A vulnerable adult is defined as a person who is either being mistreated or in danger of mistreatment and who due to age and/or disability is unable to protect him/herself. A vulnerable adult is subject to both physical abuse and financial fraud. The most common types of financial fraud that the vulnerable adult encounters are:
- Computer scams
- Grandparent scams
- Health-related scams, especially medical alert device scams
- Identity theft, including reports of tax-related identity theft
- Lottery scams, including reports of the Jamaican lottery scam
- Social Security fraud
Establishing a Conservatorship for a Vulnerable Adult
When an adult is no longer physically or mentally able to handle his or her financial and business affairs, it is imperative that a conservator be appointed to handle these matters. Before examining the requirements that must be met in order to appoint a conservator, it is important to understand the difference between a conservatorship and a guardianship. The best way to remember the difference between a guardian or conservator is to look at the beginning of each word. Guardian- to guard over and protect an individual. Conservator-to conserve or protect an individual’s money.
In Michigan, conservatorships are governed by MCL 700.5401. This statute provides that a petition must be filed a person seeking the conservatorship, notice must be given to the person over whom conservatorship is sought, and the probate court must hold a hearing to evaluate the merits of the petition.
The statute provides that a court may appoint a conservator for an adult if the following two elements are met: (1) the individual is unable to manage property and business affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance and (2) the individual has property that will be wasted or dissipated unless proper management is provided, or money is needed for the individual’s…welfare or for those entitled to the individual’s support, and that protection is necessary to obtain or provide money.
While the first element lists eight physical or mental disabilities, the Michigan Court of Appeals has held that this list is not exclusive. The court held that the list of conditions in the statute can be enlarged to include conditions that are similar to those listed. The court In re Conservatorship of Townsend addressed whether a conservatorship was appropriate for an elderly woman (vulernable adult) who had given away most of her fortune in a short period of time to her children and grandchildren who had asked for financial assistance. Because a physician had determined that the woman’s mental capabilities were above average and she had no other disability that met any of the enumerated reasons for conservatorship under the statute, the woman’s son argued that the reasons listed in the statute were non-exclusive.
The son argued that although she had none of the listed physical or mental disabilities, an individual who is considered a vulnerable adult should be entitled to a conservatorship. Both the probate court and the Michigan Court of Appeals agreed to allow conservatorships for a vulnerable adult. The court defined a vulnerable adult as “a condition in which an adult is unable to protect himself or herself from abuse, neglect, or exploitation because of a mental or physical impairment or because of advanced age.” Therefore it is important to remember that even if an individual does not meet any of the physical or mental conditions listed in the statute, if he or she is stricken with something similar, a court may still allow for a conservatorship.
Compassionately and professionally, The Probate Pro will assist you with the filing of a conservator petition for a vulnerable adult.
We are here to help.