December 4, 2011, will mark the three-year anniversary of the enactment of the Michigan Medical Marihuana Act (MMMA). It’s no secret that, over its three-year lifespan, county prosecutors and police agencies have aggressively pursued marihuana manufacturers seeking to shield themselves from prosecution within provisions of the MMMA. It is also no secret that, in many instances, Michigan courts have sanctioned prosecutorial efforts and tightened their interpretations of a law that – lest we forget – was approved by 63% of Michigan voters in 2008. It is no surprise ergo that the most recent Court of Appeals decision in the string of MMMA cases to moving up the appellate ladder has come down in favor of the state.

In People v Blysma, decided on September 28, 2011, the Michigan Court of Appeals held that a registered primary “caregiver” – the title given to a licensed marihuana grower under the Michigan Medical Marihuana Act – can only grow plants for those qualifying patients formally registered to the caregiver through the Michigan Department of Community Health. Blysma was a registered caregiver in Grand Rapids, Michigan and, at the time of his arrest, was leasing a near-downtown apartment unit for the sole purpose of marihuana growing. When police raided the unit, they discovered, among other items, 88 marihuana plants in three growth booths. Blysma was registered as the primary caregiver for two registered qualify patients. The maximum number of plants allowed per patient under MMMA, however, is 12; therefore 64 of the 88 plants fell outside the protections of the Act.

Blysma was charged with manufacturing marihuana under MCL 333.7401(2)(d)(iii) and filed a motion to dismiss on grounds that he was sharing the unit with other registered patients who were growing the remaining 64 plants for their own use, keeping him at the threshold permissible under MMMA. The Court was not persuaded, however, rejecting Blysma’s argument because the MMMA is actually silent as to whether registered patients and registered caregivers may utilize the same enclosed, locked facility to grow marihuana. Referring to last year’s headline MMMA case, People v. Redden, the Court held that “because the MMMA did not repeal any drug laws, any possession of marihuana that does not fall within the ‘narrowly tailored protections’ of the MMMA remains illegal under the PHC [Public Health Code].” The Court also rejected Blysma’s affirmative defense claim of possession for medical purpose allowed under §8 of the MMMA because he was not in compliance with the 12-per-registered-patient rule under §4(b) of the Act.

The trends of aggressive pursuit of marihuana growers by prosecutors and police agencies and extremely narrow judicial interpretation by courts are impacting counties all across the state, including Berrien, Allegan, and Cass Counties. If you are seeking help with compliance with MMMA or are facing criminal charges for possession and/or distribution of marihuana, look no further than Attorney Peter J. Johnson. Contact the Law Office of Peter J. Johnson today at (269) 982-1100 or by email at peterj@attorneypeterjohnson.com or visit his website at http://www.AttorneyPeterJohnson.com.

*Please note:  Every case is different, and there may be some aspect of your particular cas which may result in an outsome other than is descriged above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

December 4, 2011, will mark the three-year anniversary of the enactment of the Michigan Medical Marihuana Act (MMMA). It’s no secret that, over its three-year lifespan, county prosecutors and police agencies have aggressively pursued marihuana manufacturers seeking to shield themselves from prosecution within provisions of the MMMA. It is also no secret that, in many instances, Michigan courts have sanctioned prosecutorial efforts and tightened their interpretations of a law that – lest we forget – was approved by 63% of Michigan voters in 2008. It is no surprise ergo that the most recent Court of Appeals decision in the string of MMMA cases to moving up the appellate ladder has come down in favor of the state.

In People v Blysma, decided on September 28, 2011, the Michigan Court of Appeals held that a registered primary “caregiver” – the title given to a licensed marihuana grower under the Michigan Medical Marihuana Act – can only grow plants for those qualifying patients formally registered to the caregiver through the Michigan Department of Community Health. Blysma was a registered caregiver in Grand Rapids, Michigan and, at the time of his arrest, was leasing a near-downtown apartment unit for the sole purpose of marihuana growing. When police raided the unit, they discovered, among other items, 88 marihuana plants in three growth booths. Blysma was registered as the primary caregiver for two registered qualify patients. The maximum number of plants allowed per patient under MMMA, however, is 12; therefore 64 of the 88 plants fell outside the protections of the Act.

