Guardianship in Michigan — The Process of Being Appointed Guardian of a Protected Individual
Guardianship is an important legal concept when it comes to protecting the welfare of vulnerable individuals. A guardianship also limits the legal rights of the individual to manage their own affairs. In the state of Michigan, the appointment of a guardian involves a detailed legal process, and guardians are vested with specific powers and duties to protect the best interests of the person under their care. In this article, the experienced guardianship attorneys of Thompson Legal outline the guardianship process for protected individuals and their fiduciaries.
Please note that this post is not exhaustive, and every situation is unique. In the event that you have questions about guardianship or your specific case, it’s advisable to speak with an attorney. Contact Thompson Legal to schedule a discovery call with a guardianship lawyer.
Incapcity
The ability to care and make decisions for yourself is referred to as “capacity.” When an incapacitated person is unable to make or communicate informed decisions, they require the appointment of a legal representative, or guardian, to make decisions on their behalf. If the incapacitated person has a Durable Power of Attorney or a Designation of Patient Advocate, then a guardian and/or conservator may not be necessary. Further, if an individual has a disabling condition that began before the age of 22, and the condition is likely to continue indefinitely, then a guardian is appointed under a different set of laws. The following information does not address that type of developmentally disabled guardianship.
What is Guardianship?
Guardianship in Michigan is a legal arrangement where one person, known as the guardian, is appointed to make decisions on behalf of another person, the ward, who is unable to care for themselves due to age, disability, or other incapacities. Guardianship may apply to minors or adults, and can be tailored to the specific needs of the individual in question. Guardianship can also be either full or limited in both scope and time.
How is a Guardian Appointed?
The process of appointing a guardian in Michigan is a procedure regulated by the Estates and Protected Individual’s Code. Filing of a guardianship in Michigan requires the following steps:
Petition for Guardianship: To initiate the process, an interested party, typically a family member or concerned individual, must file a petition for guardianship with the probate court in the jurisdiction where the potential ward resides. The petition should provide a detailed account of the individual's incapacity and explain why guardianship is necessary.
Investigation and Evaluation: The court will conduct an investigation into the individual's capacity and the suitability of the proposed guardian. This also typically involves the appointment of a Guardian Ad Leitem (GAL) to represent the Ward’s interests.
Notice to Interested Parties: Notice of the guardianship proceedings must be given to all interested parties, including the potential ward, close relatives, and any other parties with a legal interest in the outcome. The ward should be served personally, and service should also include a special notice of rights found here (PC 626, Notice of Rights to Alleged Incapacitated Individual (michigan.gov)).
Court Hearing: A court hearing will be held to consider the petition for guardianship. During the hearing, evidence will be presented to determine if guardianship is in the best interests of the potential ward. Generally, the Court will limit the guardians power to only those necessary to provide for a demonstrated need of the incapacitated individual.
Legal Standard: The court must find by clear and convincing evidence that the individual lacks the understanding or capacity to make or communicate informed decisions, and that the appointment of a guardian will be necessary to provide for the individual’s care and supervision.
Who can be a Guardian?
In order to serve as a guardian, a person must be competent and over the age of 18. If the court determines that a guardian is necessary to provide for the care and supervision of the protected individual, the court will appoint a guardian with priority to:
A person previously appointed, qualified, and serving in good standing as guardian for the legally incapacitated individual in another state.
A person whom the individual subject to the petition chooses to serve as their guardian, and who is willing to serve.
A person nominated as guardian, patient advocate, or attorney in fact in a durable power of attorney or other writing by the individual subject to the petition.
If no suitable person from the list above is willing or able to serve, the court may appoint any family member of the protected individual, such as a spouse or child. If no individual is suitable or willing to serve, the court may appoint a professional guardian service. A guardian does not gain authority over the protected individual until they file an Acceptance of Appointment with the court and receive their Letters of Guardianship.
What if the person contests Guardianship?
If the proposed incapacitated individual does not agree to a guardianship, the court must appoint an attorney, usually a GAL, to represent the incapacitated individual and a follow up contested or evidenciary hearing may be set. The court must pay for the attorney if the individual cannot afford to pay for the attorney.
What are the Powers and Duties of a Guardian?
Once duly appointed, guardians in the state of Michigan have certain powers and duties, such as:
Duties of Care: Guardians must provide for the physical, mental, and emotional well-being of the ward, ensuring their safety and comfort.
Duties of Protection: Guardians are responsible for protecting the ward's assets, making sound financial decisions, and managing their property.
Decision-Making: Guardians have the authority to make medical, legal, and personal decisions on behalf of the ward, but always in their best interests.
Providing for Care: If a conservator is not appointed, the guardian may take control of and manage the incapacitated person's funds and property for the benefit of the individual. The funds or property are used for the individual's support, care, and education. Any amount not used is saved for the individual's needs.
Accountability: Guardians must maintain accurate records of their activities and report to the court regularly, usually annually, ensuring transparency and accountability.
Seeking Court Approval: In some cases, major decisions, such as selling property, may require court approval to prevent potential abuse or mismanagement.
A more detailed discussion of a guardian’s rights and duties, as well as the applicable statues can be found on our blog here.
Conclusion
The appointment of a guardian is a structured process, and once appointed, guardians are entrusted with significant powers and duties to ensure the well-being and protection of their wards. Understanding these aspects is critical for anyone affected by the guardianship process to ensure the welfare of their loved ones. It is advisable to seek the assistance of legal counsel to ensure all requirements are met and the protected individual’s rights are protected. Contact Thompson Legal to discuss your case with an experienced Michigan guardianship attorney.
This blog is for informational purposes only. It is not intended as legal advice. In the event you would like to speak with a guardianship attorney about your case Contact Us at (734) 743-1646 to schedule a consultation.
