Return to Table of ContentsMAY THE COURT APPOINT A PROFESSIONAL AS GUARDIAN?
Yes. The court may appoint a professional guardian, but only if it is in the individual's best interest and there is no other person suitable and willing to serve. MCL 700.5106(2). "Professional guardian" is defined broadly. MCL 700.1106(r)
WHOM MAY THE COURT NOT APPOINT?
The court may not appoint an agency that financially benefits from directly providing housing, medical, or social services to the individual. MCL 700.5313(1).
HOW DO I PROCEED?
When you speak with the respondent, ask who he or she would prefer to serve as guardian. Try to probe whether this is an honest answer, rather than the individual just trying to please someone. An individual may not be explicit in his or her preference, but you might glean it from other information or behavior. Finally, the individual may be firm on someone he or she doesn't want to be guardian.
If you cannot determine a preference, check who has priority in statute.
WHAT SHOULD I DO THEN?
Contact the person preferred by the individual, or the person who has statutory priority when no preference is expressed. Determine if that person is both willing and able to serve. You may need to explain the duties of a guardian to that person first.
WHAT IF THERE IS A CONFLICT AMONG FAMILY MEMBERS?
You may find individuals with equal priority - usually siblings - or with different priorities in strong disagreement as to whom should serve as guardian. Indeed, the guardianship petition may inflame long simmering intra-family disputes.
Such cases of conflict may be amenable to mediation. If you believe so, you must in your report suggest the court refer the case for formal mediation. You may, as an alternative, suggest a neutral, non family member serve.
WHAT IF A PROFESSIONAL GUARDIAN IS NOMINATED?
Appointment of a professional guardian, including a public administrator, is only appropriate if there is no individual willing and suitable to serve. That a professional guardian is nominated by a petitioner has no bearing on its priority.
Unfortunately, there have been corporations in Michigan which have not adequately performed their fiduciary duties. The court has a duty to minimize the risk of misfeasance by guardians. Check carefully the reputation of any entity nominated, and how many individuals for whom the guardian is responsible.
WHAT IF NO INDIVIDUAL OR CORPORATION IS NOMINATED IN THE PETITION?
In some cases, a respondent may have no family, or family members may be unable or unwilling to serve as guardian.
If guardianship is appropriate, you can recommend to the court whether the individual's needs can be met by a volunteer from the community, or a professional guardian.
NEED I DETERMINE THE INDIVIDUAL'S FINANCIAL STATUS?
Yes. Sometimes a guardianship petition is accompanied by a conservatorship petition, sometimes not. In either case you want to recommend to the court whether a conservatorship is appropriate.
A guardian has the power to deal with an individual's income and property if a conservator is not appointed.
You should determine the income of the individual, and the nature and approximate value of his or her assets. If there is income beyond that needed for food, clothing and shelter; or there are substantial assets, suggest to the court a conservatorship is appropriate.
WHAT OTHER RECOMMENDATIONS HINGE ON RESPONDENT'S FINANCIAL STATUS?
The court would like your input on whether the guardian ad litem fee should come from the estate of the respondent or from the court.
ARE THERE OTHER ISSUES TO ADDRESS IN THE REPORT?
Yes. Although the presence of the respondent at the hearing is not required, he or she has an absolute right to attend. MCL 700.5303(4). The individual may wish to attend even if he or she is not contesting the petition.
You must state in your report whether the respondent wishes to exercise this right. MCL 700.5305(1)(e)(i).
WHAT IF A RESPONDENT IS UNABLE TO TRAVEL TO COURT?
Statute provides for moving the site of a hearing if necessary. MCL 700.5304(4). The court can hold session in a hospital or nursing home, for instance, for an individual unable to travel. Advise the court if this accommodation is appropriate.
An individual may be physically able, but have no means of getting to the hearing. You may as guardian ad litem arrange for transportation.
WHAT IF THE INDIVIDUAL HAS A HEARING DISABILITY?
The Americans with Disabilities Act applies to the courts. If the individual wishes to attend the hearing, include in your report what measures are necessary to allow or encourage meaningful participation. For an individual with no hearing, for instance, a sign language interpreter might be helpful.
WHAT IF A RESPONDENT DOESN'T SPEAK ENGLISH?
Although not being able to understand or speak English is not a disability covered by the ADA, the court has an obligation to try to find an interpreter.
DOES THE INDIVIDUAL HAVE THE RIGHT TO HAVE A CLOSED HEARING?
Yes. Either the individual or his or her attorney can request the hearing be closed to the public. MCL 700.5304(6)
You should inform the individual of his right, and tell the court if the individual wishes to exercise it.
WHAT IS MY ROLE ON A PETITION OR LETTER SEEKING MODIFICATION OR TERMINATION OF A GUARDIANSHIP?
Modification may involve a change in the powers of a guardian, or appointment of a successor guardian. You still need to speak with the respondent. If the respondent does not contest the modification, your investigation can focus on the specific issues involved.
