Return to Table of ContentsWHAT MIGHT BE MY SOURCES OF INFORMATION?
You must, of course, visit the respondent. You will attempt a conversation, and you may also make observations about the respondent's living situation.
You should usually speak with the petitioner. You can speak with the other interested persons, doctors and nurses who provide care, social workers or others involved with the individual. There may be legal documents to review or court records to check.
Some information may be easy to obtain, some may require digging.
DO I HAVE ACCESS TO MEDICAL RECORDS AND BANK RECORDS?
Yes.
WHAT IF A HEALTH CARE PROVIDER WILL NOT RELEASE INFORMATION?
A doctor or hospital may raise the issue of confidentiality.
You can ask the court to consider issuing a specific court order if the issue cannot be resolved through discussion.
To the extent you have access to confidential information, use it only as is necessary to well perform your task.
IN CONDUCTING THE INVESTIGATION, CAN I RELY ON HEARSAY?
Yes. But try to confirm any information, as your sources are unlikely to testify at the hearing. Be particularly wary of multiple levels of hearsay.
In your report, indicate what information you have received through hearsay.
WHAT IS THE DEFINITION OF "INCAPACITATED INDIVIDUAL?"
The Estates and Protected Individuals Code defines an incapacitated individual as an individual -
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.MCL 700.1105(a).
WHAT DOES THIS MEAN?
The concept of legal incapacity is not a simple one to grasp.
An individual is incapacitated if he or she hasn't the ability to take in information, weigh alternatives, make a decision based on that information, and communicate the decision.
Whether you or other people agree with decisions made, or whether it seems decisions are in the individual's "best interest" from an "objective" perspective are not determinative. Looked at from another angle, you must determine whether the individual can make informed decisions, not whether he or she does make reasonable decisions.
HOW DOES THIS CONCEPT FIT WITH THE OVERALL GOAL OF GUARDIANSHIP?
The goal of our guardianship law is arguably to protect the opportunity for maximum independence, not to ensure the greatest safety of individuals. The initial question for you to answer is emphatically not, "Would this person be better off with a guardian?" Though a petitioner may have the best of motives, guardianship may still be inappropriate.
IS INCAPACITY AN ALL OR NOTHING CONCEPT?
No. The ability of an individual to make a particular type of decision will not always be "yes" or "no," but fall somewhere on a continuum.
Second, an individual may be perfectly able to handle day to day affairs, but incapable of making complex medical treatment decisions.
Third, an individual may be able to make informed decisions on some days, but not on others. Drugs, therapy, and one's surroundings may affect one's ability for better or worse.
IS AN INDIVIDUAL WITH A PHYSICAL DISABILITY INCAPACITATED IN A LEGAL SENSE?
It is imperative you distinguish between physical and mental disability, although the two are often confused.
The physical abilities of an individual - whether he or she can walk, can see, can hear - are not determinative of legal incapacity.
For instance, an individual might have no use of his or her arms and legs, no way to care for needs without assistance, yet have every ability to make informed decisions. An older individual may be "frail" and perhaps in greater jeopardy of broken bones, with no affect on the ability to make informed choices.
WHAT CONDITIONS MIGHT LEAD TO AN INABILITY TO MAKE INFORMED DECISIONS?
An individual might suffer a closed head injury in an automobile accident, a stroke, a degenerative condition such as Alzheimer's Disease, alcoholism, a severe mental illness. Sometimes the condition may date back to childhood.
WHERE MIGHT I LOOK FOR INFORMATION ABOUT INCAPACITY?
You will speak with the individual him or herself. You might also speak with the petitioner, family members, doctors, nurses and social workers. You can review medical records.
If you speak with nurses or social workers at a nursing home or hospital, do not speak with them in front of the individual as if the individual were not there.
WHEN I SPEAK WITH THE INDIVIDUAL, WHAT INFORMATION AM I AFTER?
You can try to answer the following questions, recognizing some are more difficult to answer than others:
- Is the individual oriented - does he or she know his or her name; where he or she is; the season of the year; whether it is morning, afternoon or night; the relationship of the petitioner to him or her?Whether the individual can count back from 100 by 7's or spell the word "world" backward is not important.- Does the individual understand the information you have provided him or her?
- How is the individual's short term and long term memory?
- Is the individual consistent in his or her answers over the course of the discussion, that is, are the responses reliable?
- Is the individual aware of the consequences of his or her actions or inactions?
HOW MIGHT I DETERMINE ANSWERS TO THESE QUESTIONS?
If an individual merely responds "yes" or "no" to your questions, it can be difficult to gauge understanding. After you have discussed a concept with the individual, it may be helpful to ask him or her to explain it back to you in is or her own words.
It can be useful to ask the same question in more than one way at different points in the discussion, to see if responses are consistent.
WHAT IF INCAPACITY MAY HAVE EXISTED SINCE CHILDHOOD?
If you believe an individual's inability to make decisions arises from a developmental disability - a condition arising during childhood - inform the court. "Developmental disability" is defined in the Mental Health Code. MCL 330.1100a(19).
There are different court procedures regarding guardianship for individuals with a developmental disability. MCL 330.1600, et supra. For instance, a lawyer is appointed for each respondent, and a thorough evaluation known as a "612 Report" must be submitted to the court.
WHEN I SPEAK WITH DOCTORS OR REVIEW MEDICAL RECORDS, WHAT SPECIFICALLY AM I AFTER?
Note how recently the individual last saw a doctor, and over what period of time the doctor has had a relationship with the individual.
