Conservatorship - Patrick & Associates, PLLC

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

Patrick & Associates, PLLC — Mon, 22 Mar 2021 04:20:12 GMT

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.

How to Provide for Someone with Special Needs as Part of Your Estate Plan

Patrick & Associates, PLLC — Sun, 24 Jan 2021 05:39:50 GMT

If you are the parent or sibling of a loved one with special needs, you know the importance of making sure they’re protected and able to enjoy the best possible quality of life. These crucial and meaningful goals should also be considered as part of your estate plan.

A writing from the Special Needs Alliance sums it up effectively:

While planning considerations for such a child will vary depending upon the child’s age, competency, and other family considerations, the goal is always the same: parents want their estates utilized to enhance and enrich the life of their special needs child while maintaining the child’s enrollment in essential public benefits programs.

Let’s explore some of the important considerations to discuss with your estate planning attorney as you seek to provide for your loved one who has special needs, including guardianships, conservatorships, and specialized trusts:

Guardianships and Conservatorships

If your child currently has a guardianship or conservatorship in place, it is important to review those arrangements. In particular, if you are currently serving in the role of guardian or conservator to a person with special needs, it is important to plan ahead, and take steps to ensure that someone of your choosing will be in a position to succeed you when you are unable to serve.

Guardianship

A guardianship may be established when an individual cannot make or communicate informed general care decisions for themselves. In such circumstances, a guardian would act as a substitute decision maker for the individual (known as the “ward.”)

Broadly speaking, a guardian is responsible for providing for the general well-being and care of their ward. 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 each individual’s unique situation.

Generally. depending on the powers granted by the court, a guardian is responsible for the individual’s care and comfort, including providing suitable food, clothing, and shelter; applying for and obtaining services on their behalf; and authorizing or refusing medical treatments.

As Michigan’s Handbook for Guardians of Adults explains, if you are currently serving as guardian for your child of any age, “you may in your will nominate a successor guardian,” who would “take over the guardianship when you die.” This may also be accomplished through another writing signed by the parent and attested by at least two witnesses.The individual in question or another interested person would have the opportunity to object to the appointment of the successor guardian in court.

Conservatorship

A conservator is appointed by the court to manage a protected individual’s estate and finances. Conservatorships are established when an individual can no longer effectively manage his or her own property and financial decisions, generally due to conditions including “mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance.” For a conservator to be appointed, the court must also find 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.

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 all 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 parties.

Conservatorships are important to consider as you begin the process of estate planning. Generally speaking, “a parent of the protected individual or a person nominated by the will of a deceased parent” has high priority to be appointed as conservator if necessary, behind only

A conservator, guardian of property, or similar fiduciary appointed or recognized by the appropriate court of another jurisdiction in which the protected individual resides
An individual or corporation nominated by the protected individual if he or she is 14 years of age or older and of sufficient mental capacity to make an intelligent choice, including a nomination made in a durable power of attorney.
The protected individual’s spouse
An adult child of the protected individual

Whether you are considering who to appoint as a successor guardian or conservator, or you are considering whether creating a guardianship or conservatorship will be necessary when you are no longer around, it is important to get guidance and insights from an experienced local probate attorney.

Guardianship and conservatorship matters are highly emotional, and the rules surrounding these proceedings can be confusing and difficult to parse. There are many steps that one has to take — and it is unwise to go into them without an intelligent and experienced lawyer at your side, fighting for your rights and the well-being of others.

Supplemental (Special) Needs Trust

A trust is a written agreement created by a settlor or grantor, which names an individual who is responsible for managing property transferred into the trust as directed by the trust agreement. Trusts are frequently used in Michigan to supplement estate plans, and can help avoid lengthy probate issues. With that said, it is important to note that there are several different types of trusts that suit different needs — including providing for your loved ones with special needs.

To help illustrate this, let’s consider a (fictional) married couple, Al and Michelle. Al and Michelle have a disabled child, Larry, who is receiving government benefits.

Unaware of the interaction between inheritance and government benefits, Al and Michelle create a simple will that distributes their assets equally among their two children, Larry and his brother Ronald. Michelle and Al eventually pass away within days of each other.

A subject of the probate process, Larry, now without his parents to care for him, receives a letter from the State of Michigan. Without compassion for his situation, the letter reads that the state will be making a claim against his inheritance for the past governmental benefits he had received.

This situation is more common than you might think — and could likely have been avoided with a supplemental (special) needs trust established for Larry’s benefit.

A supplemental (special) needs trust is designed to help your future beneficiaries who happen to be physically, mentally, or developmentally disabled and who are receiving — or are likely to receive — government benefits, such as Supplemental Security Income (SSI).

The structure of a special needs trust helps provide for the continuing care and maintaining quality of life for your loved ones with a disability, while increasing the probability that an inheritance will not disrupt their government benefits.

It is imperative that you create the trust and not leave it to your heirs to do so. These specialized trust structures can be set up through a revocable living trust while you are still alive, or incorporated into your will as an irrevocable testamentary trust.

Trusts are a popular estate planning tool, but it is often essential to receive guidance from an experienced, skillful, and knowledgeable attorney in order to ensure that they are properly established and maintained. You should not hesitate in contacting a professional and shrewd trust attorney, who can help you to assess your estate, find the right type of trust for your needs and goals, and gain a better understanding of the benefits that might result from establishing a trust — particularly if you have a loved one who receives or is likely to receive government benefits in the future.

Keep the Discussion Going with Michigan’s Probate Attorneys

Interested in learning more about the ins and outs of guardianships, conservatorships, and trusts in Michigan? Ready to start making plans for your future, tailored to the specifics of your unique circumstances?

