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What Does A Guardian Ad Litem Do In A Guardianship Or Conservatorship Case In Michigan?

by | Oct 25, 2021 | Guardianships And Conservatorships |

 

When a guardianship or conservatorship case is filed in a probate court in Michigan, the judge will appoint a guardian ad litem to serve for the benefit of the proposed ward.  Guardian ad litems (also called “GALs”) are court-appointed representatives for incapacitated adults or children who are tasked with protecting the rights of the person that they serve.  Guardian ad litems are usually (but not always) licensed attorneys, but this doesn’t mean that the guardian ad litem is serving as the ward’s lawyer.  The guardian ad litem is tasked with advocating for what is in the best interest of the ward.

 

GUARDIAN AD LITEM IN GENERAL

The probate court must appoint a guardian ad litem when required by law, but may also appoint a guardian ad litem in other cases when deemed necessary if the court believes the interests of the person affected are not adequately represented.  MCR 5.121(A)(1).  When necessary, the court may revoke the appointment of a guardian ad litem and appoint a different person to the role.  MCR 5.121(B).

Guardian ad litems are distinct from legal counsel in that their role is to advocate for the best interests of the affected person, even when those viewpoints being advocated for are not what the person wants.  This differs from the role of legal counsel who is required to advocate for the preferred position of the affected person, even if that position is (in the attorney’s mind) NOT in the best interests of his or her client.  Guardian ad litems can and do consider what the ward wants, but are not bound by those preferences.

Before the date set for hearing, the guardian ad litem shall conduct an investigation and shall make a report in open court or file a written report of the investigation and recommendations (with any written report being filed at least 24 hours before the hearing).  MCR 5.121(C).  The report can be received by the court and relied on to the extent of its probative value, even if the evidence within may not be admissible under Michigan’s Rules of Evidence.  MCR 5.121(D)(1).  The guardian ad litem may be called to testify and may be cross-examined by other parties regarding the contents of that report.  MCR 5.121(D)(2).

The guardian ad litem does not act as the individual’s lawyer when appointed to this role.  “When the guardian ad litem appointed to represent the interest of a person is an attorney, that appointment does not create an attorney-client relationship.”  MCR 5.121(E)(1). “Communications between that person and the guardian ad litem are not subject to the attorney-client privilege. The guardian ad litem must inform the person whose interests are represented of this lack of privilege as soon as practicable after appointment. The guardian ad litem may report or testify about any communication with the person whose interests are represented.” Id.

In short, anything that is told to the guardian ad litem is subject to be disclosed and reported in court.

However, “[i]f the appointment of the guardian ad litem is terminated and the same individual is appointed attorney, the appointment as attorney creates an attorney-client relationship. The attorney-client privilege relates back to the date of the appointment of the guardian ad litem.”  MCR 5.121(E)(2).  This means that if the guardian ad litem’s role is changed to court-appointed attorney, then all of the communications that were made from the individual to the guardian ad litem from the time of the initial appointment become privileged and protected.  The court is not likely to appoint the guardian ad litem as the attorney if he or she already made several disclosures to others or the court.

In some cases, the court will appoint BOTH a guardian ad litem and an attorney to represent the same person in the same proceedings.  This situation comes up when what the affected individual wants is not the same as what might be in his or her best interests.  This unique situation may come up when the probate court judge identifies competing interests and desires to have as much information available as possible.

 

GUARDIAN AD LITEM IN PROCEEDINGS FOR ALLEGEDLY INCAPACITATED INDIVIDUALS

After a guardianship case is filed, “[u]nless 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).  Prior to the court making a decision whether a guardianship should be granted, the guardian ad litem appointed for an allegedly incapacitated individual must perform all of the following duties:

