CVLAP Newsletter - May 2020

We want to thank our amazing staff for their solidarity, perseverance and flexibility during these unprecedented times. Despite a myriad of obstacles stemming from the COVID-19 pandemic, we have been able to continue the important work of advocating for the safety, security, dignity and independence of our clients. We are extremely proud of this phenomenal team.

New Staff
Jonathan Tabor, CVLAP-Elder

We are happy to have Jonathan join the CVLAP-Elder team. He is working as a Staff Attorney in Legal Aid of Western Michigan's Holland office. Jonathan was previously Legal Counsel for the Michigan Long term Care Ombudsman, Staff Attorney for Lakeshore Legal Aid's Pro Bono Innovation Fund. For more about Jonathan go to our Staff Page.

New Staff
Christine Burke, CVLAP-DV

Please also welcome Christine to the CVLAP-DV grant. She is a Staff Attorney in Legal Services of Northern Michigan's Gaylord office. Christine recently graduated from University of Oregon School of Law. She has been a Law Clerk for the Colorado AG, as well as the Alpena County Prosecutor and Lane County Circuit Court in OR. For more about Christine go to our Staff Page.

Job Postings
CVLAP-DV & Elder

CVLAP currently has open staff positions in the following offices: Battle Creek (elder), Alpena (elder), Upper Peninsula (DV). For more information or to share our postings with others go to MAP's application here.

Quarter In Review

In the 1st quarter of 2019 (October - December) CVLAP attorneys assisted 948 survivors of domestic violence and/or elder abuse, neglect or exploitation. During this quarter we closed a total of 260 cases. Of the closed cases, we provided extended services to 83 clients. We are incredibly proud of our amazing staff attorneys across the state and want to share some of the good stories (see below) that exemplify the amazing and much needed advocacy that makes this project so vital.

Excellence in Advocacy

Jessica Topor, CVLAP-DV in the Monroe office of Legal Services of South Central Michigan, assisted a Client who was a victim of domestic violence whose spouse had, without warning, absconded with the children (2 and 3 years old), began blocking all methods of communication and refused to tell him where the children were located. Client eventually learned, through social media, that his wife had moved out of state but did not have the children with her. Client's spouse refused to share information on the children's whereabouts. Jessica undertook representation and was able to obtain an ex parte emergency order granting Client custody and immediate return of the children. When he got them, both children were sick and the youngest was suffering from a severe diaper rash that had escalated to blistering and a skin infection and had other visible injuries, including bruising and scratch marks. Ultimately, Jessica helped the Client obtain a divorce and sole physical custody of the children, as well as various provisions that prevented his ex-wife from leaving the children in the care of third parties without his full consent.

Sokainah Mahmutovic, CVLAP-DV in the Grand Rapids office of the Michigan Immigrant Rights Center, was in the process of assisting a client with obtaining a U-Visa after being in an extremely abusive marriage. Client husband, who had been deported following an incident of domestic violence, was visiting with the parties’ children in Mexico with an agreed upon date for the children’s return to Michigan. Despite the agreement, Client’s husband wrongfully retained the children and stopped communicating with Client. Client then began to hear stories (relayed by her husband’s family members in Mexico) about her children being neglected, possibly abused and in danger. With the help and coordination of family, Client was able to get her daughter back but was unable to retrieve her son. Sokainah undertook representation and filed a Hague Convention on the Civil Aspects of International Child Abduction application and notified the Mexican authorities. Twenty days later, Client’s son was returned to Michigan and the safety of Client’s home.

Toi Dennis, CVLAP-Elder in the Ypsilanti office of Legal Services of South Central Michigan, assisted a senior Client whose wife of fifteen years had recently died. Client was the beneficiary of his deceased wife’s trust and the income (though not great) covered his modest living expenses. Client’s stepchildren were unhappy that their mother had left her husband any income at all and, in an attempt to bully Client, they hired an attorney who falsely accused Client of stealing money and threatened Client with a lawsuit if he did not renounce half of the income he was owed from the Trust. Toi undertook representation and contacted the stepchildren’s attorney to inform them that Client was entitled to the full amount, that he was not stealing and that they had no grounds for a lawsuit. Client’s stepchildren and their lawyer backed off and Client was able to continue to get his full disbursement, $50,000, without engaging in litigation.

