In a previous post for this site, we explored a bit of the history and context surrounding Michigan’s Estates and Protected individuals Code (EPIC). In this followup, our goal is to dive more into the definition of “protected individual” as it applies in probate court proceedings — and offer some broad overviews of important concepts to understand, including the distinction between guardianships and conservatorships. 

What Does “Protected Individual” Mean in the Michigan Probate Courts?

As the Probate Court of Kent County puts it in a writing, the probate court is:

a Court of statutory jurisdiction, primarily concerned with the protection of incapacitated or mentally ill individuals and their assets, and the proper transfer of assets at death.

As explicated by EPIC, the Michigan Probate Courts have exclusive jurisdiction over matters pertaining to the administration of the estates of deceased and protected persons. But what exactly does it mean to be a protected person or protected individual? EPIC itself defines the term thusly; 

“Protected individual” means a minor or other individual for whom a conservator has been appointed or other protective order has been made…

The State of Michigan offers more clarity in a  consumer-oriented writing:

Protected individuals are persons who by reason of their age or physical impairment cannot manage their own affairs.

Thus, a protected individual might be an unmarried minor, who requires a guardian or conservator to oversee their care and custody or finances, property, and estate, respectively. An individual may also fall under the umbrella of “protected person” if they meet Michigan’s standards for incapacitation. 

Speaking broadly, incapacitation refers to adults who have lost the ability to take care of themselves properly, or make and communicate informed decisions about their personal well-being.

More specifically, EPIC defines an incapacitated individual as:

an individual who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions.

It’s crucial to understand that incapacity is a legal concept, which can only be determined by the courts after a thorough assessment — which may also include evaluations and recommendations from physicians or mental health professionals.

In Michigan, adults are broadly presumed to be competent and this presumption must be overcome by clear and convincing evidence. Incapacity is also often nuanced and task-specific. In other words, the court can closely tailor solutions to the specifics of an individual’s situation, as necessary.

Guardianships, Conservatorship, and Protected Individuals

If you have a protected individual in your life or you are planning for the potential of incapacity for yourself, it is important to understand two essential concepts — namely, guardianship and conservatorship. 

A Brief Intro to Michigan Guardianship

Guardianship grants someone the legal authority to care for another person, often along with their personal property and assets. Generally speaking, an adult guardian’s responsibility is to look out for the overall well-being and care of a minor or an incapacitated individual, who is known as the ward.

A guardian acts as a substitute decision-maker for an incapacitated individual, and is generally charged with ensuring that all of their essential needs are met. This may include providing appropriate food, clothing, and shelter; protecting the individual’s property; and making medical decisions on their behalf, when necessary.

There are many different situations when guardianship may be necessary and this legal arrangement can come in several different forms. Depending on the specific needs of the ward, a guardian’s powers can be quite broad or fairly limited. Michigan law is designed to “encourage the development of maximum self-reliance and independence in the individual,” and allows for guardianships to be closely tailored to the individual’s unique situation.

Accordingly, EPIC states that “the court shall grant a guardian only those powers and only for that period of time as is necessary to provide for the demonstrated need of the incapacitated individual.” A court order establishing a guardianship must also specify “any limitations on the guardian’s powers and any time limits on the guardianship.”

In order for a guardian to be appointed, a concerned individual — which could be the incapacitated individual, or any person interested in their welfare — must file a petition, explaining why the guardianship is needed. A hearing will subsequently be held to consider the request, and a judge will determine whether or not a guardianship is needed, who will serve as guardian, and what powers the guardian will have. A hearing can be contested if the incapacitated individual does not want or agree to the guardianship, or if there are concerns or disagreements about who should serve as guardian.

For more insight, check out our guardianship page, click here to explore common FAQs about guardianship, or peruse our article on the powers and duties of a guardian. You can also click here to begin the discussion with an experienced and knowledgeable Michigan probate attorney.

A Brief Intro to Michigan Conservatorships

As defined by EPIC, a conservator is a person appointed by a court to manage a protected individual’s estate. 

A conservator may be appointed in situations where an individual can no longer effectively manage their own finances or property. In such instances, a conservator takes on the responsibility of helping to manage some or all of the income, savings, and property of the individual, collectively known as their estate. 

