One in six children born in the United States will be affected from some kind of developmental disability. The most common developmental disabilities include Down syndrome, cerebal palsy, fetal alcohol spectrum disorder or autism. These conditions may only cause mild physical or mental effects to some people, but others may be profoundly affected to the point that they will need assistance throughout their entire lives. These disabilities tend to be present shortly after birth and persist while the child is under the care of his parents for the first 18 years of life. However, the child will eventually become a legal adult and will have the power to enter into a contract, sign lease agreements and even get married. Unfortunately, the developmental disability may prevent the individual from making informed decisions in his or her best interests. The individual may be easily taken advantage of and cheated out of money, is susceptible to consenting for unnecessary or expensive medical procedures, or may even be in a position where he or she cannot provide for a spouse or children. If the individual is an adult, the parent no longer has the ability to make decisions for him or her. Under these circumstances, the individual with a developmental disability may be eligible to have a guardian appointed to him or her under Michigan’s Mental Health Code.
An interested person can file PC 658 (Petition for Appointment of Guardian, Individual with Alleged Developmental Disability) with the probate court in the county that the individual resides requesting the appointment of a guardian. The petition must include ALL of the following:
- The relationship and interest of the petitioner. MCL 330.1609(1)(a).
- The name, date of birth, and place of residence of the respondent. MCL 330.1609(1)(b).
- The facts and reasons for the need for guardianship. MCL 330.1609(1)(c).
- The names and addresses of the individual’s current guardian, and the respondent’s presumptive heirs. MCL 330.1609(1)(d).
- The name and address of the person with whom, or the facility in which, the respondent is residing. MCL 330.1609(1)(e).
- A description and approximation of the value of the respondent’s estate including an estimate of the individual’s anticipated yearly income and the source of the income. MCL 330.1609(1)(f).
- The name, address, and age of the proposed guardian and if the proposed guardian is a current provider of services to the developmentally disabled. MCL 330.1609(1)(g).
- A factual description of the nature and extent of the respondent’s developmental disability. MCL 330.1609(1)(h).
In addition, the petition must be accompanied by a report completed by qualified individuals under the law that can evaluate, treat or serve developmentally disabled people and contains ALL of the following:
- A description of the nature and type of the respondent’s developmental disability. MCL 330.1612(1)(a).
- Current evaluations of the respondent’s mental, physical, social, and educational condition, adaptive behavior, and social skills. These evaluations shall take into account the individual’s abilities. MCL 330.1612(1)(b).
- An opinion as to whether guardianship is needed, the type and scope of the guardianship needed, and a specific statement of the reasons for the guardianship. MCL 330.1612(1)(c).
- A recommendation as to the most appropriate rehabilitation plan and living arrangement for the individual and the reasons for the recommendation. MCL 330.1612(1)(d).
- The signatures of all individuals who performed the evaluations upon which the report is based. One of the individuals shall be a physician or psychologist who, by training or experience, is competent in evaluating individuals with developmental disabilities. MCL 330.1612(1)(e).
- A listing of all psychotropic medications, plus all other medications the respondent is receiving on a continuous basis, the dosage of the medications, and a description of the impact upon the respondent’s mental, physical and educational conditions, adaptive behavior, and social skills. MCL 330.1612(1)(f).
If the petitioner meets all of the legal requirements, then a hearing will be scheduled before the probate judge regarding the appointment of the guardian. Notice of the time and place of the hearing must be given to the developmentally disabled person, his or her presumptive heirs, the preparer of the report and any other appropriate person that performed the evaluation. MCL 330.1614(3). The affected developmentally disabled individual, who stands to have his or her liberty interest restricted by the guardianship, is afforded a number of rights by the probate court:
- The right to be represented by legal counsel. The developmentally disabled person can hire preferred counsel at his or her expense or have court-appointment counsel from the probate court (at public expense if indigent). MCL 330.1615. If necessary, the court may also appoint a guardian ad litem to determine the developmentally disabled person’s best interests and assist his or her attorney. MCL 330.1616.
- The right to a trial by a jury of six people. MCL 330.1617(1).
- The right to have a hearing to present evidence, and to confront and cross-examine all witnesses. MCL 330.1617(2).
- The right to have the hearing closed to the public on the request of the developmentally disabled person. MCL 330.1617(3).
- The right to be present at all proceedings. MCL 330.1617(4).
- The right to have the person who prepared the report or at least 1 of the persons who performed an evaluation serving in part as basis for the report testify in person in court. MCL 330.1617(5).
- The right, at his or her own expense (or if the developmentally disabled person is indigent, at the expense of the state), to secure an independent evaluation. Compensation for an independent evaluation at public expense shall be in an amount which is reasonable and based upon time and expenses and approved by the court. MCL 330.1617(6).
At the conclusion of the hearing, the court has to make one of the following decisions:
- If it is determined that the developmentally disabled person possesses the capacity to care for himself or herself and his or her estate, the court shall dismiss the petition. MCL 330.1618(3).
- If it is found by clear and convincing evidence that the individual is developmentally disabled and lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself or his or her estate, the court may appoint a partial guardian to provide guardianship services, but the court shall not appoint a plenary guardian. MCL 330.1618(4).
- If it is found by clear and convincing evidence that the individual is developmentally disabled and is totally without capacity to care for himself or herself or his or her estate, the court shall specify that finding of fact in any order and may appoint a plenary guardian of the person or of the estate or both. MCL 330.1618(5).
“Guardianship for individuals with developmental disability shall be utilized only as is necessary to promote and protect the well-being of the individual, including protection from neglect, exploitation, and abuse; shall take into account the individual’s abilities; shall be designed to encourage the development of maximum self-reliance and independence in the individual; and shall be ordered only to the extent necessitated by the individual’s actual mental and adaptive limitations.” MCL 330.1602(1). “If the court determines that some form of guardianship is necessary, partial guardianship is the preferred form of guardianship for an individual with a developmental disability.” MCL 330.1602(2). If a partial guardian is appointed, then his or her term cannot be longer than 5 years, after which a new petition may be filed. MCL 330.1626. “The court may appoint as guardian of an individual with a developmental disability any suitable individual or agency, public or private, including a private association capable of conducting an active guardianship program for an individual with a developmental disability.” MCL 330.1628(1). “Before the appointment, the court shall make a reasonable effort to question the individual concerning his or her preference regarding the person to be appointed guardian, and any preference indicated shall be given due consideration.” MCL 330.1628(2).
A plenary guardian appointed by the court has the authority to place the developmentally disabled individual in a facility. MCL 330.1623(1). In addition, the guardian may authorize any routine or emergency medical treatment or surgery on behalf of the ward. MCL 330.1629(1). However, the guardian cannot authorize extraordinary procedures (e.g. sterilization, including vasectomy, abortion, organ transplants from the ward to another person, and experimental treatment) without an order from the probate court. MCL 330.1629(2). The guardian will have the duty to provide for the care, comfort and maintenance of the ward while making every effort to maximize his or her independence and self-reliance. MCL 330.1631(1). In addition, the guardian must file an annual report with the court that indicates the ward’s current living situation, a summary medical, education and financial decisions authorized and an accounting of all financial transactions. MCL 330.1631(2).
The legal grounds for this guardianship can be confusing and the procedural steps may be difficult to understand. Seeking the advice and guidance of a skilled probate lawyer is always recommended from the very beginning. Even if the guardianship is granted, an attorney may be helpful in ensuring that all decisions are made within legal compliance and that all annual accountings are done correctly. Failure of the guardian to comply with legal responsibilities can lead to removal from the position and even contempt of court sanctions.
If you have any questions about developmentally disability guardianships or require legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.