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Can The Legally Incapacitated Ward Petition To Terminate A Guardianship In Michigan?

by | Jan 12, 2023 | Guardianships And Conservatorships |


An individual who is declared legally incapacitated by the probate court and has a guardian appointed is significantly curtailed in his or her freedom.  If the ward is in a full guardianship, then the guardian has the authority to make decisions concerning the ward’s place of residence, care and comfort, training and education, and even medical decisions.  However, the loss of control over his or her own affairs doesn’t mean that the ward is silenced.  The ward still has the power to ask the court to modify or terminate the guardianship if he or she is unsatisfied.

“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.  “A person who knowingly interferes with the transmission of this kind of request to the court or judge is subject to a finding of contempt of court.”  Id.

“Except as otherwise provided in the order finding incapacity, upon receiving a petition or request [to terminate the guardianship], the court shall set a date for a hearing to be held within 28 days after the receipt of the petition or request.”  MCL 700.5310(3).  “An order finding incapacity may specify a minimum period, not exceeding 182 days, during which a petition or request for a finding that a ward is no longer an incapacitated individual, or for an order removing the guardian, modifying the guardianship’s terms, or terminating the guardianship, shall not be filed without special leave of the court.”  Id.

“Before removing a guardian, appointing a successor guardian, modifying the guardianship’s terms, or terminating a guardianship, [the probate court must follow] the same procedures to safeguard the ward’s rights as apply to a petition for a guardian’s appointment.”  MCL 700.5310(4).

The Michigan Court of Appeals clarified the procedure in deciding In re Gordon Guardianship, 337 Mich App 316, 975 NW2d 114 (2021).  In this controversial case, Rodrick Gordon, who was deaf and blind, spent two and a half years under a guardianship appointed over him in 2018.  An Adult Protective Services worker filed to have a public guardian appointed and the request was granted largely because no one was able to properly communicate with him due to his disabilities.  The guardian ad litem did not have a deaf-blind interpreter and reported he was unresponsive.  Gordon later filed a petition to terminate the guardianship, but the probate court denied his application after applying the wrong legal standard.  He appealed and won, with the Michigan Court of Appeals finding the following:

“Gordon is a deaf and blind man. At the hearing on the petition to terminate the guardianship, he testified through two interpreters that he lost his sight following a medical operation and that he lost his hearing because of a tumor. Thereafter, he was trained at the Michigan State Commission for the Blind and the Helen Keller National Center for Deaf-Blind Youth and Others. Because of that training, he was able to live independently for over 20 years. Then in 2018, he was mugged near his apartment. As a result of the assault, he was hospitalized and then released to a group home because of the hospital’s assessment of the risk of danger associated with him living alone. Eventually, however, Gordon left the group home and returned to living in an apartment. Thereafter, Gordon went multiple days without food before he was found wandering the streets in Detroit. Gordon was taken back to the hospital and it was determined that he could no longer care for himself. A petition to establish a guardianship was filed with the probate court and was granted. Approximately one year later, Gordon filed a petition to terminate the guardianship, arguing that he was lucid and could not progress in a group home. Following a series of hearings on the petition, the probate court denied the petition.”  337 Mich App at 317-318.

“When stating its findings on the record, the probate court stated that the issue was governed by MCL 700.5219(1) and that the question to be answered was, “Is it in the best interest of [Gordon] for [the guardianship] to be terminated?” The court repeatedly referenced the best-interest standard, and it ultimately found that there was no evidence indicating that terminating the guardianship was in Gordon’s best interest. In doing so, the probate court applied the wrong legal standard. MCL 700.5219(1) governs guardians of minors and provides that “[a] person interested in a ward’s welfare or, if 14 years of age or older, the ward may petition for the removal of a guardian on the ground that removal would serve the ward’s welfare or for another order that would serve the ward’s welfare.” Gordon is not a minor. Thus, the petition for termination of his guardianship should have been evaluated under MCL 700.5310.”  337 Mich App at 319.

“MCL 700.5310(2), provides that a ward may petition the probate court for an order terminating the guardianship. To safeguard the ward’s rights, on a petition to terminate a guardianship, the probate court must follow the same procedures that apply to a petition for the appointment of a guardian. MCL 700.5310(4). In particular, a ward has the right “[t]o require that proof of incapacity and the need for a guardian be proven by clear and convincing evidence, as provided in [MCL 700.5306].” Consequently, when deciding a petition to terminate an adult guardianship, the trial court must find that the ward remains incapacitated and that the appointment remains necessary as a means of providing continuing care and supervision for the ward. Further, support for each finding must be “supported separately on the record.” See MCL 700.5306(1). Because the probate court relied upon the wrong legal standard, no such findings were made in this case. Consequently, we reverse the court’s order denying the petition to terminate the guardianship and remand for further proceedings.”  337 Mich App at 319-320.

The Wayne County Probate Court later terminated the guardianship after a new hearing.  Mr. Gordon’s case stands for the proposition that guardianships are not always necessary despite the presence of a disability, and that a guardianship need not last forever once the proper services are in place.  Guardianships should remain under scrutiny so the court can continue to safeguard the rights of the ward and ensure the maximum possible freedom.  The ward has a right to petition the court for changes even after the guardianship is granted, which is an important right in a system in terrible need for reform.

The ward also has a right to be represented by legal counsel to advocate for their wishes and desires.  Our law firm has experience defending the rights of individuals subject to guardianship proceedings in Michigan.  A ward who is unhappy with their legal situation should consult with our probate lawyers to determine what their rights and options are.

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


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