Whereas a guardian is broadly responsible for making medical, housing, and other personal decisions about the person, the conservator is responsible for the care and preservation of the individual’s assets and property. The same individual can be appointed to serve as guardian and conservator, or these roles can be delegated to two different people or parties. 

As with guardians, conservators must be appointed through the courts. In order for a conservator to be appointed, a petitioner must file with the probate court. The court will then investigate the facts of the situation, and a hearing will be held to determine if a conservatorship will be necessary, and, if so, to select a suitable conservator who will be willing and able to serve.

In order for a conservator to be appointed, the court must find that the individual is unable to manage property and business affairs effectively, and that “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 money.”

Anyone interested in an individual’s estate, affairs, or welfare may petition for conservatorship, along with anyone who may be negatively affected by ineffective management of the individual’s property. An individual can also request the appointment of a conservator for themselves, if they recognize that they are unable to manage their property and affairs effectively due to age or physical infirmity.

For a more comprehensive view, check out our conservatorship page, click here to explore common FAQs about Michigan conservatorships, or peruse our article on the powers and duties of a conservator. Or, you can also click here to begin the discussion with an experienced and knowledgeable Michigan probate attorney.

Keep the Conversation Going with Metro Detroit’s Guardianship and Conservatorship Attorneys

Even in the best of circumstances, the Michigan probate courts can be very complex, and matters involving protected individuals often get drawn out through endless court hearings. Because the appointment of a conservator or guardian is intrusive by nature, it is important to have legal counsel that will represent your interests and get aggressive if necessary. 

Interested in learning more about guardianship and conservatorship in Michigan? Interested in taking steps to provide for and protect the most important people in your life? Ready to start preparing for the future, and take control over who will make important decisions in the event that you become incapacitated?

For all these important matters and more, it’s wise to have an intelligent and experienced lawyer at your side, fighting for your rights and the well-being of your loved ones.

Our skilled law firm is here and ready to assist with all of your incapacity planning and probate needs, including guardianships, conservatorships, comprehensive incapacity planning, and powers of attorney. Our experienced probate attorney Dean E. Patrick can assist you with many different services regarding conservatorships and conservatorships, including:

• Establishing, terminating, modifying, or contesting a conservatorship or guardianship
• Defending your current position as conservator or guardian
• Removing an acting conservator or guardian who has failed in their duties
• Filing conservatorship accounts
• Any others matters that need to be settled in the Michigan probate court system.

If you require further legal perspective or if you are looking for representation as you navigate Michigan’s tricky probate court system, don’t hesitate to call our Southfield, Michigan office at (248) 663-2566 to set up your initial consultation. You may also click here to get in touch online.

At the Patrick & Associates, PLLC., we will work hard to accomplish your goals, while handling your matter with professionalism and expertise. Mr. Patrick can help you navigate through all the legalities and formalities, so that you can rest assured that you and your loved ones will be taken care of, whatever life brings.

This post has been prepared for general information purposes only. The information you obtain here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and electronic mail.  Accessing the content of this site does not create an attorney-client relationship.  Nor, does contacting us create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

In Michigan, guardianship grants the legal authority to care for another person, often along with their personal property and assets. Generally speaking, an adult guardian’s responsibility is to look out for the overall well-being and care of an incapacitated individual — that is, someone who cannot communicate or make informed general care and control decisions for themselves. An individual for whom a guardian is appointed is known as a ward.

A guardian acts as a substitute decision-maker for an incapacitated individual, and is generally charged with ensuring that all of their essential needs are met. This may include providing appropriate food, clothing, and shelter; protecting the individual’s property; and making medical decisions on their behalf, when necessary.

There are many different situations when guardianship may be necessary and this legal arrangement can come in several different forms, including limited guardianships and full guardianships. 

Whether you are seeking to establish a guardianship for an incapacitated person or contesting a pending guardianship decision, there are a variety of reasons one may come to the probate court on a guardianship matter. Even under the best of circumstances, these cases are often highly emotional, and the rules surrounding the appointment, removal, and duties of a guardian can be confusing. As you look deeper into guardianships, it may prove important to consult with an experienced probate and guardianship attorney, who can fight for your rights and the well-being of others.