Blysma was charged with manufacturing marihuana under MCL 333.7401(2)(d)(iii) and filed a motion to dismiss on grounds that he was sharing the unit with other registered patients who were growing the remaining 64 plants for their own use, keeping him at the threshold permissible under MMMA. The Court was not persuaded, however, rejecting Blysma’s argument because the MMMA is actually silent as to whether registered patients and registered caregivers may utilize the same enclosed, locked facility to grow marihuana. Referring to last year’s headline MMMA case, People v. Redden, the Court held that “because the MMMA did not repeal any drug laws, any possession of marihuana that does not fall within the ‘narrowly tailored protections’ of the MMMA remains illegal under the PHC [Public Health Code].” The Court also rejected Blysma’s affirmative defense claim of possession for medical purpose allowed under §8 of the MMMA because he was not in compliance with the 12-per-registered-patient rule under §4(b) of the Act.

The trends of aggressive pursuit of marihuana growers by prosecutors and police agencies and extremely narrow judicial interpretation by courts are impacting counties all across the state, including Berrien, Allegan, and Cass Counties. If you are seeking help with compliance with MMMA or are facing criminal charges for possession and/or distribution of marihuana, look no further than Attorney Peter J. Johnson. Contact the Law Office of Peter J. Johnson today at (269) 982-1100 or by email at peterj@attorneypeterjohnson.com or visit his website at http://www.AttorneyPeterJohnson.com.

*Please note:  Every case is different, and there may be some aspect of your particular cas which may result in an outsome other than is descriged above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

Court of Appeals finds mailing certificate testimonial in nature; state clerks must testify in open court on notice element in DWSL cases

A recent Michigan Court of Appeals decision could create a logistical nightmare for prosecutors seeking convictions in driving-with-suspended-license (DWSL) cases while bolstering a defensive argument that an accused charged under the DWSL statute, MCL 257.904, had not been adequately notified of his/her license suspension or revocation prior to the date of the offense.
 

The basis of the Court’s decision in People v. Nunley hinged upon its interpretation of the Confrontation Clause found in the Sixth Amendment of the U.S. Constitution, which provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with all witnesses against him…” MCL 257.904 requires, among other things, proof that the accused had been given notice, in accordance with MCL 257.212, that his/her license had been suspended or revoked prior to the time of the offense. In almost all cases, notice of suspension or revocation is provided by mail from the Secretary of State to the driver and is accompanied by a certificate of mailing “naming the person to whom notice was given and specifying the time, place and manner of giving notice.” MCL 257.212. (Personal delivery of the notice of suspension or revocation is also permitted under the statute though certification is still required). In all cases prior to Nunley, the submission into evidence of the certificate of mailing the notice of suspension or revocation was permissible as proof that the suspended or revoked driver had been made aware of the loss of driving privileges prior to the time of the DWSL offense.

In Nunley, however, the Court concluded that since proof of notice prior to the commission of the DWSL offense is an element of the crime under MCL 257.904, the admission into evidence of a certificate of mailing as proof of that element violates the defendant’s right to confront the testimony being offered against him, in this case that of the Secretary of State clerk who issued the certificate of mailing. The Court based its opinion on a U.S. Supreme Court case, Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), which refused to admit a lab analyst’s report as evidence on the grounds that the results of the report were being offered to prove a fact in question at trial without permitting the defendant the opportunity to cross-examine the report’s author. Because the certificate of mailing in a DWSL case is being offered to prove or establish some fact at trial, the Court characterized the certificate as testimonial in nature thereby preventing its admission under the public record exception to the hearsay rule. “Indeed,” the Court said, “the certificate of mailing is the only evidence of proof of notice and is solely created for that singular purpose.”

The decision will likely be appealed to the Michigan Supreme Court, but in the interim the Court’s ruling has given defense attorneys a valuable bargaining in the litigation process. To defend against challenges to the notice element of MCL 257.904, prosecutors are now faced with the expense and inconvenience of transporting a Secretary of State clerk from Lansing to their courtrooms to testify that he/she did in fact send the notice of suspension or revocation out as indicated in the certification of mailing. This burden, in light of the significant number of DWSL convictions garnered annually in this state, could have a dramatic effect on the approach county prosecutors take in bringing these cases to trial, a result defense attorneys can smile upon.

