Putting an end to guardianship. It may or may not be a guardianship of a minor. Recognize the characteristics of guardianship. Guardianship is not intended to last forever. Your child is a minor. Minor requires attention. The minor is unable to make their own decisions. Contracts cannot be signed by minors. They are unable to make medical choices. You are the guardian. This young person turns 19. The former minor will no longer be in need of guardianship. Some elders have been hurt. This person is unable to manage living situations on their own. This elder may be eligible for guardianship. The court has the authority to end the guardianship when the need is no longer present.
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The elderly and minors need guardianship. Those suffering from mental ailments or disorders. and others who are no longer capable. When appointed, a guardian has enormous authority. The guardianship should encourage efforts to put the child back with the parent. and resolve a short-term issue. A guardianship does not revoke a child’s legal parent’s rights. It is by definition a transitory arrangement. It does grant the potential guardian rights and obligations. for the maintenance and care of the child. All that while suspending the birth parents’ power. Elderly and young persons are often the subjects of guardianship. The persons in this group are those who have lost their parents or former guardians. It benefits those with mental disabilities. those whose mental illness restricts their capacity for independent judgment. Guardianships are needed for those who are incapable of making decisions for themselves.
What does guardianship mean in Michigan?
We always hope that everybody we care about grows old but healthy. What actually happens is we grow old and weak. Incapacitated. Children lose their parents. Get separated from them. Or for some reason are unable to take care of them. Someone must step in to be a parent for a limited period. At least up until the legal parents are willing and ready. Someone must take care of vulnerable people. There has to be a way to establish a relationship. That relationship must bind someone who cares for someone to the one who needs to be taken care of. That relationship is what we call guardianship. This relationship is embedded with obligations and responsibilities. Guardianship is a relationship. Judges prescribe it that way. Your lawyer is going to see it that way too. One person has the legal authority to make decisions on behalf of another. We call that person the guardian. The guardian makes decisions on behalf of another person we call the ward. The guardian makes decisions covering many matters. These matters include finance and healthcare. The guardian takes care of the ward’s daily living.
What are the types of guardianship in Michigan?
Guardianship is for the ward’s benefit. The stakeholders they work with help to distinguish them. Three vulnerable groups of persons are cared for by guardians. They display varying degrees of disabilities. the elderly, children under 18, and people with mental disabilities. Each category has distinct requirements. It denotes a different method of support and protection.
Guardianship for Minors.
We have an ideal picture of great parents. Never perfect ones. Parents make mistakes. They can hate each other. Fight. Divorce. They’re going to love their children regardless. If they do fail, they learn to ask for help. They ask for a guardian.
- Full Guardianship. This kind of guardianship goes by many names. There’s general, permanent, regular, ordinary, or full. The guardian is in charge of the care, custody, and supervision of a minor. This is almost like parenting. The guardian facilitates education and proper healthcare. They’re not only providing care, they also act like administrators. They help safeguard the minor’s finances and property. Guardians provide an annual written report on the minor’s general health. The report also includes any medical or mental health care they may have received. In some cases, the report covers the condition of the minor’s estate.
- Limited Guardianship. Your family may not be the best family in the world. Your parents are not the best in the world. They do try to be around the aspect of their children’s lives they are good at. As children grow they may have special needs. Needs parents cannot give. They may not be good at addressing special medical needs. Or, special educational needs. A guardian may be appointed to address this need. Parents can still go about their usual parental duties.
Guardianship of an Elderly.
The rationale for guardianship for the elderly is to protect them. Guard their interests. The elderly may no longer be capable of managing themselves. They can’t take care of themselves anymore. There are physical or mental limitations. Guardianship for the elderly should focus on their immediate personal needs. Another aspect of guardianship is managing the assets of the ward. Their assets provide the money to sustain their personal care.
Guardianship of the Person. A guardianship grants the appointed guardian authority over the ward’s personal affairs. Personal affairs mean healthcare decisions, living arrangements, and daily activities. The guardian ensures the well-being and safety of the elderly individual. Making decisions in their best interests. Here are the tasks a guardian may be responsible for:
- Making healthcare decisions. Examples: Choosing doctors, approving treatments, and signing consent forms.
- Deciding where the ward will live. Examples: A nursing home, assisted living facility, and the ward’s home.
- Managing ward’s daily care. Examples: Bathing, dressing, and feeding.
- Managing the ward’s finances. Examples: Paying bills and managing investments.
The guardian must also be acting on legal needs. There may be a need to make court appearances. Guardians may have to sign contracts on the ward’s behalf. The guardian must also respect the ward’s wishes. Keep the ward informed about all decisions that are being made.
