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.

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. 

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.