Our skilled law firm is here and ready to assist with all of your estate planning and probate needs, including all of the specialized steps you may wish to consider to provide for and protect your loved ones who happen to be physically, mentally, or developmentally disabled.

If you require further legal advice or if you are looking for representation as you move forward with your estate planning goals, 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 estate planning attorneys at Patrick & Associates, PLLC, will work hard to accomplish your goals, while handling your matter with professionalism and expertise. Mr. Patrick and his team 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.

What Are the Powers and Duties of a Conservator in Michigan?

Patrick & Associates, PLLC — Mon, 23 Nov 2020 05:34:17 GMT

As defined by Michigan’s Estates and Protected Individuals Code (EPIC), a conservator is a person appointed by a court to manage a protected individual’s estate.

Conservators take on an incredibly important set of responsibilities, which can change and develop over time based on the needs of the protected person and the complexity of their assets and finances, known collectively as their estate.

As the Michigan Long Term Care Ombudsman Program puts it in its Handbook for Conservators of Adults:

Being a conservator is not a simple role, but one demanding responsibility, patience, ability to work with finances and sensitivity. There are a number of duties you owe to the person you have agreed to assist. There are also duties you owe to the court… How complicated serving as conservator will be, and how much time it will take, depend on a number of factors: the value of the property, the types of assets, the needs of the individual, whether there are dependents, and the extent of cooperation among family members.

It is important to note that the responsibilities of a conservator are different from those of a guardian — though the same person may be appointed to serve in both roles. Ultimately, guardians can be said to make personal decisions on behalf of the protected person, such as medical or housing decisions. In contrast, conservators make decisions and take action regarding property and finances.

Conservatorships must be established in the probate court. Even under the best of circumstances, these cases are often highly emotional, and the rules surrounding the appointment, removal, and duties of a conservator can be confusing. As you look deeper into conservatorships, it may prove important to consult with an experienced probate and conservatorship attorney, who can fight for your rights and the well-being of others.

Interested in learning more? Let’s explore the powers, duties, and responsibilities of a Michigan conservator in a bit more depth:

How Is a Conservator Appointed?

Generally speaking, a conservator is appointed in three main steps, as the Michigan Bar Association explains in a writing:

A petitioner files with the courts to begin a proceeding.
The court takes action to review the facts and ensure that proper procedures are followed, such as appointing a guardian ad litem to represent the subject of the petition.
A hearing is held, at which the judge will determine if a conservatorship is required based on “clear and convincing evidence.” If so, the court will then appoint a conservator who is suitable and willing to serve.

When is a conservatorship necessary?

In Michigan, the court may appoint a conservator or make another protective order in situations where:

The individual is unable to manage their 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.
The individual has property that will be wasted or dissipated unless proper management is provided
Protection is needed in order to obtain or provide money that is needed for the individual’s support, care, and welfare
The individual is mentally competent but requests a conservator’s appointment due to age or physical infirmity

During a typical conservatorship proceeding, the court may have a guardian ad litem, physician, or mental health professional examine or evaluate the subject of the petition in order to consider whether there might be an appropriate alternative to conservatorship, or consider “limiting the scope and duration of the conservator’s authority” in situations where conservatorship is appropriate.

Broadly speaking, the court’s goal is to “encourage the development of maximum self-reliance and independence of a protected individual,” and “shall make protective orders only to the extent necessitated by the protected individual’s mental and adaptive limitations and other conditions warranting the procedure.”

This could result in the court narrowing the scope of the conservatorship by, say, authorizing the protected person to autonomously handle part of their money or property outside of the supervision of the conservator.

Who can petition for the creation of a conservatorship?

There are multiple parties who may petition for a conservator’s appointment, including:

The individual to be protected
An interested person in the individual’s estate, affairs, or welfare, such as a parent or guardian
A person who might be adversely affected by a lack of effective management of the individual’s property or business affairs

A petition for conservatorship must explain the petitioner’s interest, explain why a conservator’s appointment is necessary, and state some crucial information, including

the name, age, residence, and address of the individual to be protected
the name and address of their guardian, if any
the name and address of the nearest relative known to the petitioner
a general statement of the individual’s property with an estimate of the value of the property, including compensation, insurance, a pension, or an allowance to which the individual is entitled

Who can be appointed as a conservator?

Under Michigan law, the court may appoint “an individual, a corporation authorized to exercise fiduciary powers, or a professional conservator” to serve as conservator of a protected individual’s estate.

Broadly speaking, consideration for appointment uses the following order of priority:

A conservator, guardian of property, or similar fiduciary appointed or recognized by the appropriate court of another jurisdiction in which the protected individual resides
An individual or corporation nominated by the protected individual if he or she is 14 years of age or older and of sufficient mental capacity to make an intelligent choice, including a nomination made in a durable power of attorney.
The protected individual’s spouse.
An adult child of the protected individual.
A parent of the protected individual or a person nominated by the will of a deceased parent.
A relative of the protected individual with whom he or she has resided for more than 6 months before the petition is filed.
A person nominated by the person who is caring for or paying benefits to the protected individual.

A person named in the categories above may also designate a substitute to serve in their place, which transfers the priority to the named substitute. If multiple parties have equal priority, the court will select the person the court considers best qualified to serve. The court may also pass over a person having priority and appoint a person having a lower priority or no priority, if it deems that it is in the protected person’s best interest to do so.

Generally speaking, the court may require a conservator to furnish a bond “conditioned upon faithful discharge of all duties of the conservator’s trust according to law, with sureties as the court specifies.”

Conservators are entitled to reasonable compensation from the estate, if not otherwise compensated for services rendered.

When Does a Conservatorship End?

