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A. In General3. Visiting the Individual
A. Termination or Modification of Guardianship8. Death of Individual
Diary (Web master note: Not available in online version)
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Being a guardian is not a simple role, but one demanding responsibility, patience, compassion, and sensitivity. There are a number of duties you owe to the person you have agreed to assist. There are also duties you owe to the court.
Historically, guardianship developed as an exercise of parens patriae - the state as protector of its citizens. Under Michigan's guardianship reform law, the court must balance that goal with the value we place on personal independence and self-determination. Under the law, guardianship can only be imposed when there is no alternative.
Since the abilities and disabilities of each person differ, when guardianship is appropriate the powers of the guardian should be tailored to the needs of the individual.
In any guardianship, there are certain powers you have as guardian, and certain rights kept by the individual. It is important to be familiar with your powers, and to respect and advocate for the individual's rights. You should also recognize the impact of guardianship upon an individual's outlook, and try to minimize negative effects.
To help you in your new and challenging role, we have prepared this guide to answer questions you may have. Most of the information is based on state law and court rules. When an issue is not addressed by these sources, we have tried to establish good policy within the spirit of the law. To avoid labels we refer to a person for whom a guardian has been appointed as an "individual."
An important topic of this book is the powers you have as guardian. Realize even if you have legal authority, there may be practical problems you encounter in exercising that authority. For example, although you may have power to consent to medical treatment, it may be difficult to convince the individual to go to the doctor.
This handbook focuses on guardianships for adults under the Estates and protected Individuals Code. If an adult suffers from a developmental disability, somewhat different provisions of the Mental Health Code apply.
The book includes certain court forms used in guardianship proceedings and makes reference to others. Each type of court form has a number, such as PC 625, found at the bottom left-hand corner. Not every form is used in every case. Blank forms are available from the probate court office.
If questions arise - about your duties, an individual's rights, or resources available in the community - for which you cannot find an answer, please call upon the court.
A guardian is a person appointed by a probate court and given power and responsibility to make certain decisions about the care of another individual.
What initial steps are followed in guardianship proceedings?
1. Petition filed in probate court by person interested in individual's welfareHow much is the filing fee?2. Petitioner notifies individual, in person
3. Petitioner notifies interested parties, such as family members, by mail
4. Court may order examination by mental health professional
5. Court appoints guardian ad litem
PC 625 Petition for Appointment of Guardian
The fee is $150.00. If an emergency petition is brought, there is an additional fee of $20.00. The court can waive this fee if the petitioner cannot afford it. If the petitioner pays the fee, he or she can be reimbursed from funds of the individual if a guardianship is established.
How does the process differ in emergencies?
In an emergency, interested parties need not receive notice. The individual still receives notice and a hearing is held. If an emergency petition is granted, the court appoints a temporary guardian. A second hearing, with notice to all interested parties, must occur within 28 days.
What is an emergency?
An emergency is a crisis from the perspective of the individual, for instance, when a health care decision must be made in a life and death situation. It is not an emergency when a hospital wishes to transfer an individual to a nursing home.
Upon whom may a court impose a guardianship?
The court must find by clear and convincing evidence both that the individual is an incapacitated individual and imposition of guardianship is necessary to provide for the individual's care.
What is a legally incapacitated individual?
A legally incapacitated individual is an adult who -
is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause... to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions.What is the role of the guardian ad litem?
- Visiting the individual who is subject of the petition- Determining whether there are alternatives to guardianship
- Explaining to the individual the nature of guardianship and the individual's rights in the process
- Determining whether the individual wishes to be present at the hearing or contest the proceedings in any way
- Reporting back to the court whether the individual wishes to contest the proceedings. If not, recommending whether he or she needs a limited or full guardian.
Does the guardian ad litem have any power to make decisions for
the individual?
No. Although there is often confusion over his or her role, a guardian ad litem does not have authority to make decisions for the individual.
When does the role of guardian ad litem end?
The responsibilities of the guardian ad litem usually end upon his or her report to the court.
What happens upon the guardian ad litem reporting to the court?
1. Court appoints attorney to represent individual, if appropriate.What is an acceptance of appointment?2. Hearing at courthouse or other convenient location.
3. Court issues order appointing guardian or dismisses petition.
4. If guardian appointed, guardian files acceptance of appointment with court.
5. Court issues letters of guardianship to guardian
PC 631 Order Appointing Guardian
An acceptance of appointment is a document you sign when appointed by the court, in which you agree to serve as guardian and perform the required duties.
