I hear it often; “I hate my guardian.”
A guardian is a person appointed by a probate court and given the power and responsibility to make certain decisions about the care of another person. These decisions might include treatment decisions or where the person should live. A guardian may be needed when a person is unable to manage their personal affairs because of mental illness, dementia, age, infirmity, physical illness, disability, or chronic use of alcohol or intoxicants. The powers are limited to decisions regarding the person’s care, custody, and control. Importantly, the guardian has a duty to achieve the best possible state of well being for that person.
What happens if the person is not getting along with the guardian or feels that the guardian is not looking out for their best interest?
Imagine a scenario in which the guardian moves the person from their own residence into an assisted living facility without first consulting with them to ask their preference. Michigan law specifically requires that “Whenever meaningful communication is possible, a legally incapacitated individual’s guardian shall consult with the legally incapacitated individual before making a major decision affecting the legally incapacitated individual.” Sadly, that does not always happen.
In fact, there are times that the person appointed has never previously met the person that they are responsible for. Family members are preferred. However, a suitable family member is not always available. In those circumstances, the court can appoint a professional guardian. That guardian may have limited information about that person’s history, religious beliefs, customs, and desires. Unfortunately, a professional guardian may take the simplest path to manage a person rather than ensuring that the person’s desires and needs are being met. This can mean placing someone in a well staffed facility rather than allowing him or her to live in their own home.
I HATE my Guardian: Options
What options exist when someone says, “I hate my guardian?” Michigan’s probate code provides that a person under guardianship has the ability to ask the court to change the guardian at any time. There is no requirement to allege that they have done something wrong.
MCL 700.5306a provides specific rights to a person under guardianship including:
(v) To, at any time, seek modification or termination of the guardianship by informal letter to the judge…
(w) To a hearing within 28 days of requesting a review, modification, or termination of the guardianship…
MCL 700.5310 provides for the process of removing or modifying a guardianship:
(2) The ward or a person interested in the ward’s welfare may petition for an order removing the guardian, appointing a successor guardian, modifying the guardianship’s terms, or terminating the guardianship. A request for this order may be made by informal letter to the court or judge. A person who knowingly interferes with the transmission of this kind of request to the court or judge is subject to a finding of contempt of court.
A court form to request a Petition to Modify or Terminate can be found by clicking this link.
If you hear the words “I hate my Guardian,” it is time to contact an experienced attorney.
The Probate Pro has a huge staff of smart lawyers and paralegals to solve difficult issues.