Guardianships & Conservatorships
MICHIGAN ELDER LAW: GUARDIANSHIP
Some adults are, or become, unable to conduct their personal affairs or manage their finances because of mental or physical impairment. In cases such as these, the state traditionally steps in to appoint a guardian to protect those individuals who, for various reasons, are unable to make decisions for themselves.
As a result of a legal proceeding in which a person’s rights must be carefully considered, a Probate Court may appoint a guardian or conservator for an individual found by the court to be a “protected person”. This means that the court has determined that an adult individual, 18 years of age or older, is unable to care for his or her basic health, care and safety needs without the assistance or protection of a guardian; or is unable to manage his or her financial affairs without the assistance or protection of a conservator.
A Guardianship becomes necessary when an individual lacks the capacity to make a rational decision regarding his or her health care. Remember, there is no prohibition on making bad decisions. The courts favor the autonomy of the individual. So the standard is not whether an individual is making a bad decision, it is whether they understand the consequences of those decisions. A Guardianship can usually be avoided by executing a Patient Advocate while one is competent.
As an individual begins to make more and more bad decisions such as; not eating properly, not taking prescription medications, leaving the burners on the stove on, hoarding, not keeping the house sanitary—while resisting offers of assistance, someone may have to step in to take control. The Guardianship process is the legal process wherein another person is able to take charge over another. The Guardianship process in Michigan takes place in the probate court in the county in which the proposed Ward resides or the county where the proposed ward is found. The Petition must be signed by the person seeking to be the guardian (usually a family member) and generally is accompanied by a medical statement of concern, someone who is familiar with the situation, generally the proposed ward’s personal care physician.
After the petition has been filed in the appropriate probate court, the judge will appoint an attorney for the proposed ward (if that individual in not already represented), order a Guardian Ad Litem report (an attorney who will act as the eyes and ears of the Court and make a legal recommendation) and order an Independent Medical Exam if requested, to help the court make the capacity determination. A court hearing will take place and the Probate Judge will make the determination as to whether to award the guardianship or not. A proposed ward not only has the right to counsel but he/she has the right to be present at the Petition hearing. This is essentially the ultimate weighing of individual autonomy against the safety of the individual. This is extremely stressful on all parties to this action and should only be sought if and when no alternative is available and the proposed ward’s health and safety need protection. If any alternative is available, that alternative is preferable.
In practice, we see the greatest need for guardianships in individuals who are dealing with a loss of functional capacity due to a dementing disease or stroke. Often we field phone calls from children touting that parents are making terrible decisions and those decisions are placing the proposed ward into a serious danger of harm to him or herself. Always remember that the courts do not like to take rights away from people, so unless it is absolutely necessary, a guardianship will not be awarded.
Conservatorship for an Adult
A conservatorship may be necessary when an individual can no longer make contractual or financial transactions or decisions for himself. He or she may have lost functional capacity and is making bad financial choices or perhaps is being exploited by another. When the court grants a conservatorship, the conservator can conduct business on behalf of the ward. For instance, the conservator manages the funds and property of another, opens or closes bank accounts, and can make or break contracts. The conservator receives, collects and makes decisions regarding the ward’s property. A conservatorship can be avoided if the incapacitated individual had executed a valid Power of Attorney prior to incapacity, appointing someone else to manage his or her affairs.
If a conservatorship is necessary, there are procedures that need to be followed. A petition is filed in the probate court in the county in which the proposed ward resides. If the proposed ward does not have an attorney, the court will appoint one and generally will also appoint a Guardian Ad Litem as well. During the hearing, arguments are made and evidence is presented regarding the capacity and actions of the proposed ward. The standard that the court applies when determining if a conservator is needed is: whether the proposed ward lacks sufficient capacity to make or communicate significant responsible decisions concerning the management of his property.
When a conservator is appointed, he or she will have to post a bond in order to guarantee that the conservator “does the right thing” with the ward’s assets. Once the court has appointed a conservator, the court oversees the actions of the conservator by requiring financial returns to be files with the court periodically, generally on an annual basis.
We are Woods Law Office and specialize in all types of Michigan elder law, elder care, and veteran benefits. Our office is located in Shelby Township, Macomb County Michigan.