What is a Guardian for the Elderly in Michigan?
A guardian is a person who is appointed by the probate court to take care of the personal needs of an adult who is legally incapacitated. A senior citizen or elderly person may be considered legally incapacitated if he or she lacks sufficient understanding or capacity to make or communicate informed decisions because of age-related frailty, dementia, or other causes. A guardian may be granted powers by the court to make decisions about the ward's health care, living arrangements, and other matters that affect the ward's well-being.
Applying for Guardianship of an Elderly Person in Metro Detroit
To request appointment of a guardian for an incapacitated older person in Michigan, someone (the petitioner) must file a petition in the probate court in the county where the elder lives or is located. The petitioner can be anyone interested in the elder's welfare. The petition must state why a guardian is needed and provide specific facts about the elder's recent condition or conduct that show incapacity. The petitioner must also deliver copies of the petition to certain people (the interested persons) before the hearing date, such as the elder's spouse, children, parents, presumptive heirs, current custodian, patient advocate, agent under a power of attorney, conservator, and the Michigan Department of Attorney General if none of the above exist. The court will schedule a hearing to consider the petition and appoint an attorney (acting as a guardian ad litem) to review the situation and make a report to the court on if guardianship is needed. The court may also appoint a lawyer to represent the elder if he or she requests one or if the court determines it is necessary. The court will appoint a guardian if it finds by clear and convincing evidence that the elder is legally incapacitated and that a guardian is necessary as a means of providing continuing care and supervision of the elder.
What Happens at the Guardianship Hearing
At the guardianship hearing, the probate court judge takes testimony from the petitioner and any other necessary witnesses, which may include medical or mental health professionals, the elder's family members, and anyone else who has pertinent information on if the elder needs a guardian. The elder has the right to be present at the hearing, to testify, to have an attorney represent him or her, and to object to the petition in general or to the appointment of a specific person as guardian.
The court will appoint a guardian if it finds that the elder is legally incapacitated, which means they lack sufficient understanding or capacity to make or communicate informed decisions because of mental or physical impairment. The court will also consider if there are any less restrictive alternatives to guardianship, such as if there is a Patient Advocate Designation in place.
If the probate court judge believes that appointment of a guardian is necessary, the judge will attempt to choose a suitable person as a guardian, giving priority to the elder's preferences, spouse, relatives, or friends. The judge will also determine the scope and duration of the guardian's powers and duties, which may vary depending on the elder's needs and abilities. Sometimes a temporary guardian is appointed if it seems the elder's incapacity may be temporary. If the judge does not believe the petitioner has introduced sufficient evidence to prove a guardianship is necessary, the judge will deny the petition and the elder will continue to have complete autonomy to make their own decisions.
What are the Responsibilities of a Guardian in Michigan?
The guardian is responsible for the elder's care, custody, and control, but not liable for the ward's acts. The guardian must act in the best interests of the elder and respect their wishes and values as much as possible. The guardian has the authority to consent to medical treatment for the elder, including surgery, and to determine where the elder lives, such as assisted living or nursing homes. The guardian must also report to the court periodically on the elder's condition and the guardian's actions.
Does the Guardian Have Control of the Elder's Property?
If the elderly person has nominal assets (no real estate and minimal other property), then the guardian will usually be granted control of the elder's property but must use it for the elder's benefit. If the elder's assets (estate) are such that the probate court judge believes further protection is required, it may also be necessary for the guardian or some other person who is concerned about the elder to file for conservatorship. A conservator is the fiduciary appointed under Michigan law to take care of an incapacitated adult's property and to make financial decisions for them.
What to do when the elder does not grasp that they need help?
Some elderly people made comprehensive estate plans when they were middle-aged, including designating patient advocates. Designating a patient advocate is the way we can plan ahead in Michigan to avoid having a guardian appointed if we lose the ability to make medical or other personal decisions. Unfortunately, sometimes the underlying condition that is causing the need for guardianship, such as dementia, results in the elder not recognizing they need help and in them undermining the estate plan they previously put in place.
If the elder previously signed a good Patient Advocate Designation, but now does not understand that he or she needs help, Michigan law provides for an expedited court process where, after a hearing, the probate court judge can activate the authority of the person previously designated as patient advocate. In the probate courts for Oakland, Macomb and Wayne Counties, the guardianship hearing is typically 30 to 45 days after the petition is filed. Under this expedited process, the court hearing can be within 7 days after the petition is filed.
How Can an Elder Law Attorney Help with Guardianship?
Assisting families in obtaining guardianship of an elderly person is part of the work of an elder law attorney and the attorney can help guide the family through this multi-step process that can be complex. An elder law attorney can help with the adult guardianship process in Michigan by:
- Gathering and organizing the evidence to be introduced in court to verify that the elder needs a guardian, which may include obtaining a doctor's statement, other gathering medical records, and witnesses.
- Drafting the guardianship petition so that it complies with Michigan's legal requirements including containing sufficient details to support the allegations that the elder needs a guardian.
- Drafting the notice of hearing and proposed court order regarding the guardianship and letters of guardianship.
- Filing the petition with the probate court and obtaining the court date.
- Ensuring that the elder and other interested persons are properly served with the guardianship petition and notice of hearing.
- Representing the petitioner with the guardian ad litem and advocating for the petitioner.
- Preparing the petitioner to testify at the guardianship hearing, conducting the hearing before the probate court judge and otherwise representing the petitioner at the hearing.
- Helping with the ongoing duties of a guardian, such as filing annual reports, managing finances, admitting the elder to senior living or long-term care facilities, and applying for Medicaid to pay for nursing home care.
Contact a Guardianship Attorney for Help Now
Andrew Byers is an elder law attorney in Troy, Michigan who has been assisting families with obtaining guardianship of elders who need help for over 27 years. If you have questions or need help with the guardianship process in Oakland County and throughout the rest of the Metro Detroit area, you can contact me office by using the online form or calling me directly at (248) 469-4261. On this initial call, I'll answer your preliminary questions and get some background information to make sure it's a situation I can help with. After that, you can decide if it makes sense to schedule a more in-depth consultation. I can help you navigate the multi-step guardianship process to help ensure that the elder you care about receives the help they need.