*Please note:  Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

When it comes to police acting in their official capacity, the court based the determination of probable cause on the “probability that the person committed the crime as apparent to the officer at the time of the arrest.”  However, once the case progresses to the point that it comes before a judge on a preliminary examination, the standard is raised.  Beyond the requirements already described, the prosecution also has to prove that it probably will be able to establish the defendant’s guilt at the time of trial.  The difference is based on the fact that due to the circumstances and variables present in the field, police have to act on practical, nontechnical principals based on all the facts and circumstances available to them at the time.  The court, on the other hand, has the advantage of distance from the actual arrest, and the prosecutor has the advantage of having more time to gather information about what actually happened.  The prosecutor is therefore appropriately held to a higher standard in proving there is enough evidence to justify spending the court’s time and resources prosecuting the defendant.

So what does this mean to you as the defendant?  Under the new ruling, there is a slightly better chance that your case will be dismissed at the District Court level, without going through the time and expense of a full trial or resulting in a conviction.  Bear in mind, even under this new case, a probable cause standard is still the lowest standard of proof in any court proceeding, so most cases will still be bound over to Circuit Court.  However, the clarification of the standard given by the Court of Appeals puts a new emphasis on the preliminary examination, and gives your attorney a stronger basis to argue that the prosecutor simply has not provided enough proof to show that he or she will probably be able to prove your guilt.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

In People v. Brooks, the defendant was convicted of statutory entering without breaking.  This is a low-severity “Class E” felony that the court equated with trespassing.  The offender had 12 prior felony convictions and three prior misdemeanor convictions.  He was also on probation at the time of the arrest.  Because the sentencing guidelines only accounted for the first four low-severity felonies, the court determined that some upward departure was appropriate given the extent of the defendant’s criminal history.  But the fact that some upward departure was appropriate did not condone the life sentence that was imposed.

Even where departure is appropriate, the sentence imposed must still amount to a “principled outcome” in light of the offender and the circumstances.  The trial court imposed a life sentence even though the sentencing guidelines indicated less than four years of prison.  The highest possible minimum sentence for the offense was just over six years.  Therefore, the court determined that the life sentence was disproportionate and outside the bounds of principled outcomes. 

If you are facing a felony charge, ask your attorney what the minimum sentencing range might be in your case.  Remember that the court can deviate in some cases, but knowing that range may help you to decide whether to take a plea or go on to trial.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

After defining “by blood” to mean “related by descent from a common ancestor,” the court looked to the Paternity Act and MCL 552.29 to determine whether the defendant could challenge his paternity (who the court believed his father to be).  In Michigan, a person who is conceived and born during a marriage is presumed to be the legitimate “issue” of that marriage.  That means that it is presumed that the wife is that person’s mother and the husband is that person’s father.  Only the mother or the presumed legal father has the power to challenge that presumption under the Paternity Act, and then only during the pendency of the divorce proceedings.  Without an affirmative finding by a family court that the defendant was not a legitimate issue of the marriage, the defendant did not have the standing (authority) to challenge the presumption that the man married to his mother when he was conceived and born was his father.  Since in the eyes of the law that man was the defendant’s father, the victim, that man’s daughter, was the defendant’s half sister.  Therefore, the conviction of Criminal Sexual Conduct, 1^st Degree, was upheld.

Interestingly, very little emphasis was placed on the legislative intent behind the statute – “to protect minor children from sexual abuse by persons with whom they have a close relationship.”  Even though this legislative intent would permit the broad interpretation of “related by blood” that the court used, it gave the purpose scant mention.  That purpose, it would seem, would provide a superior reason to convict in this particular case – to protect the 15 year old victim from the abusive acts of someone she believed to be her much older half brother.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

What Qualifies as Child Abuse?

Child abuse is physical or serious mental harm done to a person less than 18 years of age.  Physical harm means any injury to a child’s physical condition.  Serious physical harm “seriously impairs the child’s health or physical well-being, including, but not limited to, brain damage, a skull or bone fracture, subdural hemorrhage or hematoma, dislocation, sprain, internal injury, poisoning, burn or scald, or severe cut.”  Serious mental harm is any injury to the child’s mental condition or welfare that is visibly observable and amounts to a “substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.”  Examples of this might include phobias, developmental delays or regression, depression, or serious anxiety. MCL 750.136b.

Criminal Consequences of Child Abuse

In the criminal system in the State of Michigan there are four (4) degrees of Child Abuse.  The different degrees count down in severity.  Depending on the facts in a given case, a person can be charged with multiple counts of one of the degrees, or may be charged with different degrees of Child Abuse.