A conservatorship can be modified or terminated in a number of different circumstances. Generally speaking, the protected individual, the conservator, or another interested person can petition for a termination of the conservatorship at any time.

The court may also remove a conservator for good cause upon notice and hearing, or accept a conservator’s resignation. A conservatorship also terminates upon the death of the conservator. Upon the conservator’s death, resignation, or removal, the court may appoint another conservator, who succeeds to the title and powers of their predecessor.

What Are the General Powers, Duties, and Responsibilities of a Conservator?

As EPIC puts it:

“In relation to powers conferred by this part or implicit in the title acquired by virtue of the proceeding, a conservator shall act as a fiduciary and observe the standard of care applicable to a trustee.”

More specifically, the conservator is responsible for a number of specific duties and responsibilities, including:

Maintaining Inventory and Records

Very shortly after appointment, a conservator is required to prepare and file a complete inventory of the estate subject to the conservatorship, and provide a copy to the protected individual and other interested persons. Conservators are expected to keep suitable records of their activities relating to the administration of the protected individual’s estate, and be ready to exhibit those records upon request from an interested person.

Providing Regular Accounts

A conservator is expected to account to the court at least once per year, upon resignation or removal, and at other times as directed by the court. A conservator may also be asked to submit to a “physical check of the estate to be made in any manner the court specifies.”

Acting In the Best Interests of the Estate

A conservator is a fiduciary, meaning that they have a duty to act with undivided loyalty, impartiality, care, and prudence. Fiduciaries are expected to keep assets held in the fiduciary capacity separate from their own, and conform to the Michigan prudent investor rule.

For conservators, this means taking actions that are in the best interest of the protected individual, while avoiding self-dealing and conflicts of interest.

Generally speaking, EPIC states that “a sale, encumbrance, or other transaction involving the investment or management of estate property in which the conservator has a substantial beneficial interest or that is otherwise affected by a substantial conflict between the conservator’s fiduciary and personal interests, is voidable” unless:

The transaction is approved by the court after notice
The transaction involves a contract entered into or claim acquired by the conservator before the person became or contemplated becoming conservator.
The transaction is otherwise permitted by statute.

Administering the Protected Individual’s Estate

The conservator is conferred a broad array of powers in order to administer the protected individual’s estate, including but not limited to:

Collecting, holding, or retaining estate property
Receiving an addition to the estate
Continuing or participating in the operation of a business or other enterprise. Consenting to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise.
Investing or reinvesting estate property, in accordance with the Michigan prudent investor rule.
Depositing estate money in a state or federally insured financial institution
Acquiring, disposing of, developing, or managing estate property, including land in another state. This includes making an ordinary or extraordinary repair or alteration in a building or other structure, demolishing an improvement, or razing an existing or erect a new party wall or building.
Voting a security, in person or by general or limited proxy. Selling or exercising stock subscription or conversion rights.
Insuring estate property against damage or loss
Borrowing money to be repaid from estate property or otherwise.
Advancing money for the protection of the estate or the protected individual, and for all expenses, losses, or liabilities sustained in the estate’s administration or because of the holding or ownership of estate property.
Paying or contesting a claim; settling a claim by or against the estate or the protected individual by compromise, arbitration
Paying taxes, assessments, compensation, or other expense incurred in the estate’s collection, care, administration, and protection.
Employing a person, including an auditor, investment advisor, attorney, or agent, to advise or assist in the performance of an administrative duty

Broadly speaking, conservators also have distributive powers, and may expend or distribute estate income or principal “for the support, education, care, or benefit of the protected individual or the protected individual’s dependents” based on factors such as the recommendation of a guardian, the size of the estate, and the accustomed standard of living of the protected individual and their dependents.

In certain situations, a conservator for a protected individual other than a minor also has the power to make a gift to charity or another object, as the protected individual might have been expected to make, as long as they stay below a certain threshold.

The conservator is also expected to take action in the event of the death of the protected individual — including delivering their will to the court, informing the personal representative named in the will of the delivery, and retaining the estate to be delivered to a duly appointed personal representative.

The court may also limit the powers of a conservator. The court also has powers over the protected individual and their estate and business affairs, which it may exercise directly, or through a conservator. Finally, the court may exercise or approve certain actions only after a hearing to determine whether it is in the protected individual’s best interest — such as renouncing or disclaiming an interest, or changing a beneficiary under an insurance and annuity policy.

Have Any More Questions About Conservatorships in Michigan?

If you are ever in a position where you must consider conservatorship for a loved one, it’s important to be prepared. Our probate attorney Dean E. Patrick understands the ins and outs of the complex Michigan probate court system, and can provide expertise and assistance with matters including:

Establishing, terminating, modifying, or contesting a conservatorship
Defending your current position as conservator
Removing an acting conservator who has failed in their duties
Filing conservatorship accounts

If you have further legal questions or 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 consultation initial consultation. You may also click here to get in touch online.

Conservatorship matters are emotional and difficult, and the Michigan probate courts can be tricky; it’s important that you take steps to receive the expert legal advice you and your loved ones deserve. 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.

FAQ: What Is the Estates and Protected Individuals Code, or Epic?

Patrick & Associates, PLLC — Thu, 12 Nov 2020 05:05:44 GMT

If you spend any time researching matters relating to guardianships, conservatorships, wills, trusts, and estate administration in Michigan, you’re bound to come across the phrase “EPIC.” Short for “Estates and Protected Individuals Code,” this refers to the act that governs matters relating to the administration of estates of deceased persons and protected individuals in our state. These are matters over which the probate court has exclusive jurisdiction.

Curious about all things EPIC? Let’s take a look at the history behind this important act — and what it means for Michigan probate matters in 2020 and beyond.

