Guardianship and Conservatorships

DamiWurtz / Pixabay

DamiWurtz / Pixabay

GUARDIANSHIP AND CONSERVATORSHIP IN MICHIGAN

All families must eventually confront issues about the future of vulnerable loved ones. New parents must consider their preferences for a child’s care as part of the estate planning process, and adult children may be confronting an aging parent’s inability to make medical or care decisions, handle financial details or manage a household.
Guardianships and conservatorships involve the appointment of an agent to make financial and personal decisions for the principal (called the “ward”). This often presents a difficult situation for many families. It is important to work with a legal team that understands the complex laws surrounding these appointments, a legal team dedicated to helping your family get the best outcome possible.  Appointing a guardian or conservator for a loved one requires a finding of incapacity. This means that the person involved has lost the ability to make financial and health care decisions alone. If this person really does lack capacity, he/she needs someone to make these decisions.

What Is Guardianship?

A legal guardian is responsible for making decisions regarding an incapacitated person’s personal affairs and living situation. Many people just need a little help with personal care − perhaps someone to organize their medical care or see that their living conditions are reasonable. Other people need more constant and direct supervision, in which case a guardian is responsible for arranging for and overseeing care in a nursing home, an assisted living facility, or a home setting.

Do I Need A Conservator?

If a person has been determined to be mentally incapacitated and has assets that will be wasted, the court will appoint a conservator to manage his or her assets. In some cases the conservator may also serve as a guardian. In either case the probate court conducts an annual review of the management.

Often a family member will approach us, asking us to help establish that person as a guardian and conservator for a parent or other family member. In other cases, a member of our firm might serve as conservator. These are sensitive issues we do all we can to help families find the best solutions possible for their situations.

 

Should You Appoint A Guardian?

The appointment of a guardian or conservator under Michigan law provides legal authority to act and make decisions on another person’s behalf. Combined with other legal strategies, a guardianship or conservatorship can create unique solutions customized to circumstances such as a slowly developing illness, the aftermath of major surgery, a debilitating accident or other conditions.

Guardianship and conservatorship are very serious legal steps that receive close scrutiny from Michigan probate courts for an obvious reason: They take away an individual’s rights and freedom. For that reason, it is helpful if the person to be protected can participate in the decision, particularly if he or she has not already detailed relevant wishes in an estate plan.

Differences Between Conservators And Guardians

The concept of guardianship is well understood by most people, particularly in the case of a child who is suddenly left without parents. If a person is a minor or deemed incapacitated in court, a legal guardian can be appointed to take care of his or her affairs, such as medical and residency decisions. In general, guardians are concerned with the person and his or her well-being.

A conservator is empowered to handle an individual’s financial matters and make decisions about property and assets owned by a minor or incapacitated person.

Either or both can be used with respect to a situation, and the same person can be appointed to both positions. Often it is advisable to divide the roles of guardian and conservator between a family member to handle guardian issues of a personal nature and a trusted advisor such as an attorney or accountant to handle financial matters.

In either case, the legal appointment may be permanent and is subject to yearly review by the Michigan probate court. For situations involving temporary incapacity or a lack of legal incapacity, various powers of attorney typically will better serve a family’s needs; however, the option for a guardian or conservator still exists and might even be appropriate in some instances.

 

HELPING YOU AVOID GUARDIANSHIPS AND CONSERVATORSHIPS

Although it might be difficult to think about, guardianships and conservatorships take away a great deal of your liberty by appointing someone else to take control of your financial and personal affairs. The most important step you can take to avoid this is proper estate planning. We can help you establish a power of attorney and patient advocate which will appoint agents to handle your financial and personal affairs and leave instructions as to how these affairs should be handled.

The goal of an effective and well-considered estate plan is to avoid disputes and probate court intervention, but sometimes the decision to plan comes too late. What if something unfortunate happens and you or your loved one doesn’t have a power of attorney or health care power of attorney?

Often the signs of a diminishing capacity occur over time.  In such cases, families can plan ahead while an elderly member is still able to help in making the decision regarding appointment of a guardian or conservator or a power of attorney. If you or a family member develop a progressive condition, such as Alzheimer’s or dementia, now is the time to designate your chosen representatives. We can guide you through the process sensitively and professionally.

Devoted Lawyers Who Care About Your Family

A Michigan estate planning attorney can advise you about a range of options regardless of your situation. From trust administration to challenging guardianship proceedings in probate litigation, a dedicated legal professional can help you negotiate the legal thicket and settle on a strategy that meets your goals.

At The Linden Law Firm, PLC, we represent:

  • Petitioners:If you have a family member who you believe has lost capacity, we can help you petition the court to have a guardian and conservator appointed.
  • Guardians and conservators:If you are a guardian or a conservator, we can assist you with the administration of your role.
  • Proposed wards:If you have loved ones petitioning the court to appoint a guardian or conservator on your behalf, we can help you dispute the appointment and retain control over your affairs.

Our Metro Detroit guardianship attorneys understand the difficulty you face making these decisions, and we understand the complications involved. At the Linden Law Firm, PLC, our lawyers bring experience and skill, with a commitment to client service and flexibility.