The Michigan Supreme Court heard oral argument in In re Estate of Jerome Sysick (case no. 166921) over whether probate courts may issue protective spousal-support orders before a Medicaid eligibility decision and whether the appeal is moot after the deaths of the spouses.

Norman Harrison, counsel for Julie Gries, personal representative of the estate of Jerome Sysick, told the court that Jerome and Janet Sysick were admitted to a hospital and a nursing home in March 2021, that Jerome became a long-term nursing home resident, and that Janet returned home but required continuing, expensive home health care. Harrison said the couple sought a probate protective order to transfer joint assets and a portion of Jerome’s income to Janet before a Medicaid determination was made. He told the court that Department of Health and Human Services attorneys instructed a caseworker not to process Jerome Sysick’s Medicaid application because processing it would “screw up our appeal,” and that the application was not processed and denied until roughly 260 days later after an initial appellate decision. Harrison said an administrative appeal of that denial remains pending.

The nursing home where Jerome Sysick resided has a $125,000 claim against the decedent’s probate estate, Harrison said. He argued the estate’s claim is not moot because, if the court reinstates the protective order, the administrative proceeding could consider the order and potentially result in reimbursement that would reduce or eliminate the nursing-home claim.

David Schultz, appearing for the Elder Law Section of the State Bar of Michigan and the Michigan chapter of the National Academy of Elder Law Attorneys, framed the question as whether the court of appeals correctly held — based on Schroeder and related decisions — that a probate court may not issue a protective order of spousal support until after an institutionalized spouse qualifies for Medicaid. Schultz said Schroeder altered longstanding practice and that, in his view, the change leaves many community spouses without access to federal-law mechanisms that can preserve resources for the spouse remaining in the community.

Assistant Attorney General Marissa Wiesen, appearing for the Department of Health and Human Services, urged the court to deny the application. Wiesen said the probate statute at issue (cited in argument as section 5401(3)(b)) requires courts to weigh the needs of both spouses and that Schroeder reflects the plain language and intent of the statute. She argued reinstating protective orders before an administrative Medicaid determination would invite speculation, risk misuse of the probate statute to circumvent Medicaid asset and income limits, and could rapidly deplete program resources. She also told the court that both spouses have since died — Jerome died 11 days after the application for leave was filed and Janet died recently — and that their deaths affect whether a live controversy remains. Wiesen added that it is unclear whether there is an authorized representative who can continue the Medicaid application after both spouses’ deaths under Medicaid policy.

Justices questioned counsel on several points: the practical sequence if the court reinstated a protective order and how an administrative law judge would treat that order during an administrative appeal; whether Schroeder marked a change in practice; how other states handle protective orders; and whether granting relief in this case would be speculative because of asset ownership and specificity problems in the existing probate orders. Counsel agreed that an administrative law judge could consider a reinstated 2022 protective order but that the probate orders in the record lack specificity (for example, they list a transfer of “Prudential stocks” though some stock transfers had occurred earlier), ownership detail, and updated asset listings.

Harrison and Schultz argued the appeal presented an issue of public significance likely to recur and evade review because the institutionalized spouse often dies before appellate processes conclude. Wiesen responded that many protective-order cases do not become moot, but in this case the circumstances are case-specific and Schroeder is consistent with the plain language and intent of the statute. She urged denial of the application.

The court allowed substitution of the personal representative, acknowledged the pending administrative appeals, and was told the nursing-home claim against the estate totals $125,000. The case was submitted for decision after argument and the court took a brief recess.

Ending: The court took a 15-minute recess and submitted the case for decision; no opinion or order was announced at argument.