You have a spouse, adult child, or other relative, friend, or neighbor that is seriously ill or injured and is no longer able to manage their own affairs. People are asking you who has the power to make decisions for this person. However, when you try to make these decisions, you are told that they need to speak to the person’s guardian. Our estate or Troy, MI probate lawyer can answer questions about your particular situation but in this blog entry, we provide a general discussion of the process of becoming the guardian of an adult who needs a guardian.
What Is 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 being appointed is referred to as either the incapacitated individual or the ward.
Petition
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 for the incapacitated individual. 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.
Forms
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; and
- Addendum to Protected Person Identifying Information.
All of these forms will have to be served on the incapacitated person as well as all other interested parties to the petition.
Petition for Appointment of Guardian of Incapacitated Individual
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.
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.
Guardian Ad Litem
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 as to 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.
Guardian Duties And Responsibilities
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 need help with guardianship or other estate planning or probate issues, reach out to Gudeman & Associates, P.C. today.
