By: Makenzie P. Sipes
A fact of life is that there may come a time when our loved ones become unable to care for themselves or their affairs. This can include anyone ranging from minors, elderly, individuals with mental illness or disability, or formerly competent adults who have become incapacitated. Being “incapacitated” means a person is no longer able to care for themselves. Fortunately, Michigan law allows for assignment of a guardian or conservator to take care of these individuals.
A probate court is the legal entity that appoints guardians and conservators. While the two are similar in many ways, the fundamental difference is that a guardian has the decision-making power affecting an individual’s well-being and personal needs, where as a conservator handles an individual’s property and financial affairs. Generally, anyone interested in the welfare of the incapacitated person can petition the court for guardianship or conservatorship.
After someone petitions for guardianship, the court will appoint an outside party as the “guardian ad litem” to represent the incapacitated person if he or she does not have their own attorney. The guardian ad litem will visit the incapacitated person, explain the guardianship process, advise the incapacitated person about what his or her best interests are, and provide recommendations. The court may also order a report about the person’s medical condition from a healthcare professional. At a hearing on the petition, a judge will make the decision as to whether the guardianship is warranted. The judge must find by clear and convincing evidence that the individual is actually incapacitated, and that the appointment is necessary as a means of providing continuing care and supervision of the incapacitated person.
The proceedings for conservatorship are similar. If the subject of the petition is mentally incompetent, the court will appoint a guardian ad litem to investigate the claims and make a report to the court. A judge may grant the conservatorship if the individual is unable to manage his or her property and business affairs and the individual has property that will be wasted or dissipated unless proper management is provided.
A single person can serve as both guardian and conservator of an individual, or these roles can be split between two people. Sometimes, only one kind of appointment may be necessary. Additionally, a person who is subject to these proceedings may contest the guardianship or conservatorship. In that case, the court will appoint the individual an attorney to represent them. These matters can become complicated and confusing. As such, it is important to speak with an experienced attorney to ensure the best possible outcome for these individuals.
Adam D. Flory and Katelyn A. Sweeney practice in the area of probate litigation at SMITH BOVILL, P.C. These articles are intended to introduce various issues arising within this field of practice and are not intended to replace individual legal advice. If you have questions, please contact Adam or Katelyn at our Saginaw or Frankenmuth office.