GUARDIANSHIPS & CONSERVATORSHIPS

Guardianships and conservatorships are established for people who need representatives to oversee their own personal affairs or finances, and have never taken the time to have a properly executed power of attorney completed. This may include individuals who have become incapacitated or children who have lost their caregiver. Guardianships and conservatorships are court proceedings that need to be filed in court and decided on by a judge. A person can be nominated as a guardian or conservator by another document, such as a will, or if no one is available to act in that capacity, the court will select someone. A guardianship may be full or limited to certain duties deemed appropriate by the court.

We have extensive and detailed knowledge of the laws affecting guardians and conservators, and the courtroom skills to advocate on behalf of our clients-- who might include a family member of an elderly incapacitated person, or a previously incapacitated person who is seeking termination of the guardianship or conservatorship. Through the guardianship and conservatorship process, our experienced attorneys have the skills necessary to make our clients feel comfortable with Michigan guardianship and conservatorship laws, documents, and terminology.

What is a guardian?

A guardian is a person appointed by the probate court and given power and responsibility to make certain decisions about the personal care of another individual. These decisions might include medical treatment decisions or where the protected individual should live. The duties of a guardian are defined by statute. In Michigan, any competent person 21 years of age or older or a suitable institution may be appointed as a guardian. Further, a guardian does not have the power to make financial decisions on the part of the protected person, hence the need for the appointment of a conservator in most cases.

What is conservator?

A conservator is a person appointed by the probate court and given power and responsibility for the financial assets and property of another individual. While a guardian does not have the power to make financial decisions, the conservator has this power to manage and account for all of the protected person’s financial assets. A conservator does not have the power to make medical decisions on the part of the protected person.

What is an incapacitated person?

An incapacitated person, under Michigan law is “any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person."

Elderly persons can sometimes be incapacitated suddenly by the onset of a disease, such as Alzheimer’s, and not be able to make decisions for himself or herself.

When to appoint a guardian or conservator.

The probate court may appoint a guardian or conservator when it finds that a person is a "legally incapacitated individual" and that a guardian or conservator is necessary for their protection. A "legal incapacitated individual" is an adult the court finds to be so mentally or physically impaired that he or she lacks the capacity to make or communicate informed decisions about personal care or financial matters.

Guardianships and conservatorships are generally last resorts and can be avoided easily by institution of a proper estate plan. Planning for incapacity is just as important as planning for distribution of your estate. The fact is that we are living longer, and the chances are greater that many of us will experience a period of incapacity. You have to plan for incapacity because the opportunity is lost once you become disabled. Not everyone who is incapacitated needs a guardian or a conservator appointed. A guardian or conservator might not be necessary if someone else already has the legal authority to make decisions about the person care or property, and there are no problems with the decisions being made. This is why advanced planning is necessary: the legal authority to make decisions on behalf of another person must be given by the incapacitated individual before he or she becomes incapacitated. The authority to act may be given in one or more documents, including a durable power of attorney, health care power of attorney, trust, or joint ownership property.

Powers of Attorney

A power of attorney is a document signed by a competent person giving another person the authority to manage some or all of his or her personal and financial affairs. The document must be signed a notary and at least one witness. A power of attorney is "durable" if it remains effective even after the grantor become mentally or physically incapacitated. A durable power of attorney is one method by which a person may avoid having a conservator appointed on his or her behalf. Powers of attorney can be split into separate financial and medical powers of attorney or they can be joined in one document, most commonly known as a “General Durable Power of Attorney.”

Medical powers of attorney, also called a designation of patient advocate or durable power of attorney for health care, enables a person to appoint an agent (called a patient advocate) to make health care decision when he or she is no longer able to do so due to mental or physical impairment. The document usually contains a broad grant of power to the patient advocate to make health care decisions, including whether to withhold or withdraw life support under certain circumstances. A health care power of attorney if often confused with a living will. However, a living will is not a power of attorney. A living will a declaration by a person regarding the circumstances in which he or she does not want extraordinary measures taken to extend life, or in which health care should be withheld. Living wills are rarely used without a corresponding health care power of attorney, and oftentimes to avoid conflict between the two, they are combined into one document.

Legal Methods to Help Care for People Who Can Not Care for Themselves.

If there are no powers of attorney, a guardian and/or conservator can provide needed support, guidance, and protection for an incapacitated person who is unable to take proper care of themselves or their property.

While appointing an agent under a durable medical and/or financial power of attorney is generally preferable, there are circumstances where a guardianship and/or a conservatorship is necessary. Some examples include:

• For individuals who have never formed a decision-making capacity and are unable to name a decision-maker in place of themselves.
• When conflict exists between surrogate decision-makers.
• When there are concerns about the surrogate improperly influencing the incapacitated person.
• In emergencies, when it is necessary for an emergency guardian to intervene.