the aging process are not 

necessarily disabling. Poor subtraction skills and relatively low cognitive-ability 

testing scores hardly render a person mentally ill or mentally deficient, or even 

incapable of making rational decisions regarding one's bounty. In our view, clear 
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and convincing evidence that a person “is unable to manage property and business 

affairs effectively” requires more than low marks on arithmetic or memory tests, 

or inconsistent ineptitude in balancing a checkbook. [Id. at 239.] 

As a related matter, the second prerequisite for a conservator under MCL 700.5401(3)(b), which 

addresses whether property “will be wasted or dissipated unless proper management is 

provided,” requires consideration of the individual’s financial affairs and how those finances 

have been handled, or mishandled, under the protected individual’s control. See, e.g., In re 

Conservatorship of Shirley Bittner, 312 Mich App at 240-241. 

 Important to the present case, the Bittner Court held that the need for “assistance” in 

managing financial affairs does not necessarily demonstrate an inability to manage finances or a 

mishandling of finances, and a need for some “assistance” will not support the imposition of a 

full conservatorship where an individual remains capable of making responsible decisions.3

 See 

id. at 240. That is, this Court explained that, when determining whether there is cause for a 

conservatorship, the trial court must endeavor to maintain an individual’s autonomy as much as 

possible, which necessitates consideration of the least restrictive means of protecting assets. Id.

at 241-242. See also MCL 700.5407(1); MCL 700.5419(1); MCL 700.5408(1). For this reason, 

when considering a conservatorship: 

[A] probate court should approach the task from a perspective of respect for the 

individual's right to acquire, enjoy, and dispose of his or her property as the 

individual sees fit. Any restrictions on this fundamental right must be narrowly 

tailored to the individual's specific capabilities and incapacities, bearing in mind 

the heightened evidentiary threshold for judicial interference. [In re 

Conservatorship of Shirley Bittner, 312 Mich App at 242.] 

This Court explained that the obligation to promote self-reliance and to be as minimally intrusive 

is a statutory requirement for the imposition of a conservatorship because when “[r]ead together, 

MCL 700.5407(1), MCL 700.5419(1), and MCL 700.5408 mandate that a court carefully and 

 

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 Factually, Bittner involved a 74-year-old protected individual who lost her husband of 50 years 

and then developed serious health issues that required surgery, medications, and a temporary stay 

in a nursing home. In re Conservatorship of Shirley Bittner, 312 Mich App at 230. “She 

emerged from this ordeal with some confusion” and, according to the medical evidence, the 

protected individual had “cognitive impairments brought about by Vascular Dementia,” she had 

“poor registration and recall, as well as poor arithmetic and quantitative skills which negatively 

impact[ed] her ability to be able to independently manage her financial resources,” and the 

examining physician expressed concerns about the individual’s “full knowledge of her assets.” 

Id. at 231-233. Nevertheless, the examining physician opined that the protected individual could 

make an “informed decision” and could handle her financial affairs with “support.” Id. at 233-

234. The trial court imposed a conservatorship based on the protected individual’s cognitive 

difficulties. Id. at 235. However, this Court reversed, concluding that the evidence did not 

support the trial court’s findings of a disability because, with some support, the protected 

individual remained capable of managing her affairs. Id. at 239-240, 243. 
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thoughtfully consider whether arrangements less intrusive than a conservatorship will adequately 

protect an individual’s property as well as his or her autonomy.” Id. at 242-243. Under these 

statutory provisions, less intrusive means of protecting assets include the creation of a limited 

conservatorship under MCL 700.5419(1), court action for a protected individual’s needs under 

MCL 700.5408(1) without appointing a conservator, and authorization of a protected individual 

to function without the consent or supervision of a conservator under MCL 700.5407(1). 

 Turning to the present case, in light of the principles articulated in Bittner and Michalak’s 

demonstrated capabilities, the trial court erred when it declined Michalak’s request to terminate 

the full conservatorship without consideration of whether there were lesser means of interference 

available to protect Michalak’s assets. That is, like the protected individual in Bittner, Michalak 

is an older adult whose purported “disability” is a mental deficiency in the form of cognitive 

impairments. Like the individual in Bittner, Michalak also went through a difficult period of 

adjustment following the death of a spouse. Further, while it is plain that Michalak suffers from 

mild-to-moderate cognitive difficulties and symptoms of depression, as in Bittner, there is 

unrefuted medical evidence that Michalak remains grossly capable of making informed 

decisions. Under Bittner’s holding, the fact that Michalak may need “assistance” with his 

finances does not necessarily warrant a full conservatorship under MCL 700.5401(3) without due 

consideration of lesser means of intervention. See In re Conservatorship of Shirley Bittner, 312 

Mich App at 240-243. 

 In particular, MacInnes’s evaluation following a battery of tests clearly details 

Michalak’s mild-to-moderate cognitive difficulties and various other limitations associated with 

aging.4

 However, MacInnes’s report specifies that Michalak is “grossly capable of making 

informed decisions” and MacInnes saw no reason why, with some “assistance,” Michalak could 

not remain relatively independent and manage his finances. The trial court provided no reason 

for disregarding this expert testimony and in fact appeared to credit MacInnes’s findings. 

Indeed, ultimately, the trial court concluded that Michalak’s need for “assistance,” as 

recommended by MacInnes, warranted the continuation of the full conservatorship. But, as we 

have discussed, Bittner made plain that the need for “assistance” is not necessarily cause for a 

full conservatorship under MCL 700.5401(3). See also MCL 700.5407(1). Quite simply, as in 

Bittner, Michalak faces some mild cognitive limitations, but the medical evidence strongly 

supports his contention that he remains able to manage his finances with the aid of less restrictive 

protection than the full conservatorship imposed by the trial court. In light of this evidence, 

before denying Michalak’s request to terminate the full conservatorship, the trial court should 

have considered whether there were less restrictive means of interference which could have been 

narrowly tailored to Michalak’s particular needs. 

