State Bar of Michigan
Committee on Justice Initiatives and Equal Access Initiative Disabilities Project
Volume 5, Issue 2, June 2009
Part 1 of 2
Disabilities Project Newsletter
Conflicts in Guardianship of Adults
by J. Kay Felt, Of Counsel, Dykema Gossett PLLC
This article covers conflicts arising in connection with guardianships or guardianship proceedings under the Estates and Protected Individuals Code (EPIC), MCL 700.5301-5318, as applied to an adult who is, or is alleged to be, incapacitated (Ward). Issues relating to guardianships of minors or of persons covered by the Michigan Mental Health Code are beyond the scope of this particular article. Use of the term “Section” in this article is a reference to the applicable Section of EPIC.
Importance of EPIC for People with Disabilities
Upon its adoption in 1998, EPIC codified a long-emerging line of court decisions tailoring guardianships to the particular needs of a Ward, and providing Wards with opportunities for self-management and independence. This is beneficial to Wards, particularly in light of the improper predisposition of some people to consider physical disability as evidence of mental incapacity. The flexibility in guardianships afforded by EPIC can give rise, however, to conflicts as to appointments, the terms of guardianships and decisions of guardians with which Wards do not agree.
Seeds for Potential Conflict
It is not unusual for decisions to be made by previously competent Wards and their family members as to who should serve as guardian long before the potential incapacity arises. Thus, it is not surprising that differences of view and changed circumstances can arise over time. A decision designating a prospective guardian may have been documented in a durable power of attorney by the Ward when competent (Section 5313). Also, a change in a designated guardian can be triggered by the death of a parent or spouse who had been serving as guardian, who designates a successor. Such a successor designation can be by a will or other writing of the parent or spouse, attested by two witnesses (Section 5301). Again, the Ward may or may not agree with these choices.
When the circumstances are ripe for initial appointment, or for appointment of a newly designated guardian, the prospective Ward is entitled to notice and has the right to object (Sections 5301 and 5311), either to the need for guardianship or continued guardianship, or to the particular successor guardian. The Ward’s objection terminates the appointment of a designated person, although that person or some other suitable person may be appointed after court proceedings (Section 5301).
Not only are there potential family conflicts. There also are issues for counsel, who may have previously represented the family as a unit and now finds that there are differing interests which, if not adequately planned for in advance, may create a completely disabling conflict to represent anyone in the situation. This can be particularly problematic when counsel has represented the Ward and other family members for years and has extensive knowledge about family dynamics. Issues related to the effect on counsel of conflicts among family members in guardianship proceedings are discussed in a companion article titled “Conflicts Involving Counsel and Adult Clients with Cognitive Disabilities.”
Conflicts may develop over a wide range of issues. Here are just a few examples:
The Ward disagrees with the need for a guardian, now objects to the designated person, or does not favor the appointment of a new guardian designated by the spouse or parent.
The Ward, guardian, and family members disagree about the Ward’s capacity for self-management and independence.
A designated family member may, in the opinion of the Ward or others, no longer represent the values and views of the Ward.
A designated spouse or other designated guardian is alleged no longer to have the mental or physical capacity to function as guardian; the spouse or other person may disagree.
A designated family member, who had no particular personal interest at the earlier stage, is now dependent on the Ward for monetary support or even lives in the Ward’s home, sometimes without resources to move any where else if the Ward should die or need a new care setting.
A non-designated family member has assumed personal care responsibilities for the Ward and believes that other family members, including the designated family member, are failing to fulfill their obligations.
Family members may have conflicting views with each other or with the Ward, as to what is in the Ward’s best interests. This can be especially difficult when health care decisions are required for the Ward, and there are differences based on individual religious or ethical positions or simply matters of personal interest. It is not unusual for widely differing views to exist in the same case. Some may favor all measures to extend the life of the Ward, while others at the same time believe that continued aggressive measures are futile or inhumane. There is also the prospect for the Ward to disagree with everyone else on these issues.
Roles of Family Members in Guardianship Proceedings
Unless the previously competent Ward or prospective Ward, when competent, has designated some other person to be appointed as guardian (Section 5313), such as in a durable power of attorney, EPIC gives priority for appointment to relatives of the Ward (Section 5313(3)) in the following order: spouse, adult child, parent, or a relative with whom the Ward has resided for more than six months. If the Ward has designated a particular family member, that person will most likely be appointed unless there are conflicts or a finding that the appointment is not now in the best interests of the Ward (Section 5313). If no relatives are willing to serve (and sometimes that is the case when there are significant conflicts) or suitable to serve, the court may appoint any suitable person (Section 5313), including a special guardian or a professional guardian (Sections 5313 and 5106).
Alternatives to Guardianship
EPIC requires that alternatives to guardianship be specifically considered before appointment (Sections 5303-5304); persons seeking guardianship must be informed of alternatives, and a guardian ad litem must explain them to the prospective Ward. These can include limited guardianship with terms tailored to meet the needs of the prospective Ward, conservatorship to deal with financial matters (Section 5401 et seq.), durable power of attorney (Section 5501 et seq.), do-not-resuscitate order and designation of patient advocate (DOA) to deal with health care decisions (Section 5506 et seq.). In particular, even when there are health care decisions to be made, decided court cases hold that as long as there is no dispute between family members and the health care team, decisions can be made with consent of the family, without the need for a guardian to be appointed (In the Matter of Rosebush, 195 Mich. App. 675 (1992).
