Bloom’s Blog

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My Loved One Needs a Guardian. Who Should – and Can – It Be?

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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No Witness? No Notary? No Signature? (Maybe) No Problem.

By: Jeffrey M. Bloom, Esq., Law Office of Jeffrey M. Bloom, PLC

What if you find something in writing that’s not a formal will or trust, but seems to state how your loved one wanted their estate handled?  What if there are no witnesses, or it’s not notarized?  Maybe a letter or handwritten note in a drawer?  Perhaps an email?   

In Michigan, in order to be a valid will, there must be (a) a writing signed by the testator (the person making the will) or in the testator’s name by an individual in the testator’s presence, and (b) signatures of two witnesses who witnessed the signing or the testator’s acknowledgment of the will.  Contrary to popular belief, and while it is good practice to do so, the testator’s signature does not need to be notarized to be a valid will under Michigan law.   

But what if you have a writing that does not comply with these requirements?  Can it still be treated as a will?    

There are two ways such a writing may nonetheless be admitted to probate and treated as a will. The first is known as a holographic will. Under Michigan’s Estate and Protected Individual Code (“EPIC”), even if the document does not have the signatures of two witnesses, a writing may nonetheless qualify as an admissible will if (a) it is dated, and (b) the testator’s signature and the document’s material portions are in the testator’s handwriting.

The second way for a “non will” to be admitted to probate is under a “catch all” provision of EPIC known as the dispensing power. This provision provides that a writing will be treated as a will if it can be shown by clear and convincing evidence that the decedent intended the document or writing to be the decedent’s will. This might be a typed letter, email, text, etc. So long as the high bar of clear and convincing evidence is met, the court may treat the writing as your loved one’s will.

In conclusion, where a writing doesn’t appear to meet the formal requirements of a will, it may nonetheless be admitted to probate and relied on to administer the estate if the above provisions are satisfied. To determine whether these provisions are satisfied, you should consider consulting legal counsel. 

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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Mom Didn’t Have a Will (or Trust). Now What?

By: Jeffrey M. Bloom, Esq., Law Office of Jeffrey M. Bloom, PLC

Not everyone is lucky enough to have parents or loved ones with a well-drafted and carefully considered estate plan. Instead, it is often that people simply don’t get around to creating (or refuse to make) an estate plan. They put it off, procrastinate, and deny that they need it. Indeed, it’s human nature to deny one’s own mortality. So, if you find yourself having to deal with the estate of a loved one who didn’t have an estate plan, what do you do?

The first step is to make sure that your loved one really doesn’t have an estate plan. Check their house thoroughly. Look in safety deposit boxes (if you have access to them). Call any lawyers they knew or worked with in the past. Check the local courts to see if any will(s) have been filed for safekeeping.

Assuming you’ve searched diligently and haven’t located a will or trust, you’ll next need to determine if your loved one had any assets that need to be probated. This would include any assets or property that did not pass from your loved one through “will substitutes” such as beneficiary designations, joint tenancies, lady bird deeds, or other mechanisms that “automatically” pass on assets without the need for filing for probate. Note that, even if your loved one had a trust, there may be assets that were not titled to the trust and therefore need to be probated.

If your loved one has assets that need to be probated, the next step is to file an application or petition with the probate court to open what is known as an intestate estate. In that filing, you’ll ask the probate court to open an intestate estate and to appoint what is known as a personal representative (presumably you). A personal representative, often referred to as the “executor”, will be the person in charge of administering the estate. The person who will serve as the personal representative is determined by an order of priority in Michigan’s Estate and Protected Individual Code (“EPIC”). Generally speaking, the spouse of the decedent has first priority to serve as personal representative, followed by the decedents’ children. It is important to carefully review and understand the priority statute, because any individuals having greater or equal priority to serve as personal representative will need to be named in your probate filing and are entitled to special notice.

Once an estate is opened and a personal representative is appointed, the estate will be administered like any other estate, except that Michigan law will determine to whom the decedent’s estate is to be distributed. Under Michigan law, if the spouse is still living, all of the assets will go to him/her. If the spouse is no longer living, the estate will be distributed to the decedent’s descendants (i.e children, grandchildren, etc.) “by representation.” This means that the assets will go to his or her children, but if one or more of those children are no longer living, the assets will go to their respective children. If those persons are no longer living, the assets go to their children, and so on. If decedent has no children or other living descendants, the law provides that the assets go to the decedent’s parents by representation. If there are no such living individuals, the statute provides further direction as to how the estate is to be distributed, and should be carefully reviewed.

In conclusion, while it is not ideal for your loved one to die without an estate plan in place, Michigan law provides a detailed procedural and statutory scheme for administering his or her estate. If you find yourself in the position of having to administer a loved one’s intestate estate, it is important to have a clear understanding of these laws, and to consult with an attorney if you have any questions or concerns. If you do not administer the estate properly, you may find yourself on the wrong end of complaints, or worse, lawsuits, by unhappy or disgruntled heirs.

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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I’m Not Rich. Why do I need an Estate Plan?

By: Jeffrey M. Bloom, Esq., Law Office of Jeffrey M. Bloom, PLC

I get this a lot. People often say that they don’t have much money to leave to anyone, so why have an estate plan?

It’s an understandable question. But the reality is that estate plans are important for everyone, not just the wealthy.

First, young families with young children who are just beginning to build a nest egg are often in the greatest need of a well-drafted estate plan. For these folks, an estate plan will state who they want to care for their children if they die when their children are minors. The plan will also include a trust that will specify exactly how they want money to be used for their children’s health, education, maintenance, and support. The trust can also provide that money will be distributed upon the children reaching certain ages or upon the occurrence of certain events (such as a child graduating from college, getting married, etc. ). It can also provide for the withholding of distributions in the event a child is suffering from certain problems or living an unproductive lifestyle, such as drug addiction, mental health issues, financial troubles, among other things.

Second, regardless of your wealth, an estate plan is extremely important in order to spell out how you want to be taken care of, and who you want to take care of you, in the event you become disabled or incapacitated and unable to care for yourself. This is done through a combination of trust language (which will state the who, what, when, and how concerning the management of your funds for your benefit), a financial power of attorney (which gives a person authority to help manage your financial affairs), and a healthcare power of attorney (which gives a person authority to make healthcare decisions on your behalf in the event you become incapacitated). Without these documents in place, in order to care for you in the event you become incapacitated, your loved ones will likely need to petition the probate court for appointment of a guardian and conservator.

Third, an estate plan gives you piece of mind. Knowing that you have a plan in place that specifies exactly how you want your affairs handled and your family members to be treated in the event of your death or incapacity can be a great relief. I like to say that a well drafted estate plan provides you the greatest possible level of control from the grave.

Any questions, or if you are looking to start the process of drafting an estate plan, feel free to contact me.

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