In Michigan, guardianship grants the legal authority to care for another person, often along with their personal property and assets. Generally speaking, an adult guardian’s responsibility is to look out for the overall well-being and care of an incapacitated individual — that is, someone who cannot communicate or make informed general care and control decisions for themselves. An individual for whom a guardian is appointed is known as a ward.
A guardian acts as a substitute decision-maker for an incapacitated individual, and is generally charged with ensuring that all of their essential needs are met. This may include providing appropriate food, clothing, and shelter; protecting the individual’s property; and making medical decisions on their behalf, when necessary.
There are many different situations when guardianship may be necessary and this legal arrangement can come in several different forms, including limited guardianships and full guardianships.
Whether you are seeking to establish a guardianship for an incapacitated person or contesting a pending guardianship decision, there are a variety of reasons one may come to the probate court on a guardianship matter. Even under the best of circumstances, these cases are often highly emotional, and the rules surrounding the appointment, removal, and duties of a guardian can be confusing. As you look deeper into guardianships, it may prove important to consult with an experienced probate and guardianship attorney, who can fight for your rights and the well-being of others.
Curious about what it truly means to serve as a guardian to an incapacitated individual in Michigan? Interested in learning more about the powers, duties, and responsibilities of a guardian, or the rights of a ward?
Let’s explore the role of the guardian, in a bit more depth:
When and How Is a Guardian Appointed?
Broadly speaking, any person interested in another individual’s welfare, or the individual acting on his or her own behalf, can petition the court for a finding of incapacity and the appointment of a guardian. This petition must contain specific facts about the individual’s condition, such as recent examples of conduct that demonstrate the need for a guardian.
A guardianship petition must be filed in the probate court for the county in which the individual lives. After the petitioner files, the probate court will schedule a time for a judge to consider the petition. Copies of the petition must also be given to interested persons, including the spouse and children of the incapacitated individual, or any person named as the individual’s agent through a durable power of attorney.
At this point, the court will generally appoint a guardian ad litem to represent the incapacitated individual, unless the individual has an attorney of their own. The court will also order examinations from doctors or mental health professionals in order to learn more about the individual’s condition; the incapacitated individual or their counsel may also request their own examinations from professionals of their choosing. If the individual or another interested party objects to the petition for guardianship, the matter is said to be contested.
In order for a guardianship to be granted, the court must find “by clear and convincing evidence” that the individual lacks the understanding or capacity to make or communicate informed decisions, and that the appointment of a guardian will be necessary to provide for the individual’s care and supervision. The court may also dismiss the proceeding, or enter another appropriate order. Broadly speaking, the court will attempt to only grant a guardian those powers and only for that period of time as is necessary to provide for the demonstrated need of the incapacitated individual.
If it is determined that the incapacitated individual needs a guardian, the court will appoint a suitable guardian, with priority afforded to:
- A person previously appointed, qualified, and serving in good standing as guardian for the legally incapacitated individual in another state.
- A person whom the individual subject to the petition chooses to serve as their guardian, and who is willing to serve.
- A person nominated as guardian, patient advocate, or attorney in fact in a durable power of attorney or other writing by the individual subject to the petition.
In order to serve as a guardian, a person must be competent and over the age of 18. If no suitable candidate from the list above is willing or able to serve, the court may appoint a family member of the incapacitated individual, such as a spouse or adult child. Ultimately, if no one is considered suitable or willing to serve, the court may appoint a professional guardian.
The guardian gains authority over the individual when they file an “acceptance of appointment” document with the court.
What Are the Powers and Duties of a Guardian?
Broadly speaking, the goal of a guardianship under Michigan law is to “encourage the development of maximum self-reliance and independence in the individual.” As a result, court orders establishing a guardianship must specify any limitations on the guardian’s powers, and any time limits on the guardianship.
A limited guardian may be appointed when the court determines that an individual is incapacitated and lacks the capacity to do some, but not all, of the tasks necessary to care for him or herself. A full guardian may be necessary when the court decides that that the individual is “totally without capacity to care for himself or herself.”
When meaningful communication is possible, a legally incapacitated individual’s guardian is meant to consult with the legally incapacitated individual before making a major decision affecting the ward.
Broadly speaking, Michigan law states that a guardian is responsible for the ward’s care, custody, and control. Depending on the circumstances of the legally incapacitated individual and the terms of the guardianship, this generally means that guardians have the authority and duty to…
Determine where the ward will live
When appropriate, the guardian is granted custody of the person of the ward, including the power to establish their place of residence — whether in or outside of the state. The guardian must visit the ward at least once every three months. The guardian is also responsible for promptly notifying the court of any changes to the ward’s place of residence or their own place of residence.
Make sure that the individual has suitable food, education, and care
If entitled to custody of the ward, a guardian has the duty to make provisions for the ward’s care, comfort, and maintenance. When appropriate, this also includes arranging for the ward’s training and education, and any services that may “restore the ward to the best possible state of mental and physical well-being so that the ward can return to self-management at the earliest possible time.”
Protect the individual’s property and personal effects
A guardian is required to take “reasonable care” of the ward’s clothing, furniture, vehicles, and other personal effects. A guardian is also expected to commence a protective proceeding if the ward’s property needs protection.
