What is a Legal Guardian in the State of Michigan?
A legal guardian is a relationship created when the court appoints a person to act on behalf of a minor child (a person under age 18), or an individual who is deemed legally incapacitated (i.e. unable to make their own decisions and act on them). Guardianship over a minor child typically lasts until the minor reaches age 18. A guardian is a fiduciary, and is legally responsible for the minor child or incapacitated adult.
In Michigan, the court appoints a guardian for the purpose of ensuring the ward’s (the minor child or legally incapacitated person) wellbeing and that wards consciousness and physical control are restored, as the court decides. A guardian’s authority may include, but is not limited to, the following:
As stated above, the court creates the authority that the guardian will have . Under Michigan law, a guardian is not allowed to sell property that the presently held by the minor child or incapacitated person unless expressly granted that power by the court in the guardianship order. A guardian is also not allowed to transfer property from the ward to himself or herself unless the guardian is the minor child or legally incapacitated adult. Further, the guardian is not allowed to change the beneficiaries of the ward’s insurance policies, annuities, or pension or profit sharing plan, unless specifically authorized by the court.
While the guardian is responsible for managing the ward’s affairs and supervising his or her wellbeing, the guardian is not responsible for providing custodial care. That means that the guardian of an incapacitated individual does not have to personally provide day-to-day care if that person lives alone.
Becoming a Legal Guardian of a Minor in Michigan
In Michigan, the Court procedure for guardianship of an individual is governed by Chapter 7 of the Mental Health Code, MCL 330.1600-1665. This process begins by filing a petition for appointment of a guardian.
A petition for appointment of a guardian is a document (form) filed with the Probate Court. It requests that the Court appoint a guardian and outlines the facts of why a guardian should be appointed.
The petition must allege one of the following: (1) The individual is a minor and the appointment of a successor guardian is necessary because the parent or guardian will no longer be able to act; (2) the individual is an adult and a guardian has previously been appointed; (3) the individual is an adult and the appointment of a guardian is necessary due to mental illness; (4) the individual is an adult and the appointment of a guardian is necessary due to developmental disability; (5) the individual is an adult found to be legally incapacitated; (6) the individual is an adult and the appointment of a guardian is necessary due to a serious injury or illness that render the individual incapable of protecting himself or herself; and (7) the individual is an adult and the appointment of a guardian is necessary due to advancing age.
Once a petition is filed with the court, a copy of the petition must be personally served on the alleged legally incapacitated person (the individual), whoever appointed the prior guardian (successor guardian), and any other person required under MCL 700.5301. Additionally, the copy of the petition must be served on any individual who has filed with the court a demand for notice of any proceeding to appoint a guardian.
If the individual has an attorney who represents them, a copy of the petition will also have to be served on the individual’s attorney.
Also, each alleged legally incapacitated person must have an attorney represent them. If the individual does not have an attorney, the court will provide an attorney to represent the individual in a guardianship proceeding. This attorney must be paid by the individual but if that is not financially feasible, the Court will appoint an attorney at the State’s expense.
After an individual is provided with a copy of the petition for appointment of a guardian, there will be a hearing. This hearing is held to allow for an examination of witnesses and for the introduction of evidence that protects the individual’s rights. If the individual is 14 years old or older, he or she has the right to be represented by legal counsel at the hearing. Additionally, if the individual is 17 years old or older, he or she has the right to choose and demand that an attorney be appointed (indigent defense) to represent his or her interests relative to the guardianship hearing. Both the court-appointed attorney and the attorney chosen by the individual will make sure that the person that provided a copy of the petition for appointment of a guardian do so voluntarily and without undue pressure from anyone.
If the Court finds that a guardian should be appointed for an individual, the following persons may be appointed as guardian: (a) any person who meets the statutory requirements of a guardian under Michigan law and is acceptable to the court, which includes an agency or person acting under a power of attorney who is authorized to engage in the tasks delegated to the guardian, if the court finds that this will be to the individual’s advantage; (b) the individual’s spouse; (c) either of the individual’s parents; (d) any of the individual’s adult children; or (e) any of the individual’s siblings.
If the guardianship is for a minor under the age of 17 years, the only persons listed above who may be appointed as a guardian are: (i) the individual’s parents; (ii) any of the individual’s adult siblings; or (iii) either grandparent.
If the guardianship is for an adult, the individual’s spouse will be considered as the last option of the above list.
A testamentary guardian is an individual named by a parent to take care of the parent’s minor child if the parent can no longer care for the child. The person named by the parent becomes a "testamentary guardian" upon the death of the parent or parent’s decree of incapacity.
When the court appoints a guardian for an adult, the Court will give preference to a spouse over others listed in the statute except for the individual’s parents.
The main eligibility requirement for a guardian is that he or she must be an adult, 18 years old or older, unless the guardianship is over a minor. A guardian cannot be a person who may have "interests that may conflict with those of the legally incapacitated individual" or a person "who appears to be unsuitable to act in the interests of the individual." As of September 22, 2016, Michigan law no longer bars attorneys from serving as guardians.
