Posted on: Tuesday, September 5th, 2017
A guardian is a person appointed by the probate court to make decisions about the
personal care of another person. In Michigan, there are three types of guardians:
1) Guardians over children (under 18).
2) Guardians over adults who have developmental disabilities.
3) Guardians over adults under the probate code.
A person with a developmental disability is someone who has been unable to manage
their own affairs since before age 22 and that inability has continued. For more on
guardianships over adults with developmental disabilities, go to the special needs
section of this website.
With respect to adults who have been able to manage their own affairs but who have
lost that ability because of dementia or some other condition that occurred later in life, a
court can appoint a guardian to make decisions on their behalf.
In most instances a guardian will not be necessary, nor will a court appoint one, if the
person who would be the subject of the guardianship created a medical power of
attorney that is adequate to meet the decision-making needs of the impaired adult.
A full guardian has authority over medical care decisions, living arrangements, even end
of life care. But a guardian does not have authority over financial matters. If an adult
needs assistance managing their financial affairs, and if no adequate arrangements
(power of attorney or trust) are in place to provide them with that assistance, a court can
appoint a “conservator.” A conservator is like a guardian, except they have authority
only over the impaired person’s money, accounts and other property.
A guardianship proceeding is started by filing a petition in probate court. The court will
require that a copy of the petition and other required documents be served on the
person who would be subjected to the guardianship, as well as on other people related
and to the facility where the person is living, if they are in institutional care. Most courts
will then appoint a “guardian ad litem” or court investigator to interview the impaired
person and to report to the court whether a guardianship would be appropriate.
Among other things, the guardian ad litem will inform the person they interview that they
have a right to oppose the petition and to have a lawyer assist them in presenting their
case, and that they have the right to be present for the hearing. The person will also be
informed that if a guardianship is necessary, they have a right to nominate the person
they want to be appointed.
The report and conclusions of the guardian ad litem is important, as is nomination of a
guardian made by the impaired person. But regardless of who the person nominates for
guardian, or what the guardian ad litem recommends, a court must allow the person
who petitions for guardianship to present evidence, and the ultimate decision of whether
a guardian will be appointed and if so, who is appointed, will be based on the evidence
presented at a hearing.
The decision to file for guardianship over an impaired adult is often a difficult decision to
make. Where there are disagreements among family members, or where the older
adult does not accept the need for guardianship, these cases can cause family rifts, and
can be embarrassing and degrading to the older adult. Before pursuing a guardianship, it is important to consider all other options.