APPOINTMENT OF A GUARDIAN FOR AN ADULT
A guardian is a person appointed by a court to make personal decisions for another, called a ward. The person needing the guardian can be either a minor or an adult. Guardianship laws are complicated and highly detailed. This article will summarize the laws regarding guardianship of a legally incapacitated individual. If an adult is believed to be an incapacitated individual as defined by EPIC, any adult interested in that person’s welfare may file a petition in the probate court to have a guardian appointed for the individual. The petition must include facts to support the belief that the adult is incapacitated. MCL 700.5303 “Incapacitated individual” is defined in EPIC. It essentially means that the adult is impaired because of one or more of the listed reasons. The impairment is to such an extent that the adult lacks sufficient understanding or capacity to make or communicate informed decisions. MCL 700.1105(a) Some of the reasons for the impairment are mental illness, mental deficiency, physical illness or disability, chronic use of drugs, or chronic intoxication. The statue also permits other causes, as the above list is not intended to be the only reasons for impairment. The primary focus is the ability of the adult to make informed decisions. It is not whether the individual is making decisions others do not like or a person believes is not in the best interests of the individual. The petition for appointment of a guardian of an incapacitated individual requires other information. One of the most important is the names and addresses of all the interested persons in the petition. Besides the adult, these include presumptive heirs, the person having the care and custody of the adult, a person named as attorney in fact by the adult in a durable power of attorney, and the nominated guardian. When the petition is filed, the court sets a hearing date and the petitioner must serve the interested persons with a copy of the petition and notice of hearing. The adult must be served personally. Others can be served by mail. If an address is unknown, the notice must be published in a newspaper. Upon the filing of the petition, the court must appoint a person to go and meet the adult to review the petition and the rights of the adult regarding the petition. This person is called a guardian ad litem. MCL 700.5303 After the meeting with the adult the guardian ad litem files a written report with the court. This report either informs the court that the adult opposes some aspect of the petition or gives a report on the condition of the ward and makes a recommendation in regards to the petition. The court also has authority to appoint a physician or mental health professional to examine the adult after the petition is filed. Following the examination, the professional must file a written report with the court. Sometimes the relatives of the adult arrange for this examination without the court order. MCL 700.5304 The hearing on the petition is usually held before the judge even though a jury can decide the issue of whether the adult is an incapacitated individual and in need of a guardian. The hearing can also be closed to the general public upon request of the individual. The adult has the right to be at the hearing. If she or he requests to be present at the hearing but physically cannot go to court, the court will go to wherever the adult is then placed. The petitioner must present evidence that will support the allegations of the petition by clear and convincing evidence. The petitioner can retain an attorney for the preparation of the petition as well as present the evidence at the hearing. The adult’s guardian ad litem, or attorney, will be at the hearing. The adult can nominate a person as guardian other than the one named in the petition. Following presentation of all the evidence, the court determines whether there is clear and convincing evidence that the adult is an incapacitated individual as defined in EPIC and whether it is necessary and appropriate to appoint a guardian. If the person nominated in the petition is suitable, and the adult agrees, the court appoints that person as either a full or a limited guardian. Once the court appoints a guardian for an individual, he or she is then called a legally incapacitated individual. The appointed guardian signs and files with the court an Acceptance of Appointment. The court then issues the Letters of Guardianship to the appointed guardian. The court specifies in the order and the letters of guardianship the authority given the guardian. Any limitation of authority must be specifically stated. After the guardian is appointed for the incapacitated adult, the court must send a copy of the order appointing the guardian to the Michigan State Police for entry on the state’s Law Enforcement Information Network, called the LEIN. Once the court finds the adult is no longer legally incapacitated, it must order the removal of the prior order from the LEIN. The court appointed guardian has many duties and responsibilities toward the legally incapacitated individual. The guardian also must annually file with the court a special written report on the condition of the ward. The guardianship ends upon the ward’s death or upon the ward being restored to the ability to make informed decisions. A guardian is responsible only for the person, whether it is a guardianship of an adult or a minor. The person appointed to manage the estate and financial affairs of another is called a conservator. For an explanation of the process of obtaining a court appointed conservator, see the article titled: Basic Information About Conservatorships of Adults And Minors An Protective A Orders. More information on this topic can be found at the Calhoun County Courts Probate Notes site. |
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