Understanding Guardianship
If you have a relative, friend, or neighbor that is seriously ill or injured and is no longer able to manage their own affairs and people are asking you, who has the power to make decisions for this person? You may step in to help. However, when you try to make decisions for the person, you are told that they need to speak to the person’s guardian or you must become that person’s guardian. If you need help with becoming someone’s guardian, our Troy, MI estate planning lawyer is available to guide you through the process.
In this blog entry, we will discuss the process of becoming the guardian of an adult who needs a guardian.
A guardian is a person appointed by the Probate Court to make important decisions, such as decisions about medical treatment, living arrangements, and caring for the day-to-day well-being of an individual who lacks the capacity or understanding to make those decisions for themselves. The person for whom a guardian is appointed is referred to as either the incapacitated individual or the ward.
If you want to be someone’s guardian, you need legal permission to make important decisions for an adult who can’t take care of themselves because they are sick or injured. People might tell you that only a guardian can make choices about where the person lives, what medical care they get, and their daily needs. A guardian is chosen by the Probate Court, and the person needing help is called the “ward” or “incapacitated individual.”
Having a guardian appointed to you is different from giving someone you trust power of attorney and instructions on what to do with your business in the event you are incapacitated, or directives about your healthcare, or other matters that are important to you, while you feel fine, are cognizant, and not necessarily worried about getting sick or injured.
The Petition Process
In order for someone to be appointed guardian for the incapacitated individual, a petition will have to be filed with the Probate Court in the county where the incapacitated individual resides requesting that a person or entity be appointed as guardian.
The person who files the petition does not necessarily have to be the person seeking to be named guardian. Who has priority to serve as guardian for the incapacitated individual is defined by statute.
Exactly what forms will have to be filed with the Probate Court to have a guardian appointed for the incapacitated individual vary depending on the circumstances, but in general include:
- Petition for Appointment of Guardian of Incapacitated Individual
- Notice of Rights to Alleged Incapacitated Individual
- Acceptance of Appointment
- Protected Person Identifying Information
- Addendum to Protected Person Identifying Information
All of these forms will have to be served on the incapacitated person as well as other interested parties to the petition.
The Petition for Appointment of Guardian of Incapacitated Individual is the most important of these forms. This form contains critical information about the incapacitated individual in need of a guardian as well as information about the petitioner and the person nominated to serve as guardian.
Supporting Documentation and Court Procedures
When preparing this petition, it is often helpful to have letters from doctors, psychiatrists, and other professionals giving a diagnosis of the incapacitated individual’s condition and recommending that a guardian be appointed. Letters from family members and others close to the incapacitated individual may also be helpful. These letters can be filed with the petition.
Once the petition is filed, the court will often appoint a person called a Guardian Ad Litem to visit the ward and potentially speak with doctors, psychologists, and the relatives of the incapacitated individual.
The Guardian Ad Litem’s job is to gather information and make a recommendation to the Probate Court as to whether they feel a guardian is necessary, any limitations they believe should be placed on the guardian, and whether they believe the person who is requested to serve as guardian should be appointed, or whether they suggest someone else to serve as guardian.
There will then also usually be a hearing scheduled in which all parties involved are requested to be present. At this hearing, the court will usually decide whether a guardian is needed and who will serve as guardian for the incapacitated individual.
Following the hearing, a Letter of Guardianship will be issued by the court appointing the guardian.
Duties Of The Guardian
Once a person is appointed guardian, they will have certain duties and responsibilities to the individual they are guardian for as well as the court. Those duties and responsibilities will be the subject of future blog entries.
You may also have noticed that a guardian in most cases does not have power to manage the finances of the incapacitated individual. This is because this is a separate process called Conservatorship.
How to be appointed as a conservator will be the subject of our next blog entry.
If you have questions about becoming a guardian, want to make a plan for your own estate and what to do with your business in the event you become incapacitated, need help with inherited property, or need advice on other issues about your or your loved one’s estate, we are here for all of your estate planning and probate needs. Contact Gudeman & Associates, P.C. today for a consultation with no obligations.
