Until we attain the age of 18, the law considers us minors which means minors have limited rights to make their own decisions. For example, when one is a minor, the minor's parent is required to legally consent to surgery and other medical treatments and the parent can dictate the minor's curfew, school, and level of participation in other activities. Minors naturally have different levels of maturity depending on their personality and life experiences. Those life experiences may be heavily influenced by the parent's parenting style. Nonetheless, though some people remain in a perpetual state of childhood or immaturity for various reasons for a long time, the law provides a clear standard that applies to everyone, which is the status of being a minor ends at age 18 and one is legally an adult on that date.
When your child turns 18, it might be hard to imagine that little child who once needed you for everything has now become – overnight – legally an adult. Now your adult child, regardless of his or her level of maturity, is free to vote, marry, apply for a credit card, make medical and financial decisions, sign contracts, and live independently. No wonder the law calls this coming of age “emancipation.” People need to progress and move forward in life, so it is good when a young person becomes an adult and hopefully becomes more self-supporting and self-driven.
The problem is if your now adult child is hurt in an accident and needs somebody to make critical medical decisions, you cannot be the one to do that without your adult child having previously named you as power of attorney, even if you're still paying for your child's health insurance. If that child is so injured that a guardian is needed, you would not automatically be that person. Court proceedings would be required. The reason for this is once we become adults at age 18, we have the right to make our own medical, personal, financial and legal decisions. If the young adult is so ill or incapacitated that he or she cannot make these decisions, the Michigan state legislature has provided that probate court guardianship and conservatorship proceedings are one of the solutions to the problem of an adult not being able to make these decisions. This applies to adults regardless of their age, i.e., if they are 18 or 81. The role of the probate court is to determine if the young adult is actually incapacitated to the extent that he or she cannot make informed decisions or effectively make their financial and legal decisions due to illness or the effects of an accident. If so, the court determines the young person to be a person in need of protection and then the court decides who to appoint as guardian to make medical and personal decisions and conservator to make financial and legal decisions. Often, the court will appoint the young adult's parent or parents if the parent(s) are the ones petitioning the court for this authority.
An issue with probate court guardianship and conservatorship proceedings is they can be expensive and time-consuming. The conservator has to file an annual report with the court that details the financial affairs of the young adult. There has to be a periodic court hearing to review and approve the account. All of that costs money. Before the Covid-19 situation, it would typically take 4 to 5 weeks between initiating court proceedings and obtaining the authority to be guardian or conservator, so there can be a period of time when there is no one with authority to act. With access to the courts being limited due to restrictions put in place in response to Covid-19, I am seeing it take 8 to 10 weeks to get a court date for guardianship and conservatorship proceedings. In any case, this delay is problematic.
Fortunately, the state legislature has provided for other solutions to the problem of a young adult becoming incapacitated that avoid the expense and delays of court proceedings. First, a young adult can designate a patient advocate based on Michigan law to appoint one or more of their parents or another trusted induvial to make medical and personal decisions for the young adult in the event of incapacity. For money and legal matters, your adult child can appoint you as their agent under a general durable power of attorney. This avoids the need to obtain a Michigan probate court conservatorship along with the required annual account and court hearings to review and approve the accounts.
Probate court guardianship and conservatorship is the solution for people who have not planned ahead for these issues. Estate planning instruments like patient advocate decisions and powers of attorney are for people who want to plan ahead for these possibilities. Like most things in life, planning ahead in this area is less time consuming and expensive that not planning ahead.
Becoming an adult is a life milestone. Your child's 18th birthday would be a good time to explain about paying bills, getting a copy of the child's social security card and birth certificate, living independently, registering to vote, and signing contracts to rent apartments, for example, or make major purchases like a car.
Remember to include the patient advocate designation and powers of attorney in that discussion. They are invaluable when your adult child needs you, at a stressful time when you do not want to hear any “no's.” Powers of attorney could save you and your now adult child delay, heartache, and expense.
I would be happy to help you or your adult child with the proper powers of attorney, as well as other planning needs that become more urgent as we grow older. If you would like to discuss your particular situation in a confidential setting, please feel free to call me.