What do you do when you discover an invalid Power of Attorney or Patient Advocate Designation? What happens when an Attorney-in-Fact is not acting in the best interests of your vulnerable loved one? How do you help your parent with Alzheimer’s or dementia when he or she refuses to acknowledge needing help, even when it is obvious to you that the situation is becoming dangerous?
In any of these cases, the only safe way to protect a vulnerable adult is through guardianship and/or conservatorship proceedings.
Both proceedings are handled in probate court and involve someone asking for a decision-maker to be appointed because the person in need of protection is unable to make or communicate informed decisions. Guardians make medical, placement and other decisions, while Conservators handle the finances. One person often serves in both roles at the same time, but courts can appoint different people as well.
First, what if your parent, or someone else in the family, disagrees that a guardian or conservator is necessary? Judges will examine whatever records you can present them with, including medical and financial records, as well as listen to family members and others who give testimony about why the person needs help making decisions. Sometimes courts will even appoint an independent physician to examine the person and file a written report.
Judges do not take this decision lightly; they have to find clear and convincing evidence to take away someone’s legal right to make their own decisions. But Judges do worry about whether the person is making safe choices. The best interest of the vulnerable person is most important. Often, whether a guardian or conservator is needed is the easy part. Who gets appointed in these roles? Typically, it is a family member or other loved one of the person to be protected, or ward. And, the ward’s choice does matter! This is especially true for someone with early stages Alzheimer’s or dementia who still retains some decision-making ability but requires assistance. Even an incompetent person’s choice will carry great weight if it was expressed through a Power of Attorney or Patient Advocate signed when the person was still competent.
In fact, Michigan law requires probate judges to honor the ward’s preference in most cases, and if not, the judge must follow a list of people required by statute. This list includes a spouse, adult child, or other relative, and certain others (in that order). A person can only be skipped over for someone lower on the list of priorities only if he or she is unwilling or unsuitable to serve.
This choice is not set in stone however. Probate judges do have a large amount of discretion in making this important choice, and will usually decide based on what is in the best interests of the protected person.
How does the judge decide when the family fights about who is most suitable? Often siblings both feel they would be the best choice. Second marriages present significant difficulties when the spouse of the incompetent person does not get along well with the children from the prior marriage. Sometimes, there is even a fight between the ward and his or her own children.
Because probate judges make the decision, and their choices are almost never overturned by appellate judges, family members vying for appointment must do everything they can to convince the judge that they are most suitable, and that their opponent is not suitable. This process is not fun for anyone who participates, but sometimes is necessary. Compromise is usually the best solution, but when it simply is not possible, then the judge will decide. Sometimes the decision is one that neither side is happy with – such as the selection of an outsider, such as an independent attorney or guardianship company.
The best way to protect yourself – and more important, protect your elderly loved one – is to have an experienced probate litigation attorney represent you in court. Knowing what to say, and how to present your case in the best light to the particular judge assigned, can make all the difference. Judges are human beings too; experienced attorneys who know the tendencies of your particular judge are a great benefit.
Once the Guardian and/or Conservator is appointed, the person or persons appointed serve with similar fiduciary obligations as an Attorney-in-Fact. Again, they have the strictest of duties to act in the best interests of the ward they are required to protect.
Unlike in a Power-of-Attorney situation, they have the additional requirement of reporting to the probate court. Each year, every guardian and conservator must file a detailed report, so that the probate court can make sure that the ward is properly protected. Probate courts often also require bonds to be posted when the protected person has significant assets.
Guardians and Conservators are also subject to removal petitions, where someone asks the court to replace them or terminate the guardianship/conservatorship altogether. These can be filed by anyone interested in the ward’s welfare. In fact, even the protected person can seek this relief by writing a simple letter to the judge.
Certainly, no one should choose to initiate a guardianship or conservatorship proceeding unless they have no other good choice. But when diplomacy has failed, or when a loved one’s Alzheimer’s, dementia or other condition causes them to be too stubborn to admit that they need help making decisions, this path is the only safe choice. With an experienced attorney guiding the family, protective proceedings through probate court help many people sleep at night knowing their loved one is safe.