Provided by the Probate & Estate Planning Section of the State Bar of Michigan
The following explains Michigan conservatorship for a formerly competent adult who loses the ability to take care of him or her self or property. A person who loses this ability is called "incapacitated." When an incapacitated person lacks the understanding or ability to make or communicate informed decisions, the individual may need the help of a guardian or conservator. If the incapacitated person has a Durable Power of Attorney or a Designation of Patient Advocate, then a guardian and/or conservator may not be necessary. A guardian takes care of an incapacitated adult's personal needs (see Guardianship). A conservator takes care of an incapacitated adult's property. One person can be both the guardian and the conservator for an incapacitated adult. A guardianship or conservatorship will limit an incapacitated adult's legal right to handle his or her own matters and can cost the incapacitated adult time and money.
If an individual has a disabling condition that began before the age of 22, and the condition is likely to continue indefinitely, then a guardian is appointed under a different set of laws. The following information does not address that type of guardianship.
How a Conservator is Appointed
A conservator is appointed in three steps. First, an appropriate person called "the petitioner" properly files a petition at the probate court. "Petition" is the legal name for the document that must be filed to start a probate court proceeding. The person for whom a conservatorship is sought is called the "respondent." If a conservatorship is granted, then the person under conservatorship is called a "protected individual." The probate court clerk sets a hearing date. The petitioner timely delivers copies of the petition to certain "interested persons," according to the court rules. Second, the court investigates facts and determines whether the individual requires a court-appointed attorney. Third, at a hearing, the judge determines whether a conservatorship is necessary. If it is necessary, the judge selects a suitable conservator who is willing to serve. The conservator's responsibilities and authority begin once the person who is appointed files a bond as directed by the court.
When is a Conservatorship necessary?
A conservatorship may be necessary if an individual is unable to manage his or her property or business affairs. If the court can provide protection and management of the individual's money, property, and business affairs without a full conservatorship, then it will do so.
Who can Petition for Conservatorship?
Certain mentally competent persons may petition the court for a conservator for themselves. In addition, anyone interested in an individual's estate, affairs, or welfare may petition for conservatorship. Also, anyone who would be negatively affected by ineffective management of the individual's property or business affairs may petition for conservatorship.
Where is the Petition Filed?
The petition must be filed in the probate court in the county where the individual resides, or in the county in Michigan where the individual's property is located if the individual does not reside in Michigan.
Who gets Copies of the Hearing Notice and Petition?
The petitioner must arrange for the individual who is the subject of the petition to be personally served a copy of the petition and hearing notice. Copies must be given to his or her presumptive heirs; an individual's agent (an attorney in fact) under a durable power of attorney; the nominated conservator; a government agency paying benefits like Medicaid or Social Security Disability Income to the individual, or to that government agency if the individual filed an application for benefits and is waiting for a response; and the U.S. Administrator of Veterans' Affairs if the individual is receiving or entitled to VA benefits.
How Does the Court Investigate the Relevant Facts?
If a mentally competent person who needs a conservator files a petition for conservatorship, then the court need not appoint a guardian ad litem. If a petitioner alleges that the subject of the petition is not competent, the court shall appoint a guardian ad litem to investigate. A "guardian ad litem" is not the same as the guardian. The guardian ad litem must investigate the claims made in the petition. The guardian ad litem will make recommendations and submit a full report to the court.
What Happens at the Hearing?
If a mentally competent person who needs a conservator and all interested persons consent, then the court may grant the petition without a hearing or the court may conduct a hearing. Ordinarily, the purpose of the hearing is to determine on the court's record that two things have occurred: (1) the individual is unable to manage property and business affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance, and (2) the individual has property that will be wasted or dissipated unless proper management is provided, or money is needed for the individual's support, care, and welfare or for those entitled to the individual's support, and that protection is necessary to obtain or provide proper support from the individual's resources. This can be done on the basis of the allegations in the petition, if the petition is unopposed at the time of the hearing.
Who May Serve as Conservator?
The judge may appoint any competent person over age 18 or a professional conservator to serve. If the individual resides elsewhere and has a conservator appointed in another state, the court may appoint the conservator in the other state to act in Michigan. In all other cases, any of the following people may be appointed as conservator in the following priority: the person or entity nominated by the individual (including a person or entity nominated in a durable power of attorney); the individual's spouse, adult child, parent, relative with whom the individual has lived for more than six months; or a person nominated by the person who is caring for or paying benefits to the protected individual. The judge follows this order of priority when selecting a conservator; however, the judge may only appoint a person who is suitable and willing to serve. A conservator, spouse, adult child, parent, or relative with whom the individual has lived for more than six months may designate in writing a substitute person to serve instead. That written designation transfers the priority to the substitute person. If some people have equal priority (adult children, for example), then the judge chooses whomever he or she considers the best qualified to serve. The judge may pass over a person with priority and choose a person with lower priority, or no priority at all, to protect the individual who is the subject of the petition, if it is in the individual's best interest to do so.
What Happens if the Disabled Individual Disagrees with the Petition for Conservatorship?
If the individual does not agree to the proposed conservatorship, then the judge must appoint an attorney to represent the individual to contest the proposed conservatorship unless the individual retains counsel of their own choosing. If counsel is appointed the court will direct payment for appointed counsel from the assets of the protected person.
A conservator is entitled to reasonable compensation for services. In approving a conservator's fee, the court will usually consider time spent by the conservator, professional expertise and required skill, nature, number, and complexity of assets, makeup of parties interested in the conservatorship, extent of the responsibilities and risks assumed, and the results obtained in administering the property.