A Brief History of Michigan’s Estates and Protected Individuals Code (EPIC)

The early nineteenth century saw the beginnings of Michigan’s modern legal system. In its early days, Michigan’s legal system consisted of appointed justices, who served on courts including “The Court of Common Pleas” or “The Court of General Quarter Sessions.” The courts continued evolving from there, including the formation of the probate court system.

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.

Throughout its history, Michigan’s probate courts have been governed by several different codes, including the 1939 Probate Code, and the Revised Probate Code (RPC), which was enacted in 1978. Signed into law in 1998 and becoming effective in April of 2000, EPIC was devised to replace the RPC.

In a contemporaneous writing, the State Bar of Michigan heralded EPIC as “the most important piece of legislation affecting probate and trust administration in over 20 years.”

As the State Bar explains, EPIC retained some of the “unique and essential features” of Michigan law, while also serving as a true integration of the Uniform Probate Code (UPC) — an act meant to streamline and standardize matters relating to inheritance and decedents’ estates across the United States, which has been adopted in full or in part by 18 states.

Preparation of EPIC took more than seven years, and included input from legal practitioners, probate judges, probate registers, and financial professionals.

What Does The Estates and Protected Individuals Code (EPIC) Do?

As described in the act itself, EPIC is intended to:

revise, consolidate, and classify aspects of the law relating to wills and intestacy, relating to the administration and distribution of estates of certain individuals, relating to trusts, and relating to the affairs of certain individuals under legal incapacity.

By extension, EPIC also includes provisions governing many of the transfers, contracts, and deposits relating to these matters, including the facilitation of trusts.

EPIC also provides for the powers and procedures of the probate court, which has jurisdiction over these matters.

More specifically, EPIC’s primary purposes are to:

Simplify and clarify the law concerning the affairs of decedents, missing individuals, protected individuals, minors, and legally incapacitated individuals.
Discover and make effective a decedent’s intent in distribution of the decedent’s property.
Promote a speedy and efficient system for liquidating a decedent’s estate and making distribution to their successors.
Provide for a uniform law among various jurisdictions, both within and outside of the state.

EPIC applies to the affairs and estates of decedents, missing individuals, and protected individuals living in Michigan; as well as a nonresident’s property located in this state. EPIC also applies with regards to trusts subject to administration in Michigan, as well as survivorship and related accounts.

As the State of Michigan explains in a writing, protected individuals are “persons who by reason of their age or physical impairment cannot manage their own affairs,” including incapacitated individuals and minors.

EPIC and the Michigan Probate Court

Under EPIC, the court is granted “exclusive legal and equitable jurisdiction” of all of the following:

Matters relating to the settlement of a deceased individual’s estate.

This includes both testate and intestate estates subject to administration in Michigan. A testate estate is one that involves the probate of a decedent’s will, while intestate estates are those where there is no will. The court may be involved in proceedings relating to the internal affairs of the estate; estate administration, settlement, and distribution; the construction of a will; determination of heirs; determination of death; and the rights of devisees, heirs and fiduciaries connected to the estate.

Proceedings involving trusts.

EPIC grants the court exclusive jurisdiction over proceedings concerning the validity, settlement, administration, distribution, modification, reformation, or termination of a trust, as well as the rights and obligations of trustees and trust beneficiaries — including appointing or removing a trustee, ascertaining beneficiaries, and resolving questions stemming from the administration of a trust.

Proceedings that concern guardianships, conservatorships, and protective proceedings.

This includes matters relating to the protection of an individual under disability, and his or her property. As the Probate Court of Kent County explains:

If a conservator or guardian of the estate is appointed, the Court must then monitor the continuing proceedings to ensure that the required annual accounts are filed and approved, showing that the assets are being held and used for the benefit of the ward. The Court also conducts hearings regarding disputes that arise concerning conservatorships and petitions to terminate or modify conservatorships.

Proceedings to require, hear, or settle the accounts of a fiduciary.

This includes ordering instructions or directions to a fiduciary that concern an estate within the court’s jurisdiction, particularly upon the request of an interested person.

Interested In Learning More About Probate In Michigan?

When you have a foot problem, you go to the podiatrist. When you have a heart problem, you go to the cardiologist. When you want to estate plan or are forced into the probate court, you need to go to an established probate and estate planning attorney. That’s where we come in.

Attorney Dean E. Patrick focuses on:

Estate planning, including wills and trusts
Estate administration and settlement, including mediation
Incapacity planning, including powers of attorney for health care and finance
Guardianships, whether contested or uncontested
Conservatorships, whether contested or uncontested
Probate litigation, including will and trust contests
Fiduciary services, including trusteeships and conservatorships

You and your family can rest assured knowing that our office is handling your matter with professionalism and expertise. Our meeting schedules are flexible in order to accommodate your needs and we work hard to discuss these difficult 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.

Have any more questions? Ready to get started? Contact Dean E. Patrick at his Southfield office at (248) 663-2566, or click here to arrange your initial consultation.

Managing Bills and Expenses for a Sick or Aging Parent: What Michigan Families Need to Know

Patrick & Associates, PLLC — Thu, 15 Oct 2020 04:54:42 GMT

For many families, the responsibility for managing an elderly parent’s finances often falls to members of the “Sandwich Generation” — that is, their adult children, many of whom juggle senior care while raising kids of their own at the same time.

If you are considering stepping in and helping an elderly loved one to take care of their bills and expenses, it is important to understand all of the crucial steps you must take — and all of the mechanisms available to help you protect your loved one and empower them to maintain control, should they ever become incapacitated and unable to handle their own affairs.

Should you find yourself in a position where you must take action to manage an aging parent’s bills, expenses, and assets, know that you are not alone.

