Guardianship

There will be certain forms required to set up an adult guardianship (the forms will be a little different for a Minor Guardianship):

Petition for Appointment of Guardian

$175.00 filing fee

Notice of Hearing;

Notice to Alleged Incapacitated Person (aka the ward)

Order Appointing Guardian

Letters of Guardianship; and

Acceptance of Appointment

You will also need medical documentation, substantiating the need for the ward to have the protection of a guardian. The Court will not grant the petition, unless you have evidence to support it. Usually, a 1-2 page letter from a doctor of appropriate specialty, who is familiar with the ward’s condition.

In some situations, the parties may prefer, or it may be prudent, to have two Guardians, working together. This is done, either where trust is lacking, or simply because family or personal relationships are such that it is sought by the client.

These are not arrangements preferred by courts, because in essence, everything will require consent by both Guardians. In turn, that may simply bring existing trust issues into court. At the very least, it will make conservator decision-making more cumbersome.

Public Administrators (PA) are fiduciaries of last resort. Let’s explain first what a “fiduciary” is. Generally speaking, the dictionary definition of a “fiduciary” is one who is entrust with property and/or power, for the benefit of another person.

In a probate court context, the word “fiduciary” is one word, that can stand in for the various types of representatives probate courts appoint. Probate courts appoint Estate PR’s/executors, in the context of decedents’ estates; they appoint guardians to protect other persons’ persons, and they appoint conservators, to protect other persons’ property. This term also applies to fiduciaries not appointed by probate courts, such as trustees.

(There are still other types of people who are fiduciaries, such as lawyers, bankers, investment advisors, and others, but they are beyond the scope of this website).

PA’s are people who are effectively appointed by local county probate courts to serve as fiduciaries, when nobody else is available, and also, in situations of intractable conflict between interested persons, where nobody can be agreed-upon by all persons to serve as fiduciary.

I say “effectively appointed”, because technically, they are appointed by a “State Public Administrator”, who is in turn, appointed by the Governor. Because neither the Governor nor the State Public Administrator will know all the appropriate candidates in Michigan’s 83 counties, there will be a certain influence by partisan politics on the process, as well as an influence of local courts, who know the local practitioners, and who would be qualified to serve.

Often times, PA’s handle local estates consisting of little or no money whatsoever; these are effectively unprofitable drains on their money and time. However, there will be the occasional matter in which their time and effort will be fully compensated, i.e., where the ward, or the decedent’s family, has assets that can be used to pay the PA’s bill. In cases where a PA is appointed due to toxic relations among family members, the prospective cost of a PA might well provide some bargaining leverage, when it comes to trying to resolve matters.

The duties of a guardian are broad, and they are set out formally in MCLA §700.5314. In short, the guardian has the “care, custody & control of the ward”, which in reality gives them the duty and indeed, the responsibility to make decisions for the housing and physical well-being of the ward. This also includes issues of education, housing, hospitalization, medical treatment, and other broad categories of duty.

An important area of duty & responsibility is that of medical consent and authorization. Many times, out of concern for a patient’s medical privacy, a ward’s doctor will not communicate care-related facts to third-parties; normally, the refusal is based on ethical and statutory law requiring them to say nothing. Once appointed as a guardian, you will have access to the ward’s medical records and doctors, for the purpose of advancing the ward’s medical, physical, and psychological well-being.

Under MCLA §700.5314, there should be regular meetings between guardians and their wards, at minimum, once every three months. In family situations, this is normally not a consideration, because of the bond between ward and guardian. This becomes more of a consideration in the context of professional wards, for whom this is simply a business.

Guardians are required by statute, to apply for whatever government benefits the ward is entitled to, to promote/restore the ward to “the best possible state of mental and physical well-being, so that the ward can return to self-management at the earliest possible time.” This language comes right out of MCLA §700.5314; there is a separate, more explicit statutory imposition of this responsibility on guardians for minors.

Guardians are required to report annually to the court, on the condition of their ward(s), and they are ultimately responsible for informing the court, in the event of the ward’s death.

There are also record-keeping responsibilities, discussed below.

Just because a person is a ward, under a guardianship, does not mean that he has lost his/her rights. Among those retained rights, are the right

*To due process of law (a shorthand that refers to a person’s right to be notified of court proceedings, and to be heard at them, if they are affected)

*To object to steps being taken by the guardian

*To vote

*To make a last will & testament;

*To consult with the guardian on decisions to be made by the guardian on the ward’s behalf

Upon appointment as Guardian, you will have to file an “Acceptance of Appointment”, documenting your acceptance of the position of guardian.

As indicated elsewhere, you will have to file an Annual Report on the condition of the ward. That form will let the court know where the ward resides, what changes if any, there have been since the last report; an assessment of the ward’s living situation and general physical and mental health; social activities in which the ward engages, and a report on the frequency of your visits to the ward.

There may be petitions made necessary from time to time, and remember, as in a decedents’ estate situation, there are interested persons to serve, under MCR 5.125(C)(24), as follows:

*The ward him/herself

*The person with principal care/custody of the ward, if that is someone else;

*For an adult ward, the spouse, children and presumptive heirs of the ward

As in any situation in which one person acts for another, and comes into contact with money that is not their own, a guardian MUST NEVER mingle a ward’s money with their own. They should be ready to explain themselves to a probate court judge on this subject, on short notice.

This record-keeping responsibility relates to records of

*Probate court filings

*Frequency of contact with the ward

*Financial records

*Tax records

*Medical records

*Other records not described above.

