Written by: Melissa Edwards LLMSW, NASW: LSP Committee, ULink Advocate
In Michigan people with disabilities have the right of self-determination, the right to personal centered planning, the right to vote, the right to be informed of their rights, the right to be heard and respected, the right to receive assistance in achieving their goals and the right to be able to have someone they trust to act as their trustee. However, that is not always the case.
I personally know someone who was pressured and was placed under duress to sign their probate lawyer in as trustee of their disabled child funds. The trustee misrepresented the duties of trustee by stating that it was "just a title". The trustee failed to mention that they would be the manager of the beneficiary’s funds, did not communicate well with the interested parties as the law indicated was the interested parties right, hardly ever spoke to the individual with disabilities, placed the beneficiary funds in some high risk investments with low yield (or gain), failed to uphold a contract they made with the guardian that stated that in one year the trustee will fulfill a promise made to the guardian, lied to the interested parties on several occasions including stating that they may end up being co-trustees (with the lawyer being one trustee and the guardian being the other trustee). Instead the lawyer became the full trustee and pushed the beneficiary, guardian and other interested parties aside. Additionally the trustee had the interested parties perform duties that where the job of the trustee, failed to educate interested parties about the type of trust the individual with disabilities has, failed to have any personal centered planning meetings to help the beneficiary achieve their goals, failed to keep the line off communication open with the social workers that was supposed to act as the case managers, failed to get the financial advisor requested by the interested parties, and failed to place the individual with disabilities in therapy.
The previous paragraph list plenty of violations of trust however, those are not all of the wrongs committed by the trustee. Yet, according to the guardian lawyer (who was supposed to get the current trustee removed) all of those violations of the beneficiary and interested parties rights were not enough to get them removed. The guaridan lawyer stated that since the "removal of a trustee" law was so new that there was no case law that the judge in the trial could reference to help said judge decide whether or not the trustee should be removed. Since the guaridian obtained the services of a lawyer, the trustee has just recently started to do their job. The specialist (person that specializes in certain types of trusts) the guardian lawyer talked to stated that since the trustee is currently performing his duties, a judge is likely to rule in his favor. In other words his past misdeeds did not matter and his current deeds are enough to allow them to keep the position. Even though the individual with disabilities has said several times that she did not want the current trustee, she wants someone she can trust. Also one of the expert witnesses withdraws from the case, stating that it would be a conflict of interest. The guardian lawyer recommends that the case be dropped against the trustee stating that the trustee will perform his duties now that they know someone is watching them. When asked what if they gets worst because they hold a grudge against the interested party who filed a petition against them, the lawyer state that they will still be there.
So even though several people, including lawyers have states that trustee actions were wrong he is allowed to keep his position as trustee. I believe that this law needs to be adjusted to include the "lack of cooperation with the beneficiary, interested parties (such as family, caregivers and guardian) will be grounds for removal. Additionally this law should include "failure to educate interested parties about trustee, the type of trustee they have and how it will be managed" and "failure to inform beneficiary and interested parties of their rights and responsibilities.
All of the information required by the beneficiary and the interested parties had to be learned the hard way by bad experiences, broken promises, and loss of trust in the justice system. Hopefully this law can be changed to benefit the beneficiary instead of the trustee. The beneficiary has a right to use the money for their benefit and to have someone they trust act as trustee. I'm currently working towards making these changes and I would love and appreciate any help I can receive to advocate for people with disabilities, social justice and equality.
The following website describes the MLC 700.7006: Removal of a trustee law: http://law.onecle.com/michigan/700-estates-and-protected-individuals-code/mcl-700-7706.html
The law states the following:700.7706 Removal of trustee.
(1) The settlor, a cotrustee, or a qualified trust beneficiary may request the court to remove a trustee, or a trustee may be removed by the court on its own initiative.
(2) The court may remove a trustee if 1 or more of the following occur:
(a) The trustee commits a serious breach of trust.
(b) Lack of cooperation among cotrustees substantially impairs the administration of the trust.
(c) Because of unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the purposes of the trust.
(d) There has been a substantial change of circumstances, the court finds that removal of the trustee best serves the interests of the trust beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available.
(3) Pending a final decision on a request to remove a trustee, or in lieu of or in addition to removing a trustee, to the extent it is not inconsistent with a material purpose of the trust, the court may order any appropriate relief under section 7901(2) that is necessary to protect the trust property or the interests of the trust beneficiaries.
History: Add. 2009, Act 46, Eff. Apr. 1, 2010
Popular Name: EPIC
Section: Previous 700.7614 700.7615 700.7701 700.7702 700.7703 700.7704 700.7705 700.7706 700.7707 700.7708 700.7709 700.7801 700.7802 700.7803 700.7808 Next