Many older adults find it more difficult to manage money and financial matters over time, for any number of reasons. Physical restrictions, for example, can make it harder for elderly adults to access their safety deposit boxes, maintain their real estate investments, or even sign checks. Memory loss, dementia, and other cognitive changes can affect a senior’s ability to handle financial matters and communicate effectively with family members or advisors. Many older adults may have been dependent on a spouse to handle the family finances, and find themselves unable to keep up now that they’re gone. Others find themselves coping with health challenges that can make it hard to stay current on their bills — while adding to their expenses, each and every day.

What’s more, financial security experts agree that older adults are uniquely vulnerable to financial abuse or manipulation. In fact, one report cited by CNBC suggests that senior citizens collectively lose more than $3 billion a year to scams and fraud.

For older adults, the consequences of mismanaging one’s finances could be significant, even beyond the very real risk of falling victim to fraud or undue influence. Failing to keep up with mortgage or rent payments could result in foreclosure or eviction. Forgetting to pay the utility bills could result in losing access to heat or power. Reckless spending may cause seniors to lose their nest eggs, or permanently damage their credit.

Talking About Finances With a Senior Loved One: Getting the Conversation Started

Many older adults expect to turn to their adult children for assistance with handling financial matters. However, studies suggest that there may be somewhat of a breakdown when it comes to communication on these important topics.

A 2016 study published by the financial services firm Fidelity, for instance, found that 69 percent of parents expect one of their children to “help manage their investments and retirement finances” — yet “more than one-third (36 percent) of the kids identified as filling this role didn’t know this.“

The same study found that 34 percent of parents have not had “detailed conversations” about their living expenses in retirement — while another 16 percent “have not had any conversations on the topic at all.”

As a loving and concerned family member, it may fall to you to take action and move these crucial discussions forward. As with conversations around estate planning, probate, and other sensitive life topics, it may help to start these conversations early — that is, before you and your parents face an emergency or crisis that requires quick action. As much as possible, work with your parents, and be patient and empathetic to their needs and concerns. Don’t expect to handle all of these weighty topics in one go. Many people also find it beneficial to begin more casually, and enter into these big conversations by starting small — by, say, focusing on a recent news story, or talking about a situation faced by a family friend or relative.

In other cases, it may help to bring in an outside mediator. An experienced and trusted attorney, for instance, can help you advance the conversation while addressing everyone’s concerns and helping you to gain a better understanding of the many courses of action available based on your unique situation.

Of course, there may also be a time when adult children “need to be more hands-on,” as Eileen Ambrose and Sandra Block once noted in an article for Kiplinger. This may include getting to know your parents’ financial advisors, while also taking steps to learn more about their assets “and how they have been spending money” — such as helping your parents to review their monthly bills, credit card statements, insurance policies, benefit plans, and other financial records.

Taking time to perform this oversight may result in you noticing some red flags that something is amiss — such as your parent regularly missing important bill payments, or racking up unusual charges on their bank or credit card statements. If an elderly loved one is unable to talk about their finances, explain their decisions, or keep track of different accounts and records, this could also be an indicator that additional help is warranted.

Managing a Sick or Aging Parent’s Finances

Whether your loved one simply needs an extra set of eyes to safeguard their financial well-being, or requires more significant intervention to protect their finances, it’s important to have an understanding of all of the options and legal mechanisms available.

In some cases, older adults may prefer an arrangement that empowers a trusted family member to help out, such as creating a joint bank or credit card account. As the AARP notes, this is often one of the “easiest” ways “to pay a loved one’s bills and keep track of expenses:”

If your loved one is in the early days of a progressive disease such as dementia or amyotrophic lateral sclerosis (ALS), having a second person on the account is essential. When needed, that person can step in as a money manager to pay bills, make deposits and withdrawals, and monitor the balance to make sure your loved one is not being scammed or financially exploited.

However, this arrangement is not without risks. If an untrustworthy person is granted account access, they could easily steal from the senior. This situation may also open up family members to the responsibility of having to deal directly with creditors, and creating the arrangement could contribute to family discord and disagreements.

Oftentimes, a family member’s options to interface with financial institutions or help a senior parent or loved one manage their finances can be quite limited unless the child is made a fiduciary — that is, someone who is authorized to act on behalf of their parent. A fiduciary is held to a high legal standard of conduct, and is expected to act fairly and put the needs of the individual and their estate above their own.

For Michigan families, there are many different courses of action and legal mechanisms to consider based on your specific situation, including:

Powers of Attorney

A power of attorney for financial matters is a legal document that gives someone of your choosing (known as the agent or attorney-in-fact) the right to handle your financial affairs. A durable power of attorney allows this authority to remain in place should you ever become incapacitated — meaning that you do not need to give up control of your affairs while you still have the capability to manage them, but can sleep well knowing you have a plan in place in case you do not.

Creating a power of attorney does not require the involvement of the court. As long as you are of sound mind and body, you can execute a valid durable power of attorney by signing the document in front of a notary or two witnesses. Powers of attorney can be quite broad or limited in scope, depending on the circumstances. In addition to planning for incapacity, older adults may consider using powers of attorney to grant a trusted loved one the ability to deal with a specific account, access their financial records, pursue claims or actions on their behalf, or handle a specific financial transaction when they cannot manage it on their own.

Trusts

A trust is a written agreement which names an individual who is responsible for managing select property and assets, as directed by a trust agreement. This person is known as the trustee; the person who creates the trust is known as the settlor or grantor.

There are many different types of trusts, designed for any number of different circumstances. Broadly speaking, once a trust is created, the settlor must retitle their chosen assets into it — this could include investments and securities, tangible personal property, bank accounts, business interests, and real estate.

