(dissenting). Because I disagree with the majority’s conclusion that petitioner is not entitled to the $81,844.91 in issue, I dissent.
After Mabel Wright’s death, the probate court requested that petitioner, who was the decedent’s guardian and conservator of her estate, file a final account. When petitioner filed the final account, he listed the $81,844.91 as joint assets, instead of estate assets. He thereafter requested that the assets be paid to him individually as the surviving owner.
Petitioner’s claim to the assets arises from the status in which the money was held by the decedent before petitioner was made the decedent’s guardian. At the time of petitioner’s arrival in Detroit, the decedent had held differing amounts of money in various accounts at banks throughout Detroit. Two of those accounts were joint accounts in the name of Mabel and Justice Wright. In December of 1979 and January of 1980, petitioner withdrew the funds from the various banks and transferred them to an account in one bank. Thus, at the time of these proceedings, all of the funds were located in one account and the joint accounts no longer existed. However, petitioner asserts that the amounts which were taken from the two joint accounts now belong to him alone. I agree.
I believe that the trial court incorrectly interpreted the law in regard to a conservator’s authority. Moreover, the trial court’s finding that the statutory presumption of MCL 487.703; MSA 23.303 was overcome was clearly erroneous. See MCR 2.613(C).
MCL 487.703; MSA 23.303 states:
When a deposit shall be made, in any bank by any person in the name of such depositor or any *12other person, and in form to be paid to either or the survivor of them, such deposits thereupon and any additions thereto, made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same together with all interest thereon, shall be held for the exclusive use of the persons so named and may be paid to either during the lifetime of both, or to the survivor after the death of one of them, and such payment and receipt or acquittance of the same to whom such payment is made shall be a valid and sufficient release and discharge to said banking institution for all payments made on account of such deposits prior to the receipt by said bank of notice in writing not to pay such deposit in accordance with the terms thereof.
When a deposit has been made, or shall hereafter be made, in any banking institution transacting business in this state, in the names of two or more persons, payable to either or the survivor or survivors, such deposit or any part thereof or any interest or dividend thereon and any additions thereto, made by any one of the said persons, shall become the property of such persons as joint tenants, and the same shall be held for the exclusive use of the persons so named and may be paid to any one of said persons during the lifetime of said persons or to the survivor or survivors after the death of one of them, and such payment and the receipt of acquittance of the same to whom such payment is made shall be a valid and sufficient release and discharge to said banking institution for all payments made on account of such deposits prior to the receipt by said bank of notice in writing not to pay such deposit in accordance with the terms thereof.
The making of the deposit in such form shall, in the absence of fraud or undue influence, be prima facie evidence, in any action or proceeding, to which either such banking institution or surviving depositor or depositors is a party, of the intention of such depositors to vest title to such deposit and the additions thereto in such survivor or survivors.
*13In connection with this statute, the Supreme Court has addressed the issue of whether a fiduciary of a mentally incompetent person can terminate a joint bank account created by the mental incompetent prior to the time of her adjudication as such. The Supreme Court addressed that issue in First Federal Savings & Loan Ass’n v Savallisch, 364 Mich 168, 173; 110 NW2d 724 (1961). In that case, the Supreme Court stated:
Unquestionably Mrs. Luebner [the depositor, later declared incompetent] might have withdrawn the moneys deposited by her in the joint accounts at any time prior to her becoming mentally incompetent. She did not do so but, on the contrary, increased some of the accounts and created new ones. There is nothing in the record before us to suggest that her purpose in making the deposits in the manner indicated was to promote her own convenience or well-being. It is a matter of fair inference that she intended each person named as a joint depositor with herself, if such person survived, to become the absolute owner of the account. In other words, the presumption created by the final sentence of the section of the banking law above quoted has not been rebutted in the instant case. Such method of final disposition of funds is not uncommon. It is significant that the persons who were made joint depositors with herself by Mrs. Luebner were, in the main, her closest relatives or friends whom she wished to remember in the manner suggested. Such accounts served the same purpose as a testamentary disposition and it may be assumed that for some reason Mrs. Luebner favored such method.
The Supreme Court went on to affirm the trial court, which had held that the guardian was without right or authority to withdraw the funds from joint accounts. The Supreme Court, referring to In *14re Rasmussen’s Estate, 147 Misc. 564; 264 NYS 231 (1938), continued, stating:
There, in June, 1904, a deposit was made in trust for the benefit of the widow of a deceased nephew of the depositor. In 1930 the depositor was adjudged an incompetent and under the New York statute a committee was duly appointed for her. Apparently some withdrawals from the trust fund had been made by the depositor, leaving a balance therein somewhat in excess of $1,000. The committee undertook to transfer the balance in the fund to a general account in his name as fiduciary. In holding that the committee did not have the authority to change the deposit in the manner indicated, and citing prior decisions, it was said (p 566):
"Certain it is that the committee does not by reason of his appointment become the alter ego of the incompetent, since it has been held that rights of election possessed by the incompetent cannot be exercised by a committee.”
