When an incapacitated person needs someone to make decisions for them but hasn’t named a power of attorney to manage their finances or medical decisions, a petition for guardianship may be filed with the court. The incapacitated person has several legal rights in the petition process and is entitled to an attorney of their choosing to exercise those rights. If they do not engage an attorney, the court may appoint one for them. Other “interested parties” such as family members, may also participate in the court proceedings and inform the judge of their position.
Some questions that could arise in guardianship and conservatorship litigation include:
- Is the person is actually incapacitated
- Are there are other ways of making decisions for the person short of a guardianship
- Should an acting patient advocate be removed for failing to act according to the incapacitated person’s known wishes or in their best interests
- Who has priority to be appointed
- Is a nominated person is suitable to serve
- Should the appointment include the full range of responsibilities (plenary) or be limited to certain matters
- Should the conservator have to file a surety bond
- Should the guardian be restricted from moving the person to another residence, facility or out of state
- Should the conservator be restricted from selling the real estate
- Is there a need in the best interests of the person to restrict contact from particular people
- Once a guardian is appointed, a petition can be filed to modify or change guardians
- A petition can be filed to remove a guardian who is violating their fiduciary duties
- A petition can be filed to terminate or limit the guardianship if the person regains capacity or partial capacity
Guardianship is a complex legal matter. At Bassett Murray Law Group, PLLC, in Ann Arbor, MI, we have been representing families in petitions for guardianship and conservatorship, breaches of fiduciary duty, and incapacity disputes for 25 years.
Responsibilities of a Guardian or Conservator
When an incapacitated person requires help making decisions for themselves, the court will determine the level of incapacity and whether or not there are alternative ways to make these decisions. The court may appoint a guardian or conservator if the person is found to be incapacitated and does not have a valid powers of attorney or patient advocate designation.
If you file a petition for appointment of a guardian, you might become a:
- Guardian. This type of guardian makes important life decisions for the ward, including deciding where they will live, planning medical appointments and transportation, ensuring an appropriate activity level for the ward, and more.
- Conservator. A conservator manages the incapacitated individual’s finances, assets, and bills, using the individual’s own assets to pay for their care.
- Guardian and Conservator. Sometimes the same person is appointed as both guardian and conservator.
Protecting the Legal Rights of an Incapacitated Person
Because guardianship strips away many legal rights of the ward, the court is required by law to limit the appointment to the duties required to protect the ward. Even under guardianship, though, the guardian must allow the ward to make as many decisions on their own as they are capable.
Before appointing a guardian, the court will have incapacity proceedings to determine the level of incapacity and whether or not a guardianship is required to make decisions on behalf of the individual.
Alternatives to guardianship and conservatorship may include:
- Durable financial power of attorney
- Durable healthcare power of attorney (Patient Advocate Designation)
- Advance directives (Living Will, POLST and DNRs)
- Representative Payee for Social Security Benefits
How an Experienced Attorney Can Help with Guardianship Litigation
At Bassett Murray Law Group, PLLC, we represent clients at all stages of guardianship litigation. If you are facing a guardianship or conservatorship petition and don’t feel that you are incapacitated, we can help you object to the petition and nomination of a guardian.
For people who wish to become a guardian or conservator for an incapacitated person, we can help you file your petition, identify alternatives, and mediate with family members who may disagree. We will help you identify and implement the least intrusive way of protecting your loved one so that their dignity and independence are preserved to the extent possible.
If a guardianship or conservatorship is already in place, and you have concerns about the way matters are being handled, we can help you work with the fiduciary to address concerns, or, if necessary, file petitions to remove the fiduciary, modify the appointment, or surcharge a guardian or conservator to recuperate assets that are missing from the estate.