Guardianshipes and Conservatorships

Guardianships and Conservatorships

What is a guardian?

A guardian is a person appointed by the probate court (but not always) and given the power and responsibility to make decisions about the care of another individual. The guardian may have full or limited powers depending on the circumstances. It is possible that this power can include making medical decisions regarding accepting or refusing medical treatment if the individual is disabled or incapacitated.

What is a conservator?

A conservator is a person appointed by the probate court to manage the financial affair and property of an adult (known as a protected individual). A conservator is appointed when an individual is unable to manage his or her property or financial affairs due to mental or physical illness or disability, confinement or disappearance and there is risk that the property will be wasted or lost due to lack of proper management or the funds are needed to care for the protected individual and his or her dependents.

How does a guardianship occur?

There are three major ways that a guardianship can occur:

1. Petition the Probate Court – an interested person can petition the probate court to become a guardian over an individual requiring it, and they could petition the court for either a full or limited guardianship. The petitioner may have to pay for an investigation ordered by the court and a hearing will be required for the judge to determine if the appointment of the guardian is appropriate. The guardianship is subject to periodic review by the probate court and it will be annually if the guardianship is over a minor under 6 years of age.

2. Appointment by Will – a parent may appoint a guardian for the minor children in his or her will. The will must still be proven in probate court. A minor that is at least 14 years old could object to the appointment. This guardianship could still be subject to review by the probate court.

3. Delegation of Parental Authority – A change in Michigan law with the passage of the Estates and Protected Individuals Code (EPIC) is that a parent could temporary delegate parental authority to a guardian for a period not exceeding six months by a proper document created under the authority of MCL 700.5103. This document does not require the approval of the probate court and can be reissued by the parent to cover an additional six month period. This could be a useful tool if the parents are leaving the jurisdiction for work, vacation, etc. and leave the children with a relative. The relative would be vested with the power and authority to act in the child’s care for situations like medical emergencies or the possibility that the parents might become disabled or incapacitated before they can return to resume their parental powers.

How does a conservatorship occur?

An interested person must petition the probate court to become a conservator over an adult’s financial affairs and property. It may be subject to an investigation by the court to determine if the individual is in need of a conservator and whether the petitioner is appropriate for that person and will require a hearing.

What are the powers and responsibilities of a guardian over my children?

Guardians appointed by the probate court have powers and duties enumerated to them by MCL 700.5215. A guardianship created by a delegation of parental power under MCL 700.5103 may have greater or fewer powers and responsibilities depending on the wishes of the parents, but are still subject to the limitations provided by law. MCL 700.5215 provides that:

A minor's guardian has the powers and responsibilities of a parent who is not deprived of custody of the parent's minor and unemancipated child, except that a guardian is not legally obligated to provide for the ward from the guardian's own money and is not liable to third persons by reason of the parental relationship for the ward's acts. A guardian has all of the following powers and duties:

(a) The guardian shall take reasonable care of a ward's personal effects and commence a protective proceeding if necessary to protect the ward's other property. If a guardian commences a protective proceeding because the guardian believes that it is in the ward's best interest to sell or otherwise dispose of the ward's real property or interest in real property, the court may appoint the guardian as special conservator and authorize the special conservator to proceed under section 5423(3). A guardian shall not otherwise sell the ward's real property or interest in real property.

(b) The guardian may receive money payable for the ward's support to the ward's parent, guardian, or custodian under the terms of a statutory benefit or insurance system, or a private contract, devise, trust, conservatorship, or custodianship. The guardian may receive the ward's money or property paid or delivered under section 5102. Money or property received under that section shall be applied to the ward's current needs for support, care, and education. The guardian shall exercise due care to conserve any excess for the ward's future needs unless a conservator is appointed for the ward's estate, in which case the excess shall be paid over at least annually to the conservator. The guardian shall not use that money or property for compensation for the guardian's services except as approved by court order or as determined by a duly appointed conservator other than the guardian. A guardian may institute a proceeding to compel a person's performance of a duty to support the ward or to pay money for the ward's welfare.

(c) The guardian shall facilitate the ward's education and social or other activities, and shall authorize medical or other professional care, treatment, or advice. A guardian is not liable by reason of this consent for injury to the ward resulting from the negligence or acts of third persons unless it would be illegal for a parent to have consented.

(d) A guardian may consent to a minor ward's marriage.

(e) Subject to the conditions and restrictions of chapter X of the probate code of 1939, 1939 PA 288, MCL 710.21 to 710.70, a guardian may consent to marriage or adoption of a minor ward or to the release of a minor ward for adoption.

(f) A guardian must report the condition of the ward and of the ward's estate that is subject to the guardian's possession or control as ordered by the court on petition of a person interested in the minor's welfare or as required by court rule. The report must detail the condition of the ward, medical or mental health treatment or care to which the ward was subjected, and what reason, if any, exists for the continuation of the guardianship.

(g) Within 14 days after a change in the ward's place of residence, the guardian shall give to the court notice of the ward's new address.

Who would be an appropriate guardian for my children?

There are several factors that parents should consider when deciding who an appropriate guardian should be for their children in the event the unexpected happens. It is not a decision to be made lightly and variables to think about should include:

- Does the proposed guardian have an existing close and personal relationship with the children?

- Does the proposed guardian live close enough to the children to take them quickly in the event of an emergency?

- Do the children trust the proposed guardian?

- Can the proposed guardian’s household accommodate all of your children? How does the addition of your children impact the proposed guardian’s family situation?

- Can the proposed guardian financially provide for the children?

- Does the lifestyle of the proposed guardian fit the addition of your children in his or her life?

- If there is a testamentary trust or other fund left to support your children, can the proposed guardian manage it or would it require a separate conservator or trustee?

- Is the proposed guardian of sufficient age and health for the responsibility? (e.g. grandparents are frequent guardianship options but old age and poor health should be considered).

- Can the proposed guardian comply with the requirements of the probate court?

- Most importantly, does the proposed guardian want the responsibility?

As indicated before, a guardianship can be objected to by minors that are at least 14 years old. A close relative or friend may be willing to be the guardian of your children in the event of the unexpected but thought and care should go into whether they may be a suitable guardian for your children.

How do guardianships and conservatorships figure into my estate planning?

The appointment of a guardian may be required when parents of minor children pass away or otherwise become incapacitated. The parent with a proper estate plan can have peace of mind in knowing that their minor children would pass into the care of someone that they trust. The alternative could be the probate court placing the children in foster care or other state placement or, even worse, a completely undesirable person assuming guardianship or possible adoption of your children. Good planning can help protect your family no matter what happens.

The appointment of a conservator involves hassle, paperwork, delays and court hearings. It is possible that a person undesirable to the protected individual and incompetent to handle the responsibility can petition and be appointed by the court to handle your affairs. Even worst, your affair become a matter of public record that can be viewed by anyone. The delays, privacy intrusions, and inconveniences of needing a conservatorship can be avoided by having a properly drafted revocable living trust or a durable power of attorney in place. There are many estate planning options available that could eliminate the need of a conservatorship in the future.

Our attorneys can assist you in taking the steps necessary for filing a guardianship or conservatorship if the situation calls for it. Our attorneys can also assist you in the estate planning necessary to minimize the drawbacks of having to need a guardianship or conservatorship in place supervised by the probate court.