Laura Kubit, CVLAP-Elder in the Saginaw office of Legal Services of Eastern Michigan, assisted a senior Client who had been found “incapacitated” by a Probate Court following a sudden separation from his wife (who had been his caregiver), stripped of his civil rights and had a public guardian and conservator (someone that he does not know) appointed to make decision on his behalf including decisions regarding his housing and medical issues. Following the guardian’s appointment, Client was placed in a nursing facility against his wishes. Laura undertook representation and petitioned the Court to have the public guardian removed so that the Client can return to the community. Despite the fact that the Client’s request to terminate the guardianship was contested, Laura was successful in restoring Client’s civil rights and is in the process of working with the Client to set up various supports and resources so that he can return to the community and then terminate the conservatorship.

The Michigan Poverty Law Program just launched its COVID-19 Resource page, which includes information and resources related to the COVID-19 pandemic for legal aid attorneys. The login and password for accessing this page were emailed to you by Onshonta Gavin on May 6, 2020 (email entitled [Legalservicesall] NOW ACTIVE!!! MPLP COVID-19 Resource Page).

The Michigan Legal Help website maintains a "How will the COVID-19 (Coronavirus) Emergency Affect My Legal Problem?" page with all the latest pandemic related updates that is geared towards addressing the issues that our clients are facing in these difficult times.

The State Court Administrative Office also maintains a "Judicial Branch's Response to Coronavirus (COVID-19)" page with all the latest pandemic related updates.

Turning Executive Order 20-41 into Legislation: Proposal Regarding Remote Signing and Notarization of Documents

Executive Order 20-41 encouraged the use of electronic signatures and remote notarization, witnessing, and visitation during the current emergency. That Emergency Order expired on May 6 and the Governor then issued Executive Order 2020-74 which will expire on June 30. The new EO is virtually identical to the original Order except that it requires the signatory to send out the original document within 72 hours, and the witness must sign and return the document to the signatory within 72 hours. The previous timeline was 24 hours.

Practitioners have begun utilizing the new procedures with mixed results. While lawyers are grateful to have a mechanism to achieve these functions during the pandemic, many have noted that the process is “clunky” and complicated. Some believe other states offer more efficient means of accomplishing these tasks remotely and many are pleased to have an opportunity to try the provisions and learn through experience what adjustments might be necessary. The Probate and ELDRS sections of the Bar are considering forming a joint committee to consider possible revisions to the procedures before legislation is introduced and members of the ELDRS section are working with key legislators, including elder law attorney, Rep. Doug Wozniak, to discuss possible legislative language. Although many lawyers hope the EO will be extended by the Governor when it expires on May 6, 2020, few appear to be clamoring for an immediate legislative fix until there has been thoughtful consideration of possible changes.

Despite significant support for collaboration and consideration of possible revisions to the EO, Senator Pete Lucido, the only lawyer in the Michigan Senate and the head of the Senate Judiciary Committee, appears eager to introduce legislation now and may propose that the provisions in the EO be adopted as written. No legislation has yet been introduced.

Temporary $2/hour Pay Increase for Direct Care Staff in the Home Help, Mi Choice, MI Health Link and Behavioral Health Programs

MDHHS has issued L-Letter 20-27 which provides for a temporary $2/hour wage increase for direct care workers who provide services to beneficiaries enrolled in the state’s Home Health, MI Choice, MI Health Link and Behavioral Health programs. The additional income, known as a “premium payment,” will be in effect from April 1 -June 30, 2020 in response to the COVID-19 emergency. The $2/hour supplement must be made available in its entirety to the worker. Additional funding is available to agencies to cover any extra costs they incur related to the premium payments. This increase is available to direct care workers regardless of whether the individual receives services through a home care agency or self-determination. Unfortunately, no similar wage increase is available for other direct care workers such as those who care for residents in nursing homes.