Curious about what it truly means to serve as a guardian to an incapacitated individual in Michigan? Interested in learning more about the powers, duties, and responsibilities of a guardian, or the rights of a ward? 

Let’s explore the role of the guardian, in a bit more depth: 

When and How Is a Guardian Appointed?

Broadly speaking, any person interested in another individual’s welfare, or the individual acting on his or her own behalf, can petition the court for a finding of incapacity and the appointment of a guardian. This petition must contain specific facts about the individual’s condition, such as recent examples of conduct that demonstrate the need for a guardian. 

A guardianship petition must be filed in the probate court for the county in which the individual lives. After the petitioner files, the probate court will schedule a time for a judge to consider the petition. Copies of the petition must also be given to interested persons, including the spouse and children of the incapacitated individual, or any person named as the individual’s agent through a durable power of attorney. 

At this point, the court will generally appoint a guardian ad litem to represent the incapacitated individual, unless the individual has an attorney of their own. The court will also order examinations from doctors or mental health professionals in order to learn more about the individual’s condition; the incapacitated individual or their counsel may also request their own examinations from professionals of their choosing. If the individual or another interested party objects to the petition for guardianship, the matter is said to be contested. 

In order for a guardianship to be granted, the court must find “by clear and convincing evidence” that the individual lacks the understanding or capacity to make or communicate informed decisions, and that the appointment of a guardian will be necessary to provide for the individual’s care and supervision. The court may also dismiss the proceeding, or enter another appropriate order. Broadly speaking, the court will attempt to only grant a guardian those powers and only for that period of time as is necessary to provide for the demonstrated need of the incapacitated individual.

If it is determined that the incapacitated individual needs a guardian, the court will appoint a suitable guardian, with priority afforded to:

• A person previously appointed, qualified, and serving in good standing as guardian for the legally incapacitated individual in another state.
• A person whom the individual subject to the petition chooses to serve as their guardian, and who is willing to serve.
• A person nominated as guardian, patient advocate, or attorney in fact in a durable power of attorney or other writing by the individual subject to the petition.

In order to serve as a guardian, a person must be competent and over the age of 18. If no suitable candidate from the list above is willing or able to serve, the court may appoint a family member of the incapacitated individual, such as a spouse or adult child. Ultimately, if no one is considered suitable or willing to serve, the court may appoint a professional guardian.

The guardian gains authority over the individual when they file an “acceptance of appointment” document with the court. 

What Are the Powers and Duties of a Guardian?

Broadly speaking, the goal of a guardianship under Michigan law is to “encourage the development of maximum self-reliance and independence in the individual.” As a result, court orders establishing a guardianship must specify any limitations on the guardian’s powers, and any time limits on the guardianship. 

A limited guardian may be appointed when the court determines that an individual is incapacitated and lacks the capacity to do some, but not all, of the tasks necessary to care for him or herself. A full guardian may be necessary when the court decides that that the individual is “totally without capacity to care for himself or herself.” 

When meaningful communication is possible, a legally incapacitated individual’s guardian is meant to consult with the legally incapacitated individual before making a major decision affecting the ward.

Broadly speaking, Michigan law states that a guardian is responsible for the ward’s care, custody, and control. Depending on the circumstances of the legally incapacitated individual and the terms of the guardianship, this generally means that guardians have the authority and duty to… 

Determine where the ward will live

When appropriate, the guardian is granted custody of the person of the ward, including the power to establish their place of residence — whether in or outside of the state. The guardian must visit the ward at least once every three months. The guardian is also responsible for promptly notifying the court of any changes to the ward’s place of residence or their own place of residence. 

Make sure that the individual has suitable food, education, and care

If entitled to custody of the ward, a guardian has the duty to make provisions for the ward’s care, comfort, and maintenance. When appropriate, this also includes arranging for the ward’s training and education, and any services that may “restore the ward to the best possible state of mental and physical well-being so that the ward can return to self-management at the earliest possible time.” 

