Return to Table of ContentsWHAT IF I BELIEVE MY CLIENT TO BE AN INCAPACITATED INDIVIDUAL?
Your role remains to advocate for the expressed wishes of your client.
ARE MY DISCUSSIONS WITH THE INDIVIDUAL CONFIDENTIAL?
Yes. Conversations with your client and information you obtain are protected from disclosure.
If an individual serving as guardian ad litem is then appointed attorney, the attorney client privilege dates back to the time the person was appointed guardian ad litem.
WHAT SHOULD I DO UPON BEING APPOINTED?
If you are present at the hearing, you would usually ask for an adjournment.
HOW MIGHT I APPROACH THE TASK OF REPRESENTING MY CLIENT?
First, confer with your client and review the court file. Then do whatever further investigation is appropriate. Consider garnering evidence on your client's behalf.
The Michigan Rules of Professional Conduct provide -WHAT IF MY CLIENT WON'T COOPERATE WITH ME?When a client's ability to make adequately considered decisions is impaired, whether because of minority or mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
Further investigation may reveal wishes expressed in the past. You might also be able to infer such wishes from past behavior.
WHAT ELSE SHOULD I INCLUDE IN MY INVESTIGATION?
If you know of evidence the petitioner will present on the issue of incapacity, try to find means to rebut it. You should also think of arguments why guardianship or conservatorship is not necessary.
MAY I ASK THE GUARDIAN AD LITEM FOR INFORMATION?
Yes.
DO I HAVE ACCESS TO MEDICAL AND FINANCIAL RECORDS OF MY CLIENT?
Yes. Having your client sign a release may expedite your access.
MAY I REQUEST AN INDEPENDENT EVALUATION?
Yes. Your client (or you, if your client has no preference) can choose what doctor or mental health professional is to perform the evaluation. If the individual is going to pay for the evaluation of his or her own funds, you needn't ask the court's permission.
If the individual has insufficient funds, request court approval before having the evaluation done. The individual has a right to secure such evaluation at public expense. MCL 700.5304(2).
ARE THE RESULTS OF THE INDEPENDENT EVALUATION ADMISSIBLE?
After the evaluation is completed, you can decide whether or not to introduce it as evidence at the hearing.
MAY I EMPLOY DISCOVERY?
In probate, general discovery rules apply.
HOW MIGHT A CASE REACH MEDIATION?
Before the hearing, a probate staff member or the guardian ad litem might recommend mediation. At the court hearing, the judge can suggest mediation.
For instance, the guardian ad litem report might recommend mediation in a case in which the individual does not contest the proceeding, but there is a fight among siblings about who is going to serve as guardian.
If the individual does contest the proceeding, the judge might review the file and ask the lawyer appointed to consider mediation.
MUST AN INDIVIDUAL PARTICIPATE IN MEDIATION?
No. Mediation will only occur if all interested persons agree to this forum. Mediation has shown promise in guardianship proceedings. It gives participants opportunities not available in the courtroom - the time to air long-standing grievances in an informal, nonjudgmental atmosphere.
WHAT IS MY ROLE AS GUARDIAN AD LITEM?
If a lawyer has not been appointed, it is important you explain mediation to the individual. The individual should know he or she has the choice whether mediation occurs. If mediation happens, the individual is not bound by any result unless he or she agrees to it.
AS GUARDIAN AD LITEM, SHOULD I PARTICIPATE IN MEDIATION?
Yes, unless you feel you would not be helpful in the process, or the individual would be better served by having an attorney.
AS ATTORNEY, WHAT IS MY ROLE IN MEDIATION?
After you explain the process to your client, you should determine whether your client is amenable to mediation. If the individual expresses no choice, determine as advocate whether mediation serves your client's interest.
Nothing prevents you as attorney from suggesting mediation to your client, even if the court has not mentioned it.
WHAT IS MY ROLE AS ATTORNEY DURING MEDIATION, ITSELF?
You should be present. Whether you take an active or passive role in the session is an issue to be negotiated at the outset, and depends on a number of factors. These factors include the ability of your client, your preference, whether other parties have counsel, and the experiences of the mediators.
Upon completion of mediation, if a tentative agreement has been reached, review it carefully with your client.
IF AN AGREEMENT IS SIGNED, HOW IS IT ENFORCED?
The full content of the mediation agreement may or may not be reflected in the court record, depending on the subject matter. Regardless, the agreement is enforceable as a contract.
AS GUARDIAN AD LITEM, WHAT IS MY ROLE AT THE HEARING?
Your role is to briefly state your findings and recommendations, and to add any other information relevant to disposition of the case. Remember the judge may not have yet read your report.
If the individual contests the guardianship or conservatorship, make sure the court is aware so it may appoint an attorney. If the individual expressed a desire to be at the hearing, but is not present, alert the court to that fact.
The judge may ask you about housing and services, options which would benefit the individual. It will be helpful for you to be familiar with community resources.
IF AN ATTORNEY HAS ALREADY BEEN APPOINTED, NEED I ATTEND THE HEARING?
