In this discussion about contested guardianships, our BRMM probate litigation attorneys explain the Michigan laws relating to court appointment of a guardian when an adult becomes incapacitated. If an individual’s incapacity began before the age of 22 and is likely to continue indefinitely, different guardianship laws apply.
A court-appointed guardian for an incapacitated adult has powers and duties relating to the protected individual’s personal and medical care, comfort, and maintenance, to the extent authorized in the court’s order. Under Michigan law, adult guardianship is a very serious matter that is subject to complex substantive laws and procedural rules.
A guardian does not always have responsibility for an incapacitated individual’s financial affairs. Those responsibilities are determined in a conservatorship proceeding. Adult guardianship and conservatorship proceedings, sometimes referred to as living probate, are necessary when an individual does not have valid durable powers of attorney in place to provide for decision-making in the event of incapacity.
An incapacitated individual or any person interested the individual’s welfare may request appointment of a guardian if specific requirements established in state law are met. The individual and all interested persons must receive notice of a guardianship petition. The court holds a hearing before ruling on the request. Any interested person, including the individual, may object to the appointment of a guardian.
Under MCL 700.5306, a probate judge must find “by clear and convincing evidence both that the individual for whom a guardian is sought is an incapacitated individual and that the appointment is necessary as a means of providing continuing care and supervision of the incapacitated individual, with each finding supported separately on the record.” If evidence does not support these findings, the court may dismiss the petition or enter a different order.
An individual who is the subject of an adult guardianship petition has extensive rights under Michigan law, including the right to legal counsel. If the individual does not have their own legal counsel, the court appoints a lawyer as guardian ad litem to represent the individual in the proceeding.
A guardian receives only the powers required to address the demonstrated needs of the incapacitated individual, and only for the period of time necessary. The court has the authority to appoint a limited guardian or a full guardian, depending on the circumstances and needs of the incapacitated individual. Under Michigan law, the court’s goal is to design a guardianship “to encourage the development of maximum self-reliance and independence in the individual.”
Any interested person can challenge a petition for guardianship. A wide range of factual situations may lead to contested adult guardianship proceedings, including concerns about abuse or neglect of the individual. Other potential issues relate to the question of incapacity, fitness and suitability of the proposed guardian, extent of the guardian’s authority, or the term of the guardianship. A person who contests a guardianship may be a family member or other relative, close friend, caregiver, adult protective services worker, or any person with a concern for the individual’s welfare.
In addition, the individual who is the subject of the petition may refuse to agree to the appointment and contest the petition on the basis that they are not incapacitated and can care for themselves without supervision. The individual may object to the appointment entirely, to the conditions of the adult guardianship sought by the petitioner, or to the specific person proposed as guardian. If the individual contests the guardianship, their attorney or guardian ad litem advocates on their behalf during the proceeding.
Disagreements among family members about care of an aging loved one sometimes lead to a contested guardianship proceeding. Family disputes may relate to whether the parent is incapacitated, who should be appointed as guardian, the nature of the care needed by the parent, details concerning the guardian’s authority, or other matters.
Our BRMM attorneys provide additional information about the process for appointment of a guardian and the court’s considerations in guardianship proceedings in a separate article that discusses What to Expect at a Michigan Guardianship Hearing.
If you wish to file a guardianship petition or contest a petition filed by someone else, legal representation is not required but is strongly recommended. The substantive laws and procedural rules that apply in guardianship and contested guardianship proceedings are complex. If you do not have a thorough understanding of all the legal aspects of guardianship, it will be difficult to be effective in presenting your position to the court.
A contested guardianship proceeding may involve conducting discovery (such as depositions and interrogatories), pre-trial conferences, and negotiations for potential settlement of the issues in the case. Participating in a guardianship hearing involves introducing evidence and examining witnesses, which requires an understanding of the legal rules of evidence and court process as well as courtroom skills. A probate litigation attorney with experience in guardianship proceedings knows the laws and rules that apply and has the necessary skill to handle all aspects of a contested guardianship proceeding.
If you need assistance with a situation that involves guardianship, our experienced probate litigation lawyers at BRMM are here to help. Our substantial experience positions us extremely well to help clients who encounter any issue involving guardianship laws and procedures, including contested guardianship proceedings. We also handle conservatorship proceedings in probate court.
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 legal matters in Michigan.