Protect the individual’s property and personal effects

A guardian is required to take “reasonable care” of the ward’s clothing, furniture, vehicles, and other personal effects. A guardian is also expected to commence a protective proceeding if the ward’s property needs protection. 

This may require the appointment of a conservator, or someone who is tasked with managing the incapacitated individual’s financial affairs and property. This may be the guardian, or another individual or group. A guardian may only sell real property on behalf of the ward if they have been appointed as a special conservator. 

Michigan law also seeks to encourage self-reliance, and may authorize the ward to handle part of his or her money or property, including maintaining an account with a financial institution, without needing the consent or supervision of a guardian or conservator. 

Make medical decisions on behalf of the individual, when needed

A guardian may be granted broad powers to give any consent or approval that is necessary to enable the ward to receive medical, mental health, or other professional care, counsel, treatment, or service. However, there are limitations, particularly in terms of authorizing inpatient hospitalizations, do-not-resuscitate orders, non-opioid directive forms, and physician orders for scope of treatment forms. 

Importantly, if the court is aware that an individual has executed a patient advocate designation or power of attorney for healthcare, then the court shall not grant a guardian any of the same powers that are held by the patient advocate.

Report on the well-being of the ward

The guardian has a duty to report on the condition of the ward and the ward’s estate subject to the guardian’s possession at least once per year, or as required by the court. Along with serving the report to the court, the guardian must also furnish the report to the ward and any interested persons. 

This regular report should contain: 

• Notes on he ward’s current mental, physical, and social condition
• Any improvement or deterioration in the ward’s mental, physical, and social condition over the reporting period
• The ward’s present living arrangement and changes in his or her living arrangement
• Details on whether the guardian recommends a more suitable living arrangement for the ward
• Notes on any medical treatment, including mental health treatment, received by the ward
• Information on whether the guardian has executed, reaffirmed, or revoked a do-not-resuscitate order on behalf of the ward during the past year
• Whether the guardian has executed, reaffirmed, or revoked a nonopioid directive form on behalf of the ward during the past year
• Whether the guardian has executed, reaffirmed, or revoked a physician orders for scope of treatment form on behalf of the ward during the past year
• Any services received by the ward
• A list of the guardian’s visits with, and activities on behalf of, the ward
• A recommendation as to the need for continued guardianship

Can a Guardian Resign or be Removed?

Generally speaking, a guardian’s authority and responsibility terminate upon the death of the guardian or the ward, upon the determination of incapacity on the part of the guardian, or upon the guardianship’s removal or resignation. 

Guardianships are subject to regular review, and can be modified or terminated for a number of different reasons. Importantly, a guardian may petition the court to resign from their position. 

The ward — or another person interested in the ward’s welfare — may petition for an order removing the guardian, as well as taking other appropriate actions, such as appointing a successor guardian, modifying the terms of the guardianship, or terminating the guardianship entirely. This request can be made through a formal petition, or by an informal letter to the court or judge. The court must set a date for a hearing to be held within 28 days of receiving such a petition or request. 

While this action can be taken at virtually any time, there are some restrictions. In some cases, for instance, an order for incapacity may specify a period of time during which an order to remove a guardian or terminate a guardianship cannot be filed, without special leave of the court. 

Before removing a guardian, appointing a successor guardian, or modifying or terminating a guardianship’s terms, the court will follow similar steps as in the appointment of a guardian, and may send someone to observe the guardian’s residence or the condition of the ward, and file a report to the court. 

Are There Alternatives to Guardianship?

The decision to appoint a guardian for an individual is a very serious matter, since the Michigan probate court will ultimately be deciding to take away some basic rights from an individual. This process is fairly intrusive by nature, and is not something to be taken lightly. 

As a result, it’s important to consider alternatives that may benefit the individual, without needing the appointment of a full guardian. Before filing a petition for guardianship with the probate court, the courts will provide information and explanations on alternatives, including appointing a conservator or delegating certain powers to an advocate or agent through durable powers of attorney. 

Interested in learning more about alternatives to guardianship, and how an experienced attorney can help you understand all of your options? You can explore the differences between guardianships, conservatorships, and powers of attorney in our “Education” section, here.