Conflicts Among Family Members
Potential intra-family conflicts create difficult situations for courts. The result is often the appointment of an independent special or professional guardian who is not a family member: thus, the guardian’s decisions will be made based on that person’s own best judgment, possibly with the assistance of a guardian ad litem, who is appointed by the court to undertake an independent investigation of what is required in the best interests of the Ward.
Sometimes family conflicts can precipitate appointment of an outside guardian even where the Ward and other family members anticipated and attempted to provide in advance for exclusion from decision making by a dissident family member. In some cases, it is difficult to overcome the predisposition of the judge to appoint an independent person.
The situation can be even more conflict-ridden when the court appoints multiple family members of the same degree of consanguinity to serve as co-guardians. If they do not agree on basic issues, the position of the Ward may be significantly compromised, especially where one co-guardian represents the views of the Ward, but others do not. Ultimately, their continuing conflicts may result in appointment of an independent guardian.
Conflicts Between a Guardian and Ward
The mere fact that a guardian is appointed does not oust the Ward from all decision making. Although the guardian is responsible for the Ward’s care within the terms of the guardianship, EPIC provides that the court may give the guardian only those powers, and only for the period of time necessary, for the demonstrated need of the Ward. The court is required to “design” the guardianship to ensure the Ward’s development of maximum self-reliance and independence within the scope of the Ward’s capacity, and may even allow the Ward to function autonomously as to some matters (Sections 5306(2) and 5316). The guardian is required to secure services to restore the Ward to the best possible state at the earliest possible time, so the Ward can resume self management (Section 5315).
In addition, whenever meaningful communication is possible, the guardian is required to consult with the Ward before making a major decision affecting the Ward (Section 5314). This can be particularly important when matters of living arrangements or health care decisions are required for a Ward who can no longer keep up responsibilities of day-to-day living, but has defined views about where to live or what should be done with the Ward’s own body in the health care context.
In fact, if the court finds that the Ward is unable to perform some, but not all acts of self-care, it may only appoint a limited guardian with appropriate powers, but may not appoint a full guardian (Section 5306(4)-(5)). If the Ward regains all powers, the guardianship may be terminated; proceedings for such a ruling may be initiated by a petition or even by a simple letter from the Ward or another interested person to the court (Section 5310).
Conflicts Over Health Care Matters
Where there are disputes over health care decisions; the views of the Ward cannot be elicited; and there is no designation of patient advocate (DOA) or other written documentation of prior expressed views, however, the choice of guardianship or other court proceedings often cannot be avoided. Testimony as to the decision making standards can be very contentious for the family members involved. In all such decisions, as to a previously competent Ward, the test of substituted judgment based on the views of the Ward, clearly and convincingly expressed when competent, must prevail. Where these views are not known, decisions may be based on the known values of the Ward (In re Martin, 450 Mich. 204 (1995)).
For those who have never been competent, the test is the best interests test based on clear and convincing evidence, as to matters including the present level of physical, sensory, emotional and cognitive functioning; the degree of physical pain resulting from the medical condition, treatment and termination of the treatment; the degree of humiliation, dependence and loss of dignity probably resulting from the condition and treatment; the life expectancy and prognosis for recovery with and without treatment; various treatment options; and the nature, risks, side effects, and benefits of each of those options (In the Matter of Rosebush, supra). These are never easy proceedings, as even people of good will can honestly differ in their interpretations of the facts in relation to the decision making tests (See: In re Martin, supra).
Conflicts with a Patient Advocate Who Has Not Begun to Serve
If a designation of patient advocate (DOA) has been signed by the Ward before incapacity develops, the Advocate takes priority over a guardian as to health care decision making and related matters covered in the DOA (Section 5306(5). If a judge knows of the DOA, the guardianship must be limited to matters other than those covered in the DOA (‘Section 5302(2)). If the guardian knows of the DOA, the guardian is required to acquiesce to the Advocate in covered matters (Section 5306(5). On the other hand, if a guardian has already been appointed before a DOA is signed, the guardian takes precedence (Section 5306(5)). There are also exceptions if it is determined that the DOA was not properly executed, or if the Advocate is not acting in compliance with the DOA or the law, or is not acting in the Ward’s best interests; then, the court may modify the terms of the guardianship to assume these powers (5306(5)).
Disputes over the Conduct of the Guardian
If it is alleged that a guardian is not acting properly, a temporary guardian may be appointed for a period not exceeding six months, with all the original powers of the guardian (Section 5312), and the guardian’s authority is suspended until the matter is resolved or a new guardian is appointed. A guardian is required to visit the Ward within three months of appointment and every three months thereafter (Section 5314). Sometimes there can be conflicts over the failure of the guardian to fulfill this obligation, especially when a professional guardian is involved. There can also be conflicts over the related statutory obligation of a professional guardian to have sufficient staff and resources to perform all the duties of guardianship (Section 5106) Other conflicts, including breaches of fiduciary duty, are beyond the scope of this article; however, proceedings can be brought for removal of a guardian under a wide range of circumstances.
Need for Counsel in Guardianship Proceedings
If a Ward or prospective Ward has counsel, the court generally will not appoint a guardian ad litem, but if there is no counsel, a guardian ad litem is appointed to represent the Ward in the proceeding (Section 5303) and until legal counsel is engaged by or on behalf of the Ward or appointed by the court (Section 5305). As a result, counsel who wishes to continue representing the long-time client/Ward has to consider how to avoid disabling conflicts, particularly when other family members are involved (See: companion article titled, “Conflicts Involving Counsel and Adult Clients with Cognitive Disabilities”).
Minimizing conflicts is essential to the long term stability of the Ward and the tranquility of the family members. Every effort should be made before court intervention to resolve potential disputes, lest outsiders necessarily become involved in family decision-making.
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