Orders Extending Expirations of Personal Protection Orders
Raises Safety Concerns

On April 27, 2002, Governor Whitmer issued EO 2020-63. It provides the following:

All PPOs that would otherwise expire during the period from the date of this order (April 27, 2020) through June 1, 2020 are extended, and now expire on July 21, 2020.
The court or law enforcement agency that entered the PPO in LEIN shall record the extension in LEIN, and, to the extent required by law, provide notice to the respondent of the extension.
At the time of recording the extension in LEIN, if LEIN indicates that the personal protection order has been served, then the court or law enforcement agency shall modify the LEIN entry so that it indicates that the personal protection order has not yet been served on the respondent.
A respondent may file a motion to terminate the extended PPO.

On the same date, the Michigan Supreme Court issued AO 2020-11, which also provides that PPOs that expire from April 27, 2020 through June 1, 2020, are extended to July 21, 2020. In addition, the order sets out procedures for respondents to object to the extension:

The respondent must file a motion to modify to terminate the PPO and request a hearing under MCR 3.707 (which requires service by certified mail on petitioner at least 7 days before the hearing).
The court shall schedule the hearing and notify the parties at least 7 days before the date of the hearing by the means most likely to provide actual notice.
The extension doesn't limit the court's authority to hold a hearing AND determine whether the extension should continue, or the personal protection order should be modified or terminated.

The executive order raises several concerns:

The order requires that all extended PPOs be marked unserved, including PPOs that were served and effective during the extension period of 4/27 to 6/1. These petitioners will lose the ability to seek enforcement of otherwise valid, served PPOs during the full term of their initial PPO.
The order places the burden on petitioner to figure out how to give notice to respondent that the PPO has been extended. If petitioner successfully serves a copy of the executive and administrative orders, it’s unclear if courts will accept it as proper service or law enforcement will enter it into LEIN.

Practice Tips on Service

Since there is no new extended PPO, serve a copy of the EO and the AO, both of which will give respondent actual notice of the extension.
If possible, serve respondent electronically, which could be by e-filing, email or other electronic means. AO 2020-9 temporarily amends MCR 2.107(C) and provides that all service under the rule must be performed using electronic means (such as e-Filing, email, or fax) to the greatest extent possible. Email transmission should comply as much as possible with MCR 2.107(C)(4).
If electronic service not available, serve by first-class mail. See MCR 3.707(B)(2), which provides that an extended PPO shall be served as provided in MCR 2.107(C) (delivery or first-class mail).
File a proof of service with the court indicating the documents served and the manner of service. Petitioner should consider e-filing the proof of service, if e-filing is available, to ensure timely notice of a hearing if respondent files a motion to terminate the PPO. If petitioner doesn’t want her email shared with respondent, she can create a new email for court purposes only.
Respondent’s motion to terminate the PPO should be filed within 14 days after service. Since there is no new PPO, the EO and AO will provide actual notice of the extension. See MCR 3.707(A)(1)(b), which provides that respondent may file a motion to modify or terminate an ex parte order extending a PPO and request a hearing within 14 days after being served with, or receiving actual notice of, the order.
If service isn’t possible or fails, advise petitioner that the PPO is enforceable even if unserved. If law enforcement is called for a violation, they are required to give notice of the PPO and may arrest if respondent continues to violate the PPO. MCL 600.2950(18).

Below are links (click on the pictures) to various organizations that provide training opportunities on issues that affect survivors of domestic violence and elder, abuse, neglect and exploitation.

The Crime Victims Legal Assistance Project is funded by a Victims of Crime Act of 1984 (“VOCA”) grant from the Michigan Crime Victims Services Commission of the Michigan Department of Health and Human Services to the Michigan Advocacy Program.