David Seth Rodlund

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Michigan Guardianship & Conservatorship: Legal Guidance

In Michigan, guardianship and conservatorship are distinct legal processes designed to protect individuals who cannot manage their own affairs. Here's a breakdown of their differences and requirements:   Michigan Guardianship: Addresses personal care when an individual ("ward") is deemed incapacitated. Focus: health, safety, living arrangements. Court must determine the ward cannot make responsible personal decisions. Petition filed in probate court. A guardian ad litem may investigate. Hearings are held to establish the necessity. Guardian manages care, custody, and ensures basic needs are met. Michigan Conservatorship: Manages financial affairs when an individual is unable to do so effectively. Focus: assets, property, finances. Court must determine inability to manage financial affairs. Petition filed in probate court. A guardian ad litem may be appointed. Conservator protects/manages assets, pays bills, handles investments. Must provide asset inventory and file regular accountings with the court. Key Differences: Guardianship: personal care; Conservatorship: financial management. One person can hold both roles, or different individuals. Both are subject to court oversight. Michigan law prioritizes the least restrictive intervention. Legal counsel is strongly advised due to the significant legal implications.

Ways a Hearing can be Waived 

Here's a breakdown:  Formal Written Waiver: The subject can sign a "waiver of attendance." Their legal counsel must witness the signing. The signed waiver must be filed with the court.
Waiver in Open Court: The subject can verbally waive their right to be present during a scheduled hearing in front of the judge.
Implied Waiver by Absence: If the subject receives proper notice of the hearing (as required by section 453 and court rules) and fails to attend. And they have had the opportunity to consult with their legal counsel (as required by section 454). Then their absence is considered a waiver.
Court-Ordered Exclusion Due to Behavior: If the subject's behavior disrupts the hearing to the point that it cannot continue. The court must state its reasons for excluding the subject on the official record.
Court-Ordered Waiver Due to Risk of Harm: If a physician or licensed psychologist, who has recently observed the subject, provides testimony that the subject's presence would create a serious risk of physical harm to the subject. Then the court can waive the subjects presence.



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GUARDIAN AD LITEM DUTIES

Last update: January 17, 2021

GAL Duties include

1 Personal Visit: 2 Visit the individual alleged to be incapacitated in person. 3 Explanation of Guardianship: 4 Explain the nature, purpose, and legal effects of a guardian's appointment to the individual. 5 Explanation of Hearing Rights: 6 Explain the hearing process and the individual's rights, including: 7 The right to contest the petition. 8 The right to request limits on the guardian's powers. 9 The right to object to who is appointed guardian or standby guardian. 10 The right to be present at the hearing. 11 The right to legal representation. 12 The right to court-appointed legal counsel if they can't afford it. 13 Do-Not-Resuscitate (DNR) Information: 14 Inform the individual that a guardian may have the power to execute a DNR order on their behalf. 15 If possible, determine if the individual objects to a DNR order. 16 Physician Orders for Scope of Treatment (POST) Information: 17 Inform the individual that a guardian may have the power to execute a POST form on their behalf. 18 If possible, determine if the individual objects to a POST form. 19 Identification of Potential Guardians: 20 Inform the individual of the names of those seeking to be appointed guardian or standby guardian. 21 Financial Inquiry:  Litem's appointment ends.

22 Ask the individual and the petitioner about the individual's cash and easily convertible property. 23 Court Determinations and Reporting: 24 Make and report to the court determinations about: 25 Alternatives to full guardianship (e.g., limited guardianship, conservatorship, durable power of attorney). 26 Including an estimate of the individuals cash and easily converted property. 27 The possibility of resolving disputes through court-ordered mediation. 28 The individual's desire to be present at the hearing. 29 The individual's desire to contest the petition. 30 The individual's desire to limit the guardian's powers. 31 The individuals objection to a DNR order. 32 The individuals objection to a POST form. 33 The individuals objection to who is appointed guardian. 34 Compensation Requirement: 35 The court will not order compensation unless the Guardian ad Litem confirms they have fulfilled all required duties. 36 Court-Appointed Legal Counsel: 37 If the individual wants to contest, limit powers, or object to the guardian, and doesn't have a lawyer, the court will appoint one. 38 If the individual is indigent (poor), the state pays for the lawyer. 39 If the individual requests a lawyer, or the GAL believes it is in the best interest of the individual to have a lawyer, the court will appoint one. If the individual is indigent, the state pays for the lawyer. 40 Termination of Guardian ad Litem Role: 41 If the individual gets court-appointed legal counsel, the Guardian ad

Common Guardianship Terms 

These are frequent Guardianship Terms you May Encounter 

Step 1. Planning

ADULT PROTECTIVE SERVICES (APS) investigates cases of elder abuse, neglect, and exploitation by coordinating with mental health, public health, law enforcement, the probate court, the aging network, community groups, and the general public. CONSERVATOR is appointed by a judge to manage the finances, assets, and property of an incapacitated individual, including asset management, bill payment, or general financial decision-making after a person is considered incapacitated. DURABLE POWERS OF ATTORNEY (DPOA) involve the assignment, in writing, of another individual who will assume responsibility over another individual’s finances if they are no longer able to manage them.

