As a probate lawyer, I have always been intrigued by how lawyers love to create fancy legal words and phrases.  Only a lawyer could possibly utter “nothwithstanding,”  “heretofore” and “herewith.”  This legalese is usually only understood by other lawyers.

There are certain phrases that have become so common that most lay people now understand their meaning.  “Double jeopardy” and “beyond a reasonable doubt” are readily comprehended.

In Michigan, the standard of poof for establishing the need for a guardian and conservator is “clear and convincing” evidence.  It is an odd standard.  It assumes that there are time that the facts could be “clear” but not “convincing” or “convincing yet not “clear.”  It is the perfect combination of clear and convincing that is needed before the court can appoint a guardian and conservator.

A Guardian is a person appointed by a probate court and given the power and responsibility to make certain decisions about the care and custody of another person. A guardian may be needed when a person is unable to manage their personal affairs because of:

1.mental illness,
2.dementia,
3.age,
4.infirmity,
5.physical illness,
6.disability, or
7.chronic use of alcohol or intoxicants.

A Conservator is a person appointed by a probate court and given the power and responsibility to make financial decisions on behalf of another person. A conservator may be needed when a person is unable to manage their financial affairs because of:

1.mental illness or deficiency;
2.physical illness or disability;
3.chronic use of alcohol /other intoxicants;
4.confinement;
5.detention by a foreign power; or
6.disappearance

The standard of proof of clear and convincing is necessary to prevent the removal of rights to a person that is irresponsible, making unpopular decisions, or making foolish decisions. People are free to be irresponsible, make unpopular decision and do foolish things.  Without the high standard of clear and convincing, there would be a lot more people under guardianship or conservatorship.