Interested in Learning More About Guardianship Matters in Michigan?

There are a variety of reasons one may come to the probate court on a guardianship matter, but it all comes down to the well-being of the individual who is not able to care for themselves. Even in the best of circumstances, the Michigan probate courts can be very complex, and matters often get drawn out through endless court hearings. 

Before you enter the probate courts, it is important for you to be fully knowledgeable on what you are trying to achieve, and take key steps to plan ahead while you are able to do so. 

The Patrick & Associates, PLLC. is ready to provide you with guidance and support through situations such as:

• Establishing guardianship for minors and incapacitated adults
• Defending your current position as guardian from a contests
• Terminating or modifying an existing guardianship
• Contesting pending guardianship petitions
• Preparing and filing your annual court-ordered guardianship reports
• Nominating a guardian or successor guardian for you or your children

Want to discuss the unique specifics of your situation? Looking for an attorney who truly understands the complicated issues that often arise in guardianship matters, whether contested or uncontested? We are here for you. 

Our attorney Dean E. Patrick has the legal counseling skills, experience, and dedication that your legal matter deserves. You can trust our office to guide you through the process and deliver results.

Our meeting schedules are flexible in order to accommodate your needs and we work hard to always discuss these complex matters in terms that are easy to comprehend. Our office is conveniently located in Southfield, Michigan and our staff is available 24 hours a day, 7 days a week to receive phone calls and help you with your legal matters.

Ready to learn more? Do not hesitate to give us a call at (248) 663-2566 to set up your initial consultation. You may also click here to get in touch online.

This post has been prepared for general information purposes only. The information you obtain here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and electronic mail.  Accessing the content of this site does not create an attorney-client relationship.  Nor, does contacting us create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Broadly speaking, a guardian is a person who has legal responsibility for another person, and is put in charge of his or her well-being.

Under Michigan’s Estates and Protected Individuals Code (EPIC), a guardian may be needed when an individual cannot make informed general care and control decisions for themselves, whether due to their age or because of a physical or mental impairment.

For children, legal guardianship can provide a safe home and stability after the loss of a parent. Guardianship may also be an appropriate solution when the child’s parent (or parents) will be temporarily absent from his or her life, and unable to provide care. This could be due to any number of circumstances, ranging from incarceration to long-term hospitalization or in-patient mental health treatment. Guardianship may also be a way to provide suitable care for a child when a parent cannot, but there are important legal, psychological, or personal reasons to maintain family ties between the minor and their biological parent.

By definition, becoming a guardian is a legal process. Guardians are appointed by order of the court. Prospective guardians may be nominated by petition, by will, or by another written document signed by the parent and at least two other witnesses. An individual can also petition for full guardianship of a minor in some circumstances.

With that in mind, there are three types of minor guardianship available in Michigan:

• Full guardianship
• Limited guardianship
• Temporary guardianship

General Guardianship of a Minor

Variously known as “general,” “permanent,” “regular,” “ordinary,” or “full” guardianship, this type of guardian is broadly responsible for the care, custody, and supervision of a minor, including facilitating education, proper health care, and helping them protect their finances and property. In addition to caring for the minor, guardians have the responsibility to file an annual written report on their overall condition, including any medical or psychiatric treatment they were subjected to, as well as conditions of the minor’s estate in some cases.

Any person interested in the welfare of a minor can petition the court for the appointment of a guardian, including relatives, friends, caseworkers, or the minor themselves (if he or she is 14 years of age or older). In Michigan, the court may appoint a guardian for an unmarried minor in any number of circumstances.

A guardian may be appointed when the parents’ rights are terminated or suspended by a court order, judgment of divorce, separation, death, judicial determination of mental incompetency, disappearance, or confinement in a place of detention. Likewise, if the minor’s biological parents have never been married to one another and the parent who has custody of the minor dies or is missing, and the other parent has not been granted legal custody under a court order, guardianship may also be established for the minor.  Guardianship may also be awarded when the parent or parents permit the minor to reside with another person, and do not provide the other person with legal authority for the minor’s care and maintenance.

