As a parent, or family member, it’s important to know that your child/loved one will be cared for in the event of your death. Individual(s) selected as guardians have a major responsibility. Unfortunately, guardianship is not always cut and dry. For example, guardianship may be granted on the basis of lack of mental/physical capacity. Also, guardianship over minors or individuals with special needs involving government benefits have specific legal requirements. Overall, Guardianship in Michigan is complicated, and should never be taken lightly; it’s vital to have an experienced estate attorney help you through these proceedings.
How Our Lawyers Can Help
Sean J Nichols, PLLC helps with many aspects of guardianship. Several of these aspects include:
- Helping individuals/families with appointing a guardian
- Setting up special needs trusts
- Determining incapacity in court
- Representing clients in guardianship disputes
- Transferring guardianship assets
Michigan Guardianship Laws
In Michigan, there are several types of guardianship that can be classified into two main categories: Guardianship over minor children, and guardianship over adults (generally due to illness or incapacity).
Guardianship Over Minors – Laws regarding legal guardianship over minors (under 18 years old) are outlined in Section 700.5215 of The Michigan Legislature.
Adult Guardianship – Laws regarding guardianship over adults and/or incapacitated individuals are outlined in Section 700.5313 of the Michigan Legislature.
According to the State Bar of Michigan,
“guardianship for a formerly competent adult who loses the ability to take care of him or her self properly. A person who loses this ability is called “incapacitated.” When an incapacitated person lacks the understanding or ability to make or communicate informed decisions, the individual may need the help of a guardian…” (The State Bar of Michigan, Acting for Adults Who Become Disabled, 2017).
Types of Guardianship
Guardianship Over a Minor – This is the most common type of minor guardianship. It allows for complete control and care of a minor as if the guardian were a parent.
Limited Guardian of Minor – While this type of guardianship has control and care of the minor, it does limit them on what they are allowed to do. For instance, a limited guardian cannot consent to the marriage of a minor under their guardianship, nor can they adopt or release the minor for adoption to an outside party.
Full Guardian of a Legally Incapacitated Individual – This is the most comprehensive type of guardianship, allowing the guardian complete control and care over an incapacitated individual.
Limited Guardian of a Legally Incapacitated Individual – This allows for some of the powers of a full guardian. However a limited guardian is only given the rights, powers and duties specifically enumerated by a court order.
Guardian Ad Litem – A Guardian Ad Litem visits an incapacitated individual to explain their legal rights and obtain information as to the individual’s wishes.
Plenary Guardian – This deals specifically with developmentally disabled persons. Those appointed this type of guardianship are tasked with the control and care of a developmentally disabled person much in the same way as a parent would have over a child.
Partial Guardian – Similar to a plenary guardian, this type of guardianship allows for limited control of developmentally disabled persons. Their specific legal rights, powers and duties are enumerated by a court order.
Temporary Guardian – This involves the appointment of a guardian for a limited period of time due to pending full guardianship hearings, or when the appointed guardian is not performing their duties. Their powers, legal rights and duties are limited to what is allowed by the appointing court.
Reasons To Seek Guardianship
Elderly individuals – Obtaining guardianship over an elderly person that can no longer care for themselves or make decisions is a common reason for this proceeding.
Partial incapacity – If someone is incapacitated but can still perform certain necessary tasks, a judge may appoint somebody as a “limited guardian” in order to assist them.
Total incapacity – When an adult becomes incapacitated they will need someone to care for individual needs. The State of Michigan defines “incapacitated” as an individual who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause. In cases where an incapacitated person cannot care for themselves, a judge will appoint a willing guardian over the person.
When a child loses their parents – When a minor (under the age of 18) loses their parents or caregivers, someone, usually a family member, will need to provide care for them.
Children with special needs – Guardianship is an important issue, particularly, for children that have special healthcare/financial needs due to disability. In some cases, the caregiver may need to obtain guardianship.
Sudden physical or mental disability – Similar to incapacity, an individual who suddenly becomes sick or is severely injured in an accident may need to seek guardianship depending on the nature of their illness or injury.
Guardianship disputes – Disputes can occur throughout the process of appointing legal guardianship. These disputes can occur during the legal process, before the process, or afterwards. Guardianship disputes commonly arise due to an individual with assets becoming incapacitated.
Frequently Asked Questions
Q. What is Guardianship?
A legal guardian is an individual who has the legal capability to make personal and financial decisions over another individual.
Q. How does someone Petition for Guardianship in Michigan?
Guardianship proceedings are initiated when someone files a Petition for Guardianship with the local county probate court. Although an attorney is not mandatory to file this petition, it’s highly recommended. Once this petition is filed, the individual who initiated the filing is required by law to send a notice of hearing to all “interested parties.”
Q. How is incapacity determined?
Incapacity hearings are handled through probate court. These hearings are initiated by filing a Petition with the local county probate court where the individual in question resides. In order to determine incapacity, the court must find clear and convincing evidence that someone indeed is incapacitated and that the guardian is necessary means of providing continuing care and supervision over the incapacitated person.