Adult Guardianship: The New Divorce

In Michigan, there are guardians and conservators for minors (persons under 18); partial and plenary guardians for adults with developmental disabilities (persons who were impaired before reaching the age of 22); and guardians and conservators for adults who had the ability to manage their own affairs but are no longer able to do so as a result of cognitive impairment or physical limitations.

This article deals with the growth in litigation involving these adult guardianships and conservatorships. For the remainder of this article, the use of these terms will be limited to that meaning. Michigan law regarding adult guardianships is found in the Estates and Protected Individuals Code, specifically Article 5.

Standing to initiate either a guardianship or conservatorship proceeding is very broad. Pursuant to MCL 700.5303, “any person interested in the individual’s welfare” has standing to initiate a guardianship proceeding.¹ Similarly, “a person who is interested in the individual’s estate, affairs, or welfare” has standing to initiate a conservatorship proceeding.² Standing should not be confused with the concept of “interested persons” or those entitled to receive notice as set forth in MCR 5.125.

Venue for a guardianship is in the county where the individual “resides or is present.”³ Venue for a conservatorship is in the county where the individual resides, or if not residing in Michigan, in the county where the property of the individual is located.⁴

Generally speaking, to invoke a court’s authority in guardianship or conservatorship matters, it is necessary to show that individuals subject to petitions are impaired to the extent that they are unable to make decisions for themselves or protect themselves from exploitation. For a guardianship, this standard is set forth in MCL 700.1105(a) and MCL 700.5306(1). For a conservatorship, the standard is addressed in MCL 700.5401(3)(a) and (b).

In addition to establishing the impairment, it is also necessary to show that court involvement is needed. In other words, even if an individual is cognitively impaired, the court will not get involved if the individual created estate planning documents that provide for the management of his or her affairs during periods of incapacity, provided those documents are valid and the person appointed to manage the affairs is acting in the impaired adult’s best interests. In guardianship proceedings, this barrier is particularly strident.⁵ For a conservatorship, see MCL 700.5401(3)(b).

Finally, assuming these threshold issues are addressed, a court will then decide who should be appointed as guardian, conservator, or both. The law imposes priorities for appointment, starting with a person nominated by the impaired individual followed by a spouse and then adult children. To pass over someone with priority or defeat the appointment of someone with equal priority, the court looks for evidence of a how “suitable” a party is to serve.⁶

While there are various scenarios that give rise to litigation in these types of cases, the most typical situations in which conflicts arise are described below.

The most obvious reason for establishing a guardianship or conservatorship is that the impaired person never created documents allowing someone else to make decisions on his or her behalf and circumstances have arisen requiring someone to have this authority.

In such cases, the conflict, if there is one, may be simply about who is most suitable to serve as guardian or conservator.

Litigation can arise from disagreements regarding how and where impaired elders should receive proper care.

Should they remain at home or be institutionalized? If remaining at home, should a family member be paid to provide care? If institutional care is needed, issues may arise concerning whether the elder should be placed in an institution where the costs of care can be provided through government programs such as Medicaid or veterans benefits and, if so, whether it is appropriate to take steps to preserve assets for the benefit of a spouse or other potential beneficiaries of the estate.

If an elder has created estate planning documents providing for management of his or her affairs during periods of incapacity, disputes may arise about the manner in which the individual appointed to manage the affairs is acting.

Proceedings may involve efforts to remove a trustee of a trust created by the impaired adult or to terminate the authority of an agent appointed under a durable power of attorney. Before court involvement, these cases might begin with, or include, a request that the trustee or agent account for the activities in which he or she engaged.

Court involvement may occur as a result of an elder’s actions that family members believe he or she may not have understood or intended.

Court proceedings may involve challenges to wills, trusts, trust amendments, deeds, and even the validity of a marriage; most often the proceedings involve allegations of lack of capacity and undue influence.