Limited Guardianship of a Minor

Limited guardianship is a court-sanctioned consent arrangement between the minors’ parents and the prospective guardian. A limited guardian has all the powers and responsibilities of a full guardian, with some notable exceptions — specifically, a limited guardian cannot consent to the minor’s marriage or adoption.

Limited guardianship requires voluntary parental consent. The arrangement also requires both the parent(s) and the appointed guardian(s) to agree to a limited guardianship placement plan, which must include:

• The reason for the appointment of the limited guardian
• Arrangements made to maintain the parent/child relationship, including parenting time and means of contact
• The duration of the limited guardianship
• Financial support provided for the minor
• Any other relevant provisions that the parties agree to

Once the limited guardianship plan has been approved by the court, it may be modified upon agreement of the parties and with approval of the court. For children under six years of age, the court reviews the conditions of a limited guardianship on a yearly basis. The parent or parents can withdraw their consent or petition to terminate the limited guardianship at any time by filing the necessary documents. In this situation, the court must discharge the guardianship, but may require a hearing before doing so.

The limited guardian may also petition to be appointed as a full guardian for the minor — however, this petition cannot be based upon the suspension of parental rights that led to the initial appointment of the limited guardian.

Limited guardianship arrangements can be problematic for parents.  Parents considering permitting limited guardianship should contact us immediately at (248) 663-2566 to discuss the dangers of this configuration.

Temporary Guardianship

In cases where a minor’s well-being is at risk and they require short-term protection, the courts may appoint a temporary guardian for a period of six months. During this time, the temporary guardian has all the powers and responsibilities of a full guardian unless otherwise restricted by the court.

The appointment of a temporary guardian may be necessary where immediate decisions about a child’s health or welfare must be made, or in situations where the child’s placement must be secured, pending the outcome of a full hearing on a guardianship petition. The court must hold a hearing and take testimony in order to appoint a temporary guardian.

Guardianship V. Conservatorship

Some states use the terms “guardian of the person” and “guardian of the estate” to refer to the division of responsibilities taken on by a guardian, with the guardian of the person handling the health and well-being of the individual, and the guardian of the estate overseeing financial matters on their behalf.

In Michigan, we use different terms — guardian and conservator.

Generally, we use guardian to refer to an individual who is legally responsible for the care, custody, and control of a minor (or an incapacitated adult). A conservator is a person appointed by a court to manage a protected individual’s estate.

In other words, conservators make decisions about the property or the finances of the person, while guardians make decisions about the person themselves, such as medical or housing decisions.

For minors, conservators may be appointed in situations where the child or young adult owns money or property that needs to be managed or protected, or if significant funds are needed for the minor’s support and education, and protection can help provide those funds. One person or group can act as both guardian and conservator to a minor. Like guardians, conservators have certain responsibilities that must be met, including filing a complete inventory of the ward’s assets promptly after being named as a conservator, and filing an annual accounting of the expenditures, disbursements, and property under their care.

Guardianship Can Be Complex and Emotional. We’re Here to Help

Guardianship can quickly become complicated and fraught — whether you are considering a power of attorney so that a third party can have temporary custody of your child; considering who to nominate as a guardian as part of your estate plan; petitioning for guardianship of a loved one; or contesting the established guardianship or conservatorship of a minor, we are here to help. Just call (248) 663-2566.

Whether contested or uncontested, guardianship matters are highly emotional, and the rules surrounding guardianship proceedings can be confusing. For these reasons, it is important to have a skilled guardianship lawyer who can guide you through this process with integrity and purpose.

Our probate and guardianship attorney Dean E. Patrick can help you navigate through all the legalities, so that you can rest assured that you and your loved ones will be taken care of, whatever life brings.

At the Patrick & Associates, PLLC., we put our legal experience and skills together with our commitment to excellence in representing your rights. You can depend on our firm’s ability to listen to you and our talent for creative strategies to help you get results. You and your family can rest assured knowing that our office is handling your matter with professionalism and expertise.

Want to keep the conversation going? Please do not hesitate to contact Dean E. Patrick for a consultation at (248) 663-2566, or fill out our contact form to get in touch online.