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What if the individual's residence changes?
If the individual moves, you should inform the court within 14 days of the move. There is no official form; you can inform the court by letter or fax.
You must also contact the court if your residence changes.
Do my powers change if the individual moves out of state?
Financial institutions and businesses in other states should respect your letters of authority, but they may not. Contact the probate court if you encounter difficulties.
Do I have authority to petition the court for appointment of a guardian?
Yes.
In what circumstances would I do so?
If you believe the individual is a legally incapacitated person, and imposition of guardianship is necessary to provide for his or her needs.
What does legal incapacity mean?
Generally, legal incapacity is the inability to make or communicate informed decisions about one's own care, such as medical treatment decisions and choosing where to live.
How long will the conservatorship last?
Some individuals may need a conservator for a relatively short time, perhaps as they recover from a stroke or close-head injury. Other individuals may suffer from a degenerative condition such as Alzheimers Disease, and need a conservator for the rest of her or his life.
What if the individual for whom I am conservator regains the ability to handle his or her finances?
You should petition the court for termination of the conservatorship.
Form PC 638 Petition to Terminate or Modify ConservatorshipWhat if the individual wants me to have fewer powers or wants the conservatorship terminated?
The individual has the right to petition the court or to contact the court by informal letter. You are prohibited from interfering with transmittal of such a letter.
Upon receipt of a petition or letter, the court will appoint a lawyer for the individual. The individual has the same procedural rights as he or she had at the time of the initial conservatorship petition.
What if the court terminates the conservatorship?
After you cover expenses of administration, you would turn all property and assets you hold as conservator back over to the individual, then file a final account.
D. Resignation or Removal of Conservator
If I feel I can no longer handle the responsibilities, may I resign as conservator?
Yes. File a petition with the court, include a final account, covering the period from the end of the previous account to the present. Send the petition and account to interested parties; personally deliver them to the individual.
Form PC 638 Petition to Terminate or Modify ConservatorshipIs it necessary for me to find a successor?
You may resign without finding a successor, although it will be helpful if you can find someone willing and able to serve. First priority remains someone of the individual's choice.
What will the court do?
The court will set a date for a hearing on approval of your final account, and on appointment of a successor conservator. The court will follow the procedure for an initial petition, including appointment of a guardian ad litem.
What if the court approves my final account and appoints a successor?
You should turn over any assets of the individual still in your hands to the successor. It will be helpful for you to meet with the successor to transfer assets, turn over important documents and discuss outstanding issues.
The successor files a receipt with the court, whereupon the court will discharge you as conservator and cancel any bond. If you have a bond, you should then bring those papers to the insurance company holding the bond.
Form PC 597 Order of DischargeUnder what circumstances might I be removed involuntarily?
The court can remove a conservator who fails to file annual accounts, misuses the individual's funds, engages in self-dealing, or does not perform his or her duties effectively.
What should I do if I am appointed successor conservator?
Accept the assets from the prior conservator, and give him or her a receipt. Change the bank account to show your name as conservator, or change banks if you wish. If real estate is involved, record your letters of authority with the register of deeds. File an inventory of all assets over which you have control and send a copy to all interested persons.
What should I do upon the death of the individual?
First contact any family who may not know about the death.
Notify the probate court and bring the court a certified copy of the death certificate.
What should I do with the individual's will?
If you have possession of the will, deliver it to the probate court. Then notify the person nominated as personal representative in the will, and beneficiaries of the will, that you have done so.
What effect does the individual's death have on my powers?
In general terms, your powers as conservator end.
May I pay for funeral and burial arrangements?
Before paying the funeral bill or any other bills, you must seek court approval. Depending on circumstances, the court can order specific debts be paid immediately.
What else should I do?
You should inform agencies such as Department of Social Services, Social Security Administration, and Veterans Administration from whom the individual was receiving benefits, of his or her death. If monthly benefit checks come after death, do not cash them.
If the individual owned life insurance, you may also inform the life insurance company of the death.
What should I do with money and property I hold as conservator?
Except to the extent you seek and receive court permission to pay bills, retain the property and money until a personal representative is appointed through the probate court.
Once a personal representative is appointed, turn over everything of value to the personal representative and obtain a receipt from him or her.
What is a personal representative?
A personal representative is the person appointed by the court to administer the estate of a person who has died. The role of the personal representative is to gather assets, pay any taxes and debts, and distribute the estate to beneficiaries.
What should I do after I turn over all the property?
Prepare a final account and submit it to the court, with copies to interested parties.
Once the personal representative files an inventory showing receipt of the property, and the court approves the final account, the court will discharge you as conservator and cancel your bond.
PC 597 Order of DischargeWhat if no one petitions the probate court to become personal representative?
If no one has petitioned to commence probate proceedings within 45 days after the date of death, you can petition the court to be given the powers of a personal representative or to distribute a small estate.
What if the value of the estate is relatively small?
If the value of the estate minus expenses of funeral and burial is $15,000 or less, you can petition the court for an order turning the property over to the individual's heirs after the funeral bill is paid.
Might I be sued because of contracts I signed as conservator?
Yes. But if you made clear in signing the contract that you were signing as conservator, your personal funds will not be at stake.
Am I liable for any torts committed by the individual?
No.
Can I be sued because investments turn out badly?
If you used due care in choosing the investments, you cannot be sued successfully merely because the investments turn out badly.
Can I hire a lawyer to represent me if I am sued as conservator?
Yes. As long you had exercised good faith in performing your duties, fees for the lawyer would be payable from the estate of the individual.
What if the individual himself or herself gets sued?
You have the authority to hire a lawyer to represent him or her.
As conservator, am I responsible to pay for purchases the individual makes himself or herself during the conservatorship?
You might contest any major transaction by alleging the individual did not have capacity to contract. If the transaction was through telemarketing, there could be fraud involved.
What if I am threatened with a suit about a decision I plan to make?
You should petition the court for authority. The filing fee is $20.00.
Are there any circumstances where I will be held personally liable?
Yes. Some circumstances that may lead to a lawsuit against you are:
- You deliberately misuse funds of the individual.What happens if I breach my fiduciary duty and I am sued?- You act outside your authority.
- You commingle your income and assets with those of the individual.
- You are negligent in investing money, protecting assets or paying debts.
- You self-deal without prior court approval.
If a judgment is entered against you in a lawsuit, and you have a bond, the bond company will pay part or all the judgment.
The bond company can sue you to try to recover the money it has paid out. You will be responsible to pay your own attorney.
What can I do to minimize the chance of a successful lawsuit?
- Know the limits of your authorityBradley Geller served as counsel for the Age Discrimination Study conducted by the U.S. Commission on Civil Rights, and developed a Title III legal services project for older adults in a three county area. As counsel for the Michigan House Judiciary Committee, he initiated a legislative agenda including issues of Medicaid discrimination, advance directives, and age discrimination. He drafted the Michigan Guardianship Reform Act and Michicare, a proposal for a single payer health care system. He has organized more than a dozen conferences on law and aging issues for older adults, social and health care providers, and lawyers. His publications, including Changes and Choices: Legal Rights of Older People, Advance Directives, and Handbook for Guardians of Adults, have been widely distributed, and cited by the Plain English Committee of the bar. Mr. Geller was appointed to the Michigan Supreme Court Guardianship Task Force. He is a council member of the Senior Justice Section of the State Bar, and plays center field for the renowned Cleveland Indians Softball Club.- Document your activities
- Maintain the individual's assets separately from your own
- Use your common sense
- Keep interested parties informed
- Ask a professional or the court, if you have questions
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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