If your elder family member or loved one is having difficulty taking care of himself or herself, you may consider seeking appointment of a guardian. In a Michigan guardianship proceeding, the probate court appoints a person to make necessary decisions for a legally incapacitated individual. If you are considering seeking appointment as a guardian, or if someone else is seeking appointment as a guardian for your family member of loved one, understanding the guardianship process is important.
The person who is appointed as a guardian by the probate court is legally responsible for caring for a person and making necessary related decisions, including healthcare and living arrangements. When there are substantial assets involved, a guardian does not have responsibility for the individual’s financial matters. A different proceeding, called a conservatorship, is necessary when a person can no longer handle financial matters for himself or herself. You can read additional information about what to do when an aging parent needs help making decisions in an article written by our elder law attorneys at Barron, Rosenberg, Mayoras & Mayoras.
Petition for Guardianship in Michigan
A guardianship proceeding is initiated by filing a Petition for Guardianship with the probate court, which sets forth the reasons that a guardian is needed for an individual. Any adult who is interested in the peron’s welfare may seek appointment as guardian for an incapacitated person. The person filing the petition is often, but not always, represented by an attorney. If the petition is granted by the court, the guardian will have legal authority and responsibility for making decisions for the incapacitated individual.
After the petition is filed, a hearing is scheduled. The person filing the petition—referred to as the petitioner—is required to serve notice of the hearing on all “interested persons,” which includes:
- The person for whom the guardian appointment is sought
- The spouse of that person
- Children of that person, or if no children are living, the person’s parents
- Any person named as attorney in fact under a durable power of attorney
- Any person named in a patient advocate designation
- If the person’s spouse, children, and parents are not living, the presumptive heirs of the person
- The individual who has care and custody of the person
- The nominated guardian (who may be the same individual as the petitioner)
- A guardian or conservator appointed in another state
Before the hearing, the probate court will appoint a guardian ad litem—which means “guardian for the lawsuit.” The guardian ad litem is most often an attorney. The responsibility of the guardian ad litem is to investigate the situation and report back to the court before the hearing with recommendations about whether the person needs a guardian, and, if so, who should be appointed.
During the investigation, the guardian ad litem meets with the individual and explains that a person who is claimed to be incapacitated can contest the guardian appointment, and that he or she also has certain rights, including the right to be represented by an attorney and to request a jury trial. If the person wishes to contest the appointment, the guardian ad litem reports that fact back to the court. Either the person will be represented by an attorney of his or her choosing, or the court will appoint an attorney to represent the person.
Also prior to the hearing, the court may appoint a doctor or mental health professional to examine the person claimed to be incapacitated. That professional then files a report with the court.
Guardianship Hearing in Probate Court
At the hearing, all evidence relating to the situation is produced, including witnesses and documents. The first question before the court is whether the individual needs a guardian. For the court to appoint a guardian, the evidence must demonstrate that the individual is no longer capable of making decisions for himself or herself.
The legal standard is whether the person lacks sufficient understanding or capacity to make or communicate informed decisions because of “mental illness, mental deficiency, physical illness or disability.” Being able to make an informed decision means he or she is fully aware of choices available, can understand and weigh the risks and benefits of the choices, and can communicate his or her wishes. It is not the outcome of the decisions that are made by the person that matters, but rather the question is whether or not he or she has the capacity to make those decisions. The judge must find by clear and convincing evidence that the person lacks the capacity to make or communicate informed decisions and that appointment of a guardian is necessary to provide for the person’s continuing care and supervision.
Testimony of witnesses, including medical professionals, is used to demonstrate the lack of capacity. Sometimes, the probate court judge will order the person to undergo an independent medical evaluation. Documentary evidence, including medical records, is also used to demonstrate the person’s mental and physical state.
If the judge decides that appointment of a guardian is appropriate, the judge will then determine who the guardian should be. The judge has wide latitude in determining what is in the best interests of the incapacitated individual, but Michigan law sets forth priorities for appointing a guardian. The order of preference is:
- A guardian appointed in another state
- A person named by the individual himself or herself
- A person named in the individual’s durable power of attorney
- A person named in the individual’s patient advocate designation
If there is no one meeting these criteria or none of the individuals is suitable or willing to serve, the judge may appoint a relative in the following order of preference:
- The incapacitated individual’s spouse or a person nominated by will or other writing of the deceased spouse
- An adult child of the incapacitated person
- A parent of the incapacitated person or a person nominated by will or other writing of a deceased parent
- A relative of the incapacitated person with whom the person resided for more than 6 months before the petition was filed
- A person nominated by an individual who is caring for the incapacitated individual or paying benefits to that person
A judge can skip over someone with higher priority if the judge believes that person is not suitable. If none of the persons in either preference list are willing, able, or suitable, the judge may appoint any competent person suitable and willing to serve, including a professional guardian.
In cases where family members disagree about who should be appointed as guardian, the judge will make the decision on the basis of what is in the best interests of the incapacitated person.
If, at the end of the hearing, sufficient proof is presented for the court to appoint a guardian, the probate court judge will sign an Order Appointing Guardian of Legally Incapacitated Individual. The guardian signs an Acceptance of Appointment, then the judge signs Letters of Guardianship, which officially authorize the guardian to act.
Experienced Michigan Attorneys for Guardianship Proceedings
The southeastern Michigan law firm of Barron, Rosenberg, Mayoras & Mayoras takes great pride on its focus on and extensive experience in elder law. Our probate litigation attorneys will answer all your questions about guardianship and conservatorship.
We are located in Troy, Michigan, and serve clients throughout the Tri County and Detroit area, as well as in other parts of Michigan. We also represent clients from other states with an interest in a Michigan estate or probate court matter. What our clients say about us is proof of our commitment to achieving the highest levels of legal and client service.
Call us at 248.641.7070 or complete our online form to set up your free consultation.