COURT PROCEEDINGS IN CONSERVATORSHIPS

The Estates and Protected Individuals Code includes proceedings regarding conservatorships for minors and adults. This article provides information about court proceedings in conservatorships. Further information about conservatorships can be found in the article titled: Basic Information About Conservatorships of Adults And Minors An Protective A Orders.

When a petition for appointment of a conservator of an adult or for a protective order is filed, the court appoints a guardian ad litem to represent the individual. The guardian ad litem visits with the adult and is present at the hearing or files a report with recommendations regarding the petition.

When a petition for appointment of a conservator of a minor or for a protective order is filed, the court may appoint an attorney to represent the minor. This decision is based upon the information in the petition and other documents filed with the court.

If appointed, the attorney visits with the minor and investigates the reasons for the conservatorship. The attorney will be present at the hearing to represent the minor.

The court sets a hearing when the petition is filed and the petitioner must serve the interested persons, including the subject of the petition, with a copy of the petition and notice of hearing. The adult is personally served while all others may be served by mail. If the whereabouts of a person is unknown, notice must be published in a newspaper.

The hearing on the petition usually is held before the judge even though a jury can decide whether there is a basis for the appointment. The hearing can also be closed to the general public if the individual so requests.

The individual has the right to be at the hearing. If she or he wishes to be present at the hearing but physically cannot go to court, the court will go to wherever the individual is then located.

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 and to present the required evidence at the hearing. The adult’s guardian ad litem, or retained attorney, will be at the hearing.

Following presentation of all the evidence, the court determines whether there is a basis for the appointment of a conservator or to enter a protective order. If the person nominated in the petition is suitable, and the adult agrees, the court appoints the proposed person conservator. The adult can nominate a person as conservator other than the one named in the petition.

The appointed conservator signs and files with the court an Acceptance of Appointment. The court then issues the Letters of Conservatorship to the appointed conservator. A bond may also have to be obtained and filed with the court.

The conservator then determines the assets of the estate and the value of each asset. An itemized inventory must be filed with the court and sent to all interested persons. This must be done within 90 days of the appointment.

The Estates and Protected Individuals Code grants very broad authority to a court appointed conservator. If the court limits this authority, the limitation must be specified in the order and the Letters of Conservatorship.

The court appointed conservator has many duties and responsibilities toward the protected individual in the management of his or her property and business affairs. One of the most important duties is to maintain the estate plan of the protected person. The conservator also must act in strict confidence.

A conservator must invest the assets of the estate. Under EPIC, a new rule for investment and management of an estate is established in Michigan. It is called the Prudent Investor Rule.

This rule requires a fiduciary – this includes a conservator – to invest and manage the assets as a prudent investor would. Reasonable care, skill, and caution must be used by the fiduciary.

Under this rule, the investment and management decisions with respect to an individual asset is not evaluated in isolation. Rather, it is evaluated in context of the entire estate portfolio and as a part of the overall investment strategy.

The conservator annually files with the court a complete accounting of all income and disbursements. This account is served on the protected person and other interested persons. A hearing is held for the court to consider it and any objections and to ultimately approve it.

The conservatorship ends upon the death of the protected person or upon the individual being restored to the ability to make informed decisions. A final account must be filed to have the conservator discharged. Upon the death of the protected person, the conservator has no authority to make further expenditures of the estate assets unless the court orders it.

More information on this topic can be found at the Calhoun County Courts Probate Notes site

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