In Michigan, it’s incredibly important to understand the concepts of guardianship and conservatorship — two legal ways to help maintain the well-being of an individual who is not able to care for themselves. In order to grasp the reality of guardianship and conservatorship issues, it’s also crucial to know what it means to be incapacitated, as this designation is not always as straightforward as one might assume.
Michigan Guardianship and Conservatorship
Guardianship can be established through the probate court when an individual cannot communicate or make informed general care and control decisions for themselves. Broadly speaking, a guardian is a substitute decision maker for an incapacitated individual. And, in short, the guardian looks out for the incapacitated individual’s general well-being and care.
Depending on the powers granted by the court, a guardian has the responsibility to provide for the individual’s care and comfort, including providing food, clothing, and shelter. Guardians may also determine where another individual lives, apply for and obtain services on their behalf, and authorize or refuse medical treatments, unless other provisions are made.
Conservatorship, meanwhile, can be established if an individual can no longer effectively manage his or her own property and finances. In this event, a conservator can be appointed by the probate court to manage the estate and finances of the individual. Once appointed, the conservator is responsible for the care and preservation of all the assets of the legally protected person.
One person or organization can serve as both guardian and conservator for an individual, though these roles may also be given to separate parties.
The decision to appoint a conservator for an individual is a very serious matter, since the Michigan probate court will ultimately take away some of an individual’s basic rights. The appointment of a conservator or guardian is intrusive by nature, and these matters can become highly emotional and sensitive.
If you would like to control who will make these decisions if you become incapacitated, contact our office to discuss powers of attorney for health care and powers of attorney for finance.
What Does It Mean for an Individual to be Incapacitated?
Broadly speaking, guardianship and conservatorship may be considered for minors, or for adults who have lost the ability to take care of themselves properly, or make and communicate informed decisions about their personal well-being.
More specifically, Michigan’s Estates and Protected Individuals Code (EPIC) defines an incapacitated individual as:
an individual who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions.
An individual is considered legally incapacitated if they have “been adjudged by a court to be an incapacitated individual,” or if “a guardian is appointed under” the relevant act. In Michigan, incapacitated individuals are considered to be protected individuals, a broad classification referring to persons who by reason of their age or impairment cannot manage their own affairs.
It’s crucial to understand that incapacity is a legal concept, which must be determined by the courts after a thorough assessment — which may also include evaluations and recommendations from physicians or mental health professionals.
In Michigan, adults are broadly presumed to be competent and this presumption must be overcome by clear and convincing evidence. Incapacity is also often nuanced and task-specific. In other words, the court can closely tailor guardianships to the specifics of the individual’s situation, as necessary.
With this in mind, Michigan law is meant to “encourage the development of maximum self-reliance and independence in the individual.” This means that, for a guardian to be appointed, the court must find:
by clear and convincing evidence both that the individual for whom a guardian is sought is an incapacitated individual and that the appointment is necessary as a means of providing continuing care and supervision of the incapacitated individual, with each finding supported separately on the record.
Meanwhile, EPIC also states that: “the court shall grant a guardian only those powers and only for that period of time as is necessary to provide for the demonstrated need of the incapacitated individual.” A court order establishing a guardianship must also specify “any limitations on the guardian’s powers and any time limits on the guardianship.”
For a conservator to be appointed — or for the court to make another protective order in relation to an individual’s estate and affairs — two criteria must be met:
(a) The individual is unable to manage property and business affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance.
(b) The individual has property that will be wasted or dissipated unless proper management is provided, or money is needed for the individual’s support, care, and welfare or for those entitled to the individual’s support, and that protection is necessary to obtain or provide money.
The court may also appoint a conservator to manage the affairs of an individual who is mentally competent, but who requests the appointment. This may be done because the individual recognizes that they are unable to manage their property and affairs effectively, due to age or physical infirmity.
Potential Guardianship and Conservatorship Issues
Guardianship and conservatorship are complex matters, and can quickly become even more complicated and time-intensive when questions or disputes arise.
As you start to think about the need for establishing a guardianship or conservatorship for yourself or an important individual in your life, it’s important to consider the many steps that one must take, and the issues that might come up, including:
- Considering alternatives to guardianship and conservatorship. Oftentimes, individuals may be encouraged to pursue less intrusive alternatives to guardianship and conservatorship. For instance, if an incapacitated individual has a durable power of attorney for finances and healthcare or a patient advocate designation, this may negate the need for a guardian or conservator.
- Disputes and contests. Both guardianship and conservatorship proceedings can be contested by other interested parties — including the alleged incapacitated individual. Often, disputes arise when there is a disagreement over who should be appointed as a guardian or conservator, or whether the appointment is truly necessary and beneficial for the protected individual.
- Choosing the right guardian. Nominating a guardian to care for yourself or an incapacitated adult child often requires a good deal of thought and care. It’s important to consider candidates carefully, weighing factors such as their experience and background, trustworthiness, communication style, and location.
- Executing your responsibilities as a guardian or conservator. Serving as a guardian or conservator is not a matter to be taken lightly. Both roles come with important responsibilities and duties owed to the person in your care, and to the court. As one example, after their appointment conservators must promptly file an inventory with the court of all the assets belonging to the adult now under their care. A conservator is also responsible for filing verified reports with the court on an annual basis. Similarly, guardians are required to prepare a file report with the probate court on the condition of the incapacitated individual once a year, among other important duties.
- Modification and termination. The individual or another interested person may petition the court to modify or terminate a guardianship or conservatorship, or have a guardian or conservator removed because of a failure to fulfill their duties. The court may also update a guardian or conservator’s powers if needed, based on the circumstances of the legally incapacitated individual or protected person.
Keep the Discussion Going with Metro Detroit’s Probate and Guardianship Attorneys
For all these important matters and more, it’s wise to have an intelligent and experienced lawyer at your side, fighting for your rights and the well-being of your loved ones.
Our skilled law firm is here and ready to assist with any guardianship or conservatorship matters. We are also ready an able to quickly put a plan in place to help you avoid guardianship and conservatorship issues in your life by utilizing powers of attorney.
If you require further legal advice or if you are looking for representation as you navigate Michigan’s tricky probate court system, including guardianships and conservatorships, don’t hesitate to call our Southfield, Michigan office at (833) 469-4897 to set up your free initial consultation. You may also click here to get in touch online.
At the Law Office of Dean E. Patrick, PLLC, we will work hard to accomplish your goals, while handling your matter with professionalism and expertise.