Understanding Guardianships for the Developmentally Disabled in Michigan
At Thompson Legal, our specialized probate attorneys are committed to providing guidance on crucial probate matters such as developmentally disabled guardianships. Being a guardian for a developmentally disabled individual is inherently different than one for a general guardianship. This unique legal process is governed by Chapter 6 of the Michigan Mental Health Code (MCL 330.1600, et seq.), outlining procedures within the probate court. The probate lawyers at Thompson Legal detail the process and requirements in this article so that the guardians of developmentally disabled individuals have a better understanding of their responsibilities.
Defining Developmental Disability:
Michigan's Mental Health Code allows for the appointment of guardians for individuals with developmental disabilities. A developmental disability is identified in individuals older than 5 years with:
A severe, chronic condition,
Attributable to a mental or physical impairment,
That is likely to continue indefinitely, and
Results in substantial functional limitations in various areas of major life activity.
The Guardianship Process:
The guardianship process for developmentally disabled individuals aims to promote well-being, encourage maximum self-reliance, and can only be ordered to the extent necessitated by the individual's actual mental and adaptive limitations. Typically, this means that the relief ordered by the Court will be the least restrictive means possible on the protected indvidual. Developmentally disabled guardianships are subject to ongoing court supervision to protect a disabled individual from neglect, exploitation, and abuse, as well as to ensure the disabled individual needs are being met.
Qualifications for Guardian:
Anyone with an interest or the individual themselves may petition for the appointment of a guardian for someone allegedly diagnosed as developmentally disabled. The priority of appointment of a guardian for disabled individuals is flexible to account for the best interest of the protected individual in each case. However, the court must take the protected individuals preference into account. Pursuant to MCL 330.1628, any suitable person or agency can be appointed to act as guardian. In the event that there is no suitable person to act as guardian, the court can appoint a guardianship agency to act in that capacity.
The Guardianship Filing Process:
The process initiates with the submission of the Petition for Appointment of Guardian for Individual with Alleged Developmental Disability accompanied by the Report to Accompany Petition to Appoint, Modify or Discharge Guardian of Individual with Developmental Disability. These documents include evaluations of the person's mental, physical, and social condition, which establish the need for a developmentally disabled guardianship. It is a requirement of the Court that any medical evaluation included have been completed within one year from the petition. Petitioners will also be required to include court required administrative forms, the Personally Identify Property Addendum and Notices of Hearing with their filing as well.
Court Review and Legal Rights:
The court reviews the petition and accompanying report for compliance with the Mental Health Code, and sets the matter for hearing. If incomplete, the court may order evaluations by qualified individuals. The individual with an alleged developmental disability has rights, including a jury trial, presenting evidence, and securing an independent evaluation. Notice of these rights must be served on the individual, and the court may appoint a Guardian Ad Leitem to represent their interest to the court.
Types of Guardians:
There are different types of guardians that can be appointed for the alleged developmentally disabled individual, including a partial or full guardian, a plenary guardian, and a standby guardian. Given that courts are required to consider the least restrictive means, a partial guadianship will be prefered over a full one to rpeserve the rights of the individual. A Partial Guardian means a guardian who possesses fewer than all of the legal rights and powers of a full guardian, and whose rights, powers, and duties have been specifically enumerated by court order. Per court rule, any partial guardian is limited to an appointment of 5 years.
Developmentally Disabled individuals may also have property that requires protecting. A Plenary Guardian possesses the legal rights and powers of the estate. In the event that a protected individual has property that requires protection but does not require on-going court oversight, Guardians should consider seeking a single use protective order instead. The Court may also designate one or more standby guardians whose appointment only becomes effective upon the death, incapacity, or resignation of the initial guardian. In emergency circumstances, the standby guardian may temporarily assume the powers and duties of the initially appointed guardian.
If a developmentally disabled individual does not have a guardian appointed, the probate court itself can act, or appoint someone to act, as a temporary guardian in an emergency circumstances. Temporary emegency guardians will have their authority limited by court order. A follow up hearing must be scheduled to address the need for a full or partial guardian.
Guardian Responsibilities:
If the court determines a guardian is necessary, a court will appoint a guardian for the developmentally disabled individual in accordance with the least restrictive means possible. The guardian's responsibilities include custody, provision for care, efforts to secure education and services, and filing periodic reports with the court. Plenary guardian will have annual reporting and accounting requirements. Generally, guardians shall have custody of the ward, as well as:
The duty to make provision from the ward’s estate or other sources, for the ward’s care, comfort, and maintenance,
The duty to make a reasonable effort to secure for the ward training, education, medical, and psychological services, and social and vocational opportunity as are appropriate,
Assist the ward in the development of maximum self-reliance and independence, and
Comply with the Annual reporting requirement.
Modification and Discharge Process:
Upon appointment the Court is required to make a reasonable effort to verbally inform the protected individual of their rights to dismiss or modify the ongoing guardianship. Guardianships are not permanent and a guardian for a disabled individual may be discharged if a protected individual’s capacity has been restored. Additionally, a protected individual can communicate in any fashion a request to discharge or modify the guardianship. Upon receipt of such communication, the court shall appoint a suitable person to prepare and file with the court a petition reflecting the communication and must set the matter for a hearing. After the expiration or termination of the guardian, the protected indiviudals rights are fully restored.
The probate attorneys at Thompson Legal understand the sensitive nature of developmentally disabled guardianships. Guardians of developmentally disabled individuals are subject to ongoing requirements and must act in the best interest of the protected individual. If you are considering or involved in this legal process, our team of probate lawyers are here to guide you. For any inquiries or assistance, feel free to contact us to discuss the specifics of your case.
Key Forms:
Petition for Appointment of Guardian for Individual with Alleged Developmental Disability, PC 658
Report to Accompany Petition to Appoint, Modify, or Discharge, PC 659
Report of Physician, PC 630
Petition to Terminate or Modify, PC 677
Report of Guardian on Condition of Individual with Developmental Disability, PC 663
This blog is for informational purposes only. It is not intended as legal advice. In the event you would like to speak with a probate attorney about your case Contact Us at (734) 743-1646 to schedule a consultation.
