Return to Table of ContentsARE THERE EXCEPTIONS?
If an individual has difficulty communicating, it may be necessary to have someone who knows the individual present to help interpret his or her responses. It would still be helpful to attempt part of the interview in private.
HOW SHOULD I BEGIN?
Introduce yourself, and briefly explain the purpose of your visit: a guardianship and/or conservatorship petition has been brought in probate court, and you have been appointed by the court to visit and to report back to the court. Inform the individual the discussion is not confidential. MCR 5.201(E).
Rather than immediately talk about the details of process and rights, try to make a connection with the individual. This may require small talk, questions about a hobby, comments and current events.
WHAT IF THE INDIVIDUAL IS SUSPICIOUS?
The individual may be agitated, unfocused or suspicious. The suspicion may be understandable, as the interview is part of a process which may result in the individual losing the power to make decisions.
Try to allay fears after introducing yourself. Attempt to communicate one of your goals is to glean his or her wishes, and his or her cooperation may be helpful in effecting those wishes.
WHAT SHOULD I BE COGNIZANT OF IN CONVERSING WITH THE RESPONDENT?
The individual may have hearing or vision difficulties. Speak slowly, clearly, and loudly enough for the individual to hear. Make eye contact and look for signs of recognition. If the individual is very hard of hearing, you may be able to communicate by writing.
The individual may have difficulty keeping track of the questions. Repeat them. Be patient without being patronizing. Treat the individual as an adult.
Although you know what is relevant to your investigation, the individual does not. The individual's answers to your questions may be long and rambling; again, be patient.
MIGHT A SECOND VISIT BE USEFUL?
Sometimes, yes. Recognize that individuals may have better or worse days, and better or worse times of the day. Medication can affect one's ability to comprehend and converse. An accident or stroke victim might significantly improve over a period of two or three weeks.
A second visit under different circumstances may add to your perspective.
WHAT IF THE INDIVIDUAL DOES NOT SPEAK?
Do not make immediate assumptions. An individual may be unable to speak or write, but able to understand.
Some individuals may be limited to responding by squeezing your hand, or blinking her or his eyes. He or she may smile as you present certain alternatives, frown at others.
ARE THERE OTHER REASONS AN INDIVIDUAL MAY NOT SPEAK?
An individual may not respond because he or she has chosen to withdraw. Sometimes the individual will begin to respond 10 or 15 minutes into the meeting.
WHAT IF THE INDIVIDUAL CANNOT COMMUNICATE?
If you surmise the individual has no ability to communicate, that will be an important aspect of your report. You should still attempt to convey the required information, then conduct the rest of your investigation.
WHAT IF THE INDIVIDUAL ONLY UNDERSTANDS A LANGUAGE OTHER THAN ENGLISH?
If a person does not speak English, the court will endeavor to find an interpreter.
WHAT SPECIFIC INFORMATION DO I NEED TO CONVEY?
Using non technical language, explain the nature of guardianship or conservatorship, the legal effects upon the individual of the appointment of a guardian or conservator, and the name of the person seeking to become guardian or conservator. MCLA 700.5305.
WHAT SHOULD I DETERMINE FIRST?
Try to determine whether the individual has a durable power of attorney for health care or a durable power of attorney of finances. This information is requested on the petition, but do not rely on the petition alone.
WHY IS THIS IMPORTANT?
A new law prohibits a court from granting a guardian powers already held by a patient advocate, unless the patient advocate is not performing her or his duties. MCL 700.5306(5). Sometimes, petitioners have been given incorrect information that guardianship is necessary even when the petitioner is already patient advocate.
IS IT IMPORTANT WHETHER THE INDIVIDUAL IS ENROLLED IN MEDICAID?
Yes. A court can only appoint a guardian if that step is necessary to provide for the individual's needs. A provision of the Social Welfare Act allows the closest family member to authorize treatment for an individual not able to consent him or herself. MCL 700.66h.
WHAT ABOUT A CONSERVATORSHIP?
The law now requires a conservatorship to be necessary, not merely desirable. MCL 700.5401(3)(b). If the individual has a durable power of attorney for finances, conservatorship may not be necessary.
WHAT SHOULD I DO IF THE RESPONDENT ALREADY HAS THESE DOCUMENTS OR IS ENROLLED IN MEDICAID?
You can explain the law to the petitioner. This will sometimes result in the petition being withdrawn.
WHAT SHOULD I DETERMINE NEXT?
Statute requires you determine whether there are alternatives to full guardianship, MCL 700.5305(1)(e), or to conservatorship, MCL 700.5406(4)(a). If you believe the individual is of sound mind and thus has capacity to sign a durable power of attorney, you should suggest that step to both respondent and petitioner.
IF A HEARING WILL OCCUR, WHAT DO I SAY TO RESPONDENT?
Explain the court hearing procedure, including the individual's rights in the procedure. MCL 700.5305(1)(c). Remember these may be familiar to you, but a mystery to the individual.
WHAT SPECIFIC RIGHTS MUST I COVER?
Disposition: The right to contest the proceeding, to request limits on the guardian's or conservator's powers, or to object to a particular person being appointed.
Hearing: To be present at the hearing, to have the site of the hearing changed if necessary, to a hearing closed to the public.
Counsel: To be represented by a lawyer of one's choice, to have a lawyer appointed by the court, to have the appointed lawyer paid by the court if individual unable to afford fee.
Evidence: To present evidence in one's own behalf, to an independent medical exam, to cross-examine any witness.
