A guardian appointed by the probate court over an incapacitated individual is a fiduciary charged with the responsibility of making informed decisions for that ward’s housing, medical care and daily needs. This means that the guardian has a duty to meet with the ward regularly, ascertain his or her preference when appropriate, protect and safeguard personal property, avoid abuse or neglect, and makes decisions consistent with the ward’s best interest. Self-dealing is strictly prohibited. If a guardian cannot fulfill their duties, then it may be appropriate to remove them from that position. “The ward or a person interested in the ward’s welfare may petition for an order removing the guardian, appointing a successor guardian, modifying the guardianship’s terms, or terminating the guardianship.” MCL 700.5310(2). “A request for this order may be made by informal letter to the court or judge.” Id.
The Estate and Protected Individuals Code (“EPIC”) does not set a standard for removal guardians from their position. However, the Michigan Court of Appeals has stated that the probate court would be justified in removing a guardian only after finding that the guardian was no longer willing to serve or was no longer suitable to serve as the ward’s guardian. In re Redd Guardianship, 321 Mich App 398, 406-407,410; 909 NW2d 289 (2017). The fact that a ward desires someone else to be his or her guardian does not, standing alone, trigger the procedures to remove the guardian.
“Suitable” is also not defined in EPIC, but what it entails can be inferred from the responsibilities imposed by statute:
- “Beginning again with statutory context, the overarching purpose of a guardian under EPIC is to provide “for the ward’s care, custody, and control,” MCL 700.5314. In doing so, the EPIC prohibits certain financial self-dealing by the guardian with respect to the ward. See MCL 700.5313(1). Moreover, the code provides that a guardian could be someone who served in that role out-of-state if the person is otherwise “qualified, and serving in good standing.” MCL 700.5313(2)(a). Finally, EPIC sets forth several specific duties of a guardian, including to provide for the ward’s financial, medical, and social well-being as well as to make an accounting to the court or other interested individuals. MCL 700.5314. The EPIC thus makes clear that the guardian’s focus of concern must be on the ward, that decisions made on behalf of the ward must be in the interests of the ward and not the guardian, and that the guardian must be qualified to achieve the purposes set forth in EPIC.” Redd, 321 Mich App at 407.
- “Taken together, the statutory context and guidance from dictionaries confirm that a “suitable” guardian is one who is qualified and able to provide for the ward’s care, custody, and control. With respect to whether an existing guardian remains suitable, it logically follows that particularly relevant evidence would include (1) evidence on whether the guardian was still qualified and able, and (2) evidence on whether the guardian did, in fact, satisfactorily provide for the ward’s care, custody, and control in the past.” Redd, 321 Mich App at 408.
What constitutes evidence that a guardian being “no longer suitable to serve” depends in the individual facts and circumstances of each case. The probate judge must determine by a preponderance of the evidence that a person is still suitable to serve in the role as guardian. Redd, 321 Mich App at 410. Courts have removed guardians of legally incapacitated persons for reasons including, but not limited to:
- Guardian fails to consult with the ward before making important decisions such as changing his or her domicile from the primary residence to a nursing home.
- Guardian does not allow the ward to have contact with friends or family for the purpose of isolating them and increasing the guardian’s influence.
- Guardian neglects to provide for medical care or make informed decisions on behalf of the ward by consulting with doctors or other professionals.
- Guardian steals or converts money and other personal property from the ward.
- Guardian fails to provide annual reports or respond to inquiries from the court as required.
- Guardian violates court orders by exceeding the mandate of a partial guardianship or moves the ward out of state to evade the authority of the Michigan probate court.
- Guardian commingles the ward’s money and property with his or her own money and property.
- Guardian makes decisions or expenditures that benefit the guardian more than the ward (e.g. guardian takes ward to restaurants daily and orders extravagant entrees at the ward’s expense).
- Guardian fails to cooperate with other fiduciaries such as the conservator or patient advocate which negatively affects the ward.
- Guardian pays himself or herself unreasonable fees and reimbursements without court permission and fails to keep receipts or otherwise account for them.
A guardian doesn’t necessarily have to break the law or steal to be removed from his or her position by the court. An appointed fiduciary who fails to consider the ward’s needs or even consult with him or her before making major decisions may not be suitable for the job. Although a guardian will not be removed simply because the ward prefers someone else, the probate court will consider the ward’s pleas to modify the guardianship if it appears there is lack of communication, indifference or isolation.
Guardians are entitled to hire a skilled probate lawyer to assist them in the performance of their duties, including the preparation of accounts and court appearances. A good attorney can be valuable to both guardians and interested persons alike. A guardian can benefit from sound legal advice to carry out their duties according to EPIC. A beneficiary who suspects that a guardian is breaching their fiduciary duties can benefit from legal representation to present legally admissible evidence and make persuasive arguments to the probate court to remove that person and prevent further harm. If a ward is upset with a guardian’s performance, they should not be ignored. He or she continues to have rights even after the guardianship is in place and a concerned family member should consider hiring a good lawyer to look into the matter.
If you or a loved one have any questions about guardianships or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.