For some members of our society, legal protection may be necessary even after they have entered adulthood. These individuals may have been injured in an accident, continue to suffer from an incapacitating physical illness or psychological disorder, or have some other condition that prevents them from caring for themselves. In addition, in my elder care practice, I frequently assist families who have a senior parent or other older relative who is no longer able to make decisions or care for themselves. In these cases, a guardianship may be established.
Guardians and Protected Persons
Guardianship is a legal arrangement that places an individual, also known as a ward or protected person, under the supervision of a guardian. A guardianship is a protective proceeding under the jurisdiction of the Michigan probate court. There are two main types of these protective proceedings: guardianship of the person and conservatorship of the estate or property.
A guardian is typically a family member, friend, or fiduciary appointed by the probate court. A fiduciary may be a bank trust department, attorney, or professional guardian company. A protected person can be a minor without a parental guardian or an adult who can no longer make safe and sound decisions about his or her own person or property. Additionally, a person may be placed under guardianship who is prone to fraud or undue external influence.
In Michigan, for seniors and all other adults, the legal standard of proof the probate court judge must consider in determining whether a person needs a guardian is whether the person lacks sufficient understanding or capacity to make or communicate informed decisions because of “mental illness, mental deficiency, or physical illness or disability.”
While guardianship does attempt to maintain the protected person’s independence, it should only be considered in appropriate cases, as it may significantly impinge upon rights of the individual.
Appointment of a guardian can materially limit the rights and privileges of the protected individual in areas such as:
- Choosing residence
- Providing informed consent to medical treatment
- Making end-of-life decisions
- Making property transactions
- Obtaining a driver’s license
- Owning, possessing, or carrying a firearm or other weapon
- Contracting or filing law suits
Right to Due Process
To safeguard the protected person’s right to due process of law, he or she is entitled to notice of, and ability to attend all legal proceedings related to guardianship and conservatorship. In addition, the protected person may obtain representation by an attorney, present evidence, confront and cross-examine all witnesses, and demand a trial by jury.
Guardianship of the Person
Guardianship of the person often relegates the following responsibilities to the appointed guardian:
- Determining and maintaining residence
- Providing informed consent to and supervising medical treatment
- Consenting to and supervising non-medical services such as education, psychiatric or behavioral counseling
- Making end-of-life decisions
- Paying debts and other expenses
- Maintaining the protected person’s autonomy as much as possible
The guardian will be required to report to the court about his or her activities on an annual basis.
Conservatorship of the Estate or Property
Conservatorship of the estate or property transfers the following responsibilities to the conservator:
- Organizing, gathering and protecting assets
- Arranging appraisals of property
- Safeguarding property and assets from loss, whenever possible
- Managing income from assets
- Making appropriate payments
- Obtaining court approval prior to any sale of major assets
- Reporting to the court the estate’s status on a regular basis
Many guardianships are temporary arrangements, meant to protect an incapacitated individual until he or she regains capacity.
Andrew Byers is a guardianship attorney and represents guardians and conservators in the Michigan probate court as part of his elder care practice.