I want guardianship over my family member or person. What should I do?
If you are seeking guardianship of a loved one or a family member, there are certain procedures that you can expect to take place. In Michigan, a guardianship proceeding takes place in the county’s probate court. The probate court will appoint a person for the incapacitated individual to make necessary legal decisions.
The first step is to file a petition with the probate court. This petition must outline the reason why a guardian is needed for an individual. Any person, concerned with the individual’s welfare may petition for the appointment as guardian of the incapacitated person. However, there are persons who will have priority for appointment as guardian, this includes: the guardian appointed in another state for this individual, a person nominated by this individual, the person nominated in this individual’s durable power of attorney, or a person nominated by this individual as a patient advocate in a Designation of Patient Advocate. If there is no one meeting the criteria above that is willing to serve or are unsuitable, the judge may appoint a relative in order of priority.
When filing a petition, it is to your advantage to get the help of an attorney. If the petition is granted by the probate court, the guardian is granted legal authority and responsibility to make decisions for the incapacitated individual.
When the petition is filed, a hearing is scheduled and notice must be given to all “interested persons,” that will have a stake in the petition or is related to the individual. Their presence at the hearing can be used to object to the petitioner to petition for guardianship themselves. The list of “interested persons” include: 1) the individual’s spouse, 2) a person named as the individual’s agent in a durable power of attorney, 3) the individual’s children (or, if the individual has no children, the individual’s parents), and 4) if there is one, the individual’s guardian or conservator appointed by a court in another state.
Before the proceeding, the probate court will appoint a “Guardian Ad Litem,” for the incapacitated individual, unless the individual is represented by a attorney. A Guardian Ad Litem will explain certain things, including what is being requested in the petition, what will happen at the hearing, and the incapacitated individual’s rights. The probate court may also order a physician or mental health professional to investigate into the facts stated in the petition. The attorney, Guardian Ad Litem, physician and/or mental health professional will submit a report to the court, outlining their various recommendations for the individual.
At the hearing, the judge will determine if the incapacitated individual needs a guardian. The judge must find by clear and convincing evidence that: (1) the individual lacks the understanding or capacity to make or communicate informed decisions, and (2) the appointment of a guardian is necessary to provide for the individual’s continuing care and supervision. If the incapacitated individual needs a guardian, the judge will appoint one. If it is found that the incapacitated individual is able to perform and handle certain task without assistance, than a limited guardian will be appointed.
The appointed guardian’s responsibilities and duties commence when he/she signs a document called an “Acceptance of Appointment.”
What’s the difference between a conservator and a guardian?
A conservator is the person who takes legal authority and responsibility over a person’s property or assets. For example, the conservator will make decisions over a person’s home or finances. A guardian is a person who has the responsibility to execute decisions about a person’s daily living situation. For example, a guardian would make decisions about a person’s medical care and housing. A guardian or conservator can either be a person or an institution, such as a bank or company.
In what county should I apply for a guardianship or conservatorship?
A petitioner would file a guardianship where the person resides. For a conservatorship, a petitioner would file where the person resides or where the property and assets are located.
What are the duties of a guardian in a guardianship for minors?
- The guardian has the same legal authority and responsibility over a child as the parent, except guardians cannot consent to the marriage or adoption of the child.
- The guardian is required to file an Annual Report of Guardian on Condition of Minor, every year. This report must be filed 56 days before the anniversary of the guardianship appointment by the court. This report allows the court to review the appointment and make determinations on whether a guardianship is continuously necessary.
The court will, annually, review the guardianship of a minor under 6 years old – and, as needed for older children.
What are the duties of a conservator in a conservatorship for minors?
- Within 56 days of the appointment, the conservator must take Inventory of all of the minor’s assets, such as: property, bank account, bonds, certificate of deposits, personal belongings and anything the minor has a monetary interest in.
- The duty of the conservator is to protect the minor’s assets, and to represent the minor in any legal proceeding regarding those assets.
- The conservator must keep the assets of the minor separate from his/her own and is not permitted to borrow against the minor’s assets.
- The conservator must keep careful records of income coming into the minor’s account, and distribution out of the minor’s account.
- The conservator must file an Annual Account statement every year, 56 days before the anniversary of the conservator court appointment.
When may a guardianship be terminated for a minor?
Anyone, including a 14 year old minor or older, may petition to modify or terminate the guardianship. If the parents of a child wish to terminate guardianship, in order to have the child stay with them, the parents will need to show the court evidence that the placement of the child in the parents’ home is beneficial to the child. Some examples of the evidence that the parents will need to show are: (1) The parents can provide a stable home for the child; (2) The parents have income that can support raising a child; and (3) They are “fit” to take care of the child.
When the guardian wants to resign, he/she may do so with the court’s permission. If the minor dies, reaches the age of 18 years, becomes emancipated, becomes married, adopted or joins the military- the guardianship appointment ends automatically.
What should I do to gain guardianship over a child?
There are two types of guardianships: limited guardianship and full guardianship. With limited guardianship the parents of a minor child petitions the court to suspend their parental rights. With a full guardianship, someone other than the parents of a minor child, petition for legal authority over a child’s affairs and the parents object to the guardianship. Most guardianship petitioned for are full guardianships and governed by the Estates and Protected Individuals Code (EPIC), section 5402(2).
A guardian may be appointed by the Probate Judge after a petition is filed with that court, but before the hearing is held. Court ordered guardianship usually happens in the following circumstances:
- When a previous or current guardian becomes incapacitated and can no longer care for the child;
- When there are no other persons that can act as guardians except the guardian the court appoints;
- The person was assigned as the guardian in a will, or other testamentary document; or
- If the current guardian breached a legal duty to the child.
In addition, before the proceeding, the probate court will appoint a “Guardian Ad Litem,” for the minor, unless the minor is represented by an attorney. A Guardian Ad Litem will explain certain things, including what is being requested in the petition, what will happen at the hearing, and protect the minor’s rights.
If the court does not appoint a guardian, then the one who petitions for guardianship may be considered for the appointment. The petition may be filed by anyone that has an interest in the child’s welfare. On the other hand, a limited guardianship may only be requested by the parent or parents of the minor child, who has custody over the child. For a limited guardianship, the court must approve a placement plan for the minor, including how long the guardianship is to last.
After the petition is filed, a hearing is scheduled promptly (in emergency cases, the petitioner may be able to have a guardian appointed before the hearing). The person who files the petition has the duty to notify all interested parties. Interested parties also include the child’s parents. The court will ultimately only choose the most qualified person for the role that will meet state standards. In determining the guardian, the courts will asses many different factors, such as:
- The mental and physical health and moral fitness of the potential guardian;
- The guardian’s ability to make sound decisions;
- Love, affection and other emotional ties between the potential guardian and the child;
- Whether the natural parents have opted to retain their parental rights over the child; or
- If the guardian will be able to care for the child based on any of the child’s needs or special characteristics.
In guardianship cases, if a party is incarcerated under the jurisdiction of the Michigan Department of Corrections, their name, address, and prison number must be listed on the petition.
On the date of the hearing, the judge listens to anyone who has an interest in the guardianship explain the need for one. The person who is appointed a guardian must then file an Acceptance of Appointment. After this document is filed, the court issues a Letter of Authority to the guardian. This letter is used to give the guardian the right to execute their duties.