Methods for Guardianship in the State of Michigan
In Michigan, there are several types of guardianship available, depending on the needs of the person in need of a guardian. The different types of guardianships include:
Guardianship for Minors
A parent may petition the court for a guardian for a minor child when either of the parents is deceased, the parents are incapacitated as defined by statute and have granted the aunts, uncles or grandparents who have cared for the child for a period of time authority to apply to the court for the appointment of a guardian, or where both parents are unable to care for the child.
Guardianship of an Adult Person
An adult may file a petition with the court to have a guardian appointed when a person is an adult as defined by statute, the person is alleged to be a legally incapacitated individual, the person is unable to give proper attention to his or her property and affairs and there is not an existing enduring power of attorney or a durable power of attorney for health care.
Guardianship of a Legally Incapacitated Person
Where there is evidence shown by a doctor that the person is legally incapacitated under the statute, an existing alcoholic guardianship can be made permanent at the request of the person under the statute. Here, a person’s rights to contract, sue, appoint or fire an agent, apply for Medicare or Medicaid, and to apply for or exercise powers granted under a durable power of attorney for health care are all limited under this type of guardianship.
Guardianship for Unmarried Persons
If a person is unmarried or an adult and is a legally incapacitated person under the statute and there exists no existing durable power of attorney for health care, the person may petition for a guardian. At this time, the person’s ability to apply for social security benefits, exercise the right to possess or carry a firearm, refuse mental health treatment, and to sell or convey property other than a homestead will be restricted.
Duties and Powers for Legal Guardians in Michigan
The rights and responsibilities of a legal guardian over an individual in Michigan are broad, covering multiple facets of that individual’s day-to-day life. Parents may serve as a legal guardian for minor children, while other individuals may be appointed to serve as a legal guardian for a "legally incapacitated person." A legally incapacitated person is someone "who has been found by a court to be wholly or partially unable to receive and evaluate information or to communicate decisions because of a mental or physical condition, including one whose property is totally absent from the state or who cannot return to the state to determine property rights . "
Generally, a legal guardian’s powers include the authority to do the following:
A legal guardian’s authority is limited by state statutes. For example, Michigan protects an individual’s right to make decisions about mental health treatment, even if a guardian has been appointed. A legal guardian may not have the authority to consent to the sterilization of the protected person. There are also limitations placed on a legal guardian’s authority to manage the financial affairs or expenditures of a protected person.
Terminating or Transferring Guardianship in Michigan
For most individuals in Michigan, there would never be a reason to seek to revoke or terminate a guardianship. Factors such as maturity level, responsibility, employment, family life, marital status, and location could all influence a guardian’s decision to petition the court for a change of guardianship.
Many people think that once you have become a guardian for an adult that you are with them for life. Michigan Law states differently. Individuals can petition the court to terminate their guardianship for any number of reasons such as:
- They no longer need a guardian
- Less restrictive alternatives are available
- They are rehabilitated to manage and care for their own person and/or estate
- Guardian is unsatisfactory
There are also times when a guardian may need to step down and therefore petition the court to revoke the guardianship. There are two primary reasons why a Court terminates a guardianship, either the incapacity of the Guardian or the Guardian is found to be unsuitable to carry out his terms and duties of the guardianship.
If you feel that a guardian is no longer needed for your child, you would need to file a petition with the local court. A hearing will be held and notice will be given to interested parties. The burden of proof is upon the party seeking termination to show that the court should terminate the guardianship. If a guardian seeks revocations of a guardianship they must provide sufficient evidence to support the termination. All interested parties would need to consider the pros and cons and vote in favor to terminate the guardianship. A judge would then consider a recommendation to either revoke or terminate the guardianship.
Legal Counsel for Guardianships
In most instances, the court requires the appointment of an attorney to assist in the legal guardianship process. The Judge is the finder of fact in the case and a guardian (or a proposed guardian) can benefit from having an attorney present to act as their advocate in the courtroom.
Most attorneys charge $250 or more per hour for their time. Guardianship cases often involve contested hearings, hearings with multiple witnesses and gathering background information such as medical and psychiatric reports. The costs of working with an attorney can add up quickly. An uncontested guardianship, such as for a senior who has lost capacity and has indicated the person they would like to serve as their guardian, can be completed for less than $1 , 000. But this is not always the situation.
Attorneys or paralegals in their practices also typically include preparation, attendance at the hearing and follow-up work with the court regarding the order and making sure that the guardian receives information on their new obligations.
Working with the right attorney can be the difference between being able to afford to retain them or whether you need to seek assistance from other places such as legal aid. You can find part-time volunteer lawyers through most legal aid offices in Michigan, or you can contact a law school in Michigan to see if they have a legal clinic that will take on your case. For example, if the guardianship involves a person who meets the definition of "developmental disability", Michigan Protection and Advocacy may be able to provide representation.