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What is the first step in a conservator or other protective proceeding?
A petition is filed in probate court in the county where the individual lives. The petition may be filed by the individual himself or herself, by any person interested in the person's estate or welfare, or by a creditor.
The petition requesting the court to issue a protective order is the same court form as used for a conservatorship. Petition forms are available from the probate court for free.
Form PC 639 Petition for Appointment of Conservator or Protective OrderHow much is the court filing fee?
The fee is $150.00. The fee is paid to the probate court by the person bringing the petition. If a conservatorship is established, the petitioner can seek reimbursement from the individual's estate.
What happens after a petition is filed?
1. Court staff schedule a hearingHow does the process differ in emergencies?2. Petitioner notifies individual, in person
3. Petitioner notifies interested parties in person or by mail
4. Court appoints guardian ad litem
If the petitioner brings an emergency petition, he or she must pay an additional $20.00 fee. If circumstances merit, it is possible to get an ex parte order freezing assets until a court hearing is held. After a hearing with notice to the individual, the court can appoint a special conservator to serve on a temporary basis until a full hearing with notice to all interested parties.
Who are interested parties in a conservatorship?
The individual's spouse and children are interested parties. If a child has died, that child's children are interested parties. If there is no spouse or descendents, then the individual's parents. If there are no parents alive, then the individual's brothers and sisters must receive notice.
Any agency paying benefits to the individual must also receive notice.
If there are no interested persons, the Michigan Attorney General must be served.
What is a proof of service?
The petitioner not only has an obligation to personally serve the individual with the notice of hearing and the petition, and to serve the same papers by mail to interested persons, but to file a form known as a proof of service with the court, stating these steps were taken.
The proof of service must be filed before the court hearing.
Form PC 564 Proof of ServiceTop of Page
What is the role of the guardian ad litem?
- Visiting the individual who is subject of the petition, and explaining the nature of conservatorship and the individual's rights in the process
- Determining whether the individual wishes to be present at the hearing or contest the proceeding in any way, and report this to the court- Exploring alternatives to conservatorhip, such as a durable power of attorney and a trust
- If the individual does not contest, conducting an investigation, making a written report with findings and recommendations to the court, and appearing at the court hearingWhat issues should the guardian ad litem address?
- Is conservatorship appropriate?Does the guardian ad litem have any power to make decisions for the individual?- What limitations, if any, should be placed on the conservator's powers?
- Is the nominated individual qualified to serve as conservator?
- Should bond be required, and if so, in what amount?
- Should the individual retain control of any assets or income?
- If the individual wishes to be at the hearing, what accommodations should the court make due to her or his restricted mobility, impaired hearing or vision, or non-English speaking ability?
No.
When does the role of guardian ad litem end?
The responsibilities of the guardian ad litem usually end upon his or her court appearance. If the individual contests the petition, the court will appoint an attorney to represent the individual, and discharge the guardian ad litem.
What happens at the hearing?
1. The hearing is held at the courthouse or other convenient location.
2. Petitioner presents evidence on need for conservator.
3. Individual has right to be present, to present evidence, to
cross-examine witnesses.
4. Court weighs evidence, then issues order appointing conservator,
issues a protective order or dismisses petition.
Form PC 640 Order Appointing ConservatorTop of Page
Form PC 644 Protective Order
Who has priority for appointment as conservator?
If the individual now expresses, or in the past has indicated a preference for a person to handle financial affairs, the court will consider that person.
If there is no evidence of preference, or if the court finds the nominated person unable or unwilling to handle the task, the court will usually follow this priority: spouse, adult child, parent, other relative.
If there is no family willing and able to serve, the court can appoint a professional, a bank or a volunteer.
Can an individual who lives outside Michigan serve as conservator?
Yes.
What will the court order include?
In addition to appointing the conservator, the court order will specify any limitations on the conservator's powers. By law, the court must encourage the development of maximum self-reliance and independence of the individual, and to tailor the conservatorship to the needs of the individual.
The court can establish a limited conservatorship allowing the individual to continue to control some of his or her property. For example, the court may allow the individual to keep his or her employment income. Or the court may order the conservator provide the individual an "allowance" to spend as the individual wishes.
How else might the court limit the conservator's powers?
The court can order the conservator to put certain funds in a restricted account, meaning the conservator needs court approval before making a withdrawal.
The court often will require the conservator get court approval before selling the individual's home or other real estate.
What else will the court order include?
The court order will specify whether the conservator is to sign an acceptance of trust or file a bond.
What is an acceptance of trust?
An acceptance of trust is a document you sign when appointed by the court, in which you agree to serve as conservator and perform the required duties.
Form PC 571 Acceptance of AppointmentTop of Page
What is bond?
