QUESTIONS FOR JIM BAUER
QUESTION AND ANSWER SESSION MARCH 3, 2011
- MCR 5.104(C) allows the court to grant an unopposed petition without a hearing. What procedure is necessary to enable counsel to utilize this court rule without having to appear at the hearing?
ANSWER: There is no procedure in place relative to this court rule. It is at the discretion of the judge if no one appears for a hearing to either not conduct a hearing or to grant the relief requested. In order to have such a procedure, the Court would have to know in advance that the petitioner is not going to appear. A written fax would be the best method of letting the Court know that the petitioner still wants the requested relief even though the petitioner is choosing not to appear.
- In several conversations with the Elder Abuse Prevention Team individual who had been appointed as GAL for the proposed ward she referred to herself as an “advocate” for the proposed ward. It seems to me this is incorrect or at least misleading to the proposed ward since the role of the GAL is to advise the proposed ward of his/her rights and make a recommendation to the court. Could you please comment?
ANSWER: The GAL is an objective third party appointed to make a recommendation that is in the best interests of the protected individual. The GAL is not an advocate in the sense that a lawyer understands the term advocate. However, as trained social workers and geriatric specialists the Elder Abuse Prevention Team members consider themselves to be advocates (just not in the sense that a lawyer may define the term).
- Is there more than one appointment list for probate court appointments? Is there a separate list for special fiduciary appointments and for GAL appointments in non-guardianship/conservatorship cases, such as issues involving trusts, Medicaid planning, and protective orders?
ANSWER: There are two lists for lawyers who are assigned to mental health commitment (and some GAL) hearings: there is one list for cases heard at Hurley Hospital and another list for McLaren hearings. There is also a waiting list for attorneys who want to be placed on the mental health commitment list. There is no list for Medicaid planning, trusts, and protective orders.
- Could you ensure that a telephone number is on all petitions for guardianship and conservatorship proceedings at the intake level so the Court appointed GAL can do their job? It makes matters far more complicated if we have no way of contacting the petitioner by telephone.
ANSWER: We will direct our staff to do their best to make sure that a phone number is on filings. Unfortunately, we receive a large number of filings through the mail and if a phone number is the only item missing we probably will not send it back to the petitioner.
- I call the Court the day before a hearing to verify that my file is complete and ready for hearing. To simplify matters and free up your staff, could you post “file complete for hearing” on line?
ANSWER: No. The JIS system does not allow memos to be added to the dockets that you see on the website. Even if it did allow such a memo we have lost four positions out of 11 (and quite possible could lose more) and this would involve creating another document and posting it online every day.
- When is the appropriate time to call the Court to inquire if my file is ready for hearing?
ANSWER: We receive telephone calls between 8:00 a.m. and 5:00 p.m. We suggest faxing a list of files to our office at 257-3234 and we will review the list identifying files that are complete or incomplete and fax the list back to your office.
- Could a box be installed at the 5th floor counter to put in proofs of service with a counter stamp? That way, you don’t have to wait in line.
ANSWER: We can install a mailbox for receiving proofs of service only. We cannot make a time stamp available to the public. We want to be sure that only court staff are clocking documents and initialing them in case of any dispute as to filing.
- Do you have ongoing discussion with the clerks about the fine line of rendering legal advice vs. helpful assistance? I had a situation come up where a Credit Union called the Court and informed the clerk that they had just had a Letter of Authority (personal representative) presented to them so funds could be withdrawn. The Credit Union was informed by the clerk that since a sworn statement had been filed by the personal representative, the Letters of Authority were no longer valid. What happened to EPIC’s provision that Letters of Authority are valid for one year after the Sworn Statement has been issued? My angry client waited for 45 minutes at the credit union and the inference was that the attorney screwed up. Please comment.
ANSWER: Court staff understands that they cannot offer legal advice. However, court staff may, on occasion, offer opinions that may or may not be accurate. We will discuss this at our next staff meeting.
- What is your current rule regarding using an appraisal instead of using State Equalized Value x 2? If I attach a copy of the appraisal to the inventory, will it be accepted? Are there any rules or guidelines that I should know about?
ANSWER: The current rule for estate inventory fees is SEV X 2 unless the petitioner has a recent (within six months) appraisal. The appraisal will be accepted if it is a recent appraisal.