The court further quoted from In the Matter of Wainman’s Estate, 121 Misc. 318, 320 (200 NYS 893 [1923]), as follows:
" 'A careful reading of these decisions leads to the conclusion that they apply to ministerial acts; the protection of the estate; the collecting of the assets; and the caring for the incompetent according to his station in life; but that it does not confer upon the committee a discretionary power to change an act performed by the incompetent before he was afflicted with the disability and deprive the beneficiary of that act and of a right conferred by the incompetent when he was mentally qualified to confer it, and thus perhaps prevent the performance of an act that the incompetent would insist on having performed if he had retained his natural faculties.’ ”
In the case of Howard v Imes, 265 Ala 298 (90 So 2d 818, 62 ALR2d 1086 [1956]), the court dis*15cussed the legal proposition here involved at some length, citing numerous decisions from other States and concluding that under the general rule the guardian of an incompetent person cannot withdraw funds in a joint account except for the ward’s necessities, the reason being that such withdrawal would be the exercise of a personal right of the ward. It may be noted in passing that in the case now before this Court 2 withdrawals from the fund in order to meet personal expenses of Mrs. Luebner and provide for her proper care were duly authorized by the circuit judge. No question is presented as to the propriety of such action. In each instance the release of funds was made on the application of the general guardian.
As before stated, there is nothing in the case now before this Court on which to base an inference or conclusion that Mrs. Luebner created the joint deposits in question for her own convenience and well-being, or for any reason other than to carry out a desire to aid those whom she caused to be joined with her as joint depositors. [364 Mich 168, 176-177.]
I believe that Savalliseh controls the outcome in this case. In finding that petitioner was not entitled to the money, the trial court held: (1) the petitioner when acting as conservator had the authority to withdraw the funds from the joint accounts; and (2) regardless of petitioner’s ability to withdraw the funds, petitioner had no right of survivorship in the accounts because the statutory presumption of ownership created by MCL 487.703; MSA 23.303 was overcome by evidence presented in this case. I believe that the trial court erred in regard to each conclusion.
As indicated by the Supreme Court in Savallisch, supra, a guardian or conservator does not have the authority to withdraw funds in joint accounts except for purposes of providing neces*16sary care for the incompetent.1 The conservator does not have the discretionary power to change acts performed by the incompetent before she was afflicted in order to deprive beneficiaries of that act of a right conferred by the incompetent. I find nothing in the Revised Probate Code which would lead to a different conclusion. See MCL 700.484; MSA 27.5484. While a conservator is provided with wide powers under the probate code, he must exercise such powers in light of his capacity as conservator. The funds in this case were already deposited in a bank and there was no necessity for rearrangement into a new or different account. Thus, petitioner, as conservator, erred and exceeded his authority in removing the funds from the joint accounts.
Because petitioner, as conservator, exceeded his authority, petitioner, as the survivor of the joint account, is entitled to the assets. MCL 487.703; MSA 23.303 creates a presumption that the decedent intended to vest title to the deposits in petitioner. There is nothing in this case on which to base an inference or conclusion that the decedent created the joint deposits for her own convenience and well-being or for any reason other than a desire to aid her brother upon her death. Her brother was never informed of the accounts and *17lived many miles away from his sister. He discovered the joint accounts when he arrived to act as her guardian and conservator of her estate.2
Even though the money is no longer in the joint bank accounts, petitioner is still entitled to the funds. See Savallisch, supra. Petitioner, as conservator, erred by removing the assets. Technically, he should have corrected this error by placing the assets back into the joint accounts. If the accounts were in existence and he had done so, the statutory presumption would control and title to the deposits would vest in petitioner as the survivor. However, such an act is now impossible and would be useless. The assets should therefore be turned over directly to petitioner. The assets should not appear as estate assets in the final account provided by petitioner as conservator.
It must be kept in mind that petitioner has two roles in this litigation. He has both purely personal interests and he has interests which arise from his position as conservator. The evidence in this case is clear that petitioner acted in his capacity as conservator when he withdrew the sums of money from the various accounts and placed them into one account. Petitioner testified that he considered the money as belonging to his sister. His testimony clearly indicated that when he transferred the money to the "guardian’s account” he was intending to make money available for his sister’s needs. He clearly acted in his capacity as conservator in doing so. There is absolutely no indication that he treated the money as *18belonging to him in his individual capacity. Regardless of whether or not he, as an individual, had the power to withdraw the money and use it for his own purposes, the evidence indicates that he did not.
To hold that petitioner in his individual capacity is not entitled to the money which he would otherwise be entitled to simply because he also had a role as guardian or conservator is inequitable. His error in judgment as guardian should not be held against him as an individual.
Finally, I agree with the majority that the trial court made adequate findings of fact and properly exercised its discretion when it disallowed part of the expenses claimed by the conservator.
I would therefore reverse the decision of the trial court in part and affirm in part.
The trial court erred in its interpretation of the Savallisch case. The trial court distinguished the case on the ground that the guardian therein had withdrawn the money from the joint accounts while the depositor therein, Mrs. Luebner, was still competent. The trial court misinterpreted the facts of Savallisch. The guardian therein withdrew the money from the accounts after the ward was formally adjudicated to be a mental incompetent.
Moreover, I note that the majority misinterprets my opinion by suggesting that joint funds cannot be withdrawn for the incompetent’s necessities. Such an interpretation is contrary to the explicit and clear wording of this opinion which indicates that there is an exception for providing necessary care for the incompetent. These funds could obviously have been used for necessities if no other funds were available. However, there is no indication that other available funds were not sufficient to provide for Mabel Wright’s needs.
The trial court clearly erred in determining that petitioner’s testimony overcame the presumption of ownership. As indicated, there was absolutely no evidence to establish that the funds were deposited for Mabel Wright’s convenience. Her brother was not located nearby and was unable to provide a convenience to her by withdrawing funds on her behalf. Rather, the only conclusion from the evidence is that she intended to provide a benefit for her brother upon her death.