Guardianship of the Estate. The relationship provides the power to oversee the old person’s finances. Supervise properties. The guardian manages the person’s money. It must meet requirements. Protect the ward’s assets. Guardians must act in the person’s best financial interests. Here are the tasks a guardian of the estate may be responsible for:
- Managing the ward’s bank accounts.
- Paying the ward’s expenses.
- Filing taxes on the ward’s behalf.
- Protecting the ward’s assets.
- Investing the ward’s money.
Guardianship for Mentally Challenged Individuals. A person who, due to a mental or physical condition, is unable to make or communicate responsible decisions about their own personal care. The person cannot give instructions about the disposition of property. The person is considered legally incapacitated in Michigan. People with dementia, Alzheimer’s disease, or other cognitive impairments may fall under this category. Courts don’t grant guardianship to anyone. The ward’s wishes are considered by the court to establish guardianship. The ward has the right to a lawyer representing them in the guardianship proceeding. The guardian must be a competent adult willing to serve as a guardian. Guardians must provide for the ward’s needs. Guardianship terminates when the ward regains the ability to make their own decisions. It terminates if the guardian is no longer able. Or, the guardian is unwilling to serve. Courts do not end guardianship for frivolous reasons. The court must approve the termination of any guardianship.
With so much authority given to guardians, will abuse of the ward be likely?
It is true. With that much authority over a person, abuse is likely. Sadly, the truth has shown its likelihood here in Michigan. Data from the Justice Department shows abuse can come from anyone serving as a guardian. It can be your family or trusted others. Even non-profits have been accused of abusing their authority. Professional guardians are no different. And so are agencies mandated to protect their wards. It is damning that the Us Senate Special Committee on Aging has cited anecdotal information. This was also highlighted by the Government Accountability Office.
Elderly Abuse in Big Numbers.
The elderly have been the focus of inquiry into guardianship abuse. Why not? There are more than 73,000 elderly in Michigan who became victims of elder abuse. The elderly experience abuse. They were neglected. Exploited. The elderly have exhibited many forms of abuse at the hands of guardians. They showed physical signs like dehydration and weight loss. Unexplained injuries. The elderly exhibited emotional signs of abuse. They showed changes in behavior. Unusual sleep patterns. Isolation from friends and families. The worst abuse is the exploitation of the elderly’s finances. There were unpaid bills resulting in foreclosures. Shutting off utilities. Unusual ATM withdrawals. Loss of heirlooms. These came to light because of an investigation conducted in 2017 by state investigators. The investigation led to a plan to form a task force for Elder Abuse under the Office of the Attorney General. A proposal was forwarded to create the Office of the State Guardian. It is supposed to provide oversight to the guardianship industry. Revelations of families of abused elders are also peppered with appeals for reform in the practices of court-appointed guardians.
Abuse Can Happen Everywhere
Abuse is so common that the Michigan Department of Health & Human Services (MDHHS) has accommodated reporting. It set up a notification number (855-444-3911). Apparently, abuse can happen anywhere. It can happen in the following places:
- In a home. Anyone’s private residence.
- In an assisted living facility. An unlicensed facility.
- An adult foster home.
- A nursing home.
State Legislators Are Taking Action
A bipartisan group of lawmakers in the State of Michigan is no longer putting up with the abuse in the guardianship system. They are putting brakes on the abuse of the elderly by bad guardians. The move did not come at the spur of the moment. It is not a knee-jerk reaction. There have been two years of research by a task force made up of more than 100 individuals. They got 55 organizations studying the issues. The legislators recognized that they would be seniors themselves someday. Probate judges will have additional legal tools at their disposal to deal with abusive conservators. Just don’t lose hope yet on the mechanisms of guardianship. There will be changes. It will be good. Trust us to keep you outdated. We’re waiting for these changes too. It will serve the interests of our clients. The task force was composed of 13 representatives from the Attorney General’s office, members of the state Supreme Court, the governor’s office, county prosecutors, state and federal lawmakers, advocacy organizations, and the governor. At least two of the task force’s initiatives—creating a common form for reporting incidents involving vulnerable adults for law enforcement agencies and requiring banks and credit unions to report suspected cases of exploitation—have been successfully implemented.
What are the reasons for terminating guardianship?
Guardianship is necessary. It has a purpose. Good intentions are presumed when guardianship is requested. People accept guardianship to protect their well-being. There are reasons why they are granted. Courts also grant the termination of guardianship. People cannot end guardianship on their own. The court must approve the termination of guardianship. There are reasons why guardianship is terminated.
Achievement of Self-Sufficiency.