You want to find out what medical conditions the individual suffers from, and how and to what extent these conditions affect the ability to make informed decisions. You would like to find out how long the person has suffered the condition, how definite the diagnosis, the treatment the individual is undergoing, and the medications he or she is receiving.
Finally, you would like an opinion on the prospects for improvement.
HOW MUCH WEIGHT DO I GIVE TO A DOCTOR'S OPINION ON INCAPACITY?
Consider for how long the doctor has known the individual; the opportunity for the doctor to have seen changes over time.
Realize a doctor may not understand the concept of legal incapacity, may see incapacity as all or nothing, have stereotypic notions about older adults, have little information how the individual functions in everyday life, or simply be wrong in her or his judgment. The opinion of particular specialists, e.g., psychiatrists or neurologists, may not always be more reliable than those of other doctors.
Certainly do not be satisfied with mere conclusions about incapacity or the need for guardianship, without background information.
HOW MUCH WEIGHT ON MEDICAL RECORDS OR EVALUATIONS?
Obviously, the older the records, the less relevant. Also, consider the purpose which an evaluation was done.
UPON COMPLETING MY INVESTIGATION, WHAT IF I AM STILL UNSURE OF INCAPACITY?
Obviously, an individual's competence cannot be quantified, and its evaluation is a difficult matter.
You can recommend the court order an evaluation of the individual. MCL 700.5304(1). The evaluation, conducted by a physician or mental health professional, or both, should address the infirmities of the individual, how the infirmities interfere with decision making, a prognosis for improvement, and a recommended rehabilitation plan. MCL 700.5404(3).
WHAT IF I DETERMINE AN INDIVIDUAL IS NOT INCAPACITATED?
You need go no further in your investigation, and you should report your finding to the court.
If an individual is not presently incapacitated, guardianship is not appropriate. Guardianship is not a mechanism to provide for future incapacity, whatever its probability.
You may in your report suggest the respondent consider signing an advance directive.
IF I CONCLUDE AN INDIVIDUAL IS INCAPACITATED, WHAT IS MY NEXT STEP?
In order for the court to appoint a guardian, the court must find by clear and convincing evidence -
both that the person for whom a guardian is sought is an incapacitated individual, and that the appointment is necessary as a means of providing continuing care and supervision of the person of the incapacitated individual, with each finding supported separately on the record. (emphasis added) MCL 700.5306(1).IN WHAT CIRCUMSTANCES MIGHT A GUARDIANSHIP NOT BE NECESSARY?
The individual may have executed a durable power of attorney for health care (also known as a health care proxy or patient advocate designation). The patient advocate may have authority to make many of the same personal care and medical treatment decisions as a guardian, obviating the need for a guardian. Indeed, a court ordinarily cannot grant a guardian those powers held by a patient advocate. MCL 700.5306(5).
The individual may have signed a living will, clearly expressing his or her wishes concerning care during terminal illness or permanent unconsciousness.
Even if the petition does not indicate the existence of an advance directive, it is important to speak with the respondent, the petitioner, the nursing home, and the doctor, to see if such documents exist.
ARE THERE OTHER CIRCUMSTANCES WHEN A GUARDIANSHIP MAY NOT BE NECESSARY?
Yes. The triggering event for a guardianship petition may be the need for informed consent to medical treatment. Another person may have authority through statute to make health care decisions for the individual. See MCL 400.66h, applicable to individuals enrolled in Medicaid.
Finally, there may be informal arrangements for surrogate decision making that are well serving the individual.
IF GUARDIANSHIP IS NECESSARY, WHAT IS THE NEXT ISSUE FOR ME TO ADDRESS?
An individual may be able to make informed decisions in some areas but not others. One necessary goal of the court is to tailor the guardian's powers to the demonstrated needs of the individual. MCL 700.5306(2). State law requires the guardian ad litem consider the possibility of limited guardianship, and if appropriate, recommend the specific powers the limited guardian should have. MCL 700.5305(1)(e)(i)(A).
The court will rely heavily on your report in making this determination.
HOW MIGHT THE COURT LIMIT A GUARDIAN'S POWERS?
It is often appropriate to limit a guardian's powers to medical treatment decisions, including a determination of the need for nursing home care. In some cases, it is appropriate to suggest court review before a guardian can admit an individual to a nursing home.
Remember a full guardian has the right to handle an individual's money if a conservator is not appointed. You should address whether the individual is capable of handling a small amount of his or her funds without supervision.
CAN A GUARDIANSHIP BE LIMITED IN TIME?
The need for a guardian may not be permanent. For example, an individual may have been in an accident or suffered a stroke, from which recovery is possible. Or the cause of incapacity may be a potentially reversible condition such as over or under use of medications, malnutrition, depression or withdrawal.
Your report can recommend whether a guardianship should be time limited, through suggesting a review date in three months or six months.
WHAT IS THE NEXT ISSUE TO CONSIDER?
You must recommend who should serve as guardian. The petition may nominate an individual, but it is for the court to make the determination.
WHO HAS PRIORITY FOR APPOINTMENT AS GUARDIAN?
MCL 700.5313(2),(3), sets forth the following priorities:
- A person designated now by the respondentTop of Page- A person the respondent has named as agent in a durable power of attorney
- Spouse
- Adult child
- Parent
- Relative respondent has been living with at least last six months
- Person nominated by person caring for respondent or paying respondent benefits
- Any other person able and willing to serve
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Last Updated 1-1-03
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