  • “Personally visiting the individual.” MCL 700.5305(1)(a).
  • “Explaining to the individual the nature, purpose, and legal effects of a guardian’s appointment.” MCL 700.5305(1)(b).
  • “Explaining to the individual the hearing procedure and the individual’s rights in the hearing procedure, including, but not limited to, all of the following:”
    • “The right to contest the petition.” MCL 700.5305(1)(c)(i).
    • “The right to request limits on the guardian’s powers, including a limitation on the guardian’s power to execute on behalf of the ward either… a do-not-resuscitate order [or] a physician orders for scope of treatment form.” MCL 700.5305(1)(c)(ii).
    • “The right to object to a particular person being appointed guardian.” MCL 700.5305(1)(c)(iii).
    • “The right to be present at the hearing.” MCL 700.5305(1)(c)(iv).
    • “The right to be represented by legal counsel.” MCL 700.5305(1)(c)(v).
    • “The right to have legal counsel appointed for the individual if he or she is unable to afford legal counsel.” MCL 700.5305(1)(c)(vi).
  • “Informing the individual that if a guardian is appointed, the guardian may have the power to execute a do-not-resuscitate order on behalf of the individual and, if meaningful communication is possible, discern if the individual objects to having a do-not-resuscitate order executed on his or her behalf.” MCL 700.5305(1)(d).
  • “Informing the individual that if a guardian is appointed, the guardian may have the power to execute a physician orders for scope of treatment form on behalf of the individual and, if meaningful communication is possible, discern if the individual objects to having a physician orders for scope of treatment form executed on his or her behalf.” MCL 700.5305(1)(e).
  • “Informing the individual of the name of each person known to be seeking appointment as guardian.” MCL 700.5305(1)(f).
  • “Asking the individual and the petitioner about the amount of cash and property readily convertible into cash that is in the individual’s estate.” MCL 700.5305(1)(g).
  • “Making determinations, and informing the court of those determinations, on all of the following:”
    • “Whether there are 1 or more appropriate alternatives to the appointment of a full guardian or whether 1 or more actions should be taken in addition to the appointment of a guardian.” MCL 700.3505(1)(h)(i).  These alternatives include whether appointing a limited guardian with specific powers and restrictions is best, whether a conservator should be appointed instead, or whether the proposed ward can execute a 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 duration.
    • “Whether a disagreement or dispute related to the guardianship petition might be resolved through court ordered mediation.” MCL 700.3505(1)(h)(ii).
    • “Whether the individual wishes to be present at the hearing.” MCL 700.3505(1)(h)(iii).
    • “Whether the individual wishes to contest the petition.” MCL 700.3505(1)(h)(iv).
    • “Whether the individual wishes limits placed on the guardian’s powers.” MCL 700.3505(1)(h)(v).
    • “Whether the individual objects to having a do-not-resuscitate order executed on his or her behalf.” MCL 700.3505(1)(h)(vi).
    • “Whether the individual objects to having a physician orders for scope of treatment form executed on his or her behalf.” MCL 700.3505(1)(h)(vii).
    • “Whether the individual objects to a particular person being appointed guardian.” MCL 700.3505(1)(h)(viii).

The guardian ad litem is required to state all of these items in a written report to the court or on the record.  MCL 700.3505(2).  If the allegedly incapacitated person wishes to contest the petition, the court shall appoint legal counsel to represent him or her (at the state’s expense if that person is indigent).  MCL 700.3505(3).  If legal counsel is appointed, then the guardian ad litem’s service terminates.  MCL 700.3505(5).

Even after a guardian is appointed, a guardian ad litem may be reactivated if anyone files a petition to modify or terminate guardianship.  “If a petition for modification or written request for modification comes from the legally incapacitated individual and that individual does not have an attorney, the court shall immediately appoint an attorney” instead of a guardian ad litem.  MCR 5.408(B)(1).  However, “[i]f a petition for modification or written request for modification comes from some other party, the court shall appoint a guardian ad litem.”  MCR 5.408(B)(2).  “If the guardian ad litem ascertains that the legally incapacitated individual contests the relief requested, the court shall appoint an attorney for the legally incapacitated individual and terminate the appointment of the guardian ad litem.”  Id.

A guardian ad litem can be appointed even when there is an emergency hearing requesting a temporary guardian be appointed to the allegedly incapacitated individual.  “For the purpose of an emergency hearing, the court shall appoint a guardian ad litem unless such appointment would cause delay and the alleged incapacitated individual would likely suffer serious harm if immediate action is not taken.”  MCR 5.403(C).  “The duties of the guardian ad litem are to visit the alleged incapacitated individual, report to the court and take such other action as directed by the court.”  Id.

 

GUARDIAN AD LITEM IN PROCEEDINGS FOR MINORS

Although not required, a court may appoint a guardian ad litem to represent the interests of a minor that is the subject of guardianship proceedings.  MCR 5.404(A)(2).  This may be done to assist the court in determining what is in the child’s best interests.  MCL 700.5213(6).  If the parent of a child that is the subject of the guardianship proceeding is also an unemancipated minor, then the court shall appoint a guardian ad litem to represent the minor parent.  MCR 5.404(A)(5).

However, it is more common in minor guardianships for the court to appoint a lawyer-guardian ad litem who advocates for both the best interests and the desires of the minors involved in the proceedings.  “If, at any time in the proceeding, the court determines that the minor’s interests are or may be inadequately represented, the court may appoint a lawyer-guardian ad litem to represent the minor, giving a consideration to the preference of the minor if the minor is 14 years of age or older.”  MCL 700.5213(4).  The powers and duties of a lawyer-guardian ad litem for a minor include, but not necessarily limited to, ALL of the following:

  • “The obligations of the attorney-client privilege.” MCL 712A.17d(1)(a).
  • “To serve as the independent representative for the child’s best interests, and be entitled to full and active participation in all aspects of the litigation and access to all relevant information regarding the child.” MCL 712A.17d(1)(b).
  • “To determine the facts of the case by conducting an independent investigation including, but not limited to, interviewing the child, social workers, family members, and others as necessary, and reviewing relevant reports and other information.” MCL 712A.17d(1)(c).
  • “To meet with or observe the child and assess the child’s needs and wishes with regard to the representation and the issues in the case” at least once before scheduled court hearings. MCL 712A.17d(1)(d).
  • “To explain to the child, taking into account the child’s ability to understand the proceedings, the lawyer-guardian ad litem’s role.” MCL 712A.17d(1)(f).
  • “To file all necessary pleadings and papers and independently call witnesses on the child’s behalf.” MCL 712A.17d(1)(g).
  • “To attend all court hearings…”. MCL 712A.17d(1)(h).
  • “To make a determination regarding the child’s best interests and advocate for those best interests according to the lawyer-guardian ad litem’s understanding of those best interests, regardless of whether the lawyer-guardian ad litem’s determination reflects the child’s wishes. The child’s wishes are relevant to the lawyer-guardian ad litem’s determination of the child’s best interests, and the lawyer-guardian ad litem shall weigh the child’s wishes according to the child’s competence and maturity. Consistent with the law governing attorney-client privilege, the lawyer-guardian ad litem shall inform the court as to the child’s wishes and preferences.” MCL 712A.17d(1)(i).
  • “If, after discussion between the child and his or her lawyer-guardian ad litem, the lawyer-guardian ad litem determines that the child’s interests as identified by the child are inconsistent with the lawyer-guardian ad litem’s determination of the child’s best interests, the lawyer-guardian ad litem shall communicate the child’s position to the court. If the court considers the appointment appropriate considering the child’s age and maturity and the nature of the inconsistency between the child’s and the lawyer-guardian ad litem’s identification of the child’s interests, the court may appoint an attorney for the child.” MCL 712A.17d(2).

“The court or another party to the case shall not call a lawyer-guardian ad litem as a witness to testify regarding matters related to the case” and his or her file of the case “is not discoverable”.  MCL 712A.17d(3).

The primary difference between a guardian ad litem and the lawyer-guardian ad litem is that the attorney-client privilege is in full force and effect, and communications that the minor reasonable wants to keep confidential do not have to be disclosed to any party or the court.

 

GUARDIAN AD LITEM IN PROCEEDINGS FOR DEVELOPMENTAL DISABLED INDIVIDUALS

Unlike an allegedly incapacitated individual, the court is required to appoint legal counsel to the allegedly developmentally disabled individual for those guardianship petitions under the Mental Health Code.  “Unless an appearance has been entered on behalf of the respondent, the court, within 48 hours of its receipt of a petition together with the other documents required…, shall appoint counsel to represent the respondent.”  MCL 330.1615(2).  “If the respondent prefers counsel other than the counsel appointed, if preferred counsel agrees to accept the appointment, and the court is notified of the preference by the respondent or preferred counsel, the court shall replace the initially appointed counsel with preferred counsel.”  MCL 330.1615(3).  “If the respondent is indigent, the court shall compensate appointed counsel from court funds in an amount which is reasonable and based upon time and expenses.”  MCL 330.1615(4).

However, an allegedly developmentally disabled person may not be able to communicate his needs and wants to legal counsel due to his cognitive condition.  This may make it difficult for legal counsel to carry out his or her role without knowing what the client’s preferred position is.  “If, after a petition has been filed, the court determines that the respondent requires a person to represent his or her best interests and to assist legal counsel, the court shall appoint an interested person or entity to act as guardian ad litem for the respondent.”  MCL 330.1616.

 

GUARDIAN AD LITEM IN CONSERVATORSHIP OR PROTECTIVE ORDER PROCEEDINGS

If a conservatorship or protective order petition is filed regarding property belonging to a minor, “the court may appoint an attorney to represent the minor, giving consideration to the minor’s choice if 14 years of age or older. An attorney appointed by the court to represent a minor has the powers and duties of a guardian ad litem.”  MCL 700.5406(1).

For conservatorship or protective order proceedings for reasons other than minority, the court may or may not be required to appoint a guardian ad litem.  “Unless the individual to be protected has chosen counsel, or is mentally competent but aged or physically infirm, the court shall appoint a guardian ad litem to represent the person in the proceeding.”  MCL 700.5406(2).  “If the alleged disability is mental illness, mental deficiency, physical illness or disability, chronic use of drugs, or chronic intoxication”, then the court may send a guardian ad litem to visit and interview the person to be protected.  Id.

A guardian ad litem appointed in a conservatorship or protective order case who meets with, examines, or evaluates an individual who is the subject of a petition is required to do ALL of the following:

  • “Consider whether there is an appropriate alternative to a conservatorship.” MCL 700.5406(4)(a).
  • “If a conservatorship is appropriate, consider the desirability of limiting the scope and duration of the conservator’s authority.” MCL 700.5406(4)(b).
  • Report to the court all of the foregoing considerations, whether on the record or by written report, to aid the judge in making a determination. MCL 700.5406(4)(c).

A guardian ad litem appointed in a conservatorship or protective order case is entitled to reasonable compensation from the estate of the person to be protected.  MCL 700.5413.

 

THE BOTTOM LINE

Guardian ad litems are a crucial component in guardianship and conservatorship proceedings, but their roles are often misunderstood.  Guardian ad litems independently advocate for the best interests of the person they are assigned to, but those recommendations may be completely contrary to what that person wants or desires.  In these cases, that person has the right to secure preferred legal counsel to look out for what they want.  Any interested person involved in a guardianship or conservatorship proceeding can benefit from the knowledge of a skilled probate lawyer in their corner.

If you or a loved one have any further questions or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.

 

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