A bond is like an insurance policy to protect the individual's assets. The bond serves as a guarantee you will not misuse or be careless with the money and property entrusted to you as conservator.
You may purchase a bond through an insurance agent.
How is the cost of the bond determined?
The court sets the amount of bond based on the approximate value of property and annual income to which you have unrestricted access.
The insurance company will charge an initial premium covering the first year; the cost depends on the size of the bond set by the court. The company will then bill you each year.
Will the amount of bond always remain the same?
No. If you request the court to confirm the sale of real estate, the court will likely increase the bond temporarily to cover the purchase price.
At any time in the future, if assets of the estate are substantially lower than when bond was originally set, you may request the court to reduce or cancel the bond.
Who is responsible for the cost of the bond?
The premium is payable out of the assets of the individual. For the first premium, you may have to pay out-of-pocket, then reimburse yourself when you get control of the individual's money.
Upon you paying the bond, you and the agent complete a form which you then submit to the court.
Form PC 570 Bond of FiduciaryHow does the court decide whether to demand an acceptance of trust or a bond?
A court might choose not to require bond opt if all or a substantial part of the assets will be placed in a restricted account. When funds are placed in such an account, the conservator needs court approval before making a withdrawal.
The court might also consider the amount involved, the relationship of the conservator to the individual, and the experience of the conservator in handling finances.
What happens after the conservator files an acceptance of appointment and proof of bond, if required?
The court will issue the conservator letters of conservatorship.
What are letters of conservatorship?
Letters of conservatorship are evidence of the transfer of title of the individual's assets to you as conservator. The letters serve as proof of your authority to act, and set forth any limits to your power. Read the letters very carefully.
You will receive one certified copy of the letters from the court.
Form PC 645 Letters of ConservatorshipWhen would I use letters of conservatorship?
You will need the letters of conservatorship to set up a bank account and to conduct other financial transactions. Sometimes, showing an agency or person the certified copy, then giving them a photocopy, will be sufficient.
What if I need more certified copies than the one I have received?
Additional certified copies of letters of conservatorship are available from the probate court at a cost of $10.00 per copy. You may use the assets of the individual to pay this and other court fees.
Do I have access to the court file?
Yes. You may review the file at any time the probate court office is open. It is a good idea to keep a copy of all forms you file with the court, and a copy of other important papers, in the file.
What is the overriding duty of a conservator?
A conservator owes a fiduciary duty to the individual, a duty of the highest trust. The conservator must use care in handling property, be prudent in making investments, and use assets only for the benefit of the individual and his or her dependents. You must account to the court for all money and property received, all money spent and each property sold.
A conservator has title to the property, but does not own it. Rather, a conservator manages it for the benefit of the individual.
What are some actions to avoid?
- Do not commingle conservatorship assets with your own. Do not treat the individual's property as your own in any way.
-Do not put any of the individual's money in your own bank account. You must establish a bank account or accounts separate from your own. Do not set up a joint bank account.
- Avoid self-dealing unless you first get court permission. Do not sell anything to the individual or purchase anything from him or her. Do not take a loan from conservatorship funds. Do not use conservatorship funds to pay for your own personal bills and needs.
-Except for you receiving court approved fees for your services, neither you nor any of your family should financially benefit from the conservatorship.Are there other general duties?
- Respect any limitations on your powers set forth in law or in your letters of authority.
- Encourage independence and self-reliance of the individual, to the extent possible. This may mean allowing the individual direct access to some funds to spend as he or she likes.
- Keep financial affairs of the individual private, except when necessary to disclose them as part of financial transactions or in fulfilling duties to report to the court or to interested parties.
- Fulfill reporting requirements to the court - an inventory and annual accounts - in a timely and accurate manner.Do I have a responsibility to inform the individual of my role as conservator and of his or her rights?
Yes. You should attempt to do this as soon as possible. You should do so in person.
Should I discuss financial matters with the individual?
A person who no longer has control of his or her money may feel others are stealing or otherwise misusing it. You should try to allay those fears. If an individual can understand a decision is to be made, a conservator should confer with him or her before acting.
Should I consider the wishes of the individual?
Yes. A conservator should be guided by the known wishes, likes and preferences of an individual, whether expressed before the conservatorship was established or currently. Whenever possible, the individual should be presented with choices. These are important aspects of independence and dignity.
What if I am unsure I have the power to take a particular action?
A conservator always has the right to petition the court for instructions, requesting the court determine his or powers or the right course of action. There is a $20.00 fee. Do not hesitate to petition the court if you have any doubts.
Form PC 586 Petition and Order for AuthorityTop of Page
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Last Updated 1-1-04
Send your comments, questions and suggestions to Phil Harter at 161
E Michigan Avenue, Battle Creek, Michigan 49014 or
e mail to pharter@calhouncountymi.gov