An adult guardianship is used when an individual is impaired by mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication or other cause so that they lack sufficient understanding or capacity to make or communicate informed decisions and need someone to make such decisions for them. MCL 700.1105.
The proper venue (place) to file a petition for guardianship is the Probate Court in the county where the adult resides or is found, including an institution within the county if the adult is placed there by valid court order.
An adult individual can petition the court to have a guardian appointed for them, or any person interested in the adultís welfare may petition for the appointment of a guardian. An interested person or the subject of a guardianship petition may file an answer to the petition and either object to the guardianship altogether or ask the court to order different relief than requested in the petition.
To file a petition, please read How To File a Guardianship Petition. There is a $175 filing fee and a $12 certification fee that must be paid when the petition is filed. The Probate Court accepts payment by cash, check, money order and credit card. The petition may include requests for various types of relief including an order preventing a person from moving the adult in question from their home or facility or that visitation be set. The petition must either request that full guardianship or limited guardianship be ordered, and must specify the scope of the limited guardianship if requested. Whichever type of guardianship is requested, the petition must contain specific facts about the adultís condition and specific examples of the adultís recent conduct which demonstrates the need for the appointment of a full or limited guardian.
It is the petitionerís responsibility to give notice to all interested persons of the petition and the time and place of the hearing on the petition. Interested persons for adult guardianship cases include the adult who is alleged to be incapacitated, a person named as attorney-in-fact under a Durable Power of Attorney, if any, the spouse, or children if there is no spouse, or presumptive heirs if there is no spouse or children of the allegedly incapacitated person, the person who has the care and custody of the allegedly incapacitated person and the person who is nominated to be the guardian of the allegedly incapacitated person. MCR 5.125.
In addition to those individuals, in some circumstances other interested persons must be given notice including the Administrator of Veterans' Affairs if benefits are payable by the Veterans' Administration on account of the respondent, a guardian, conservator, or guardian ad litem of a person who is an interested person, an attorney who has filed an appearance with the Court, any special fiduciary and any person who has filed a request for notice with the Court.
Because the law views limiting or removing an adultís right to make decisions or to care for themselves very seriously, the court must give written information to a petitioner for an adult guardianship about alternatives to appointment to a full guardian. These alternatives include a limited guardian, a conservator, a patient advocate designation, a do-not-resuscitate designation and a Durable Power of Attorney. MCL 700.5303.
If the incapacitated adult has designated someone to serve as guardian for them the Court must appoint that person to be guardian unless they are unfit or unwilling to serve. If no designation is made by the incapacitated adult, the law provides for priorities for appointment: the spouse, an adult child, a parent, another relative with whom the adult has lived with for more than 6 months before the petition was filed or a person nominated by the person who is caring for or paying benefits to the subject of the petition. MCL 700.5313. If no person having priority is available or willing to serve as guardian, the court may appoint any competent adult to serve, including a professional guardian.
Upon receiving the petition for appointment of guardian, unless the person who is the subject of the petition has an attorney of their own choice, the court must appoint a guardian ad litem to represent the best interest of the person who is the subject of the petition. The guardian ad litem must personally visit the person who is the subject of the petition, explain to the individual the nature, purpose and legal effects of a guardianship, and must report to the court their findings and recommendation regarding the guardianship petition.
If necessary, the Court may order that the person who is the subject of the petition be examined by a physician or mental health professional for the purpose of reporting to the Court their findings concerning the capacity of the individual, what their infirmities are and how they impact the individualís ability to receive or evaluate information in making decisions, a listing of medication that the individual is taking and the prognosis for the individual. The person who is alleged to be incapacitated has the right to obtain an independent evaluation at their own expense unless the court finds them to be indigent. The report is not part of the public record and is available only to the Court, the individual who is alleged to be incapacitated, the petitioner, their legal counsels and anyone else the Court may determine. MCL 700.5304.
In Washtenaw County mediation is often used as a way to resolve guardianship contests and may be ordered by the Court.
At the hearing, the individual who is alleged to be incapacitated has the right to be present and to see and hear all of the evidence about their alleged incapacity. The Court must dismiss the guardianship petition, or enter an alternative order, unless there is clear and convincing evidence that the person is incapacitated and that the appointment is necessary to provide continuing care and supervision of the individual. MCL 700.5306. If there is clear and convincing evidence that the individual is incapacitated and is totally without capacity to care for themselves the court must specify that finding of fact in the Order Regarding Appointment of Guardian of Incapacitated Individual (PC 631).
The Court will also sign Letters of Guardianship (PC 633) which gives the guardian the legal authority to act on behalf of the incapacitated adult. In Washtenaw County, the Letters and the Order are signed at the conclusion of the hearing. Then the file is brought by court staff from the courtroom to the probate court office where a certified copy of the Letters is made and given to the guardian. The Guardian signs the Acceptance of Appointment (PC 571) and the Confidential Information Sheet. The Guardian also signs up to attend a mandatory training session regarding the responsibilities that the guardian has to the court and to the adult ward.
If an emergency arises concerning the individual who is the subject of a guardianship petition and no one has the authority to act on behalf of the individual, the court may hold a hearing if the petitioner gives notice to the person who is the subject of the petition. The Court must appoint a guardian ad litem for the individual unless doing so would cause a delay such that the individual would suffer serious harm. If the court is satisfied at the hearing that adequate proof exists to find that the subject of the petition is incapacitated, the court may enter an order appointing a temporary guardian and spelling out any limitations on the guardianís power. The appointment of a temporary guardian may occur only in the course of a proceeding for the appointment of a permanent guardian. If temporary relief is granted, the hearing to appoint a full guardian must be held within 28 days of the order appointing a temporary guardian.
Every year that the guardianship continues, the guardian must file with the court the Annual Report of Guardian on Condition of Legally Incapacitated Individual (PC 634) which updates the court on the condition of the adult ward. This form must be filed each year on the anniversary date of the issuance of the Letters of Guardianship and must be served on the ward and all interested persons.
The court may review an adult guardianship whenever necessary but it must review it every three years on the anniversary of the issuance of the Letters of Guardianship. In Washtenaw County this review is achieved by an investigator meeting face-to-face with the adult ward and observing their environment. The investigator prepares a report which is filed with the court. The court reviews the report and may take further action as needed.
Anyone interested in a wardís welfare, or the ward themselves, may file a petition with the court to have the guardian removed, appoint a successor guardian or modify the terms of guardianship. The petitioner does this by filing a Petition to Terminate or Modify Guardianship (PC 675) along with a $20 motion fee with the court. If the legally incapacitated individual petitions for termination or modification of the guardianship and they do not have an attorney the court must appoint an attorney for them. MCR 5.408. If another person petitions for the modification or termination of the guardianship the court must appoint a guardian ad litem to represent the best interests of the incapacitated person. The petitioner must service notice of the hearing on the petition to all interested parties.
At the hearing on the petition the court may terminate the guardianship, modify it or continue it. The guardianship will also terminate upon the death of the guardian, death of the ward, or determination that the guardian is incapacitated.
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