In Michigan, incapacity is determined by the probate court system through a specific filing process. This can be completed by a relative, professional guardian or any other interested person, who files a request for the court to determine the capacity of an alleged incapacited person. Additionally, the individual in question can file a petition with the court to have themselves declared incapacited.
An incapacited individual is defined by Michigan Law as someone who is impaired by mental illness or deficiency, or physical illness, physical disability, chronic drug use or intoxication or any other cause that results in inhibiting the individual from making informed decisions. A legally incapacited individual is considered a protected individual, which is a person who by reason of their impairment cannot manage their own affairs.
Because incapacity is a legal concept, it must be determined by the courts by a comprehensive assessment. This often includes evaluations as well as recommendations from medical professionals such as physicians, psychologists or mental health service providers. Because adults in Michigan are by default presumed to be competent, the evidence provided must be clear and convincing in order to overcome this presumption.
In addition to this, the actual incapacity of an individual is typically nuanced or task-specific. Because of this, the courts have the ability to tailor guardianships to the specific needs of each individual based on their particular situation. This allows the individual to retain maximum self-reliance and independence while getting the assistance they need. Because this can be complex, it is strongly recommended that incapacited individuals and their families consult with an experienced probate and elder law attorney to ensure that their best interests are represented throughout the process.
Differences Between Guardian of Person and Guardian of Estate
There are often questions about the differences between a guardian of an estate and a guardian of person. This is a pretty straightforward difference, as a guardian of person, more commonly known as simply a “guardian” is an individual that takes care of the incapacited individuals needs such as making medical, financial and legal decisions on their behalf.
A guardian of estate on the other hand is an individual who is tasked with taking care of an incapacited individuals property. Commonly known as a conservator, this individual can also simultaneously act in the role of a guardian of person. However, more often than not a guardian of an estate is a separate individual from the guardian of person for the same individual.
Does the Incapacited Person Have Say in Choosing Guardian
In Michigan, incapacited individuals have the option to choose their own legal guardian. This can occur whether the individual has filed the petition for incapacity themselves or another interested party has done this on their behalf. In the instance when an individual has no choice in their legal declaration of incapacity, then they can protest the appointment of a legal guardian through a court appointed attorney. If the individual cannot afford to pay for the attorney, the court must cover attorney costs.