If the individual him or herself seeks modification or termination, you should be appointed attorney, not guardian ad litem.
ONCE I COMPLETE MY REPORT, WHAT SHOULD I DO?
File the report with the court. Once the report is part of the court file, interested persons have access to it.
FOR CONSERVATORSHIP, WHAT ARE SPECIFIC ISSUES TO ADDRESS?
An individual may petition for appointment of a conservator for him or herself. MCL 700.5401(4). Through your investigation you should determine whether the individual understands what he or she is asking the court to do, the individual needs assistance to manage property effectively, and the person nominated to serve as conservator is willing and able to serve.
WHAT IF SOMEONE ELSE PETITIONS FOR CONSERVATORSHIP?
You will need to proceed similar to guardianship - to determine if the individual contests the petition, whether conservatorship is appropriate, whether the individual is able to handle some funds independently, and who should serve as conservator.
WHEN IS CONSERVATORSHIP APPROPRIATE?
Conservatorship is appropriate if an individual is unable to manage his or her property or business affairs effectively, and protection is necessary to prevent waste or to provide for care and support of the individual or dependents. MCL 700.5401(3).
You must explore the individual's ability to manage money, the amount of income and assets he or she has, and alternatives to conservatorship that may exist. MCL 700.5406(4)(a). For example, the individual may already have a durable power of attorney, or a protective order may suffice instead of a conservatorship. MCL 700.5408.
WHAT ARE GENERAL CONSTRAINTS ON THE COURT IN CONSERVATORSHIP PROCEEDINGS?
EPIC provides...WHAT SPECIFIC LIMITS MIGHT BE PLACED ON A CONSERVATOR'S POWERS?The court shall exercise authority conferred in this part to encourage the development of maximum self-reliance and independence of a protected individual and shall make protective orders only to the extent necessitated by the protected individual's mental and adaptive limitations and other conditions warranting the procedure.
MCL 700.5407(1).
The court may authorize an individual with a conservator to handle part of his or her money or property without consent or supervision by the conservator. MCL 700.5407(1).
The court may order the conservator to place funds in a restricted account, requiring court approval for withdrawals. A conservator can not sell real property without a court hearing on the issue and court approval. MCL 700.5423(3).
WHO HAS PRIORITY FOR APPOINTMENT AS CONSERVATOR?
Statute provides the following priorities:
- Fiduciary appointed in another jurisdictionExcept for a person designated by the individual, a person with priority can nominate in writing another person to serve in his or her stead. MCL 700.5409.- Person designated now by the respondent
- Spouse
- Adult child
- Parent
- Relative respondent has been living with past six months.
- Person nominated by person caring for respondent or paying respondent benefits
- Any other person able and willing to serve
WHAT OTHER ISSUES NEED I ADDRESS?
You should inform the court whether you think a bond is appropriate, and if so, the amount of the bond. MCL 700.5410. In lieu of a bond, you might suggest part of the estate be placed in a restricted account.
IS IT MY RESPONSIBILITY TO DRAFT PROPOSED GUARDIANSHIP AND CONSERVATORSHIP ORDERS?
No. If the attorney for the petitioner has submitted a draft order, check to see if it comports with your recommendations. If not, point this out to court staff so a note may be included in the file.
DO I NEED TO APPEAR AT THE HEARING?
Yes, usually. An exception is when the respondent objects, counsel has been appointed, and you have been discharged as guardian ad litem prior to the hearing.
If you have a scheduling conflict or fall ill, inform the court so the hearing may be adjourned.
WHAT MIGHT OCCUR AT THE HEARING?
One of the following could occur:
- Appointment of counsel- Adjournment for mediation to occur
- Testimony, findings, and disposition
IN WHAT CIRCUMSTANCES WILL THE COURT APPOINT COUNSEL?F. SERVING AS COUNSEL
If you have indicated the individual contests the petition or requests counsel, or if you think it is in her or his best interests, the court must appoint counsel to represent the individual.
The court will also appoint counsel if the individual, himself or herself, seeks modification or termination of a guardianship or conservatorship.
HOW IS MY ROLE AS GUARDIAN AD LITEM AFFECTED BY THE APPOINTMENT OF COUNSEL?
Unless otherwise directed by the court, your role as guardian ad litem ends upon the appointment of counsel. MCLA 700.5305(5).
WILL THE COURT APPOINT THE GUARDIAN AD LITEM AS COUNSEL?
There is nothing to prohibit such action; courts may adopt their own policy.
The role of guardian ad litem and of legal counsel are quite different; in particular cases it may be difficult for a person to "shift gears."
WHAT IS MY ROLE AS ATTORNEY?
The guardian ad litem has an investigatory function and is charged with recommending what is in the individual's best interests.
Your role as attorney is to act as an advocate for the individual. You must try to discern his or her wishes and attempt to effect them. Try not to be influenced by what you feel the judge or interested parties might think is best.
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Last Updated 1-1-03
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