                          STATE OF MICHIGAN

                            COURT OF APPEALS



In re Conservatorship of STEPHEN MICHALAK.


STEPHAN PP MICHALAK,                                                 UNPUBLISHED
                                                                     December 1, 2016
               Petitioner-Appellant,

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.

OWENS, P.J., (DISSENTING.)

        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 required 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 were worth about $70,000, rather
than the actual value of about $1,000,000, and that the bank would not cash a check he had
written because “the name and the date were so far off.” Subsequent 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 statements showed was untrue. Dr.
MacInnes found Michalak to require “some intervention and compensatory devises [sic] to
manage his finances.

       Based on the foregoing, it is clear that there was insufficient evidence presented that
Michalak’s previously established disability had ceased, and, in fact, the evidence showed that it
continued. Therefore, the court did not err in declining to terminate the conservatorship.

        The majority vacates and remands with instructions to the trial court to “determine the
least restrictive means of protecting Michalak’s assets in light of Michalak’s specific capabilities
and incapacities”; in other words, to consider a limited conservatorship or other protective order.

                                                -1-
Indeed, had I been the trial judge I probably would have appointed 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 conservator.1 However, I was not
the trial judge and did not observe Michalak and the witnesses as did he.

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



                                                           /s/ Donald S. Owens




1
  It appears from the evidence that while this is a full conservatorship in law, it is a limited
conservatorship in practice, thanks to the efforts of the conservator to encourage Michalak’s
maximum self-reliance and independence by permitting him to have 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 discretion in the spending of money for his
day-to-day living expenses (primarily restaurant meals) while his very significant assets are
protected and important bills are paid for him by his conservator.


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