In the discussion that follows, our BRMM probate litigation attorneys discuss termination of an adult guardianship. Our discussion relates only to the laws that apply to termination of a court-approved adult guardianship based on a determination of incapacity. Different statutes govern guardianships for minors and for individuals whose disability occurs prior to age 22.
Michigan guardianship laws authorize a court to appoint a guardian for an individual who lacks sufficient understanding or capacity to make informed decisions regarding their personal care and well-being. An individual’s lack of capacity may occur because of mental or physical illness, a medical or health event, dementia due to Alzheimer’s or another cause, or for other reasons.
In most circumstances, a guardianship proceeding is only necessary if an individual does not have a valid durable power of attorney for health care, also called a patient advocate designation or advance directive in Michigan, which authorizes another person to make personal and health care decisions in the event of the individual’s incapacity. Durable powers of attorney are part of a complete estate plan.
The statutes establish the requirements and procedures for court appointment of a guardian to make personal care and medical decisions. Conservatorship is a different process governed by other statutory provisions that provides for court appointment of a conservator to manage finances if an individual no longer has the capacity to handle those responsibilities.
A specific statutory provision, MCL 700.5308, addresses termination of a guardianship. The section states that a guardian’s authority “terminates upon the death of the guardian or ward, upon the determination of incapacity of the guardian, or upon removal or resignation as provided in section 5310.”
MCL 700.5310 addresses removal and resignation of guardians. The section permits the guardian, the ward, or “a person interested in the ward’s welfare” to petition the court to terminate guardianship. Before ruling, the court may send a visitor to observe both the guardian and ward in their residences to observe conditions and report to the court in writing. The court must follow the “same procedures to safeguard the ward’s rights as apply to a petition for a guardian’s appointment” during the process.
Under this section, the ward or interested person may petition for termination by submitting an informal letter to the court or judge. To protect this process, the law states that anyone who knowingly interferes with transmission to the court of a request of this nature can be found in contempt of court.
Detailed statutory procedural and substantive requirements apply to guardianship proceedings, including a petition to terminate guardianship by a ward or interested person. An individual wishing to pursue a termination petition should consult with an experienced guardianship attorney who understands the laws and court procedures that apply.
After a Michigan court appoints a guardian, guardianship for the incapacitated adult generally continues until it is terminated by the court. Many different circumstances can justify or necessitate termination of a guardianship. Most often, a petition must be filed with the court to terminate a guardianship.
Following is a summary of reasons that may result in termination of an adult guardianship in Michigan, in addition to death of the ward or incapacity of the guardian. Other reasons exist as well. If you have concerns or questions about termination of a specific Michigan guardianship, a knowledgeable guardianship attorney can explain how the law and procedures apply to your circumstances.
A guardian may request court approval of the guardian’s resignation by submitting a petition and filing a report with the court. On approval of the report and acceptance of the resignation, the court has authority to make other appropriate orders, including termination of the guardianship.
When a judge appoints a guardian, the court order specifies the terms and conditions of the guardianship. In some situations, termination may be justified under the terms of the court’s order. The ward or an interested person may ask the court for termination in those circumstances.
If a ward’s incapacity no longer exists, the basis for the guardianship also ceases to exist. If that situation occurs, the court will hold a hearing and review the evidence before granting termination requested in a petition.
A guardian has numerous responsibilities under Michigan law and under a guardianship order. If the guardian fails to perform any of those duties, the ward or a person interested in the ward’s welfare may petition the court for appropriate relief, including termination of the guardianship.
Another basis for termination of a Michigan guardianship occurs if a guardian wishes to move the ward permanently to a residence or facility in a different state. Michigan guardianship authority does not automatically transfer to a different state if the ward relocates. Each state has jurisdiction for guardianship purposes only over individuals residing within the state.
The guardian must coordinate obtaining guardianship authority in the ward’s new state of residence with terminating the Michigan guardianship order. This process can be complex. Consulting with an experienced guardianship attorney is the best strategy for ensuring compliance with guardianship laws and procedures in both states.
If you need assistance with a situation involving a Michigan guardianship, our experienced probate litigation lawyers and elder law attorneys at BRMM are here to help. Our substantial guardianship experience positions us extremely well to help clients who encounter any issue involving Michigan guardianship laws and procedures.At BRMM, we’ve been providing legal services to clients for more than 40 years. Our compassion, credentials, and commitment set us apart. Call us at (248) 494-4577 to talk with us about matters relating to guardianship or other areas of concern. We serve clients in Troy, Oakland County, and surrounding areas, as well as out-of-state clients with matters arising in Michigan.