When a loved one is in need of assistance with his or her daily living or finances, you need an attorney who understands the process of obtaining a court-appointed guardian and conservator to navigate what can be a complex court process.
What is a Guardian?
A guardian is a court-appointed person who is responsible for the care of an incapacitated individual, referred to as a “ward.” Like the guardian of a minor child, a guardian of an adult individual is responsible for all aspects of the ward’s living, including food, shelter, clothing, and medical care.
In order to obtain a guardianship over an adult, a petition must be filed with the probate court and the court must make a determination that the individual is incapacitated and in need of a guardianship. If the court finds the individual to be incapacitated, it will appoint a person whom it finds to be competent, suitable and willing to serve in this role. If the court finds that no family member or other person having priority to serve in this role is qualified, the court may appoint a third party “professional” guardian. An appointed guardian has certain visitation and reporting requirements with the court that must be followed in order to remain guardian.
What is a Conservator?
A conservator is a person appointed by the court to manage the financial affairs of a person whose assets are in need of protection for reasons such as mental or physical disability, or where there is risk that his or her assets will be wasted or dissipated.
For a conservator to be appointed, a petition must be filed with the probate court setting forth the reasons why a conservator is needed. If the court finds appointment of a conservator to be appropriate, it will appoint someone the court determines to be suitable and willing to serve in this role. The appointment is to be made in the order of priority set out in Michigan’s Estates and Protected Individual Code, and is typically a family member such as a spouse or adult child of the protected individual. However, the court may also appoint a third party professional conservator if it finds doing so to be appropriate.
A conservator has strict reporting requirements with the court, including filing an inventory of the protected individual’s assets along with periodic accountings.
While both a guardian and conservator are often appointed for an individual, this is not always the case. Sometime a conservator is needed for reasons other than the individual’s capacity, such that only a conservator will be appointed. Also, it may be that a ward’s assets are insignificant or are being managed by a trustee, so that only a guardian is needed to care for the ward’s needs of daily living.
What if My Loved One Does Not Agree to Have a Guardian or Conservator?
Your loved one may refuse to voluntarily have a guardian or conservator. In these cases, the court has the power to appoint a guardian or conservator over the objections of the ward. Often the court will appoint an attorney (if he or she does not already have one) to represent the ward’s interest in the proceeding. The court may also schedule a contested hearing – similar to a trial – where evidence is presented by the interested parties (including the alleged incapacitated individual) as to why/why not a guardian or conservator would be appropriate. In addition to the evidence and arguments presented by the parties, the court will take into account the observations and findings of a court-appointed guardian ad-litem, whose job is to visit with the ward and the interested parties and make a recommendation to the court.
What if My Family Doesn’t Agree About a Guardian or Conservator?
It may also be that your family members cannot agree on whether your loved one needs a guardian or conservator, or who should serve in these roles. These can be contentious proceedings where there are often competing petitions and objections filed with the court. Ultimately, if the family cannot come to an agreement, the court will need to make a decision on this following a contested proceeding – like a trial – where all parties will present their own evidence on the issues.
What if the Current Guardian or Conservator is Acting Improperly or Not Doing His or Her Job?
If a guardian or conservator is not doing her or her job properly, a petition can be filed with the probate court to have him or her removed. Guardians and conservators are fiduciaries and owe the highest duty to care to a ward and/or protected individual, known as fiduciary duties. There are also various statutory requirements and obligations he or she must comply with. Therefore, where it can be shown that a guardian or conservator has failed to comply with these obligations, upon petition to the probate court, the court can modify its previous appointment and appoint someone else to serve in these roles. These can be very difficult and complicated situations, and the assistance of an experienced and knowledgeable attorney to navigate these proceedings is needed.
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