Caring Michigan Guardianship Lawyer Advocating for You
What Is Guardianship?
“Guardianship” generally refers to the process whereby one person (i.e., the proposed Guardian) petitions the probate court to be appointed Guardian of another person (i.e., the alleged disabled person or Ward). If full guardianship is granted, the Guardian will have decision making authority for the Ward’s day-to-day care and finances.
Michigan courts take Guardianships seriously because they remove a person’s rights and freedoms. Although Guardianships are often necessary, most view them as a last resort. A Rochester Hills MI Guardianship lawyer can help you determine if a Guardianship situation is necessary for your loved one. To learn more, contact Sumner & Associates, P.C. today.
When Is Guardianship Appropriate?
Guardianship is appropriate when the alleged disabled person is not able to manage his or her affairs and, therefore, is in need of protection. For example, a Guardian is often appointed to protect someone who is experiencing Alzheimer’s or severe dementia, mental illness, developmental disabilities, or drug and/or alcohol addiction. Full Guardianship is a drastic measure, and should only be sought when alternatives do not work or are not available.
Incapacitated Persons May Need Guardians
An incapacitated person is someone who does not have sufficient understanding or capacity to make informed decisions or the ability to communicate those decisions. A Guardian may be appointed if a person cannot make decisions about the following:
- Health and medical care
- Daily activities
The law considers these three elements of a person’s life to be integral to their livelihood. If a person is unable to make decisions or communicate decisions about these things, then a Rochester Hills MI Guardianship lawyer can help loved ones obtain a Guardianship for them.
Who Must Receive Notice of a Pending Guardianship?
Through the Guardianship process, all interested persons must be notified of a pending case. That includes:
- The subject of the Guardianship
- The spouse of the subject
- Children of the subject
- Parents of the subject
- Any person who is an attorney in fact or who has a durable power of attorney
- All people named in a patient advocate designation
- Presumptive heirs of the subject
- Anyone who has care and custody of the subject
- Any nominated guardian of the subject
- Any guardian or conservator appointed out of state
For a Guardianship to be valid, these individuals must be notified. They must have an opportunity to challenge or comment upon the pending Guardianship.
Before the hearing where a Guardian receives appointment, the probate court may appoint a guardian ad litem, or a guardian for the purposes of the lawsuit only. This is often an attorney who can make decisions in the moment for the subject. The guardian ad litem will also investigate any challenges by relatives or others to the Guardianship.
What Is Financial Conservatorship?
Sometimes a person is able to handle their own healthcare, daily activities, and well-being, but they are not able to manage finances. Many mental illnesses can result in such a condition. In such a case, a Michigan court may appoint a financial conservator when a person:
- Cannot manage property and business affairs;
- Has property that needs management; or
- Needs help to obtain money.
The court appoints a conservator for a specific purpose with a durable power of attorney. A Rochester Hills MI estate planning lawyer can help complete the legal documents and address the court.
Difference Between Guardians and Conservators
A Guardian is a person who is concerned with the well-being of a “legally incapacitated individual.” That individual may be someone who is medically incapacitated or who is a child, and thus, legally cannot handle their own affairs.
A Conservator, on the other hand, has specific tasks associated with handling a person’s financial matters. They may also make decisions about property and assets owned by a person. A person may need a conservator if they are a minor who is medically incapacitated or legally incapacitated. The subject of a conservatorship is called a “legally protected individual.”
You can establish a Guardianship or a Conservatorship, or both. One person may act in both capacities, or different people may handle matters separately for the same person. Often, a family member is a Guardian taking care of the well-being of a person, while an attorney or another professional person acts as financial guidance.
What Is the First Step Towards Guardianship?
You should first consult with an attorney who has significant experience in helping families with Guardianship proceedings. Your attorney will direct you to have a doctor complete an evaluation form that confirms that the disabled person needs a Guardian. Then, your attorney will prepare a Petition for Guardianship of a Disabled Person. They will file the petition in the appropriate court. At the time of the filing, the court clerk will assign the case to a particular judge. Your attorney will then contact the assigned judge’s clerk to schedule a hearing on the petition.
If no one contests the petition, the court will issue Letters of Guardianship to the proposed Guardian. If someone does contest the petition (usually by the alleged disabled person), the court will schedule the case for a contested guardianship hearing. The contested hearing is like a mini trial, during which evidence is presented, witnesses provide testimony, witnesses are cross-examined, etc. Given the nature of a contested Guardianship hearing, it is imperative that you work with an attorney who has litigated these types of cases.
You should only approach Guardianship proceedings with the assistance of a probate attorney who has experience in this area of the law.
How Long Do Guardianships Last?
A Guardianship may be permanent, or it may be reviewed regularly. The purpose of a Guardianship is to provide for the subject while they need help. If they need help for a specific amount of time, then the Guardianship would be temporary. This may happen when a Guardianship occurs and then subject is a minor child. Once the minor child reaches the age of majority, the Guardianship may end. A Guardianship may also be reviewed annually to make sure it is still necessary and addresses the needs of the subject.
Powers of Attorney
Under Michigan law, a person may elect to give certain powers to another person. While a Guardianship is often imposed upon a subject, a power of attorney is granted by the subject. The subject may grant power of attorney over a number of things, including health care and finances. An elderly person may grant a power of attorney to their child for specific and limited purposes. Using powers of attorney can allow the subject to retain some power over their situation while addressing needs.
A key step in the Guardianship process is a hearing where the subject and any relatives or others can be heard. It will take place in probate court. During the hearing, the judge will hear witnesses and review any documents that are submitted. The key question that the court will be asking is whether the subject is capable of making decisions for themselves. The judge must find by clear and convincing evidence that the subject lacks understanding or capacity to make or communicate informed decisions. This is often due to “mental illness, mental deficiency, physical illness, or disability.” The subject as well as relatives and others will have an opportunity to contest the Guardianship.
Call a Rochester Hills MI Guardianship Lawyer for More Information
A Guardianship can be beneficial to everyone involved. They often help families care for their loved ones in difficult times. If you have questions, contact a Rochester Hills MI Guardianship lawyer at Sumner & Associates, P.C.