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Michigan Adult Guardianship Process

Click on the link to see a detailed pdf about the Michigan Adult Guardianship Process ---guidance for the adult guardianship processes and does not address guardianship for minors or developmentally disabled individuals.

WHO IS A PROTECTED INDVIDUAL?

WHO IS A PROTECTED INDVIDUAL? • For a minor, that he/she owns property or money that requires management or protection that cannot otherwise be provided, has or may have business affairs which may be jeopardized or prevented by MCL 700.5401(2). minority, or needs money for support and education and that protection is necessary or desirable to obtain or provide money. 
• For an adult, that the individual is unable to manage property and business affairs effectively for reasonssuchasmental illness,mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance and that the individual has property that will be wasted or dissipated unless proper management is provided, or money is needed for the individual’s support, care, and welfare or for those entitled to the individual’s support, and that protection is necessary to obtain or provide money. MCL 700.5401(3)

Second Order for Mental Health Treatment

Petition for Second Order (PCM 218) Follows Initial Order (PCM 214) Must be filed 14 days prior to expiration of existing order Second Order for Mental Health Treatment (PCM 219) Duration: 90 days

Hello from the children of Tomorrow. Can you live your life in peace so that when we meet you are at your best?

Tomorrow always comes on time

MCL - Section 700.5312 Download Section Chapter 700 Act 386 of 1998 386-1998-V 386-1998-V-3 Previous Section Next Section ESTATES AND PROTECTED INDIVIDUALS CODE (EXCERPT) Act 386 of 1998 700.5312 Court exercise of power of guardian; temporary guardian. Sec. 5312. (1) If an individual does not have a guardian, an emergency exists, and no other person appears to have authority to act in the circumstances, the court shall provide notice to the individual alleged to be incapacitated and shall hold a hearing. Upon a showing that the individual is an incapacitated individual, the court may exercise the power of a guardian, or appoint a temporary guardian with only the powers and for the period of time as ordered by the court. A hearing with notice as provided in section 5311 shall be held within 28 days after the court has acted under this subsection. (2) If an appointed guardian is not effectively performing the guardian's duties and the court further finds that the legally incapacitated individual's welfare requires immediate action, the court may appoint, with or without notice, a temporary guardian for the legally incapacitated individual for a specified period not to exceed 6 months. (3) A temporary guardian is entitled to the care and custody of the ward, and the authority of a permanent guardian previously appointed by the court is suspended as long as a temporary guardian has authority. A temporary guardian may be removed at any time. A temporary guardian shall make reports as the court requires. In other respects, the provisions of this act concerning guardians apply to temporary guardians.

