By: Jeffrey M. Bloom, Esq., Law Office of Jeffrey M. Bloom, PLC
When the unfortunate circumstance arises that your parent or an adult loved one needs a guardian to care for and protect them, the question often becomes: who should – and can – it be?
As an initial matter, it is ultimately up to the probate court to decide who will serve as the guardian. Every guardianship proceeding starts with a “petition” to the probate court in the county in which the person needing a guardian (the “protected individual”) resides. The petition is typically filed by a concerned loved one, and must state the reasons a guardianship is needed. The petition must also nominate someone to serve as guardian, who is often the person filing the petition. In some circumstances, the petition may be filed by Adult Protective Services.
Assuming the court determines that a guardianship is needed, the court must decide who will be the guardian. The court will often appoint the person nominated in the petition if the protected individual agrees, and there are no objections filed by other interested persons, such as other children, siblings, etc. Ideally, this will be someone who has sufficient time, energy, know-how, and importantly, understanding of his or her legal obligations as a fiduciary for the protected individual.
But if the protected individual or interested persons cannot agree, the probate court must make a ruling on who to appoint as guardian. In doing so, the court is required to follow the order of priority provided for in the Michigan Estates and Protected Individua Code (“EPIC”).
EPIC sets out the following order of priority for appointment of a guardian, from first to last:
(a) A person previously appointed, qualified, and serving in good standing as guardian for the legally incapacitated individual in another state.
(b) A person the individual subject to the petition chooses to serve as guardian.
(c) A person nominated as guardian in a durable power of attorney or other writing by the individual subject to the petition.
(d) A person named by the individual as a patient advocate or attorney in fact in a durable power of attorney.
If there are no such persons, or if none of these persons are suitable and willing to serve, the court may appoint a relative as guardian in the following order of preference:
(a) The legally incapacitated individual’s spouse. This subdivision shall be considered to include a person nominated by will or other writing signed by a deceased spouse.
(b) An adult child of the legally incapacitated individual.
(c) A parent of the legally incapacitated individual. This subdivision shall be considered to include a person nominated by will or other writing signed by a deceased parent.
(d) A relative of the legally incapacitated individual with whom the individual has resided for more than 6 months before the filing of the petition.
(e) A person nominated by a person who is caring for the legally incapacitated individual or paying benefits to the legally incapacitated individual.
If no relatives are suitable or willing to serve, the court may appoint any suitable person. The court also can appoint a professional guardian, but only if the appointment is in the legally incapacitated individual’s best interests and there is no other person who is competent, suitable, and willing to serve.
As demonstrated by the above, the intent behind these provisions is to assure appointment of a guardian of the protected individual’s choosing if at all possible, whether it be the individual’s oral or written stated preference, or through a formal writing such as a durable power of attorney. Only if the protected individual cannot or has not expressed his or her preference can the court look to other persons to serve as guardian.
(Estate Planning Tip – to assure the court honors your preference , be sure to include in your estate plan a durable power of attorney that expressly states who should serve as your guardian, if necessary).
Unfortunately, in situations where the protected individual has not expressed his or her preference for guardian, and interested persons cannot agree, the court will often appoint a third party such as an attorney, social services agency, or other qualified person. This is typically not an ideal situation, as the services of these individuals can be expensive, and the care and attention of a concerned loved one is usually preferable.
If you are considering petitioning for guardianship over a parent or loved one, or find yourself in a dispute with others over who should serve as guardian, the assistance of an experienced attorney can be invaluable in not only advocating your position with the court, but also helping to facilitate a resolution that all parties may be able to agree to. Ultimately, it is the loved one who you are seeking to protect who will be most impacted by the decisions of the court and those around him or her.
Jeffrey M. Bloom is the managing member of the Law Office of Jeffrey M. Bloom. His practice focuses on probate litigation, estate planning and administration, litigation, and elder law matters, along with a niche practice in liquor licensing. He also handles traditional business matters, including business formation, shareholder disputes, noncompete and trade secret matters, and breach of contract disputes.
He can be reached at jeff@jmbloomlaw.com or (313) 300-9983. To learn more about him and his practice, visit his website at www.jmbloomlaw.com
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