Plan To Be 100

This published opinion arises out of a dispute between an insurance company and a professional guardian but implicates the important question of what it means to be a guardian of a legally incapacitated individual.  The case addresses the question of what, if anything, a court-appointed professional guardian actually has to do herself or himself vis a vis what can be delegated to others.

The COA holds that the guardian can pretty much delegate all of the duties of a guardian so long as the court-appointed individual remains “responsible” for the delegated duties

In the two combined cases of In Re Guardianship of Mary Ann Malloy and In Re Guardianship of Dana Jenkins (click here to read the case), the insurance company takes the position that it will not pay for guardianship services that would be covered had they been performed by the court-appointed professional guardian, because those services were not in fact performed by that guardian but were instead performed by the guardian’s employees.

The insurance company points to MCL 700.5103 which provides a mechanism for a guardian to delegate the powers of the guardian to another person for up to 180 days by executing a power of attorney, and by also notifying the probate court; neither of which occurred in these cases.

Siding with the professional guardian, the COA distinguishes between the “powers” of a guardian and the “duties” of the guardian, so that, as in this case, where the guardian delegated essentially all activities of a guardian to his employees, the guardian has not violated any aspect of EPIC and is entitled to be paid under the no-fault statute for these services because the court-appointed professional guardian retained the powers of the guardian and remained accountable to the court for the ward’s care.

In reaching this conclusion, the COA looks at MCL 700.5106 which, in addressing the guardian’s duty to regularly visit the ward, anticipates delegation of even this important duty by referencing “an individual associated with the professional guardian who is responsible for the ward’s care” as having the ability to fulfill this obligation.

The only exception the COA found to this blanket conclusion that a court-appointed professional guardian can delegate all of its duties so long as it remains in charge, is whether this guardian was required to show up at, or otherwise participate in, a hearing to modify the guardianship.  But even that is not necessarily required, as COA remanded that question to the trial judge.

What of 700.5103?

It seems then the purpose of MCL 700.5103 (statutory authority for guardian to delegate powers for 180 days) is to provide a person acting on behalf of an absent non-professional guardian with something in writing that they can use when acting on the guardian’s behalf.

Conclusion

Perpetual efforts to clamp down on professional guardians, or even limit the number of wards an individual can serve as guardian for, are not advanced by this decision.  That said, the opinion is well-reasoned, and the outcome seems to be the most logical interpretation of the various statutes involved.

358006