PC 571 Acceptance of AppointmentWhat are letters of guardianship?
Letters of guardianship serve as proof of your authority to act, and set forth any limits to your power. You should have received a certified copy of the letters of guardianship from the court. Read it carefully; it will note any limitations on your powers, and set forth your reporting duties to the court.
If the letters of guardianship conflict with any of the information in this handbook, follow the letters of guardianship.
PC 633 Letters of GuardianshipWhen would I use letters of guardianship?
For example, if you set up a bank account, the bank will need a copy of your letters. If you are to make a medical treatment decision, the doctor or hospital will likely want to see a copy.
For most purposes, showing an agency or person the certified copy, then
giving them a photocopy for their files, will be sufficient.
What if I need more certified copies than the one I have received?
Additional certified copies of letters of guardianship are available
from
the probate court at a cost of $10.00 per copy, a cost payable from
the resources of the individual.
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.
No. The court should only grant a guardian powers over those areas in which an individual cannot make informed decisions. Any guardian upon whom the court grants fewer than all powers of a guardian is a limited guardian.
For example, a person who is appointed to make only medical care decisions for an individual is a limited guardian. The individual would retain the power to act independently in all other areas.
In general, what are the duties of a guardian?
The law states a guardian is responsible for the individual’s "care, custody, and control."
More specifically , what are a guardian's powers and duties?
Unless limited by the court order, a guardian has the responsibility to
- Determine where the individual livesWhat is a conservator?- Make provision for his or her care and comfort, including food, clothing and shelter
- Obtain services to achieve the best possible state of well-being
- Return the individual to self-management, if and when possible
- Authorize or refuse medical treatment
- Take care of clothing, furniture, vehicles, and other belongings
- If a conservator is not appointed, receive money due the individual and use it for his or her needs.
A conservator is a person or financial institution appointed by the probate court to handle an individual's property and financial affairs. Sometimes the same person serves as both guardian and conservator.
Once appointed, a conservator takes title to and manages the individual's assets. A conservatorship can be limited by the court in such way the individual continues to control part of his or her property.
In exercising powers, should I as guardian consider the wishes of the individual?
Yes. A guardian should be guided by the known wishes, likes, and preferences of an individual, whether expressed before the guardianship was established or currently.
If an individual can understand a decision is to be made, a guardian must confer with him or her before acting. Whenever possible, the individual should be presented with choices. These are important aspects of independence and dignity.
Are the duties of a full guardian unlimited?
No.
What are some powers a guardian does not have?
- Unless also appointed conservator by the court, authority to sell property such as stocks or real estateWhat rights does an individual retain under full guardianship?- Commit an individual to a psychiatric hospital without a separate commitment hearing, unless the individual assents
- Cast the individual's ballot in an election
- Determine his or her religious preference
-Write a will for the individual
- Physically punish him or her
The law is not clear on this matter. But unless specifically restricted by the probate court, an individual probably retains the right to attend worship services of his or her choice, to receive and send mail unopened, to use the telephone, to receive visitors, to maintain membership in civic organizations.
Does the individual retain the right to make a will, or change an existing will?
If the individual is generally aware of his or her property, his or her close relatives, and that the document is a will, he or she has the capacity to sign a will. The will must reflect the individual's wishes for distribution of the property and be signed voluntarily. A will signed while an individual is under guardianship might be later challenged on the basis of lack of capacity or undue influence.
A conservator, but not a guardian, has the right to read an existing will.
Can the individual vote in local, state and federal elections?
Yes. Although permitted to by the Michigan Constitution, the legislature has not passed a law excluding persons from voting because of mental incompetence.
A guardian or another person may read and explain the ballot to the individual, but may not vote for the individual.
Anyone may transport the individual to the polls. Or the individual may vote by absentee ballot if he or she is physically unable to attend the polls; or is at least 60 years old; or will be away from home during election day.
Can the individual still drive an automobile?
The Michigan Secretary of State has the right upon notice and reexamination to suspend or revoke the driver's license of an individual who is not competent to drive a motor vehicle due to mental disability.
As guardian, you may contact the Secretary of State.
Do I have a responsibility to inform the individual of my role as guardian and of his or her rights?
Yes. You should attempt to do this as soon as possible.
What if the individual's residence changes?
If the individual moves, whether by his or her choice, or by yours, you have an important obligation to inform the court within 14 days of the move. You may wish to use the form on the next page if you wish.
You also have an obligation if you move to inform the court of your new address and telephone number.
Notice of Change of ResidenceTop 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