Child Abuse 1^st Degree can be charged when a person “knowingly or intentionally causes serious physical or serious mental harm to a child.”  If convicted of the felony Child Abuse 1^st Degree, a person could serve up to 15 years in prison.

Child Abuse 2^nd Degree can be charged when a person:

1. Fails to act or acts recklessly in a way that causes serious physical harm or mental harm to a child;
2. Knowingly or intentionally acts in a way that is likely to cause serious physical or serious mental harm, even if that harm does not actually occur; or
3. Knowingly or intentionally acts in a cruel, brutal, inhuman, sadistic or torturous way toward a child, even if harm does not occur.

Child Abuse 3^rd Degree can be charged when a person:

1. “Knowingly or intentionally causes physical harm to a child;” or
2. Knowingly or intentionally creates an unreasonable risk of harm to a child, which actually results in physical harm.

If convicted of the felony Child Abuse 3^rd Degree, a person could serve up to 2 years in prison.

Child Abuse 4^th Degree can be charged when a person:

1. Fails to act or acts recklessly in a way that causes physical harm to a child;
2. Knowingly or intentionally creates an unreasonable risk of harm to a child, regardless of whether harm actually occurs.

If convicted of the misdemeanor Child Abuse 4^th Degree, a person could serve up to 1 year in a local jail.

A person cannot be convicted of Child Abuse if using reasonable force to administer reasonable discipline to a child (such as spanking with an open hand).  A person may also defend against a charge of Child Abuse by showing that he or she was acting in reasonable response to an act of Domestic Violence. MCL 750.136b.

If you have been charged with Child Abuse, contact an attorney to discuss possible defenses as well as a possible reduction in the degree and therefore the severity of punishment.

Juvenile Court Consequences of Child Abuse

The effects of Child Abuse in the legal system do not end with conviction.  If a person has been charged or otherwise accused of child abuse, that will likely start an investigation by Child Protective Services.  If there is “probable cause” to believe the Child Abuse occurred (a low standard of proof), then Child Protective Services may remove the child and any siblings or other minor children in the home and place them with a foster parent.  This affects the rights and privileges of both the charged person and the other parent(s) of the children.  Once the children are removed and the initial proceedings are completed the case is turned over to the Department of Human Services.

The Department of Human Services may terminate the rights of a parent immediately if there is clear and convincing evidence (the highest standard of proof in the family court) of the following the parent abused the child or a sibling by:

1. Abandoning the young child;
2. Committing Criminal Sexual Conduct involving penetration, attempted penetration, or the intent to penetrate against the child or sibling;
3. Causing severe physical abuse such as battering or torturing the child or sibling;
4.  Causing life-threatening injury to the child or sibling;
5.  Committing or attempting Murder or Voluntary Manslaughter, including under theories of aiding and abetting, solicitation, or conspiracy.

If none of the above circumstances apply, the Department of Human Services must provide services toward reunification between the parent and child for a period of at least 6 months.  If material improvement is not found after that period, the Department of Human Services may terminate the rights of a parent if there is clear and convincing evidence (the highest standard of proof in the family court) of the following (with respect to Child Abuse):

1. The child or a sibling suffered physical injury or sexual abuse by that parent and there is a reasonable likelihood of further risk of injury or abuse in the foreseeable future.
2. The parent had an opportunity to prevent physical injury or sexual abuse but failed to do so and there is a reasonable likelihood of further risk of injury or abuse in the foreseeable future.
3. The child or a sibling suffered physical injury or sexual abuse by a nonparent and there is a reasonable likelihood of further risk of injury or abuse by that nonparent in the foreseeable future. MCL 712A.19b

A recently published case by the Michigan Court of Appeals, In re Ellis, decided June 14, 2011, allows the court to terminate the rights of both parents after serious physical harm has come to the child and if the parents were the sole caretakers of the child, even if the court is unable to determine which parent actually caused the injury.  This is because one parent caused the injury and the other failed to prevent the abuse.  The court conditioned its ruling on the fact that the evidence suggested the abuse had occurred over a period of time and would have been noticeable by either parent.