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A little about myself

MCL - Section 700.5314 Download Section Chapter 700 Act 386 of 1998 386-1998-V 386-1998-V-3 Previous Section Next Section ESTATES AND PROTECTED INDIVIDUALS CODE (EXCERPT) Act 386 of 1998 700.5314 Powers and duties of guardian. Sec. 5314. If meaningful communication is possible, a legally incapacitated individual's guardian shall consult with the legally incapacitated individual before making a major decision affecting the legally incapacitated individual. To the extent a guardian of a legally incapacitated individual is granted powers by the court under section 5306, the guardian is responsible for the ward's care, custody, and control, but is not liable to third persons because of that responsibility for the ward's acts. In particular and without qualifying the previous sentences, a guardian has all of the following powers and duties, to the extent granted by court order: (a) The custody of the person of the ward and the power to establish the ward's place of residence in or outside this state. The guardian shall visit the ward within 3 months after the guardian's appointment and not less than once within 3 months after each previous visit. The guardian shall notify the court within 14 days of a change in the ward's place of residence or a change in the guardian's place of residence. (b) If entitled to custody of the ward, the duty to make provision for the ward's care, comfort, and maintenance and, when appropriate, arrange for the ward's training and education. The guardian shall secure services to restore the ward to the best possible state of mental and physical well-being so that the ward can return to self-management at the earliest possible time. Without regard to custodial rights of the ward's person, the guardian shall take reasonable care of the ward's clothing, furniture, vehicles, and other personal effects and commence a protective proceeding if the ward's other property needs protection. If a guardian commences a protective proceeding because the guardian believes that it is in the ward's best interest to sell or otherwise dispose of the ward's real property or interest in real property, the court may appoint the guardian as special conservator and authorize the special conservator to proceed under section 5423(3). A guardian shall not otherwise sell the ward's real property or interest in real property. (c) The power to give the consent or approval that is necessary to enable the ward to receive medical, mental health, or other professional care, counsel, treatment, or service. However, a guardian does not have and shall not exercise the power to give the consent to or approval for inpatient hospitalization unless the court expressly grants the power in its order. If the ward objects or actively refuses mental health treatment, the guardian or any other interested person must follow the procedures provided in chapter 4 of the mental health code, 1974 PA 258, MCL 330.1400 to 330.1490, to petition the court for an order to provide involuntary mental health treatment. The power of a guardian to execute a do-not-resuscitate order under subdivision (d), execute a nonopioid directive form under subdivision (f), or execute a physician orders for scope of treatment form under subdivision (g) does not affect or limit the power of a guardian to consent to a physician's order to withhold resuscitative measures in a hospital. As used in this subdivision, "involuntary mental health treatment" means that term as defined in section 400 of the mental health code, 1974 PA 258, MCL 330.1400. (d) The power to execute, reaffirm, and revoke a do-not-resuscitate order on behalf of a ward. However, a guardian shall not execute a do-not-resuscitate order unless the guardian does all of the following: (i) Not more than 14 days before executing the do-not-resuscitate order, visits the ward and, if meaningful communication is possible, consults with the ward about executing the do-not-resuscitate order. (ii) Consults directly with the ward's attending physician as to the specific medical indications that warrant the do-not-resuscitate order. (e) If a guardian executes a do-not-resuscitate order under subdivision (d), not less than annually after the do-not-resuscitate order is first executed, the duty to do all of the following: (i) Visit the ward and, if meaningful communication is possible, consult with the ward about reaffirming the do-not-resuscitate order. (ii) Consult directly with the ward's attending physician as to specific medical indications that may warrant reaffirming the do-not-resuscitate order. (f) The power to execute, reaffirm, and revoke a nonopioid directive form on behalf of a ward. (g) The power to execute, reaffirm, and revoke a physician orders for scope of treatment form on behalf of a ward. However, a guardian shall not execute a physician orders for scope of treatment form unless the guardian does all of the following: (i) Not more than 14 days before executing the physician orders for scope of treatment form, visits the ward and, if meaningful communication is possible, consults with the ward about executing the physician orders for scope of treatment form. (ii) Consults directly with the ward's attending physician as to the specific medical indications that warrant the physician orders for scope of treatment form. (h) If a guardian executes a physician orders for scope of treatment form under subdivision (g), not less than annually after the physician orders for scope of treatment form is first executed, the duty to do all of the following: (i) Visit the ward and, if meaningful communication is possible, consult with the ward about reaffirming the physician orders for scope of treatment form. (ii) Consult directly with the ward's attending physician as to specific medical indications that may warrant reaffirming the physician orders for scope of treatment form. (i) If a conservator for the ward's estate is not appointed, the power to do any of the following: (i) Institute a proceeding to compel a person under a duty to support the ward or to pay money for the ward's welfare to perform that duty. (ii) Receive money and tangible property deliverable to the ward and apply the money and property for the ward's support, care, and education. The guardian shall not use money from the ward's estate for room and board that the guardian or the guardian's spouse, parent, or child have furnished the ward unless a charge for the service is approved by court order made on notice to at least 1 of the ward's next of kin, if notice is possible. The guardian shall exercise care to conserve any excess for the ward's needs. (j) The duty to report the condition of the ward and the ward's estate that is subject to the guardian's possession or control, as required by the court, but not less often than annually. The guardian shall also serve the report required under this subdivision on the ward and interested persons as specified in the Michigan court rules. A report under this subdivision must contain all of the following: (i) The ward's current mental, physical, and social condition. (ii) Improvement or deterioration in the ward's mental, physical, and social condition that occurred during the past year. (iii) The ward's present living arrangement and changes in the ward's living arrangement that occurred during the past year. (iv) Whether the guardian recommends a more suitable living arrangement for the ward. (v) Medical treatment, including mental health treatment, received by the ward. (vi) Whether the guardian has executed, reaffirmed, or revoked a do-not-resuscitate order on behalf of the ward during the past year. (vii) Whether the guardian has executed, reaffirmed, or revoked a nonopioid directive form on behalf of the ward during the past year. (viii) Whether the guardian has executed, reaffirmed, or revoked a physician orders for scope of treatment form on behalf of the ward during the past year. (ix) Services received by the ward. (x) A list of the guardian's visits with, and activities on behalf of, the ward. (xi) A recommendation as to the need for continued guardianship. (xii) If a standby guardian has been designated, a statement signed by the standby guardian that the standby guardian continues to be willing to serve in the event of the unavailability, death, incapacity, or resignation of the guardian. (k) If a conservator is appointed, the duty to pay to the conservator, for management as provided in this act, the amount of the ward's estate received by the guardian in excess of the amount the guardian expends for the ward's current support, care, and education. The guardian shall account to the conservator for the amount expended