One of the greatest blessings that a person can have during his or her life is good health. A good, robust foundation can enable anyone to accomplish their goals and pursue their dreams. However, health can deteriorate with age or disease and a person may be unable to do all of the things he or she did in youth. This deterioration may sink to levels where that person cannot even manage basic functions such as tending to medical care or paying bills. When this occurs, it may be time for the individual to have a legal guardian.
“An individual in his or her own behalf, or any person interested in the individual’s welfare, may petition for a finding of incapacity and appointment of a guardian.” MCL 700.5303(1). This petition is filed in the probate court of the county that the individual can be found. A hearing must take place before the probate judge to determine if the individual is actually incapacitated. MCL 700.5303(3). “The court may appoint a guardian if the court finds 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.” MCL 700.5306(1).
The Michigan legislature recognizes that the appointment of a legal guardian will significantly curtail the freedom of the legally incapacitated individual (the “ward”). The legal guardian can make decisions regarding where the individual can live, consent to medical treatment, pay bills or control other aspects of daily living. When guardianships fall into the wrong hands, the ward can be subjected to neglect and abuse. In some instances, an individual doesn’t truly need a guardian but is manipulated into this situation by opportunist friends and family. To protect the individual from a wrongfully granted guardianship, there are a number of safeguards put in place:
- Alternatives To Guardianship: “Before a petition is filed under this section, the court shall provide the person intending to file the petition with written information that sets forth alternatives to appointment of a full guardian, including, but not limited to, a limited guardian, conservator, patient advocate designation, do-not-resuscitate order, physician orders for scope of treatment form, or durable power of attorney with or without limitations on purpose, authority, or time period, and an explanation of each alternative.” MCL 700.5303(3). If the individual created and executed a valid patient advocate designation before the granting of a guardianship, then the guardian shall not be allowed to make medical or mental health decisions that the patient advocate is designated to make. MCL 700.5306(6).
- Guardian Ad Litem: “Unless the allegedly incapacitated individual has legal counsel of his or her own choice, the court shall appoint a guardian ad litem to represent the person in the proceeding.” MCL 700.5303(3). A guardian ad litem has the duty to visit the individual, explain the nature and purpose of the petition and legal effects of guardianship, and explain the individuals rights under the law. MCL 700.5305. The guardian ad litem makes determinations if the guardianship is necessary, whether there are alternatives to guardianship, or whether the individual wishes to contest the petition.
- Opinion of Physician or Mental Health Professional: “If necessary, the court may order that an individual alleged to be incapacitated be examined by a physician or mental health professional appointed by the court who shall submit a report in writing to the court at least 5 days before the hearing…” MCL 700.5304(1). In addition, “[t]he alleged incapacitated individual has the right to secure an independent evaluation, at his or her own expense or, if indigent, at the expense of the state”. MCL 700.5304(2). These are all necessary factors for the court to consider in determining whether an individual is legally incapacitated.
- Procedural Due Process: “The individual alleged to be incapacitated is entitled to be present at the hearing in person, and to see or hear all evidence bearing upon the individual’s condition. If the individual wishes to be present at the hearing, all practical steps shall be taken to ensure his or her presence, including, if necessary, moving the hearing site.” MCL 700.5304(4). “The individual is entitled to be represented by legal counsel, to present evidence, to cross-examine witnesses, including the court-appointed physician or mental health professional and the visitor, and to trial by jury.” MCL 700.5304(5).
- Partial Guardianship: “If the court finds by clear and convincing evidence that an individual is incapacitated and lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself, the court may appoint a limited guardian to provide guardianship services to the individual, but the court shall not appoint a full guardian.” MCL 700.5306(3). “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. The court shall design the guardianship to encourage the development of maximum self-reliance and independence in the individual.” MCL 700.5306(2).