Family Court Consequences

In cases where the Family Court has jurisdiction over a minor child subsequent to a divorce or under the Child Custody Act or Paternity Act, the other parent can file a motion modify the custody and parenting time arrangement reevaluated in light of the charges of Child Abuse.  If such a motion is filed, the court will hold a hearing and may reserve (put a stop to) or suspend (put a temporary stop to) a person’s right to parenting time with the child.  The court may also require that any parenting time be supervised by either a professional counselor or a mutually agreeable friend or family member.  It may also require particular counseling, education, or other treatment for the parent or child before regular parenting time is resumed.  A Family Court cannot grant custody to a parent who has been convicted of Criminal Sexual against the minor child or a sibling unless the other parent and the child (of sufficient age) agree to the custody arrangement. MCL 722.25a.

The effects of Child Abuse reach far beyond the legal consequences and the courts take those effects very seriously.  However, knowing what is to come in the event of Child Abuse can help you to take the proper protective measures, and can help you to know when is the right time to call an attorney.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may have a legal issue with respect to Child Abuse.

The decision arose from the dismissal of “Failure to Report” charges against a defendant who had listed a homeless shelter as his residence from 2002 until 2006.  In 2006 it was discovered he was a sex offender and he was asked to leave the shelter according to their policy.  The defendant did not go to a Michigan State Police post and register a new residence within 10 days as is required by the statute.  In fact, he had not registered since 2002.  His attorney argued that he was unable to report because he in fact did not have a residence to report.  The opinion contains no evidence of the habits of the defendant as far as where he typically travelled or remained.  Nor did either the majority or the dissent seem concerned with the habits of this particular defendant.

The majority defined “residence” as “that place at which a person habitually sleeps, keeps his or her personal effects, and has a regular place of lodging.”  Emphasizing that this definition begins with “place” rather than “home” or “building” the majority held that a place could be a park as long as the sex offender habitually sleeps there and establishes regular lodging there. The dissent noted that in order to have a “residence” a person must have a (1) habitual (2) regular place of lodging where he or she (3) keeps his or her personal effects.  Neither the majority nor the dissent defined “lodging.”  The Merriam Webster online dictionary defines lodging as “a place to live: Dwelling” or “sleeping accommodations,” “a temporary place to stay” or “a room in the house of another used as a residence.”  Thus even though both opinions rely on the term, the majority does so when the definition of the term would be in stark conflict with its application of the term to its generally defined “place” of residence.  While a homeless individual may regularly sleep in a park, he or she could not have established regular “lodging” there where there are no accommodations to be made, and no room to be used as a residence.

The majority then defined “domicile” as “that place where a person has voluntarily fixed his abode not for a mere special or temporary purpose, but with a present intention of making it his home, either permanently or for an indefinite or unlimited length of time.”  However, it relied on an excerpt from a 1897 case that states “[e]very person must have a domicile somewhere” and without applying the definition to the defendant’s circumstances, summarily stated he must have had a domicile to register.  The dissent rightly chastised the majority for failing to apply its own definition of domicile to the present circumstances.  It also noted that, according to Michigan case law, in order to establish a domicile, one must have a residence and an intent to remain there indefinitely.  Thus rather than being the broader, all encompassing term that the majority sought to make it, “domicile” is in fact a subset of “residence” most appropriately defined as a “permanent residence.”  The dissent properly notes that with no residence, the homeless simply cannot establish a domicile.

Even though the majority recognized that many homeless individuals are “transient” and “nomadic” it still held that they could register because the Michigan State Police would allow them to register their domicile at “123 Homeless” in the city, state, county, and zip code where they spend their days.  It reasoned that the intent of the legislature was to create a “comprehensive” list of sex offenders, and so this designation furthered that goal.  The dissent criticized this method of assigning an arbitrary address to a homeless person as creating a false and misleading statement to the police and subjecting the homeless sex offender to further prosecution. Neither opinion addressed the two larger issues: (1) that homeless sex offenders are not necessarily tied to any one city, county, state, or zip code, and (2) that requiring them to register every time they change cities would become unreasonably burdensome.  Particularly in metropolitan areas, what city or township a person is in may depend on which side of the road he or she is walking on.  According to the majority’s registration requirement, every time a homeless person crossed a city line and set up a makeshift shelter there, he or she would have to report this “new residence” to the Michigan State Police within 10 days.  Therefore, the majority’s decision would penalize those who are unable to find or afford a permanent residence or it requires them to limit themselves to one city or township in their attempts to find shelter.  The more plausible and practical option would have been to instruct the Michigan State Police to include on their forms a box indicating “Homeless” to be checked by the sex offender.  Then the offender could be listed in the county where he last reported without being tied to the particular city or township where he happened to be that day.  With such a simple solution available, it is curious why neither the majority nor the dissent thought of it, and why the majority would instead place such an onerous burden on the homeless in our communities.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

That changed when the Michigan Legislature amended the statute, adding a provision that permits the felon to file the petition and have that conviction set aside even if he or she has up to 2 additional “minor offenses.”  A minor offense is a misdemeanor punishable by up to 90 days and/or a fine of up to $1,000.00.  Most importantly, those 2 minor offenses must have been committed before the felon’s 22^nd birthday.  Because of this limitation, it seems the Michigan Legislature clearly intended this law to be designed to forgive minor offenses made while the felon was young and foolish.