 Aside from the medical evidence supporting his position, Michalak’s own testimony as 

well as that of his son and son-in-law, also supports the conclusion that Michalak retains the 

 

4

 We have focused on MacInnes’s report because the trial court largely discounted the other 

medical opinions and we defer to the trial court’s credibility assessment with regard to these 

other opinions. 
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ability to manage his finances, at least in part. In particular, as in Bittner, there is no evidence 

that Michalak ever mismanaged his finances. Rather, as in Bittner, the evidence demonstrates 

that Michalak lives within his means and paid his various bills, such as his utilities, on time. Cf. 

In re Conservatorship of Shirley Bittner, 312 Mich App at 240. His son and son-in-law testified 

to nothing that would indicate mismanagement of assets when funds were under Michalak’s 

control.5 Further, during his temporary stay in nursing homes, Michalak signed a power of 

attorney allowing others to manage his affairs. When he returned home, he reviewed his 

finances and, he was so cognizant of his own financial affairs, that he soon noticed his son’s 

misappropriation of funds. He demanded the return of those funds, he revoked the power of 

attorney to prevent further mismanagement by his son, and he brought his son’s unauthorized 

“gifts” to the attention of the guardian ad litem. This sort of financial awareness is not 

supportive of the conclusion that Michalak is “unable” to manage his affairs; rather, it evinces 

Michalak’s intellectual competence. Cf. In re Conservatorship of Shirley Bittner, 312 Mich App 

at 240. Michalak also testified—and his testimony was uncontroverted—that he more recently 

employed a broker to help manage his investments. Again, the fact that Michalak no longer selfmonitors his stocks, but has employed assistance, is an indication of his continuing ability to 

manage his affairs. Cf. id. 

 On the whole, the evidence—both medical evaluations and the testimony from Michalak 

and his family members—indicates nothing more than that Michalak, while grossly capable of 

making informed decisions, needs some assistance with managing his affairs. But, the need for 

assistance does not establish that he is “unable” to manage his finances within the meaning of 

MCL 700.5401(3)(a) and it does not necessarily provide cause for a full conservatorship. In 

other words, on a continuum between the need for a full conservatorship and no intervention at 

all, Michalak has clearly demonstrated that he falls somewhere in the middle. Consequently, 

before continuing the full conservatorship, in light of Michalak’s demonstrated capabilities and 

his need for “assistance,” the trial court should have considered lesser means of protecting 

Michalak’s assets and narrowly tailored any intervention to Michalak’s specific needs and 

capabilities.6

 

5

 At most, his son-in-law indicated that Michalak had refused to pay an attorney’s bill. But no 

evidence was presented as to why he refused to pay this bill and thus there is no basis in the 

record to conclude that his reasoning was unsound or demonstrated an inability to manage his 

finances. Likewise, there was evidence from his son-in-law that Michalak has had difficulty 

writing out checks. But, it is not clear from his testimony whether this is simply a handwriting 

problem or something else. In any event, on its own, this difficulty writing checks does not 

demonstrate an inability to manage finances such that a full conservatorship would be necessary. 

6

 In contrast, the dissent appears to adopt an all or nothing approach, concluding that the trial 

court should continue the full conservatorship, without consideration of lesser means of 

intervention, because Michalak had not shown that he could function completely independently. 

We do not read MCL 700.5431 as imposing such a stringent burden on a protected individual. 

As noted, EPIC defines a “disability” as “cause for a protective order as described in [MCL 

700.5401].” In our judgment, “cause” for a protective order has “ceased” when a protected 
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 For these reasons, we vacate the trial court’s decision denying Michalak’s motion to 

terminate the conservatorship and we remand with instructions that the court consider whether 

lesser means of intervention than a full conservatorship could be imposed to meet Michalak’s 

needs while at the same time allowing him to manage his affairs with “assistance.” The trial 

court should narrowly tailor any intervention to Michalak’s specific capabilities and incapacities. 

See In re Conservatorship of Shirley Bittner, 312 Mich App at 242-243; MCL 700.5407(1); 

MCL 700.5419(1); MCL 700.5408. 

 Vacated and remanded for further proceedings consistent with this opinion. We do not 

retain jurisdiction. 

/s/ Joel P. Hoekstra 

/s/ Jane M. Beckering 

individual demonstrates that the order in question is overly intrusive and not tailored to the 

individual’s capabilities, either because no intervention is needed or because some more limited 

intervention than a full conservatorship would suffice. In other words, there could never be 

“cause” for a protective order that is not narrowly tailored to an individual’s specific capabilities 

and limitations. See MCL 700.5407(1). Moreover, MCL 700.5431 specifies that “[a] protected 

individual seeking termination is entitled to the same rights and procedures as in an original 

proceeding for a protective order.” Given this directive, a trial court considering the termination 

of a full conservatorship must consider, not only whether no conservator is needed, but whether a 

limited conservatorship or other protective order would provide sufficient protection for the 

individual. See MCL 700.5407(1), MCL 700.5419(1); MCL 700.5408. In this respect, we note 

that we are not attempting to substitute our judgment for that of the trial court or to second-guess 

its assessment of the witnesses. Instead, our main concern is that, despite substantial evidence 

that Michalak could function with “assistance,” the trial court continued a full conservatorship 

without even considering the possibility of lesser interventions. This was an abuse of discretion.