Michigan Court of Appeals Upholds Guardian's Right to an Injunction to Prevent the Transfer of her Ward

A recently published decision by the State of Michigan Court of Appeals upholds the right of a guardian to seek injunctive relief from the Probate Court to prevent the transfer of her ward from one facility to another, based on showing that such a transfer would be detrimental to the wellbeing of the person under guardianship.

In re Guardianship of Lisa Brosamer v. Lenawee County Community Mental Health Authority (CMH) Is a case involving Lisa Brosamer who is severely developmentally disabled. Patricia Brosamer became Lisa’s guardian in 2009. Lisa’s mother cared for Lisa in her home from 1961 to 2006, when, due to the mother’s declining health, Lisa was moved into a residential treatment facility. Lisa is severely intellectually disabled and is unable to care for herself.

On Sept. 26, 2018, the guardian filed a petition with the Probate Court to stop a planned transfer of Lisa from one group home to another. Patricia Brosamer contended that the Lenawee CMH proposed transfer would be detrimental to Lisa. Lenawee CMH argued that the agency met the requirements of the law by determining that the transfer from one facility to another would not be detrimental and that the legislature did not intend for a guardian to be able to veto a decision by CMH. 

Lenawee CMH based its case on this excerpt from the Michigan Mental Health Code:

330.1536 Transfer of resident; notice; appeal.

Sec. 536.

1. A resident in a facility may be transferred to any other facility, or to a hospital operated by the department, if the transfer would not be detrimental to the resident and the responsible community mental health services program approves the transfer. [emphasis added]
2. The resident and his or her nearest relative or guardian shall be notified at least 7 days before any transfer, except that a transfer may be effected earlier if necessitated by an emergency. In addition, the resident may designate 2 other persons to receive the notice. If the resident, his or her nearest relative, or guardian objects to the transfer, the department shall provide an opportunity to appeal the transfer.
3. If a transfer is effected due to an emergency, the required notices shall be given as soon as possible, but not later than 24 hours after the transfer.

Probate Court findings

The guardian presented four witnesses, each of whom had a history with Lisa or daily interactions with her and “…might reasonably be capable of opining as to how the proposed transfer might affect Lisa’s wellbeing.” All four concluded that transferring Lisa from her current group home placement would be detrimental.

Lenawee CMH provided affidavits from three people, none of whom had a history with Lisa comparable to that of the guardian's four witnesses. According to the Lenawee Director of CMH, the decision that there would be no detriment was based on unnamed “expert” staff.

The Probate Court granted the injunction against moving Lisa out of her current placement. Lenawee CMH appealed the decision.

Court of Appeals

The Court of Appeals stated that “Although respondent [CMH] frames its argument on appeal as one regarding statutory interpretation, respondent’s [the guardian’s] argument actually concerns the probate court’s factual findings” of detriment to Lisa.

On the CMH agency's responsibility to other clients, the Court stated:

"Being sensitive to the fact that respondent must walk the tightrope of balancing the needs of consumers—sometimes against one another—with the limited resources that it has, MCL 330.1536 is clear that respondent cannot transfer a consumer if the transfer would be detrimental to that consumer. Thus, the relative hardship on respondent that the injunction imposes is no greater than the hardship imposed by MCL 330.1536 itself. Contrarily, the hardship Lisa may endure if she were to be transferred to the detriment of her wellbeing is significant. [emphasis added] Additionally, although third parties and the public have an interest in respondent’s ability to transfer consumers and balance its resources for the benefit of the community, Lisa has the right to be free of detrimental transfers, and with respect to MCL 330.1536, the interests of third parties in transfers that might be detrimental to Lisa are not relevant to whether the transfer is permissible; and, we note that nothing bars respondent [CMH] from seeking to have the injunction lifted if a transfer that would not be detrimental to Lisa’s wellbeing arises. Finally, the injunction will not be impractical to enforce.

“Based upon the above factors, and considering there was no adequate remedy at law to ensure that respondent would not be transferred, the probate court’s injunction was not outside the range of reasonable and principled outcomes.”

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This summary leaves out a number of interesting details in this case. 

For instance, at about the same time that Lisa's case manager of ten years retired in June 2018, a new case manager was brought in. This coincided with when Lenawee CMH determined that another consumer needed a bed at Lisa's current group home and concluded that moving Lisa to another group home would not be a detriment to Lisa. The guardian asked for a new case manager, “because [she] could not understand how the case manager could conclude that a transfer was appropriate while being so new and unfamiliar with Lisa.” The Court found evidence that this was true by comparing the testimony of the guardian's witnesses to the affidavits presented by Lenawee CMH.

The guardian's witnesses included:

• Lisa's doctor of 14 years who testified that, considering Lisa's age and disabilities, she lacked the "coping mechanism" to adjust to an unfamiliar setting. 
• A witness who had known Lisa for 20 years and had worked at the home where CMH wanted to transfer Lisa, said the proposed placement was not as suitable and feared that Lisa might have altercations with another resident with aggressive behaviors. 
• The guardian testified that Lisa had thrived at her current placement and had strong bonds with the staff and other residents. 
• Lisa's court-appointed attorney, who had been involved in the case since 2011, indicated that, because of the guardian's "extensive involvement with [Lisa] over the years," she was in "a superior position to any of the other witnesses or affiants know what [would] be detrimental to Lisa."