When considered together with the recent changes to the Sex Offender Registry Act, this law seems to mark a change in the Michigan Legislature intends for courts to deal with juvenile and young adult offenders.  If the Legislature is not intending leniency, it is at least legislating forgiveness for offenses made during those years when juveniles and young adults are most likely to cross the law without truly considering the consequences.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

How Can I Get Authority to Make Decisions for My Incapacitated Adult Child?

If your disabled adult child is not able to make important decisions for him or herself, then the Probate Court can determine that he or she is incapacitated and can appoint a guardian.  A guardian has the authority to make day-to-day as well as emergency decisions regarding the incapacitated adult in the same way a parent has the authority to make decisions for his or her minor child.  Obtaining a guardianship can be tricky, and often involves psychological and physical examinations of the incapacitated adult, so it is a good idea to contact an attorney who can help you complete the necessary forms and get the required evidence in place.  It is also a good idea to elect a substitute guardian (who serves if you are unable to) or a co-guardian (who serves at the same time you do) in the event that you are no longer able to serve as guardian at some point in the future.  Doing so will avoid a scramble to appoint a new guardian after the unfortunate event has occurred.  This person could be your spouse, an adult sibling or family member, or other trusted caretaker as long as that person agrees to be appointed and signs an Acceptance of Appointment.

How Can I Prepare for If Something Happens to Me?

There are several steps that you should consider taking as a parent of an incapacitated child in order to protect and provide for that child in the unfortunate event something were to happen to you. 

First and most importantly, keep an updated will naming a successor guardian.  If you have not gone through the formal Guardianship procedure (explained above), then the inclusion of a named guardian in your will can give the person you name the authority to make decisions on a temporary basis, and will trigger proceedings in the Probate Court to create a formal Guardianship.

Second, you can create what is called a “Spendthrift Trust” for your incapacitated child’s benefit.  This trust can be administrated by a bank or by an individual you trust and can provide money for the care, support, and medical expenses of your child even after you pass away.  A spendthrift trust can be created while you are alive (with you as the primary trustee and another person or bank as the secondary trustee) or in your will.  If you put it into your will the funds will be distributed out of your estate after you pass away.

Third, you should create a Durable Power of Attorney with respect to your incapacitated child.  This document gives some other person the authority to make all the decisions you ordinarily would if for whatever reason you become unavailable or unable to make those decisions.  Essentially, it creates a go-to person if you can no longer make the decisions for your incapacitated child.  Creating this document will allow a seamless transition between you and the new caregiver in the eyes of the medical institutions responsible for the care of your incapacitated child.

It is a good idea to make these documents early and keep them updated in preparation for the unexpected.  A probate attorney can help you decide what steps are best for your particular case and can help you select trustees and successor guardians.

What Can I Do If I Get Divorced?

This may be the trickiest area of the law.  Because of the limitations of the Michigan Child Custody Act, there is no way for a Family Court judge to force your ex-wife or ex-husband to assist in the care and support of your incapacitated adult child.  It is recommended that you contact an attorney early, ideally when you first discover your child’s disability or incapacity, and request a postnuptial agreement.  This agreement is essentially a contract between spouses that outlines how the parties will behave if there is ever a divorce.  The postnuptial agreement can specify which party will take primary custody of the incapacitated adult child, can require the other party to contribute to the monetary support of the child, and can dictate how medical expenses will be shared between former husband and wife.  The later this contract is entered into, the more suspicious some judges will be of it, and the less likely your spouse will be to agree to it, so take steps early to contact a family law attorney who can help you draft an agreement before you really need it.

It is understandably important to you to make sure that your incapacitated child will be cared for in the event of the unforeseen.  It may seem at first as though there is nothing you can do, but with careful planning and a proactive approach, your child can be protected and provided for even after you pass away.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may have a legal issue.