A legal guardian generally does not have the authority to manage the ward’s real estate or property. The probate court may appoint a conservator if the judge determines that the “individual is unable to manage property and business affairs effectively,” in relevant part, because of “mental illness, mental deficiency, physical illness or disability” and 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.” MCL 700.5401(3). This is a separate petition and a separate filing from the guardianship petition. If the guardian’s ward does not have a conservator, the guardian may institute support proceedings and “receive money and tangible property for the ward’s support, care, and education.” MCL 700.5314(d). If the ward has a conservator, the guardian must “pay to the conservator, for management as provided in this act, the amount of the ward’s estate received by the guardian in excess of the amount the guardian expends for the ward’s current support, care, and education[ ]” and must “account to the conservator for the amount expended.” MCL 700.5314(f).
A full guardian over a legally incapacitated individual has the following powers and responsibilities TO THE EXTENT GRANTED BY COURT ORDER:
- Residence of Ward: A full guardian has power to “[t]he custody of the person of the ward and the power to establish the ward’s place of residence in or outside this state. The guardian shall visit the ward within 3 months after the guardian’s appointment and not less than once within 3 months after each previous visit. The guardian shall notify the court within 14 days of a change in the ward’s place of residence or a change in the guardian’s place of residence.” MCL 700.5314(a).
- Comfort and Care of Ward: A full guardian has power, “[i]f entitled to custody of the ward, the duty to make provision for the ward’s care, comfort, and maintenance and, when appropriate, arrange for the ward’s training and education. The guardian shall secure services to 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. Without regard to custodial rights of the ward’s person, the guardian shall take reasonable care of the ward’s clothing, furniture, vehicles, and other personal effects and commence a protective proceeding if the ward’s other property needs protection.” MCL 700.5314(b).
- Consent to Ward’s Medical Care: A full guardian has “[t]he power to give the consent or approval that is necessary to enable the ward to receive medical or other professional care, counsel, treatment, or service” unless there is a valid, pre-existing patient advocate designation. MCL 700.5314(c).
- Do-Not-Resuscitate Order: A full guardian has “[t]he power to execute, reaffirm, and revoke a do-not-resuscitate order on behalf of a ward” after consultation with the ward and attending physician as required by law.” MCL 700.5314(d). This may be restricted by a valid, pre-existing patient advocate designation.
- Physicians Orders For Scope of Treatment: A full guardian has “[t]he power to execute, reaffirm, and revoke a physician orders for scope of treatment form on behalf of a ward” after consultation with the ward and attending physician as required by law. MCL 700.5314(f). This may be restricted by a valid, pre-existing patient advocate designation.
- Financial Powers If No Conservator: If a conservator is not appointed, the guardian can do both of the following:
- “Institute a proceeding to compel a person under a duty to support the ward or to pay money for the ward’s welfare to perform that duty.” MCL 700.5314(h)(i).
- “Receive money and tangible property deliverable to the ward and apply the money and property for the ward’s support, care, and education. The guardian shall not use money from the ward’s estate for room and board that the guardian or the guardian’s spouse, parent, or child have furnished the ward unless a charge for the service is approved by court order made on notice to at least 1 of the ward’s next of kin, if notice is possible. The guardian shall exercise care to conserve any excess for the ward’s needs.” MCL 700.5314(h)(ii).
- Annual Reports: A full guardian has “[t]he duty to report the condition of the ward and the ward’s estate that is subject to the guardian’s possession or control, as required by the court, but not less often than annually.” This report must be served upon the ward and all interested persons as required by law. MCL 700.5314(i).
- Payment to Conservator if Appointed: “If a conservator is appointed, [a full guardian has] the duty to pay to the conservator, for management as provided in this act, the amount of the ward’s estate received by the guardian in excess of the amount the guardian expends for the ward’s current support, care, and education. The guardian shall account to the conservator for the amount expended.” MCL 700.5314(j).
Applying for a guardianship can be an emotional and difficult experience. The individual may resist needing a guardian which can cause strife and increased legal wrangling. Other family members may either try to defeat your petition or file a competing petition seeking the appointment for themselves. The judge may also be unsatisfied with your evidentiary showing of incapacity even if common sense dictates a guardian is needed. To overcome these legal hurdles, the guidance and skill of a probate lawyer may light the way. Our law firm has years of experience handling guardianship cases for wards and guardians alike.
If you need assistance with your guardianship matter or have any other legal questions, do not hesitate to contact the attorneys at Kershaw, Vititoe & Jedinak PLC.