State Bar of Michigan
Committee on Justice Initiatives and Equal Access Initiative Disabilities Project
Volume 5, Issue 1, February 2009
Disabilities Project Newsletter
Planning Alternatives to Guardianship
by Mark A. Cody, Legal Director, Michigan Protection and Advocacy Service, Inc.
Michigan has, fairly or not, had a long reputation nationwide as a state in which guardianships and conservatorships are overused and unnecessarily granted. Indeed, this reputation led the Michigan Supreme Court, in February 1997, to appoint a Task Force on Guardianships and Conservatorships. The Final Report of the Task Force was issued on September 10, 1998. The Task Force report noted that improvements in the guardianship and conservatorship system in Michigan required, in part, a reduction in the use of guardianships and conservatorships.
Unfortunately, the statistics show only modest improvement in this area. For example, the Michigan Supreme Court 2002 Annual Report, Probate Court Statistical Supplement shows that there were 49,216 adults with a guardianship as of the end of 2002. Five years later, the 2007 Report showed 48,663 adults with a guardianship.
This resistance to a significant reduction in the numbers of guardianships is troublesome, in that any guardianship deprives the ward of his or her fundamental due process liberty interests. Although a guardianship is frequently viewed as a benign or perhaps even a helpful intervention, the appointment of a guardian can often lead to the loss of significant rights for a ward. For example, Michigan Protection and Advocacy Service, Inc. (MPAS) frequently represents individuals who have been denied the right to marry, the right of freedom of association, the right to choose where he or she lives, and so forth. In some extreme circumstances, guardians have even chosen to exceed their authority by executing Do Not Resuscitate Orders, a power they do not have under the law.
The existence of so many guardianships can be attributed, in part, to the fact that special education staff, nursing home administrators, community mental health case managers, and others encourage families to seek guardianships for their loved ones. Little consideration is given to whether such a guardianship is appropriate or is needed. It often appears that the appointment of the guardian is more for the convenience of staff and agencies than it is for the actual protection of the ward.
The high number of guardianships can also be attributed to the failure of practitioners to recognize their responsibilities under Michigan Rule of Professional Conduct 1.14 and to fully explore alternatives to guardianships. MRPC 1.14 requires lawyers to maintain “... a normal client-lawyer relationship with the client.” Only in extreme circumstances should the lawyer seek to have a guardian appointed.
If a client does have difficulty making decisions, the lawyer should explore alternatives to guardianships or conservatorships. For example, recipients of public benefits can have a representative payee appointed. The recipient can designate an individual of his or her choice and this offers an easy alternative to the appointment of a guardian or conservator and provides a means for assisting the client with managing his or her money.
Another option that should be explored is the designation of a patient advocate. Under Michigan law, a patient advocate can be designated for both physical health care and mental health care. Particularly for individuals with mental health needs, a designation of patient advocate can be a means of assisting them with securing appropriate treatment in circumstances when they would not be capable of giving informed consent for treatment.
Another means of preventing the use of guardianships is to explore the use of joint ownership of banking accounts and other financial instruments. If there is a trusted individual who could perform the task of managing an account with a client with a disability, that is an effective means of avoiding a guardianship or conservatorship.
Indeed, consideration of these alternatives is mandated by the Estates and Protected Individuals Code (EPIC), which states, at MCL 700.5303(2):
Before a petition is filed under this section, the court shall provide the person intending to file the petition with written information that sets forth alternatives to appointment of a full guardian, including, but not limited to, a limited guardian, conservator, patient advocate designation, do-not-resuscitate declaration, or durable power of attorney with or without limitations on purpose, authority, or time period, and an explanation of each alternative.
Finally, it is imperative that the lawyer make sure that he or she is not short-changing the client and thus violating his or her ethical obligations to maintain an effective attorney-client relationship. Often, practitioners become frustrated with clients who have difficulty in communications or have some cognitive impairment. That does not mean that they are incapable of making informed decisions about their lives. Difficulties in communicating or processing the information should not be equated with lack of an ability to make important life decisions. Rather, attorneys should make the effort to effectively communicate with their clients. This may mean taking additional time, securing the services of an interpreter, or taking other appropriate measures.
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