- What is the new rule regarding filings after 3:30 pm? If I am in line at 3:30 p.m., can I finish all my filings or am I limited? How do these rules apply to runners?
ANSWER: If a person is in line prior to 3:30 they will be offered service at the counter. If a person is at the counter working with court staff at 3:30 the court staff person will finish whatever filing they are currently working on and then move to the next person. This is an effort to get everyone through who is in line, and it is also an attempt to get the staff person back to her desk so that she can finish the remaining tasks that she has to do for that day. This may include filing, data entry, auditing accounts, reviewing files set for hearing, filing wills, receiving mental health petitions and setting them for hearing, and a variety of other tasks. The same rules apply to runners.
- How do you get name off from a proof of service (list of parties that must be served) such as GAL, Elder Abuse for future mailings. Most times, the clerk will not allow you to vary from the previous outdated list of parties.
ANSWER: I recommend a written request and explanation for removing the person from the list or interested persons.
- What types of matters, (guardianship, conservatorship, estate, etc.) are heard on what days?
ANSWER: Monday Morning: Post-Termination Review Hearings at 8 a.m.
Monday Afternoon: Contested Matters
Juvenile Mental Health Court
Tuesday Morning: 9 a.m. Estates Call
10 a.m. Adult Guardianships and Conservatorships
11 a.m. Developmentally Disabled Guardianships
1 p.m. Mental Health Commitment Hearings
Wednesday Morning: 9 a.m. Petitions to Allow Accounts
10 a.m. Adoptions
1:30 p.m. Mental Health Court
Thursday Morning: 9 a.m. Estates Call
10 a.m. Minor Guardianships
1 p.m. Mental Health Commitment Hearings
Friday Morning: Pre-Trials/Motions/Contested Matters
Friday Afternoon: Pre-Trials/Motions/Contested Matters
(Weddings, Parental Waivers, Mental Health Pick Up Orders, and Temporary Guardianships, Special PRs are heard upon request)
- What constitutes 14 days notice for hearings in Probate Court? By that I mean, can the day of mailing or the day of hearing count for one of the 14 days? Please comment.
ANSWER: The day of mailing does not count: the hearing date does count. So if you mail a document on April 1 the earliest possible hearing date is April 15.
- What is the policy on how long a clerk can/should spend with lay people? Often times, since the layperson has chosen to not retain an attorney to assist them, discussions will drag on for extended periods of time, well in excess of 30 minutes. It seems as though when the attorney in line gets to the next clerk, often I sense that the opinion of the clerks is that I am somehow overusing the system. Please keep in mind that attorneys are essentially the only individuals that earn their living at the Court. I believe that the attorneys make the Court’s work easier by knowing what we are doing. Please comment.
ANSWER: We try to be as efficient as possible. But we don’t have any policy about how long a person can spend with laypeople. Often people are appearing at our counter in some type of crisis so we can’t choose an arbitrary amount of time to spend on each person. I’m not sure what overusing the system means, but court staff are paid by the taxpayers to be public servants. We try to give the attorneys as much deference as possible. However, the entire public is our client.
- If the Court closes at 3:30 p.m., can I still call after that time?
- Where are the dates posted when the Court is closed?
ANSWER: They are not posted anywhere. We will post a list of Court Holidays on our website.
- Are there regularly scheduled maintenance times/dates for the court’s web site? When the maintenance occurs without notice and the Court is closed, it creates unnecessary problems.
ANSWER: There are no regularly scheduled maintenance times for the court’s website. Maintenance and malfunctions occur without notice. The Genesee County MIS Department conducts the maintenance and this is really beyond the control of court staff.
- What is the policy for faxing to the Court? What pleadings are able to be faxed? What is the fax number that should be used? Can the previously faxed original document be filed with the Court to get a file stamped date on it to evidence that it had been filed?
ANSWER: Any pleading that does not require a fee (and is not more than 20 pages) may be filed by fax. The fax number is 257-3234. If a faxed document is accepted for filing please do not file the original at a later date. If the attorney wants a time stamped copy of the faxed document please fax two copies to us and we will place the second time stamped copy at the counter to be picked up by a runner or the attorney.
- Are the Court’s 9:00 a.m. and 10:00 a.m. calls posted on line the day before the hearing?
ANSWER: All of the court’s dockets are available online. The website will not give information relative to whether the file is complete or not.