One of the most popular and common types of trusts used in Michigan is the revocable living trust. Also known as an inter vivos trust, this type of trust can be filled, modified, or revoked as long as the grantor is of sound mind. Most commonly, the grantor will name themselves as the trustee, in order to maintain control over the trust assets for as long as they are able to do so. Should the settlor ever become unable to perform their duties as trustee due to incapacity or death, a successor trustee would be granted the legal responsibility of managing the trust assets.

In other cases, an older adult may choose to name a trusted family member or professional fiduciary as the trustee immediately, in order to give them the power to control, maintain, and distribute the trust assets. For example, this could allow an adult child to assume the responsibility for managing investments or selling real property placed into the trust, ensuring that any relevant transactions are able to move forward.

Conservatorship

A conservator is a person appointed by a court to manage the assets, property, and finances of a protected individual. Conservatorships are established when a court determines that an individual can no longer effectively manage his or her own property and financial decisions 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.” The court must also find 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.

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.

Anyone interested in an individual’s estate, affairs, or welfare may petition for conservatorship; 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. When considering the need for a conservatorship, the courts will consider if the individual has any other alternative solutions in place, such as a durable power of attorney. Establishing a conservatorship can be complex, time intensive, and may open the door to heated family disagreements and litigation. Bear in mind that the decision to appoint a conservator for an individual is a very serious matter, since, ultimately, the Michigan probate court will take away some of the individual’s basic rights.

Guardianship

If an aging parent has become incapacitated and unable to take care of their basic needs, a guardianship may also be considered.

Broadly speaking, a guardian is a substitute decision-maker for an incapacitated individual (known as the “ward”). Guardians are responsible for looking out for the general well-being and care of their ward. Whereas a conservator is responsible for the care and preservation of all the individual’s assets and property, a guardian is broadly responsible for making medical, housing, and other personal decisions for them. This might include providing suitable food and clothing; providing shelter and determining where the individual lives; applying for specialized services on their behalf; and authorizing or refusing medical care.

As with a conservatorship, establishing a guardianship requires going before the probate court. In order for a guardian to be appointed, a concerned individual must file a petition explaining why the guardianship is needed. A hearing is then 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.

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, Michigan’s Estates and Protected Individuals Code (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.”

You Don’t Need to Face These Complex Decisions Alone

If you are one of the millions of people here in Michigan and around the country acting as a caregiver for an aging parent, it is important to understand all of your options and find a workable path forward.

There are many personal factors and pressing decisions involved when it comes to assuring that your loved one’s finances will be managed, their well-being taken care of, and their wishes carried out when they can no longer make or communicate informed financial decisions for themselves.

Talking with an experienced attorney is a crucial first step to protecting your loved ones. A knowledgeable estate and probate attorney can help you get a handle on the specifics of your unique circumstances, consider all of the courses of action available to you and your family, and prepare in advance for any potential complications or difficulties that may arise.

We’re Here to Help You Protect the Important Things

Interested in discussing incapacity planning for yourself or a loved one? Do you have questions about any type of estate planning tool or technique? Ready to start getting a handle on the specifics of your unique situation?

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 law firm’s ability to listen to you and our talent for creative strategies.

If you have any more questions or are looking for representation as you navigate Michigan’s tricky probate court system, don’t hesitate to contact our office at (248) 663-2566 to set up your initial consultation. You may also click here to get in touch online.

Power of Attorney, Guardianship, and Conservatorship: Understanding the Differences

Patrick & Associates, PLLC — Tue, 12 May 2020 04:10:02 GMT

What would you do if you found yourself in a position in which you needed to act on behalf of an incapacitated spouse, parent, or sibling — or required someone trustworthy to carry out your wishes and manage your affairs? To navigate these tricky situations with confidence and peace of mind, it’s crucial to understand some key concepts, including guardianship, conservatorship, and powers of attorney.

Looking to the Future

Planning for the future can be intimidating, even downright scary. While it’s never fun to think about what might happen if you or someone you love were to sustain a major injury or succumb to illness, it is a necessary step — and one that can make difficult situations much easier to manage down the line for you and your loved ones.

Considering the best path for managing your affairs if you become gravely ill or incapacitated? There are several important precautions you can take to help ensure that your wishes are respected and carried out efficiently, in a way that protects your family’s privacy, maintains family control, and helps you attain your most important goals.

Similarly, if you are one of the millions of people here in Michigan and around the country caring for an aging parent or spouse, you may be wondering about the best way to ensure that their finances will be managed, their well-being taken care of, and their wishes carried out when they can no longer make or communicate informed decisions for themselves.

Whether you are planning for your own future or looking to help out a loved one who cannot take care of themselves, it is important to understand the mechanisms that may come into play — including guardianship, conservatorship, and powers of attorney.

As you look forward, it’s particularly crucial to understand what sets powers of attorney apart from guardianship and conservatorship. With this knowledge, you can get a better grasp on all of your options and find the course of action that will be suited to your unique circumstances.

Guardianship

When an individual cannot make or communicate informed general care decisions for themselves, a guardianship may be established through the probate court.

Broadly speaking, a guardian is a substitute decision-maker for an incapacitated individual (known as the “ward”). Guardians are responsible for looking out for the general well-being and care of their ward, as necessary.

Accordingly, Michigan’s Estates and Protected Individuals Code (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.”

Depending on the powers granted by the court, a guardian generally has the responsibility to provide for the individual’s care and comfort, including providing suitable food, clothing, and shelter. Guardians may also determine where another individual lives, apply for and obtain services on their behalf, and authorize or refuse medical treatments, unless other provisions are made (such as a patient advocate designation in a durable power of attorney for health care).

