When a loved ones are unable to care for themselves due to age or the onset of a medical condition or impairment – such as Alzheimer’s disease, dementia, or chronic substance abuse – it often falls on the family to make difficult and timely decisions for their care and financial interests. It is sometimes wise in such cases to petition the probate court to set up a guardianship and/or a conservatorship to properly manage your loved one’s affairs.

A simple estate plan can sometimes completely eliminate the need for a guardianship or conservatorship. The use of a living will combined with powers of attorney, patient advocate designations, and HIPAA medical release forms gives authority to caregivers and guidance to medical providers about caring for vulnerable individuals when they are unable to speak for themselves.

In other cases, if an individual’s condition is more severe or is likely to last a long time – or if there is no estate plan in place – a guardianship and conservatorship can be more durable and uniquely tailored to the specifics of a given situation.

Probate Court: Protecting the Rights and Needs of Michigan’s Vulnerable Population

One of the primary functions of Michigan’s probate courts is to oversee the management and care of those individuals who are physically and/or mentally vulnerable or impaired. Probate judges have the difficult task of balancing parties’ constitutional rights to self-determination and self-preservation with the principles of safety, dignity, and the general welfare for all. Using the Michigan Estates and Protected Individuals Code (EPIC), probate judges establish, maintain, modify, and terminate guardianships and conservatorships for vulnerable Michigan residents.

The probate court has the authority – vested by the Legislature – to take jurisdiction over protected individuals. These are people who are unable to care for themselves because they are:

• A minor child (vulnerable due to age)
• Developmentally disabled (vulnerable due to developmental deficiency)
• A legally incapacitated individual or LIP (vulnerable due to mental illness or deficiency, physical illness or disability, or chronic intoxication or drug use)

Once the court determines that a person is a protected individual, it will appoint a guardian ad litem (GAL), an independent attorney whose job is to review the individual’s mental, physical and financial circumstances and submit recommendations to the court for their care and treatment.

Guardianships: Providing Care for Incapacitated Individuals

When a person is unable to make informed decisions about his or her own care, the probate court can grant a guardianship. A guardian is a person appointed by the probate court to make personal decisions on behalf of a protected individual. This can include management of the person’s medical care and determining where the person will reside.

Conservatorships: Handling Protected Individuals’ Financial Concerns

A protected individual will also likely need help managing financial affairs. In these cases, the probate court can grant a conservatorship. A conservator is appointed to oversee the financial affairs of a protected individual, including managing investments, maintaining properties, or simply paying the bills.

Finding the Right Guardian or Conservator

Oftentimes, the probate court may appoint the same person as both guardian and conservator. In determining who that person will be, EPIC requires the court to consider designations of a patient advocate, do-not-resuscitate orders (DNRs), durable powers of attorney (POAs), trusts, protective orders, and assignments of representative payees for public benefits. Depending on the protected individual’s circumstances, this person could be a relative – like an adult child or a grandparent – or a professional, such as a caregiver or an attorney.

Once appointed, guardians and conservators are responsible for managing the day-to-day financial and medical affairs for the incapacitated individual (or ward). They are also required to provide annual reports to the probate court describing budgets and expenses for those under their care. The court will consider each candidate’s ability, willingness, and skill at completing these tasks when naming a suitable guardian and/or conservator.