The 7 Investigators obtained video of a local judge at a recent
conference that raises questions about the relationship between judges
and professional guardians.
By: Heather Catallo
(WXYZ) — In Michigan, if a court declares you legally incapacitated, a
judge can appoint a guardian for you, which means you can no longer
make your own medical, financial or legal decisions.
For years, the 7 Investigators have been exposing problems in the guardianship system.
Now video taken of a local judge raises questions about the relationship between judges and professional guardians.
7 Investigators have been documenting examples of guardianships gone
wrong across Southeast Michigan since 2017. Probate judges can appoint a
guardian for anyone deemed legally incapacitated. When you become
someone’s ward, the guardian has total say over your life, including
medical and financial decisions.
Our reporting caught the attention of Attorney General Dana Nessel,
who formed the Elder Abuse Task Force and introduced legislation in the
hopes of improving the guardianship system.
“Don't we owe that to seniors in our state,” said Nessel.
But the bills did not get signed into law, in part because of pushback from some key players in the probate courts.
The Michigan Guardianship Association (MGA) battled against the bills, calling the AG’s task force a “task farce.”
“It's so incredibly demeaning,” said Nessel.
The MGA wasn’t alone. Oakland County Probate Judge Daniel A. O’Brien
wrote a letter to state legislators urging them not to pass the bills.
now the 7 Investigators have obtained video of Judge O’Brien at a
recent Michigan Guardianship Association conference, talking about the
legislation and giving advice to a room full of professional guardians
during a question and answer session.
Web Extra | Judge O'Brien at Michigan Guardianship Association conference
“The damage that has been done to this practice that you guys are all
in, by legislation, by publicity, from public servants supposedly,
politicians really – is just unfathomable,” said O’Brien in the video.
The video was taken by a conference attendee, and later provided to the 7 Investigators.
statement that’s raising questions centers on the sale of a ward’s
home. Guardians often ask the court for permission to sell property.
They say it’s to pay for the ward’s care, but the guardian can get paid
in the process.
“When you are having problems with your case, file a petition for
instruction, ok… for me to make the decision. If you've got family
members giving you a hard time, if you're concerned about how it might
look. I saw a question at one of the earlier sessions about selling a
house. Come to me, get authority, and what it does is it protects you
and it takes… you can blame me. Say 'what can I say? The judge gave me
an order. I just asked him what to do, and he said or she said to sell
it,'” said O’Brien in the video.
Web Extra | AG Nessel on Judge O'Brien's comments
“It's as though he's giving them permission to do something they know
that they shouldn't be doing. That's my take away from the way that that
was phrased,” said Nessel after she saw the video.
Judge O’Brien says that’s not what he meant and says he would tell family members to file a petition for instruction as well.
appearance there is that you're giving the guardians cover to sell the
wards property,” asked 7 Investigator Heather Catallo.
“Yeah, I get that. But I might not let them sell it. It's really the
thing. And... I don't know how you want to put it. I was just cutting to
the chase,” said O’Brien about the video. “I tell everyone, not just
guardians, not just professional guardians, but any family member— you
have a problem, you try to work it out with your brother, your sister,
your parent, whatever it is. The professional guardian. If you're not
getting satisfaction, file a petition. Bring it to me. Let me make the
In the video, O’Brien often praises the professional guardians in Oakland County, some of whom have hundreds of wards.
“The people of my county are wonderful people,” said O’Brien in the video.
Web Extra | Interview with Judge O’Brien
“I hear about Oakland County more than any of the 82 other counties,”
said Nessel. “When I was running for office in 2018, what I would get
more than anything else is people would call it 'the cabal.' That was
the phrasing. And, you know, I'm not saying that it's merited or it's
not. I'm saying that's the perception that people have in the Oakland
County Probate Court, is that there is this very cozy relationship
between the professional guardians and between the judges, and that
regular people are not going to get a fair shake.”
O’Brien is one
of four judges in Oakland County’s probate court. To be clear, not all
of the Oakland County complaints filed with the AG or reported to the 7
Investigator involve his courtroom.
“Are you as fair to family members as you are to the professional guardians in Oakland County,” Catallo asked O’Brien.
“I try to be. Yeah. You know, the thing is, is that if I have to cut
somebody off or if I have to rule against them, they're going to think
I'm being unfair. There's no way around it,” said O’Brien. “But I do my
best to remain impartial and just standpoint. And I do that by focusing
on the person whose name is on the case.
"The thing about the
professionals is they've been dealing with me all this time. And they
are professionals and they know what I'm going to be concerned about,
and what I'm not concerned about. They know the rules, so they know
where to direct their attention. I try to really try to be as fair as
possible with family members as humanly possible. Do I fail? I'm not
trying to be flippant about that.... I don't want to be unfair. But does
it happen? I handle thousands of hearings every year; 70, 80, 100 a
week, some weeks. Some are going to make mistakes and some of those —
somebody's going to have a chance to come back and get that mistake
corrected. There's all sorts of options. They can file a motion for re
hearings. They can appeal me to the Court of Appeals. They can try
again," said O'Brien.
Judge O’Brien did agree there are problems
in the probate system, but he does not agree with the proposed law
changes from the AG’s task force.
He also told us the most important thing you can do if your loved one winds up under guardianship is to speak up.
you want something, ask me. Put it in writing if you can. If not, show
up at the hearing. I'll do my best to follow the law and apply it to the
facts,” said O’Brien.
The guardianship bills are expected to be introduced again in the new legislative session this year.
Full Article & Source:
‘You can blame me.’ Judge's controversial comments suggest protection for professional guardians