A guardianship provides a substitute decision maker for a person who is no longer able to make decisions on their own behalf. These individuals are referred to as incapacitated individuals. A petition for guardianship of an incapacitated individual must “contain specific facts about the individuals condition and specific examples of the individual’s recent conduct that demonstrate the need for a guardian’s appointment.” MCL 700.5303(1). After the petition is filed, the court may order that a person be examined by a physician or a mental health professional to determine their current mental status. The alleged incapacitate person has the right to seek an independent examination and to appear at the hearing. If the alleged incapacitated individual contests the petition, the court must appoint legal counsel.
The primary purpose of a guardianship is to provide a substitution decision maker for certain day-to-day personal decisions. These personal decisions may include (1) consenting to medical care; (2) releasing personal information for treatment or other purposes; (3) establishing a place of residence; (4) making travel arrangements; and, (5) taking care of personal effects. It must be proven by clear and convincing evidence that an individual is impaired to the point that they are no longer able to take care of their personal affairs.
The attorney plays an important role in the appointment of a guardian. The attorney screens the case to determine if there are other alternatives available to assist the family in solving the family’s problems short of getting a guardian appointed. If a petition is being filed, the attorney insures that all of the applicable notices are served. If necessary, the attorney subpoenas applicable medical records. Ultimately, the attorney must determine how the disability affects the daily life of the incapacitated individual and how the guardianship would affect the legal rights of the incapacitated individual. After the hearing, the attorney delivers the order and letter of authority to the guardian and ensures the guardian understands his or her powers, duties, and the effect of the guardianship on the incapacitated individual’s legal rights.
Petitioning for the appointment of a guardian is a long and involved process. Prior to the filing of a petition, alternatives to guardianship must be considered because a family’s problem may be solved without filing a petition. If there is no reasonable alternative to guardianship, a determination needs to be made to see if certain types of limited guardianships would be sufficient. If none of the above apply, then a full-blown petition should be filed. It is extremely important for a family to consult with an attorney to provide the legal assistance necessary in guiding them through the petition and appointment process.
A conservatorship provides a substitute decision maker for a person who is no longer able to make financial decisions on their behalf. This may be because of youth, disease, or disorder. This may be done formally or informally. Advance planning may have already occurred through the preparation of powers of attorney or trusts. If this has not been done, then the court needs to become involved with the appointment of a conservator.
There are three bases upon which the court may intervene with the appointment of a conservator:
- A minor becomes entitled to property.
- An adult is unable to take care of his or her own finances.
- An adult has some level of disability and requires court intervention.
A petition is filed with the probate court. Specific facts need to be given in the petition explaining the reason why a conservatorship is being sought and how this impacts the incapacitated individual’s financial situation. The court may appoint an individual, a corporation authorized to exercise fiduciary powers, or a professional conservator. The court will hold a hearing for the expressed purpose of appointing a conservator.
Once appointed, the conservator must take control of the disabled person’s financial affairs. The conservator has to file an initial inventory with the court and an annual accounting for every year thereafter. Following are some of the powers of the conservator: invest funds; open new accounts in the name of the Conservatorship; pay bills, etc. The conservatorship will last until the minor child turns 18; the disabled person dies; the disabled person recovers to the point a conservatorship is no longer applicable; or, the disabled person runs out of money. AS in a guardianship, it is extremely important for a family to consult with an attorney to provide the legal assistance necessary in guiding them through the petition and appointment process.