This may require the appointment of a conservator, or someone who is tasked with managing the incapacitated individual’s financial affairs and property. This may be the guardian, or another individual or group. A guardian may only sell real property on behalf of the ward if they have been appointed as a special conservator.
Michigan law also seeks to encourage self-reliance, and may authorize the ward to handle part of his or her money or property, including maintaining an account with a financial institution, without needing the consent or supervision of a guardian or conservator.
Make medical decisions on behalf of the individual, when needed
A guardian may be granted broad powers to give any consent or approval that is necessary to enable the ward to receive medical, mental health, or other professional care, counsel, treatment, or service. However, there are limitations, particularly in terms of authorizing inpatient hospitalizations, do-not-resuscitate orders, non-opioid directive forms, and physician orders for scope of treatment forms.
Importantly, if the court is aware that an individual has executed a patient advocate designation or power of attorney for healthcare, then the court shall not grant a guardian any of the same powers that are held by the patient advocate.
Report on the well-being of the ward
The guardian has a duty to report on the condition of the ward and the ward’s estate subject to the guardian’s possession at least once per year, or as required by the court. Along with serving the report to the court, the guardian must also furnish the report to the ward and any interested persons.
This regular report should contain:
- Notes on he ward’s current mental, physical, and social condition
- Any improvement or deterioration in the ward’s mental, physical, and social condition over the reporting period
- The ward’s present living arrangement and changes in his or her living arrangement
- Details on whether the guardian recommends a more suitable living arrangement for the ward
- Notes on any medical treatment, including mental health treatment, received by the ward
- Information on whether the guardian has executed, reaffirmed, or revoked a do-not-resuscitate order on behalf of the ward during the past year
- Whether the guardian has executed, reaffirmed, or revoked a nonopioid directive form on behalf of the ward during the past year
- Whether the guardian has executed, reaffirmed, or revoked a physician orders for scope of treatment form on behalf of the ward during the past year
- Any services received by the ward
- A list of the guardian’s visits with, and activities on behalf of, the ward
- A recommendation as to the need for continued guardianship
Can a Guardian Resign or be Removed?
Generally speaking, a guardian’s authority and responsibility terminate upon the death of the guardian or the ward, upon the determination of incapacity on the part of the guardian, or upon the guardianship’s removal or resignation.
Guardianships are subject to regular review, and can be modified or terminated for a number of different reasons. Importantly, a guardian may petition the court to resign from their position.
The ward — or another person interested in the ward’s welfare — may petition for an order removing the guardian, as well as taking other appropriate actions, such as appointing a successor guardian, modifying the terms of the guardianship, or terminating the guardianship entirely. This request can be made through a formal petition, or by an informal letter to the court or judge. The court must set a date for a hearing to be held within 28 days of receiving such a petition or request.
While this action can be taken at virtually any time, there are some restrictions. In some cases, for instance, an order for incapacity may specify a period of time during which an order to remove a guardian or terminate a guardianship cannot be filed, without special leave of the court.
Before removing a guardian, appointing a successor guardian, or modifying or terminating a guardianship’s terms, the court will follow similar steps as in the appointment of a guardian, and may send someone to observe the guardian’s residence or the condition of the ward, and file a report to the court.
Are There Alternatives to Guardianship?
The decision to appoint a guardian for an individual is a very serious matter, since the Michigan probate court will ultimately be deciding to take away some basic rights from an individual. This process is fairly intrusive by nature, and is not something to be taken lightly.
As a result, it’s important to consider alternatives that may benefit the individual, without needing the appointment of a full guardian. Before filing a petition for guardianship with the probate court, the courts will provide information and explanations on alternatives, including appointing a conservator or delegating certain powers to an advocate or agent through durable powers of attorney.
Interested in learning more about alternatives to guardianship, and how an experienced attorney can help you understand all of your options? You can explore the differences between guardianships, conservatorships, and powers of attorney in our “Education” section, here.
Interested in Learning More About Guardianship Matters in Michigan?
There are a variety of reasons one may come to the probate court on a guardianship matter, but it all comes down to the well-being of the individual who is not able to care for themselves. Even in the best of circumstances, the Michigan probate courts can be very complex, and matters often get drawn out through endless court hearings.
Before you enter the probate courts, it is important for you to be fully knowledgeable on what you are trying to achieve, and take key steps to plan ahead while you are able to do so.
The Patrick & Associates, PLLC. is ready to provide you with guidance and support through situations such as:
- Establishing guardianship for minors and incapacitated adults
- Defending your current position as guardian from a contests
- Terminating or modifying an existing guardianship
- Contesting pending guardianship petitions
- Preparing and filing your annual court-ordered guardianship reports
- Nominating a guardian or successor guardian for you or your children
Want to discuss the unique specifics of your situation? Looking for an attorney who truly understands the complicated issues that often arise in guardianship matters, whether contested or uncontested? We are here for you.
Our attorney Dean E. Patrick has the legal counseling skills, experience, and dedication that your legal matter deserves. You can trust our office to guide you through the process and deliver results.
Our meeting schedules are flexible in order to accommodate your needs and we work hard to always discuss these complex matters in terms that are easy to comprehend. Our office is conveniently located in Southfield, Michigan and our staff is available 24 hours a day, 7 days a week to receive phone calls and help you with your legal matters.
Ready to learn more? Do not hesitate to give us a call at (833) 469-4897 to set up your initial consultation. You may also click here to get in touch online.
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