Guardianships and Conservatorships

GUARDIANSHIPS

A guardianship is when someone is appointed by the probate court to make legal decisions for another person (called the “ward”) concerning the ward’s welfare. Different from a conservatorship, where the court appoints an individual to take care of the ward’s property and finances, a guardian is responsible for taking care of the ward’s personal needs, health, and welfare. When rights are granted to a guardian, those rights are taken away from the ward, so guardianships should only be used when necessary and it is important to consider all alternatives, such as a power of attorney or patient advocate designation.

Every person’s situation is different and unique, and the attorneys at Xuereb Law Group PC are here to discuss all available options to you.

A. Guardianship for Minors

1. Full guardianship (MCL 700.5204)

A “full” guardian for a minor may typically be appointed in the following situations:

• The parental rights of both parents or the surviving parent are terminated or suspended by prior court order, by judgment of divorce or separate maintenance, by death, by judicial determination of mental incompetency, by disappearance, or by confinement in a place of detention;
• The parent or parents permit the minor to reside with another person and do not provide the other person with legal authority for the minor’s care and maintenance, and the minor is not residing with his or her parent or parents when the petition is filed; or
• The minor’s biological parents have never been married to each other and the minor’s parent who has custody of the minor dies or is missing and the other parent has not been granted legal custody under court order and the person whom the petition asks to be appointed guardian is a relative of the minor within the fifth degree by marriage, blood, or adoption.

A prospective guardian can either be nominated by a petition filed with the probate court or may be named in a parent’s will.A guardianship by its nature is temporary and does not terminate the legal relationship that exists between a child and his or her parents; however, it divests the proposed guardian with certain legal responsibilities concerning the care and maintenance of a child while suspending the rights of the legal parents of the minor.

2. Limited Guardianship (MCL 700.5205)

A limited guardianship is really a formalized consent agreement between the parents and the proposed guardian. A limited guardian has all the powers of a full guardian, except that the guardian may not consent to marriage or adoption of the minor child. A “limited” guardian of a minor can be done at any time if the custodial parent(s) consent to the appointment of a limited guardian and voluntarily agree to suspend their parental rights. A limited guardianship requires the consent of the parents for placement in a limited guardian and participation in a limited guardianship placement plan. The placement plan should state the time or reason that the guardianship will end. It is important to note that if a parent fails to follow the placement plan without good cause, the court may terminate that parent’s parental rights through a formal court hearing.

The most common reason for a limited guardianship is to provide health insurance for a minor child. A petition for appointment of a guardian is filed in the county where the minor resides or is present during the time the petition is filed.

It is important to only hire a skilled advocate when determining whether to file a guardianship for a minor, and Xuereb Law Group PC’s attorneys are here to help.

B. Guardianship for Disabled or Incapacitated Individuals (MCL 700.5306)

If a person is disabled or because of incapacity loses ability to live independently and make day-to-day personal decisions concerning their health and welfare,then a guardianship may be necessary. Absent a healthcare durable power of attorney or health care patient advocate, legally incapacitated adults generally require a guardian to be appointed on their behalf to have authority to make decisions for the ward’s physical well-being.At a formal hearing for a petition for appointment of a guardian, the probate court must find by clear and convincing evidence that the ward lacks capacity to do some, or all, of the tasks necessary to care for him or herself. MCL 700.5306.

The powers and duties of a guardian are authorized by statute (MCL 700.5314), and may include one or more of the following:

• Decisions concerning medical care or other professional care;
• Releasing medical information for the purposes of medical care or other treatment;
• Determining the ward’s living arrangements or placement in a facility;
• Making travel arrangements;
• Taking care of the ward’s property and personal effects;
• Arranging for the ward’s education, training, or participation in other programs; and
• Arranging for the purchase of food, clothing, and other necessities.

The attorneys at Xuereb Law Group PC can advise you and guide you through the guardianship process.

Guardianships and Conservatorships for Minors and Incapacitated Individuals.

A conservator is a person appointed by the probate court to take care of an incapacitated adult’s or minor child’s property and finances.The person who needs a conservatorship and is subject to the petition is called the “ward.” Appointment of a conservatorship limits the ward’s legal rights to manage their own affairs and appoints a third party to handle the ward’s affairs on the ward’s behalf. The role of a conservator is demanding and requires a lot of responsibility, which includes detailed record-keeping, financial planning, and various obligations owed to the ward and to the probate court.

The probate court may appoint any person over 18 years of age or a professional conservator to serve as conservator. However, the ward’s preference takes priority, and the statute (MCL 700.5409) sets forth the order of individuals who have priority to serve as the ward’s conservator.MCL 700.5404 provides that a petition may be filed by “[t]he individual to be protected, a person who is interested in the individual’s estate, affairs, or welfare, including a parent, guardian, or custodian, or a person who would be adversely affected by lack of effective management of the individual’s property and business affairs.” The petition must also include the reasons why a conservatorship is necessary.The petition for appointment of conservator is filed in the probate court of the county where the ward is located.

A. Minors

The probate court may appoint a conservatorship for a minor child if the minor has property that needs protection or management. A common need for a minor conservatorship is when a minor receives money, either by inheritance or legal settlement, or when a minor needs money for support and education and protection is necessary to obtain money on behalf of the minor. MCL 700.5401. The law disfavors handing minors money and requires that minors have a conservatorship in place to manage the funds until the age of majority.

B. Incapacitated Individuals

If an incapacitated adult executed a durable power of attorney before becoming incapacitated, then a conservatorship may not be necessary.For a court to appoint a conservatorship for an adult, the adult must meet the following statutory criteria:

• The individual is unable to manage property and business affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance; and
• The individual has property that will be wasted or dissipated unless proper management is provided, or money is needed for the individual’s support, care, and welfare or for those entitled to the individual’s support, and that protection is necessary to obtain or provide money.

MCL 700.5401(3). The Court must find by clear and convincing evidence that the individual is in need of a conservator.

Conservatorships are subject to complex substantive laws and procedural rules. If you are interested in filing a conservatorship petition, or otherwise have questions about a petition filed by another person, you should contact an attorney to help protect your interests or the interests of a loved one. Contact Xuereb Law Group PC today for a consultation.