For purposes of guardianship of an individual over the age of five on grounds of developmental disability, he or she must have a severe, chronic condition which includes all of the following:
Individuals from birth to age five must possess a substantial developmental delay or specific congenital or acquired condition with a high probably of resulting in developmental disability as defined above. MCL 330.1100a(25).
The individual with the developmental disability can petition for appointment of a guardian. An adult relative or friend, an official or representative of an agency concerned with the welfare of developmentally disabled persons, or any other person found suitable by the Court may also petition to appoint a legal guardian for a person with a developmental disability. MCL 330.1600(c).
The Court may appoint any suitable person or agency to serve as guardian. The Court will not appoint any agency directly involved in providing services to the developmentally disabled person unless no other suitable person can be found. Before a person is appointed guardian, the Court will make an effort to question the developmentally disabled person concerning their preference of a person to be appointed guardian. If the developmentally disabled person articulates a preference, then the Court will give the preference due consideration. MCL 330.1628.
The guardianship is limited by the Court based on the developmentally disabled individual’s actual mental and adaptive limitations. MCL 330.1602.
Generally, a guardian of the person makes decisions about the person, such as decisions related to medical care or housing. A guardian of the estate makes decisions about the property or the finances of the individual with a developmental disability. A person can serve as both the guardian of the person and guardian of the estate or two separate people can function in these roles, such as a parent being guardian of the person and an attorney being guardian of the estate.
Types of Court Appointed Guardians
Plenary guardian: possesses all the legal rights and powers of a full guardian
of the person or of the estate, or both. MCL 330.1600(d).
Partial guardian: possesses fewer than all the legal rights and powers of a plenary guardian. These powers, rights, and duties are enumerated in the Court’s order of appointment. MCL 330.1600(e).
Temporary guardian: possesses only those powers, rights, and duties specifically
set forth in the Court’s order of appointment. This appointment is made pending
the appointment of a plenary or partial guardian when under emergency
circumstance it is necessary for the welfare or protection of the person. MCL 330.1607.
Standby guardian: may be designated by the court to act upon the death, incapacity, resignation, or temporary absence of the guardian without any further court proceeding. Upon assuming guardianship from the principal guardian, the standby must notify the Court. MCL 330.1640.
After a petition for appointment of a developmental disability guardian is filed, the Court will set a hearing date which will be within 30 days of the filing. The Court will also contact Washtenaw County Community Mental Health (CMH), who will perform the required evaluation of the developmentally disabled person and prepare a “612” report.
Notice of the date and place of hearing will be given to the petitioner. The respondent (the alleged developmentally disabled individual), the respondent’s presumptive heirs, the 612 Report preparer, the director of the facility where the respondent is residing, and the respondent’s legal counsel must be served by the petitioner with notice of the hearing. MCL 330.1614(3). The parties must be given notice 7 days before the hearing if by personal service or 14 days before the hearing if by mail. A completed Proof of Service (PC 564) must be returned to the court or the hearing will not occur.
The respondent and his or her legal counsel must attend the hearing. The petitioner and the preparer of the 612 report must also attend the hearing. At the hearing both the petitioner and the preparer of the 612 report must testify. The respondent has the right to request independent evaluation, the right to request a jury trial about issues of fact, and the right to legal counsel.
The Court must find by clear and convincing evidence that the person is developmentally disabled. MCL 330.1617. While letters of guardianship have expiration dates, new extended letters will be issued upon request of the guardian and payment of $12.00. Expiration alone of the letters of guardianship does not end the guardianship. Generally, partial guardianships span a term of 5 years unless modified by the Court to continue following petition and hearing.
A surviving parent of a minor with a developmental disability for whom a guardian has not already been appointed may appoint a guardian by will. A parent who had been appointed guardian of a developmentally disabled minor or adult may also appoint a guardian by Will if a standby guardian has not been named by the Court. If a guardian is nominated in the Will, the guardianship is effective immediately upon the death of the testator. The new guardian should give notice of the change to the Probate Court where the guardianship is filed and to the Probate Court handling the estate of the prior guardian. The new guardian must obtain letters of guardianship from the Probate Court.
The guardian(s) must file a report every year on the Report on Condition of Individual with Developmental Disability (PC 663). The form must be filed each year within 56 days of the anniversary of the issuance of the letters of guardianship.
The Court may conduct a review of guardianship in its discretion. See Guardianship Investigations and Volunteers.
While letters of guardianship have expiration dates, new extended letters will be issued upon request of the guardian and payment of $12.00. Expiration alone of the letters of guardianship does not end the guardianship. Generally, partial guardianships span a term of 5 years unless modified by the Court to continue.
Checklists for Common Types of Guardianship Proceedings Pertaining to Developmentally Disabled Individuals
To petition for guardianship of an individual with a developmental disability the following must be filed. An index of all approved probate court forms is located at http://courts.mi.gov/Administration/SCAO/Forms/Pages/Probate-Court-Index.aspx:
An individual with a developmental disability
may request modification or termination
of guardianship verbally or in any writing. Other interested parties may seek
modification (including extension of guardianship) or termination by filing the
following. An index of all approved probate court forms is located at http://courts.mi.gov/Administration/SCAO/Forms/Pages/Probate-Court-Index.aspx:
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