In most circumstances, no.
AS ATTORNEY, WHAT IS MY ROLE?
You can request a hearing be closed to the public. MCL 700.5304(6); 5406(4).
If the individual does not want a guardian, contest whether the petitioner meets his or her burden. For guardianship, it is petitioner's burden to show by clear and convincing evidence the individual is a legally incapacitated individual and guardianship is necessary. The burden in conservatorship is also clear and convincing evidence.
If the individual objects to a particular person being guardian, or wants limits placed on the guardian's powers, advocate for those outcomes.
HOW MIGHT I ACCOMPLISH THESE ENDS?
If the petitioner is not represented by counsel, realize he or she is probably unfamiliar with the rules of evidence. You still have the right to object to proffered testimony on the basis of relevance or hearsay, but be sensitive in your approach and tone.
You have the right to cross-examine the petitioner and any witnesses the petitioner calls. If a report from a court ordered evaluation is presented as evidence, you have a right to cross-examine the physician or mental health professional who prepared the report. MCL 700.4304(5);5406(4).
If the guardian ad litem testifies, you may cross-examine. You may also call the guardian ad litem as a witness.
MAY I PRESENT EVIDENCE IN MY CLIENT'S BEHALF?
Yes. You can ensure the presence of a witness or availability of documents through subpoena.
SHOULD THE INDIVIDUAL BE PRESENT AT THE HEARING?
You should discuss with your client his or her wishes in this regard, and whether you think it is advantageous for him or her to be present.
DOES THE INDIVIDUAL HAVE A RIGHT TO A JURY TRIAL?
Yes. It is the individual's choice whether or not to have a jury trial, a choice which can be asserted by counsel. MCL 700.5304(5),(6); 5406(4).
If you wish to assert the right, you should file a written demand immediately, and at least 4 days before the hearing. The jury fee of $30.00 must be paid at the time the demand is filed. MCL 600.857(3). You can request the jury fee be waived if the individual is indigent or unable to pay. MCL 600.880d.
WHEN DOES MY ROLE AS COUNSEL END?
Your role ends upon disposition, unless the court instructs you otherwise. As a final act, ensure the court order and letters of guardianship and conservatorship drafted by petitioner's counsel or court staff comports with the judge's findings.
WHEN DO I GET PAID FOR MY WORK AS GUARDIAN AD LITEM OR ATTORNEY?
You are due payment after the court reaches a disposition.
WHO IS RESPONSIBLE FOR PAYING FOR MY SERVICES?
If the estate of the individual is sufficient, and the petition results in an order, payment is due from the estate. MCL 600.875. Otherwise, payment is due from the court.
If you are guardian ad litem, you should note in your report the financial circumstances of the individual. The financial status of the petitioner is irrelevant.
WHAT GUIDELINES MIGHT I USE?
In order for payment to be due from the estate, there must be income aside from social security, or liquid assets exceeding a small bank account.
If the estate is not sufficient to merit a conservatorship, it may well be the estate is too small to require payment.
HOW DO I OBTAIN PAYMENT FROM THE ESTATE?
By statute, the court may charge the estate. On a practical level, you directly bill the conservator, or the guardian if a conservator has not been appointed.
WHAT IF THE ESTATE IS NOT SUFFICIENT TO REQUIRE PAYMENT?
The court will reimburse you upon your submission of a request.
HOW MUCH WILL BE PAID AS GUARDIAN AD LITEM?
If the court is paying, the court may have a set fee. The court might approve a higher fee in unusual circumstances.
The following expenses may be payable in addition to the set fee: travel outside of the county and long distance telephone charges.
HOW MUCH WILL I BE PAID AS COURT APPOINTED ATTORNEY?
The may have a fee schedule based on the number of hours spent.
The following expenses may be payable in addition to the hourly charge: travel outside the count and long distance telephone charges.
WHAT IF I AM GUARDIAN AD LITEM, THEN APPOINTED AS ATTORNEY?
You should based your charges on the attorney fee schedule.
HOW MUCH MAY I CHARGE FOR MY SERVICES IF THE ESTATE IS PAYING?
Since the court appoints the guardian ad litem and attorney, it is the court's responsibility to try to ensure charges are reasonable.
If an interested person questions your fee, the court will make a determination as to what is reasonable.
If the court feels you are generally charging unreasonable amounts, you will no longer be appointed as guardian ad litem or attorney.
WHAT IF I BILL THE FIDUCIARY AND HE OR SHE WON'T PAY?
If after repeated efforts to collect, the fiduciary won't pay, contact the court for advice on how to proceed.
WHAT IF I AM NOT COURT APPOINTED, BUT RETAINED DIRECTLY BY THE INDIVIDUAL?
Your charges are then a matter for agreement between you and your client, and your client is responsible for paying them.
IF A PETITIONER IS REPRESENTED, WHO IS RESPONSIBLE FOR PETITIONER'S COUNSEL FEES?
The petitioner, not the estate, should be responsible for those costs.
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Last Updated 1-1-03
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