ALTERNATIVES TO COURT PROCEEDINGS TO APPOINT A GUARDIAN OR A CONSERVATOR OF AN ADULT

EPIC has special provisions for avoiding the necessity of court proceedings for the appointment of a guardian or a conservator. This article reviews the essential requirements of these special laws that apply only to adults. For an article applicable to minors, see: Alternatives To Court Proceedings To Appoint A Guardian Of A Minor.

Many people have avoided the necessity of having court proceedings to appoint a guardian of their person or a conservator of their estate. Making a written power of attorney while competent can avoid all court proceedings. However, this is not advisable for all persons.

A person can be given authority to manage another’s property without having the court appoint a conservator. The most commonly known method of authorizing a named person to perform an act or acts regarding the management or control of a person’s property and financial affairs is the power of attorney. 

The person making the power of attorney is called the “principal”. The person named to do the acts for the principal is called an “attorney in fact”.

A power of attorney may be a standard power or it may be a durable power. The distinction is very important because only a durable power remains effective after the principal no longer is capable of making financial decisions. MCL 700.5501

This durable power is especially effective for a person who develops dementia or Alzheimer’s disease or suffers a severely debilitating stroke after making the power of attorney. It remains valid even if the principal disappears or becomes comatose.

The statute authorizing durable powers of attorney sets forth the words required to make the power durable. Unless those or similarly equivalent words are used, the power will not continue after the principal becomes incapacitated and unable to make decisions. MCL 700.5501

The power of attorney must be in writing and properly signed before two witnesses. The maker must be competent and able to understand that he or she is making the power of attorney when signing it. This power can be in effect upon signing or at any later date. It can be revoked at any time and is revoked by law upon the maker’s death.

By a durable power of attorney, the maker can nominate his or her conservator or guardian of his or her person for consideration by the court is a proceeding is commenced in court for either or both purposes.

A court appointed guardian is authorized to cause another to become a successor guardian without a court hearing. There are two separate circumstances for this to occur.

If a person is the guardian of a legally incapacitated adult, the guardian can delegate his or her authority or power in writing to another adult without a court hearing. The delegation is done by a power of attorney for a period not to exceed six months. The guardian must notify the court of this delegation. MCL 700.5103

A parent or a spouse as court appointed guardian of a legally incapacitated adult is authorized to appoint a successor guardian by including it in his or her will or by another writing that is not a will. MCL 700.5301

The written document that is not a will must name the successor adult guardian, be signed by the parent or spouse as guardian, and be attested by two adult witnesses. It need not be notarized.

For this successor appointment to occur where the guardian of the unmarried adult is a parent both parents must be deceased or the surviving parent must have been adjudged legally incapacitated.

If the guardian is the spouse of the legally incapacitated individual, for a nominated successor to be appointed the spouse must be deceased or adjudged to be legally incapacitated.

If the above stated conditions are met, the successor guardian must give 7 days notice to certain persons, including the legally incapacitated individual, of the intent to file an acceptance of appointment. The acceptance is filed in the court where the last guardian was appointed the successor appointment is by will or by nontestamentary writing. 

The legally incapacitated individual may file an objection to the appointment in the court where the successor nominated guardian filed the acceptance of appointment. If no objection is filed, the appointment takes effect without any formal court proceeding and without court order.

The filing of the objection terminates the appointment. If an objection is so filed, the court must conduct a hearing to appoint a successor. It may be the nominated person even though an objection was filed. 

Not every individual should sign a power of attorney giving another person the full authority to control all of one’s assets, including bank accounts, real estate, and investments. Such a decision should be made only after careful, informed consultation with an attorney who can explain the advantages and the disadvantages.

There is one other alternative to an adult guardianship that is very important to everyone. It is the special law authorizing adults to name persons to be their patient advocate for health care decisions. Because of the importance and special provisions of this law, it is explained in the article titled: Designating A Patient Advocate For Health Care.

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

Top of Page