Guardianship

When an adult loses the capacity to properly care for their own needs, Michigan law provides a process that allows another adult to step in to make decisions and provide for care and management of their financial affairs. This is accomplished through guardianship and conservatorship proceedings.

Both guardianship and conservatorship are considered extreme measures, so they require an exhaustive legal process before someone may be appointed guardian or conservator. With proper planning, families can often avoid the need for guardianship, but when alternate measures are not available, it is wise to work with an attorney who understands the process to avoid unnecessary problems that can prevent your loved one from receiving the assistance they need.

The team at Bassett Murray Law Group, PLLC, focuses on the challenges faced during the aging process and by vulnerable members of the population. We have a thorough understanding of guardianship, conservatorship, and the available alternatives. Our team can help you make informed choices and overcome the hurdles in the legal process to ensure loved ones have the right protection for the future.

The Difference Between Guardianship and Conservatorship

Under Michigan law, an individual designated as a full guardian has responsibility for the custody, supervision, and care of an adult who has been found legally incompetent. That person is also referred to a ward. A full guardian is responsible for ensuring that:

• The ward has an appropriate place to live
• The ward has adequate food, clothing, and other basic essentials
• The medical needs of the ward are met

By contrast, a conservator bears responsibility for the property of the ward. The conservator has a duty to preserve and invest the property appropriately so it can be used for the benefit of the ward or the ward’s dependents. If the court has not appointed a conservator, then the guardian may also have the duty of managing the ward’s property.

Why Guardianship is an Extreme Measure

Courts need to be certain that guardianship is necessary before approving a guardianship arrangement because guardianship strips an adult of their legal rights. The ward loses the right to make their own decision and manage their own affairs. Therefore, it is often necessary to prove that there are no feasible alternatives available before a court will grant guardianship. A court can also grant limited guardianship to allow the ward to maintain control over some of their own affairs.

Alternatives to guardianship might include granting power of attorney to allow an agent to share decision-making authority with regard to personal care or finances. Trusts offer another option to help with financial matters, and advance directives and supported decision making procedures can provide assistance with personal care. 

As experienced estate planning and elder law attorneys, the team at Bassett Murray Law Group, PLLC can help you explore the options available in a particular situation. However, many of the less restrictive measures must be implemented before an individual becomes incapacitated. When that point is reached, guardianship may be the only solution.

The Process of Appointing a Guardian

To get the court to appoint a guardian or conservator, someone must file a petition for guardianship in the probate court, and the court will schedule a hearing. Notice must be provided to the individual who would be represented by the guardian, and they have the right to object. Notice must also be provided to certain family members and anyone holding power of attorney. 

The court will appoint a guardian ad litem to investigate and represent the individual who would be subjected to guardianship, and the guardian ad litem will file a report with the court. A report might also be filed by a doctor or mental health professional.

At the hearing, the court reviews the evidence presented to determine whether the person who would be subjected to guardianship is incapacitated and whether guardianship is necessary to provide for the individual’s needs. The court might determine that only limited guardianship is appropriate and would issue limited authority to the guardian.

If the individual who would be subjected to guardianship does not want to have a guardian appointed on their behalf, the court would need to appoint an attorney to represent their interests and schedule a contested hearing.

A proposed guardian does not gain any authority until the legal process is complete and the guardian signs an Acceptance of Appointment.

Get the Assistance You Need with Guardianship Issues

Guardianship and conservatorship proceedings involve the protection and potential loss of individual rights, so they are very serious, complex processes. If you want to seek guardianship, explore alternatives, or just ensure that a loved one’s rights are protected, it is a good idea to consult a knowledgeable attorney as soon as possible.

At Bassett Murray Law Group, PLLC, we are ready to assist in a variety of ways. We invite you to schedule a consultation to learn more about finding the right way and the most efficient process to protect the future of your loved one.