IN RE ALFREDA PIELACK
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of ALFREDA PIELACK, a Protected
Person.
DENNIS PIELACK,
UNPUBLISHED
September 16, 2008
Petitioner-Appellant,
v
No. 277496
Macomb Probate Court
LC No. 2006-189160-CA
SHARON KOWALIK,
Respondent-Appellee.
Before: Whitbeck, P.J., and Bandstra and Donofrio, JJ.
PER CURIAM.
Petitioner Dennis Pielack, proceeding in propria persona, appeals as of right from a
probate court order appointing his sister, respondent Sharon Kowalik, as conservator of the estate
of their mother, Alfreda Pielack. We affirm. This appeal has been decided without oral
argument pursuant to MCR 7.214(E).
As a preliminary matter, we disagree with respondent’s argument that this Court lacks
jurisdiction to hear this appeal of the order appointing respondent as a conservator. This Court
has jurisdiction pursuant to MCR 5.801(B)(1)(a), which provides that a probate court order
“appointing or removing a personal representative, conservator, or trustee, or denying such an
appointment or removal” is appealable to this Court. We also disagree with respondent’s
argument that this appeal is now moot because of Alfreda’s subsequent death. An issue is not
moot if it will continue to affect a party in some collateral way. People v Cathey, 261 Mich App
506, 510; 681 NW2d 661 (2004). The conservator of a protected individual’s estate may
influence the appointment of the estate’s personal representative. MCL 700.3204. Petitioner
asserts that Alfreda nominated him to serve as her personal representative in her will, and there is
no indication that a personal representative has been appointed. Because respondent’s status as
conservator can potentially influence the appointment of Alfreda’s personal representative, this
appeal is not moot.
This Court reviews a probate court’s appointment or removal of a fiduciary for an abuse
of discretion. Comerica Bank v Adrian, 179 Mich App 712, 729; 446 NW2d 553 (1989). An
abuse of discretion occurs when the court’s decision falls outside the range of reasonable and
principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
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MCL 700.5401(3) authorizes the appointment of a conservator when a court finds that (1)
the individual is unable to manage her property and business affairs effectively due, among other
reasons, to “mental illness, mental deficiency, physical illness or disability” and (2) the
individual has property that “will be wasted or dissipated” without proper management. Both of
these determinations were made by the probate court, and there was no dispute that Alfreda was
in need of a conservator.
MCL 700.5409 provides for the priority of individuals “entitled to consideration for
appointment” as conservator. The list includes “[a]n adult child of the protected individual.” In
this case, petitioner and respondent, as Alfreda’s adult children, had equal priority for
consideration as conservators. Pursuant to MCL 700.5409(2), “[i]f persons have equal priority,
the court shall select the person the court considers best qualified to serve.” Although there was
evidence of competing patient advocate designations and powers of attorney, the court found that
Alfreda was not competent when she made these appointments. In determining which person
was best qualified to serve, the probate court considered the parties’ pleadings and arguments,
the report of a guardian ad litem, and the report of Dr. Lynn Pantano, a psychologist, who
performed an independent examination of Alfreda. The court also interviewed Alfreda in
chambers.
The probate court did not abuse its discretion in appointing respondent as Alfreda’s
conservator. Dr. Pantano’s report recommended respondent’s appointment. The evidence also
showed that Alfreda had been living with respondent and her husband, who lived in a clean,
well-maintained home, were both employed, and had done a good job caring for Alfreda and
managing her assets to be available for her care. Alfreda was comfortable in their home and
wished to stay. Although there was evidence that petitioner and his wife had taken good care of
Alfreda before she moved in with respondent, the court had two competing equal priorities to
consider. Regardless of whether petitioner was qualified to act as conservator, the probate
court’s appointment of respondent as conservator was a reasonable and principled one and,
therefore, was not an abuse of discretion. Maldonado, supra at 388.
We find no support in the record for petitioner’s argument that the probate court
discriminated against him because of his religious beliefs, or alleged religious use of marijuana.
Nothing in the record indicates that petitioner’s alleged religious practices or use of marijuana
were a factor in the probate court’s decision. Petitioner’s arguments concerning the
constitutionality of various provisions of the Public Health Code and other constitutional
arguments related to his alleged religious use of marijuana are beyond the scope of this appeal,
which is limited solely to respondent’s appointment as conservator. As such, we decline to
consider them. Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 234;
507 NW2d 422 (1993); Great Lakes Div of Nat’l Steel Corp v City of Ecorse, 227 Mich App
379, 432; 576 NW2d 667 (1998).
We affirm.
/s/ William C. Whitbeck
/s/ Richard A. Bandstra
/s/ Pat M. Donofrio
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