Guardianships are bestowed because of a need. The primary goal of guardianship is to provide support for a need. There is no more purpose for keeping the guardianship if the need is no longer there. Once self-sufficiency is achieved by the ward, guardianship can be terminated. The ward must show evidence of an improvement in their ability to take care of themselves. Show their ability to manage their own affairs. Terminating guardianship helps the ward exercise their rights. Enables them to regain their autonomy.
Change in Ward’s Condition.
Guardianship is granted because certain circumstances existed at the time of the appointment. Situations evolve. The ward may have managed to improve their condition. Change it over time. This improvement may be due to advances in science. It can be rapid rehabilitative progress. The ward has achieved mental health improvements. The court can determine if guardianship is still necessary. The court can end the guardianship. It can restore the decision-making discretion of the ward.
Wishes and Consent of the Ward.
This is something you need to appreciate in Michigan state laws. It places considerable importance on honoring the preferences of the ward. The desire of the ward. This is particularly true when the ward shows a level of maturity. A level of understanding. Maybe the ward was incapable of decisions. Now the ward is able to express coherent and informed preferences. They are making informed decisions about their personal affairs. The wards consent. The evidence of the capacity to make decisions will carry weight in terminating guardianship.
Appointment of a Successor Guardian.
A guardian can be incapacitated. A guardian can die like the rest of us. The guardian may no longer be able to discharge duties. The guardian may be unwilling to provide further support to the ward. A guardianship can be terminated when a successor guardian is identified. The court can terminate the current guardianship. Install a new guardian.
Failure to Fulfill Guardian’s Duties.
Courts grant guardianship presuming the guardians discharge their duties. The Guardian commits to giving proper care. Give support. Promise to protect the interest of the ward. When guardians neglect or abuse their responsibilities they create conditions for terminating guardianship. Guardians can fail to meet the ward’s needs. There can be misconduct. There can be abuse. It happens. Termination of guardianship becomes warranted. In the end, the ultimate protector of the ward’s interest is the court. It has the sole power to remove an unfit guardian.
What can courts do now to respond to abuse of guardians?
It seems grim that abuses did happen. The state government has confirmed it. You don’t have to give in to despair. There are practical steps being taken. Current courts of jurisdiction for guardianship can initiate their monitoring. A mechanism for monitoring guardianship may reveal evidence of abuse. A person or government agency may need to lodge a complaint. It can petition the court to address the wrongdoing. These courts can take the following actions now:
Restrict access to ward accounts. Freeze Assets.
Courts may impose restrictions on accounts. Freeze assets to prevent guardians from accessing money. Using a property while a case is being looked into. Prevent the use of assets while another protective measure is being considered. This is done to prevent the guardian from further exploiting the ward’s assets. Ensure that the ward has access to the money they need for their care.
Investigate the malfeasance of guardians.
After charges of abuse are made, courts may appoint an investigator. The court can consider a guardian ad litem to look into the matter. A court may need an external party. It can be a certified public accountant expert in forensic accounting. Have the accountant conduct an audit of the assets of the individual.
Compel guardians to pay for lost assets.
Courts can order the erring guardian to pay for the lost assets. Such orders may restore the lost property. Most often the guardian’s bond may be the only avenue for recovering money. It is challenging to recover losses caused by the guardian. Courts do not usually require bonds when the guardian is appointed.
Enforce the ward’s rights, especially on visitation/communication.
Family members can order upholding state laws. Invoke state laws that outline the rights of people subject to guardianship. Allow them to interact with people of their choosing. You can use this option against abusive guardians adopting isolation tactics.
Limit the powers of guardians. Appoint a co-guardian.
Your apprehensions about malfeasance can be real. Address the authority of the guardian. You can request the court appoint a co-guardian. Limit the powers of the guardian. You can do this by filing a petition with the court. The petition should include information about the malfeasance. It should provide the reasons why you need a co-guardian. Why are you limiting the powers of the guardian? This tactic could assist in discouraging or halting abuse by a guardian.
Remove the guardian.
The best approach to stop guardian misconduct is removal. Removing a guardian will need a petition with the court. You need to present proof to support your allegations. The hearing to evaluate your petition is scheduled by the court. You will have the chance to offer proof in support of your request. The guardian is given the chance to offer evidence in their defense. The court decides whether to remove the guardian. If the court grants your request, the guardian gets removed. A new guardian will be appointed.
Guardianship termination should always be approached with careful consideration and in accordance with the best interests of the ward. While the primary objective of guardianship is to provide protection and support, circumstances can change over time, necessitating a reevaluation of the need for guardianship. Whether it is due to the ward’s improved self-sufficiency, changes in their condition, their expressed wishes, the appointment of a successor guardian, or the failure of the current guardian to fulfill their duties, the court’s role is to safeguard the best interests of the ward.
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