An adult guardianship is used when an individual is impaired by mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication or other cause so that they lack sufficient understanding or capacity to make or communicate informed decisions and need someone to make such decisions for them. MCL 700.1105.
The Court must give written information to a prospective petitioner for adult guardianship about alternatives to appointment of a full guardian. These alternatives include appointment of a limited guardian or conservator, a patient advocate designation, a do-not-resuscitate designation and a Durable Power of Attorney. MCL 700.5303. See PC 666 - Options You Should Know Before Filing a Petition for a Full Adult Guardianship .
The proper venue (place) to file a petition for guardianship is the Probate Court in the county where the adult resides or is found. If a court of competent jurisdiction has ordered placement of an individual in an institution, venue is also in the county where that court is located.
An adult individual can petition the Court to have his own guardian appointed, or any person interested in the adult’s welfare may petition for the appointment of a guardian. A checklist of forms for petitioning for guardianship and fee information is listed below.
The law sets forth priorities for appointment of adult guardians. If no person having priority is available or willing to serve as guardian, the Court may appoint any competent adult, including a professional guardian. MCL 700.5313.
A guardianship petition may include requests for various types of relief including an order preventing a person from moving the adult in question from their home or facility or that visitation be set. The petition must either request that full guardianship or limited guardianship be ordered, and must specify the scope of the limited guardianship if requested. The petition must contain specific facts about the adult’s condition and specific examples of the adult’s recent conduct which demonstrates the need for the appointment of a full or limited guardian.
It is the petitioner’s responsibility to give notice of the petition and of the time and place of the hearing on the petition to all interested persons. “Interested persons” for adult guardianship cases is defined by law and includes the adult who is alleged to be incapacitated, a person named as attorney-in-fact under a Durable Power of Attorney, if any, the spouse, or children if there is no spouse, presumptive heirs if there is no spouse or children of the allegedly incapacitated person, the person who has the care and custody of the allegedly incapacitated person, and the person who is nominated to be the guardian of the allegedly incapacitated person. MCR 5.125. In addition to those individuals, in some circumstances others must be given notice including the Administrator of Veterans' Affairs if the proposed ward receives benefits, a guardian, conservator, or guardian ad litem of a person who is an interested person, an attorney who has filed an appearance with the Court, any special fiduciary, and any person who has filed a request for notice with the Court.
The petitioner verifies that notice has been given by submitting a completed Proof of Service form (PC 564) on or before the date of hearing.
Upon receiving the petition for appointment of guardian, unless the person who is the subject of the petition has an attorney of their own choice, the Court will appoint a guardian ad litem to represent the best interest of the person who is the subject of the petition. The guardian ad litem must personally visit the person who is the subject of the petition, explain to the individual the nature, purpose and legal effects of a guardianship, and must report to the Court their findings and recommendation regarding the guardianship petition.
The Court may appoint a temporary guardian on an emergency basis pending full guardianship hearing. Emergency requests must be submitted in writing.
If necessary, the Court may order that the person who is the subject of the petition be examined by a physician or mental health professional for the purpose of reporting to the Court their findings concerning the capacity of the individual. Mediation may be ordered by the Court.
At the hearing, the individual who is alleged to be incapacitated has a number of rights. These include the right to be present and to see and hear all of the evidence about their alleged incapacity, and the right to a jury trial. MCL 700.5306a. The Court must dismiss the guardianship petition, or enter an alternative order, unless there is clear and convincing evidence that the person is incapacitated and that the appointment is necessary to provide continuing care and supervision of the individual. MCL 700.5306.
If guardianship is granted, the guardian(s) will be scheduled to attend fiduciary training at the courthouse. The Court will also issue Letters of Guardianship (PC 633) . These provide proof of authority and will be reissued if needed upon payment of a $12 certification fee after the expiration date, provided that the guardian is current with continuing statutory requirements. Expiration of the letters of authority alone does not terminate the guardianship.
Every year that the guardianship continues, the guardian must file with the Court the Annual Report of Guardian on Condition of Legally Incapacitated Individual (PC 634) which updates the Court on the condition of the adult ward. This form must be filed each year on the anniversary date of the issuance of the Letters of Guardianship and must be served on the ward and all interested persons.
The Court may conduct a review of an adult guardianship as it deems necessary. The Court must conduct a review of guardianship after the first year of the anniversary of the letters of guardianship and every three years thereafter. See Guardianship Investigations and Volunteers.
Anyone interested in a ward’s welfare, or the ward himself, may file a petition with the Court to have the guardian removed, to appoint a successor guardian or to modify the terms of guardianship. The petitioner does this by submitting the items listed below. At the hearing on the petition the Court may terminate the guardianship, modify it or continue it. The guardianship will also terminate upon the death of the guardian, death of the ward, or after a determination that the guardian is incapacitated.
Checklists for Common Adult Guardianship Proceedings
To petition for guardianship of legally incapacitated adult the following must be filed. An index of all approved probate court forms is located at http://courts.mi.gov/Administration/SCAO/Forms/Pages/Probate-Court-Index.aspx:
To petition for modification or termination of an adult guardianship, the following must be filed. An index of all approved probate court forms is located at http://courts.mi.gov/Administration/SCAO/Forms/Pages/Probate-Court-Index.aspx.
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