Keep in mind that guardianship is a legal process, which requires going before the probate court. In order for a guardian to be appointed, a concerned individual — which could be the incapacitated individual, or any person interested in their welfare, such as family member (or in some awful cases, the management of a nursing home that just wants to get their patient qualified for Medicaid to pay their bill) — must file a petition, explaining why the guardianship is needed.

After this, a hearing is 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.

Conservatorship

Broadly speaking, a conservator is a person appointed by a court to manage a protected individual’s estate and finances. Conservatorships are established when an individual can no longer effectively manage his or her own property and financial decisions.

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 all 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 parties.

In order for a conservator to be appointed, the court must find that 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 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.

Powers of Attorney (POA)

Broadly speaking, a power of attorney is a written instrument that gives legal authority to a third party (known as the “agent” or “attorney in fact”) to act on the behalf of someone else (known as the “principal”). In estate planning, power of attorney (POA) is a tool that can be used to ensure that someone you trust manages your financial and health care decisions when you no longer can.

With powers of attorney, you can exert a great deal of control over your chosen agent, granting them broad power to make decisions on your behalf, or limiting their scope to only a few pressing matters.

When you’re considering your future or thinking about estate planning, it is imperative that the power of attorney used can be classified as a “durable” power of attorney. A durable POA contains specific language that ensures your agent can act even if you become incapacitated, while keeping the power in your hands for as long you can make decisions for yourself.

In Michigan estate planning, there are several important types of powers of attorney to know, including:

Durable Power of Attorney for Finance. This is a legal document that gives the agent of your choice the right to handle your financial affairs if you become incapacitated, including transferring assets into a trust, pursuing claims or actions on your behalf, managing business affairs, selling property, and more.
Durable Power of Attorney for Health Care. This is a legal document that gives someone of your choosing the right to handle your health care decisions if you become incapacitated, including treatments and end-of-life decisions. This person is known as an agent or patient advocate. A durable power of attorney for mental health, similarly, names an advocate to handle your mental health care decisions if you become incapacitated. A patient advocate is obligated to act in your best interest and take reasonable steps to follow all of your expressed desires, preferences, and instructions relating to your care.

Creating powers of attorney does not require the involvement of the court. As long as you are of sound mind and body, you can execute a valid durable power of attorney by signing the document in front of a notary or two witnesses. If you want to keep the courts and public out of your business, powers of attorney are most likely right for you.

Guardianship V. Conservatorship V. POA: Key Points to Consider

Now that we’ve discussed the basics behind guardianship, conservatorship, and powers of attorney, we can explore their unique potential advantages and disadvantages — and how these different elements may fit into an overall estate plan.

Whether you are taking steps to prepare for your own future, or have concerns about a family member’s ability to make important financial and personal decisions down the line, it is highly important to create powers of attorney while you are able to do so.

A power of attorney grants you a significant level of control over who will make decisions on your behalf should you become incapacitated, without having to go to the courts. Powers of attorney also give you significant control over the scope of the action that your agent or advocate can take. Because they can be handled without a judge, powers of attorney can help safeguard your privacy, while saving you and your loved ones a significant amount of time and effort.

Significantly, powers of attorney can also help guide a court’s decision on guardianship and conservatorship hearings. When considering the need for guardianship or conservatorship, the court must consider whether there are appropriate alternatives to the appointment of a guardian or conservator such as valid patient advocate designations, do-not-resuscitate orders, physician orders for scope of treatment form, or durable power of attorney with or without limitations on purpose, authority, or duration.

Importantly, a principal may also use a durable power of attorney to nominate a guardian for consideration by the court. This approach gives an individual the ability to nominate who they would want as guardian or conservator instead of leaving it to the court and Michigan Law.

When appointing a guardian, the court makes selection in a certain order of priority, with preference going to a person chosen by the individual, or a person nominated as guardian in a durable power of attorney or named as a patient advocate. With proper planning, this order of priority can be altered as you see fit. Perhaps you have a friend who is better suited than a family member (or no family at all) to handle these important decisions.

If no person is chosen, nominated, or named, however, the role of guardian may fall to the individual’s spouse, adult child, or another relative. Ultimately, if no one from the incapacitated individual’s family is willing or suitable to serve, the responsibility may go to a person nominated by the petitioner, or a professional guardian chosen by the court.

A similar process occurs with conservatorships, with priority to serve granted to an individual or corporation nominated by the protected individual, including a nomination made in a durable power of attorney, followed next by the individual’s spouse, adult children, and relatives. With conservatorships, a person nominated may also designate a substitute to serve in their stead, subject to approval by the court. The court may also appoint a professional conservator if no one else is willing or suitable to serve.

A power of attorney, then, is a way to help ensure that someone you know and trust will be empowered to handle your financial or health care decisions — not a court-appointed guardian or conservator. If you do not take control when you can, you are leaving some incredibly important decisions up to the courts. Think of powers of attorney as a form of insurance. While we all hope we don’t need to use the insurance we pay for, we are glad it’s there when we need it. You do not give up control of your affairs while you still have the capability to manage them, but can sleep well knowing you have a plan in place in case you do not.

Finally, it’s important to remember that even under the best of circumstances, the legal proceedings around guardianship and conservatorship can be complex and time-intensive for everyone involved. These matters are highly emotional and the rules involved can be confusing and difficult to navigate — particularly when questions or disputes arise.

The decision to appoint a conservator or guardian for an individual is a very serious matter, since, ultimately, the Michigan probate court will take away basic rights from an individual. It is intrusive by nature and comes with long-term duties and responsibilities — and is not something to be taken lightly.