WHAT IS MY NEXT STEP?
You must determine if the individual wishes to contest the petition, requests limits on the guardian's or conservator's powers; objects to the person nominated as guardian or conservator; or wants a lawyer. MCL 700.5305(1)(e).
The individual's wishes may be express or you may have to infer them from other comments. Be sensitive that many people may be anxious to please. Their responses may be colored by what they think you want to hear, or by what someone else feels is best for them.
IF THE INDIVIDUAL WISHES TO CONTEST, WHAT DO I DO?
Proceed no further with your investigation. Report to the court the individual wishes to contest, or requests counsel. You may use the court form, Acceptance of Trust and Report of Guardian Ad Litem, and simply check the appropriate box. MCL 700.5305(3),(4).
Even if the individual expresses no wish to contest, if at any time during your investigation you believe it to be in his or her best interest to have counsel, you should recommend that step to the court. MCL 700.5305(4).
DO I NEED TO JUDGE WHETHER THE INDIVIDUAL IS MAKING AN INFORMED OBJECTION?
No. If the individual expresses an objection, a wish to contest, or a desire for counsel, you should take that at face value. You should not evaluate whether the individual understands what it means to object.
SHOULD MY REPORT INCLUDE ANY INFORMATION OTHER THAN THE INDIVIDUAL OBJECTS?
Generally, if the individual wishes to contest the petition, your report would not include any information gleaned from your investigation, your opinion on legal incapacity, or your recommendation for disposition.
ARE THERE EXCEPTIONS?
Yes. Following are issues to consider mentioning in your report even if the individual objects.
- The individual already has a durable power of attorney for health care or financesWHAT WILL THE COURT DO WITH A REPORT CITING THE EXISTENCE OF AN ADVANCE DIRECTIVE OR AN OBJECTION OF RESPONDENT?- You believe the individual has capacity to execute a power of attorney
- You believe the petition is spurious or clearly inappropriate
- Venue is improper
- The possibility of mediation, if you believe any disagreement could be resolved in that forum. MCL 700.5305(1)
- Whether the individual wishes to be present at the hearing.
Prior to the hearing or at the time of the hearing, the court will likely appoint a lawyer to represent the individual. MCL 700.5303(3),(4). The court can arrange for mediation. Court staff may contact the petitioner providing the option to petitioner of withdrawing the petition.
WHAT IF THE INDIVIDUAL DOES NOT EXPRESS A WISH TO CONTEST?
You need to complete an investigation and make a detailed report to the court. In this role, you are a neutral party, not an advocate.
WHAT SHOULD I BE COGNIZANT OF IN MAKING AN INVESTIGATION?
Be aware of your values and biases. You may have strong feelings about aging, about cleanliness, about safety. It is also important to be sensitive to personal and cultural differences.
Realize a guardianship or conservatorship petition may be the latest salvo in a years long conflict among family members. The depth of the conflict may not be apparent at first.
You may hear very different, and sometimes seemingly wild stories from the people to whom you speak. Do not make instant judgments regarding verity; attempt to confirm information through other sources.
NEED THE REPORT BE WRITTEN?
Statute requires a guardian ad litem to make a report in writing or through recorded testimony. MCL 700.1403(d). The policy in many courts is to require both, except in emergencies.
WHEN IS A REPORT DUE?
Any written report must be filed with the court at least 24 hours before the hearing, unless another time is specified by the court.
If at all possible, a report should be filed at least two days before the scheduled hearing. Filing the report earlier allows the court to more thoroughly consider it.
WHAT SHOULD THE REPORT INCLUDE?
If the individual does not object to the petition in any way and does not request counsel, the report should include the results of the investigation, and your recommendations for disposition.
The recommendations must include any limitations on the fiduciary's powers and an appropriate review date, if less than one year. MCL700.5305(1)(e)(i)(A);5406(4)(b).
IS THERE INFORMATION THAT I SHOULDN'T INCLUDE IN THE REPORT?
Remember, the report will become part of a public record. Use common sense. If allegations are potentially embarrassing to anyone, first determine if they are relevant to your task. If so, determine if there is some basis in fact. Finally, weigh the potential for embarrassment with the probative necessity of including the information in your report.
HOW LONG SHOULD A REPORT BE?
Your report should include all pertinent information from your investigation. This may take a few paragraphs in some cases and a few pages in others.
WHAT ABOUT MY RECOMMENDATIONS?
Make your recommendations as concise and definitive as circumstances allow. Do not argue all sides of the issue without a suggested resolution. Base your recommendations solely on your investigation, not on what you might imagine the judge wants to hear or on how vociferous the petitioner is.
IF THERE ARE BOTH GUARDIANSHIP AND CONSERVATORSHIP PETITIONS, NEED I FILE TWO REPORTS?
You may file a single report. If some of your findings are specific to one of the petitions, make sure that is clear in your report.
FOR GUARDIANSHIP, WHAT ARE THE SPECIFIC ISSUES TO ADDRESS?
The report should address at least all the following issues:
- Does the individual meet the definition of "incapacitated individual?"Top of Page- If so, is guardianship necessary? For instance, guardianship may be unnecessary when there is an advance directive.
- If guardianship is necessary, are any limits appropriate on the guardian's power, or the term of the guardianship?
- Is the nominated guardian the choice of the respondent? Is the person appropriate person to serve?
- Are there conflicts that might be resolved through mediation?
- Does the individual wish to be present at the hearing?
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Last Updated 1-1-03
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