What is a Guardianship?
When a person lacks the understanding or ability to make or communicate informed decisions relating to their care, medical needs, and placement, the individual may need the help of a guardian. A guardian is appointed by the probate court at the request of a concerned person (the petitioner). Common petitioners include relatives, friends, Adult Protective Services, and even neighbors. The petition must be filed in the probate court in the county where the individual lives or is located. A Guardian can be appointed when an individual is either: 1) developmentally disabled, 2) a minor without a living parent, or 3) an incapacitated adult. Signs that an adult might be in need of a guardian include increased forgetfulness, getting lost, not eating, refusing or forgetting to take necessary medication, refusal to treat a medical condition, not keeping a generally clean and neat house such that it is unsanitary or unsafe for them to reside there, among others.
Michigan’s guardianship statute, MCL 700.5306, provides that the court may appoint a guardian if the court finds by clear and convincing evidence both that the individual for whom a guardian is sought is an incapacitated individual and that the appointment is necessary as a means of providing continuing care and supervision of the incapacitated individual.
What Happens Next?
Following the filing of the petition, the probate court schedules a hearing date for a judge to consider the petition. The petitioner must deliver copies of the petition to certain relatives and others at least two weeks before the hearing date.
The court will appoint a guardian ad litem to visit the alleged incapacitated individual, unless the individual has his or her own attorney. The guardian ad litem will discuss the petition with the individual, as well as ensure they understand their rights. Before the hearing date, the court may also order the individual to be examined by a physician or mental health professional and to submit a report to the court about the individual’s condition.
What Happens at the Hearing?
At the hearing on the petition, the judge will determine whether a guardianship is needed. The judge must find by clear and convincing evidence two things: (1) the individual lacks the understanding or capacity to make or communicate informed decisions, and (2) the appointment of a guardian is necessary to provide for the individual’s continuing care and supervision.
If the incapacitated individual needs a guardian, the judge will select (appoint) a suitable guardian who is willing to serve. If the individual needs a guardian but has some ability to take care of certain tasks, the judge may appoint a limited guardian to take care of only those things that the individual cannot.
What Are Your Rights?
When a petition for guardian has been filed, the person that is the subject of the petition has certain rights. If a guardianship is being sought for you, you have the following rights:
- If a guardian is appointed, the guardian will make decisions for you, such as what medical care you receive and where you live.
- A guardian will be responsible to get services for you that will help you return to managing your own affairs as soon as possible.
- A guardian ad litem may be appointed by the court, must visit you in person, and must explain the nature, purpose, and legal effects of being appointed a guardian.
- The guardian ad litem must inform you that a guardian may have the power to execute a do-not-resuscitate order on your behalf and to place a do-not-resuscitate identification bracelet on you unless you object. The guardian ad litem must also inform you that you may ask the court to review a do-not-resuscitate order that has been executed on your behalf.
- The guardian ad litem must explain your rights about the guardianship hearing.
- The guardian ad litem must inform you that you can object to the petition, request limits on the guardian’s powers, object to a particular person being appointed as your guardian, come to the hearing, and be represented by an attorney and, if you cannot afford an attorney, to have one appointed at public expense.
- You have the right to have the guardianship case started and conducted where you reside or are present, or if you have been admitted to an institution by a court, in the county in which that court is located.
- You have the right to file a petition on your own behalf to have a guardian appointed for you.
- You have the right to get an independent evaluation of your condition at your own expense. If you cannot afford to pay for the evaluation, the court will approve reasonable costs at public expense.
- You have the right to see and hear all the evidence presented during the hearing.
If you feel a friend or loved one might need a guardian, please contact us for a free consultation. If someone has filed for guardianship over you and you wish to contest that guardianship, it is important that you contact an attorney as soon as possible once you learn of the proceedings. The initial consultation is always free.