When a petitioner makes an application to the probate court requesting that a legal guardian be appointed to an adult, there are two important questions that must be answered. The first question is whether the appointment of a guardian is necessary. The judge (or jury) will have to determine whether the individual has a physical or mental disability, either by disease or old age, that prevents him or her from making informed decisions regarding residence, health or finances. The individual may object to the appointment, an attorney may be appointed, and the petitioner will have to prove the necessity of a guardianship after witnesses and exhibits are considered in a full trial.
If, after all that, the court determines that a guardian must be appointed, then the judge will have to consider the second important question: who will get to be the guardian? This issue is often a divisive one among family members that have very different ideas about what is best for the ward. Fortunately, Michigan law provides some guidance on who would have priority for this appointment.
In appointing a guardian, the court shall appoint a person, if suitable and willing to serve, in the following order of priority:
- A person previously appointed, qualified, and serving in good standing as guardian for the legally incapacitated individual in another state. MCL 700.5313(2)(a).
- A person the individual subject to the petition chooses to serve as guardian. MCL 700.5313(2)(b). The petition for guardianship form provides a section where the individual can nominate an individual and sign his or her name a
- A person nominated as guardian in a durable power of attorney or other writing by the individual subject to the petition. MCL 700.5313(2)(c).
- A person named by the individual as a patient advocate or attorney in fact in a durable power of attorney. MCL 700.5313(2)(d).
If there is no person chosen, nominated or named above, or none of those persons are suitable or willing to serve, the court may appoint a guardian who is related to the ward in the following order of preference:
- The legally incapacitated individual’s spouse, including a person nominated by a last will and testament or other writing signed by a deceased spouse. MCL 700.5313(3)(a).
- An adult child of the legally incapacitated individual. MCL 700.5313(3)(b).
- A parent of the legally incapacitated individual, including a person nominated by a last will and testament or other writing signed by a deceased parent. MCL 700.5313(3)(c).
- A relative of the legally incapacitated individual with whom the individual has resided for more than 6 months before the filing of the petition. MCL 700.5313(3)(d).
- A person nominated by a person who is caring for the legally incapacitated individual or paying benefits to the legally incapacitated individual. MCL 700.5313(3)(e).
If none of the persons designated above can’t or won’t accept the job, the court may appoint any competent person who is suitable and willing to serve, including a professional guardian. The court shall only appoint a professional guardian if the court finds that the appointment of the professional guardian is in the incapacitated individual’s best interests and there is no other person that is competent, suitable, and willing to serve in that fiduciary capacity. MCL 700.5106(2). The court shall not appoint as a guardian an agency, public or private, that financially benefits from directly providing housing, medical, mental health, or social services to the legally incapacitated individual. If the court determines that the ward’s property needs protection, the court shall order the guardian to furnish a bond or shall include restrictions in the letters of guardianship as necessary to protect the ward’s property (a professional guardian will be required to file a bond in an amount to be determined by the judge).
A guardianship proceeding can be a mentally and emotionally demanding time. Whether you are the petitioner, another family member or the proposed ward, you can benefit from the assistance and guidance of a skilled probate attorney on your side. If you or a loved one have questions about guardianship proceedings or need aggressive legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.
