‘You can blame me.’ Judge's controversial comments suggest protection for professional guardians

Posted at 11:21 PM, Jan 05, 2023

(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.

The 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.

Related: This Michigan nonprofit helped derail guardianship reforms, called AG effort a 'task farce'

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.

And 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

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.

One 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

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.

“The 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 decision.”

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

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.

“If 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.

If you have a story for Heather, please email her or call 248-827-4473.