Provided by the Probate & Estate Planning Section of the State Bar of Michigan
The following explains Michigan guardianship for a formerly competent adult who loses the ability to take care of him or her self properly. 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. A conservator takes care of an incapacitated adult's property (see Conservatorship). 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 Guardian is Appointed
A guardian is appointed by the probate court at the request of a concerned person (petitioner) and after a hearing is held to consider the request. To make a request to the court, a concerned person must file a request on a legal document called a petition.
Where is the Petition Filed?
The petition must be filed in the probate court in the county where the individual lives or is located.
Who Can File a Petition for Guardianship?
The incapacitated individual, or a person interested in the welfare of the incapacitated individual, may file the petition. The petition states details about why a guardian is needed. The person that files the petition is known as the "petitioner."
What Happens Next?
The probate court clerk schedules a hearing date for a judge to consider the petition. The petitioner must deliver copies of the petition to certain people before the hearing date. Michigan Court Rules require that this be done in a certain way.
The court will appoint a guardian ad litem to represent the incapacitated individual, unless the individual has his or her own attorney. Before the hearing date, the court may also order the individual to be examined by a physician or mental health professional and to submit a report to the court about the individual's condition.
Who Gets Copies of the Hearing Notice and Petition?
The petitioner will make sure the incapacitated individual is personally given a copy of the petition and a notice of the hearing. The petitioner will also mail copies of the petition and notice of the hearing to certain people (called "interested persons"). These people are 1) the individual's spouse, 2) a person named as the individual's agent in a durable power of attorney, 3) the individual's children (or, if the individual has no children, the individual's parents), and 4) if there is one, the individual's guardian or conservator appointed by a court in another state. The incapacitated individual and these interested persons are entitled to object to the appointment of a guardian.
What Does a Guardian Ad Litem Do?
The guardian ad litem will personally visit the incapacitated individual and explain certain things, including what has been requested in the petition, the incapacitated individual's rights, and what can happen at the hearing. The guardian ad litem will also ask the individual what he or she wants the court to do about the petition. The guardian ad litem will tell the individual the name of the person who requested the guardianship and who might be appointed as a guardian.
Does the Court Investigate the Facts Stated in the Petition?
The court may appoint someone to investigate the facts in the petition before the hearing date. This person can be the guardian ad litem, or it can be a physician or mental health professional. This person will submit a full report to the court, including what he or she recommends for the individual.
What Happens at the Hearing?
At the hearing on the petition, the judge will determine whether a guardianship is needed. The judge must find by clear and convincing evidence two things: (1) the individual lacks the understanding or capacity to make or communicate informed decisions, and (2) the appointment of a guardian is necessary to provide for the individual's continuing care and supervision.
If the incapacitated individual needs a guardian, the judge will select (appoint) a suitable guardian who is willing to serve. If the individual needs a guardian but has some ability to take care of certain tasks, the judge may appoint a limited guardian to take care of only those things that the individual cannot.
Who May Serve as a Guardian?
Any competent person may be appointed as a guardian. The person must be over age 18, suitable, and willing to serve. The law provides who has priority for appointment as guardian, which includes: the guardian appointed in another state for this individual, a person nominated by this individual, the person nominated in this individual's durable power of attorney, a person nominated by this individual as a patient advocate in a Designation of Patient Advocate. A judge may reject anyone to serve as guardian if the judge finds the nominated person unsuitable. The judge will appoint a professional guardian only if there is no one suitable from the above list of people.
What Happens if the Incapacitated Individual Does Not Want the Guardianship?
If the incapacitated individual does not agree to a guardianship, the court must appoint an attorney to represent the incapacitated individual and a contested hearing is set. The court must pay for the attorney if the individual cannot afford to pay for the attorney.
When Does the Guardian Have Authority?
The appointed guardian's responsibilities and authority start when he or she files with the court a signed document called an "Acceptance of Appointment."
A guardian may be paid for their services from the incapacitated individual's assets. The payment amount depends upon the time spent by the guardian, the nature of services provided, the amount of available funds, and the individual's specialized needs. The court will only approve just and reasonable payment.