Keep the Discussion Going with Metro Detroit’s Probate and Guardianship Attorneys

Interested in learning more about guardianship and conservatorship in Michigan? 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, and powers of attorney.

If you require further legal advice 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 consultation initial consultation. You may also click here to get in touch online.

The probate attorneys at Patrick & Associates, PLLC 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.

In Michigan, What Does It Mean to Be Incapacitated?

Patrick & Associates, PLLC — Wed, 15 Apr 2020 04:10:37 GMT

In Michigan, it’s incredibly important to understand the concepts of guardianship and conservatorship — two legal ways to help maintain the well-being of an individual who is not able to care for themselves. In order to grasp the reality of guardianship and conservatorship issues, it’s also crucial to know what it means to be incapacitated, as this designation is not always as straightforward as one might assume.

Michigan Guardianship and Conservatorship

Guardianship can be established through the probate court when an individual cannot communicate or make informed general care and control decisions for themselves. Broadly speaking, a guardian is a substitute decision maker for an incapacitated individual. And, in short, the guardian looks out for the incapacitated individual’s general well-being and care.

Depending on the powers granted by the court, a guardian has the responsibility to provide for the individual’s care and comfort, including providing food, clothing, and shelter. Guardians may also determine where another individual lives, apply for and obtain services on their behalf, and authorize or refuse medical treatments, unless other provisions are made.

Conservatorship, meanwhile, can be established if an individual can no longer effectively manage his or her own property and finances. In this event, a conservator can be appointed by the probate court to manage the estate and finances of the individual. Once appointed, the conservator is responsible for the care and preservation of all the assets of the legally protected person.

One person or organization can serve as both guardian and conservator for an individual, though these roles may also be given to separate parties.

The decision to appoint a conservator for an individual is a very serious matter, since the Michigan probate court will ultimately take away some of an individual’s basic rights. The appointment of a conservator or guardian is intrusive by nature, and these matters can become highly emotional and sensitive.

If you would like to control who will make these decisions if you become incapacitated, contact our office to discuss powers of attorney for health care and powers of attorney for finance.

What Does It Mean for an Individual to be Incapacitated?

Broadly speaking, guardianship and conservatorship may be considered for minors, or for 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, Michigan’s Estates and Protected Individuals Code (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.

An individual is considered legally incapacitated if they have “been adjudged by a court to be an incapacitated individual,” or if “a guardian is appointed under” the relevant act. In Michigan, incapacitated individuals are considered to be protected individuals, a broad classification referring to persons who by reason of their age or impairment cannot manage their own affairs.

It’s crucial to understand that incapacity is a legal concept, which must 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 guardianships to the specifics of the individual’s situation, as necessary.

With this in mind, Michigan law is meant to “encourage the development of maximum self-reliance and independence in the individual.” This means that, for a guardian to be appointed, the court must find:

by clear and convincing evidence both that the individual for whom a guardian is sought is an incapacitated individual and that the appointment is necessary as a means of providing continuing care and supervision of the incapacitated individual, with each finding supported separately on the record.

Meanwhile, EPIC also 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.”

For a conservator to be appointed — or for the court to make another protective order in relation to an individual’s estate and affairs — two criteria must be met:

(a) 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.

(b) 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.

The court may also appoint a conservator to manage the affairs of an individual who is mentally competent, but who requests the appointment. This may be done because the individual recognizes that they are unable to manage their property and affairs effectively, due to age or physical infirmity.

Potential Guardianship and Conservatorship Issues

Guardianship and conservatorship are complex matters, and can quickly become even more complicated and time-intensive when questions or disputes arise.

As you start to think about the need for establishing a guardianship or conservatorship for yourself or an important individual in your life, it’s important to consider the many steps that one must take, and the issues that might come up, including:

Considering alternatives to guardianship and conservatorship. Oftentimes, individuals may be encouraged to pursue less intrusive alternatives to guardianship and conservatorship. For instance, if an incapacitated individual has a durable power of attorney for finances and healthcare or a patient advocate designation, this may negate the need for a guardian or conservator.
Disputes and contests. Both guardianship and conservatorship proceedings can be contested by other interested parties — including the alleged incapacitated individual. Often, disputes arise when there is a disagreement over who should be appointed as a guardian or conservator, or whether the appointment is truly necessary and beneficial for the protected individual.
Choosing the right guardian. Nominating a guardian to care for yourself or an incapacitated adult child often requires a good deal of thought and care. It’s important to consider candidates carefully, weighing factors such as their experience and background, trustworthiness, communication style, and location.
Executing your responsibilities as a guardian or conservator. Serving as a guardian or conservator is not a matter to be taken lightly. Both roles come with important responsibilities and duties owed to the person in your care, and to the court. As one example, after their appointment conservators must promptly file an inventory with the court of all the assets belonging to the adult now under their care. A conservator is also responsible for filing verified reports with the court on an annual basis. Similarly, guardians are required to prepare a file report with the probate court on the condition of the incapacitated individual once a year, among other important duties.
Modification and termination. The individual or another interested person may petition the court to modify or terminate a guardianship or conservatorship, or have a guardian or conservator removed because of a failure to fulfill their duties. The court may also update a guardian or conservator’s powers if needed, based on the circumstances of the legally incapacitated individual or protected person.

Keep the Discussion Going with Metro Detroit’s Probate and Guardianship Attorneys

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 any guardianship or conservatorship matters. We are also ready an able to quickly put a plan in place to help you avoid guardianship and conservatorship issues in your life by utilizing powers of attorney.

If you require further legal advice or if you are looking for representation as you navigate Michigan’s tricky probate court system, including guardianships and conservatorships, don’t hesitate to call our Southfield, Michigan office at (248) 663-2566 to set up your consultation 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.