The guardianship system for incapacitated adults in Michigan has been under scrutiny and in the news lately due to various issues.

In Michigan, an adult may need a guardian if they are unable to make informed decisions or take care of themselves due to a physical or mental disability, illness, or injury. This could include individuals with dementia, age-related frailty, or other conditions that impair their decision-making abilities. In those situations, the court may appoint a guardian to make decisions about the person's personal care and a conservator to handle the person's finances, depending on the individual's needs and circumstances. Often the same person is appointed as guardian and conservator.

A guardian and conservator may also be appointed if an individual is in danger of being exploited or abused by others, or if they are unable to protect their own interests due to physical or mental limitations. The decision to appoint a guardian is made by a judge based on evidence presented in court, and the guardian's role is to act in the best interests of the individual they are appointed to protect.

Who is Appointed as Guardian?

While in many cases a family member is appointed as guardian or conservator, sometimes an unrelated third party or public guardian is appointed as guardian or conservator. A third party may be appointed when the elderly person has no family members able or willing to serve, has family members but there are disputes amongst them, or the family members maybe otherwise unsuitable to serve.

Criticisms of the Guardianship System

The guardianship system has been criticized for a number of reasons. First, in some cases, there have been claims that the unrelated third party appointed as guardian charged the elderly person a lot, depleting the estate with fees and expenses exceeding the incapacitated adult's financial resources. This can lead to individuals being trapped in the system and unable to access resources and support outside of the guardianship system. Second, some elders may be temporarily incapacitated, such as after a stroke, but after recovering have had a hard time getting rid of the guardian or conservator. Third, some families have complained that the guardian appointed did not do much to take care of the elderly person, resulting in their health declining.

While many public guardians provide a valuable service and do a good job, concerns about some situations are legitimate. Legislation is being considered to address some of the problems with Michigan's guardianship system.

How to Avoid Guardianship or Conservatorship

The best way to avoid becoming the subject of guardianship or conservatorship, is to complete your incapacity and estate planning well in advance of becoming incapacitated. If you designate a patient advocate, that trusted individual can make medical decisions for you if you are too ill or incapacitated to make them yourself. That avoids the need for a guardianship. You can also specify you wishes regarding do-not-resuscitate orders and ending treatment if you are terminally ill or if the burdens of treatment outweigh the benefits, such as if a very elderly person has a massive stroke and would be living in a very diminished state. For financial matters, you can minimize the chances of needing a conservator if you create a comprehensive general durable power of attorney that conforms to Michigan law. The agent you appoint in the power of attorney can pay your bills and take care of your assets for you.  A revocable living trust also provides for management of assets upon incapacity, which helps avoid a conservatorship. If you do not do your own incapacity and estate planning and later become incapacitated, the probate court judge may have to appoint a guardian and conservator for you and who they appoint may not be the person you would want to act in these roles.