The appointed guardian is typically the person making medical decisions for the ward. However, this is not true, where the ward designated a patient advocate before the guardian was appointed. If there is any dispute or uncertainty, the guardian should file a petition to the court, seeking clarification of this issue.

The guardian has a duty to consult with the ward, and where that is not possible, should consult with family and close friends of the ward, to see if they can clarify what they think the ward would want. In extreme situations, the guardian should request a meeting with any Ethics Committee for the hospital who has the care of a terminal non-communicative ward.

If the ward has designated a patient advocate, before the guardianship was established, then end-of-life decisions are NOT for the guardian to make. If that is not the case, it is probably best practice to petition the court, after discussing the matter with family, friends, and any clergy whose input would be appropriate, given the ward’s religious background

Typically, a guardian is not liable, unless negligent in their supervision of the ward. Additionally, the guardian is liable to the ward for any breaches of fiduciary duty (which refers to the guardian’s underlying duties of care, and loyalty to the ward)

Occasionally, hospitals seek to discharge people under guardianships (i.e., wards) over the guardians’ objections. As both a practical and legal matter, a psychiatric hospital making that decision will be given greater deference than a guardian, particularly one without the requisite training.

While you may be caught in a difficult squeeze, if this occurs, you may find that consulting with your local county’s Community Mental Health organization, can lead you to some meaningful answers.

This is particularly important with the ward’s doctors, landlord, and other persons whom your job as the ward’s guardian requires you to deal with. You cannot expect these people to include you in any decisions that need to be made, unless you notify them of your status as guardian.

To become the ward’s “rep payee”, you must apply to the Social Security Administration, for this status.

Here is a link to the Social Security Administration’s FAQ’s about this program.

Applications for Medicaid in Michigan are handled either online, or by traditional paper application.

The online methods is through what Michigan’s Department of Health & Human Services calls its “MI Bridges” program; the link is here.

A link to the paper application is found here. You will need the following information:

*Social Security Number

*Proof of Michigan residency (driver’s license, utility bill)

*Proof of income

*Bank & asset statements

*Existing health insurance information

The State of Michigan indicates that applications usually take around 45 days to process.

In order to terminate a guardianship, the process is essentially the same as the one establishing the guardianship. However, instead of a petition to appoint a guardian, you will file a Petition to Terminate/Modify Guardianship, after completing it fully. You will have to “notice up” a hearing, and serve the “interested persons”, of course, as well.

A “Developmentally Disabled Person”, under MI law, MCLA §330.1100a(27) is a person over the age of 5 who:

Has a severe and chronic condition

Attributable to a mental/physical impairment, or a combination of such

Is manifested before the person turns 22

Is likely to continue indefinitely; and

Results in substantial functional limitations in at least 3 of the following areas of “major life activity”

*Self-care

*Receptive/expressive language

*Learning

*Mobility

*Self-direction

*Capacity for independent living; and

*Economic self-sufficiency

If the ward meets these definitions, decide whether a full or limited guardian of the developmentally disabled person is needed, and secure evaluations from the ward’s doctors. One of these reports is submitted on a probate court form, and must reflect the outcome of an evaluation no older than 12 months before the application is submitted.

There is a separate petition form, used in “developmentally disabled” cases, and the “interested persons” are defined in MCR 5.125(19) as

*The ward

*The ward’s attorney

*Petitioner

*The ward’s presumptive heirs

*The evaluator who conducted an evaluation and submitted a report

*Director of any facility in which the ward resides

*The ward’s “Guardian Ad Litem” if any

*Anyone else the court directs be served with the petition.

You will have to “notice up” a hearing, and serve the “interested persons”, of course, as well.

The term “Guardian Ad Litem”, or GAL, is just a fancy “legalese” term for an attorney, appointed by the court, to investigate the merits of a probate petition, whether at the inception of a guardianship/conservatorship/decedents’ estate, or on an interim petition during any of those proceedings.

It may also relate to the settlement of a “Wrongful Death Act” matter in which you are involved, or a settlement in which a minor is receiving funds from a settlement. In the case of minors’ settlements, Michigan Court Rule MCR 2.420 actually requires the appointment of a GAL

If the selection and appointment of a GAL is made by the Court (and not you), and if a GAL is required in the case of a settlement being made in favor of a minor (and you have no control over whether a GAL is going to be appointed or not)….why do you need to know about GAL’s?

Because you will need to know how to deal with them, when the time comes. GAL’s potentially have a lot of power over whether your Wrongful Death Act, or minors’ settlement gets approved, as required by law.

One unfortunate part of this process, is that the GAL will charge a fee for their work, and if you are settling a case, his/her fee will be paid out of your settlement.

However, you should bear in mind that most GAL’s will not knowingly obstruct a settlement agreed to by the lawyers in your case. However, you do not want to take the chance. Most GAL’s see their role as assisting the court system to settle cases, and are only trying to help make a record that will support the granting of a Motion to Approve Settlement.

Other lawyers, all around town call and have me serve as the GAL on their clients’ cases. This is what typically happens:

If the court grants Plaintiff’s counsel permission to obtain a GAL, the court will grant an order to that effect, naming a specific lawyer (LIKE ME) as the GAL.

As the GAL, my duty is to either visit you, or to call, and get sufficient background facts to determine if the settlement amount is fair, and if the settlement distribution is fair to any minors (or to others the court wants to protect). As I tell people when I call or visit, “the judge is not coming to your house to look into this matter; they appointed me instead”

After our call/visit, I will draft a GAL Report, which is submitted to the court. Most GAL’s know the issues, and know what information the judge will want to see, and how to present it.

I could not encourage you more to be open and receptive to the GAL when he/she calls.