Making the decision to take away someone's independence is never easy. Disability, or simply old age, can affect your loved one's ability to safely make decisions for themselves. In those cases, the time may come when someone else needs to make those decisions for them. But how can you tell if you need a guardianship?

In this blog post I will explain how Michigan law measures incapacity before appointing a guardian or conservator. I will explain what a guardian's duties are, and what other options may meet your family's needs.

What is a Legal Guardianship?

A legal guardianship substitutes one person's decision-making authority for another. It gives a caretaker, relative, or other person the ability to make day-to-day decisions for a person who is unable to make them himself or herself. A legal guardianship can be "limited" or "full". A limited guardianship may only apply to certain types of decisions, or for a specific period of time. Depending on the person's needs, a guardian can be responsible for decisions about the person's:

• Medical care
• Housing
• Travel
• Food, clothing, furniture, vehicles, or personal effects
• Consent to photographs, fingerprints, or release of personal information
• Education, training, or rehabilitation

Under Michigan law, a guardianship is separate, but related to a conservatorship. A guardian controls a person's day-to-day living decisions. A conservator of an incapacitated individual has control over that person's finances. It could include the authority to talk to banks, financial planners, and creditors, and to manage the use and investment of a person's money.

How Does the Probate Court Decide if You Need a Guardianship?

Michigan probate court judges review petitions to appoint guardians and conservators. To decide if you need a guardianship or conservatorship, the court will be looking for proof that the person truly is incapacitated. An incapacitated person is someone who does not have sufficient understanding or ability to make or communicate informed decisions. This can be the result of:

• Young age (special rules apply to minors)
• Mental illness
• Mental deficiency (special rules apply)
• Physical illness
• Disability
• Chronic drug use
• Chronic alcohol use

It's not enough for the incapacitated person to have a diagnosis. You and your probate attorney need to provide specific facts to show the person is unable to make or communicate his or her own day-to-day personal decisions. In many cases, this will include statements or testimony by your loved one's medical providers. The court may also order that an independent medical professional (or mental health professional) examine your loved one and file a report regarding his or her disability.

Your loved one will also receive notice that you filed a petition for guardianship and will be allowed to defend against appointment. Unfortunately, many older adults do not recognize when they need a guardianship. They often choose to fight to maintain their independence, even when making those decisions would be unsafe.

What Must a Guardian Do?

If the probate court judge decides a guardianship or conservatorship is appropriate, it must then choose who will serve in the role. Legally, any competent person or organization can be named as a guardian of an incapacitated individual. But the court will usually look closer to home. If more than one person has asked to serve as guardian, Michigan law sets out an order of priority for the courts to use to choose between fit candidates:

1. A guardian appointed in another state
2. The individual chosen by the incapacitated person in court, in a will or in another estate planning document
3. The person named as patient advocate or given authority in a durable power of attorney
4. A spouse or spouse's designee in a will
5. An adult child
6. A parent or parent's designee in a will
7. A relative with whom the incapacitated person has lived for 6 months or more
8. A person nominated by the person paying for the incapacitated person's care or benefits

Once named, the guardian and conservator together are responsible for providing the incapacitated person's day-to-day needs. This includes everything from paying for assisted living care or arranging for grocery delivery, to scheduling trips to visit doctors, family, and friends.

A court-appointed guardian also has a duty to the court. Every year, or more often if the court orders it, a guardian and conservator must each file an annual report describing:

• The person's living arrangements and the reasons for any move
• The person's physical health including medical treatment or new developments
• The person's mental health
• Social activities and services provided to the person
• Visits from the guardian
• Activities provided by the guardian
• Consultations between the person, his or her treating physicians, and the guardian
• Do-not-resuscitate orders (if any)
• Physician Orders for Scope of Treatment (POST) forms
• Changes to the person's financial situation
• Whether the guardianship should be continued or changed

What Are Your Options Other Than Guardianship?

Michigan courts see a guardianship as a drastic action. It takes autonomy and independence away from an individual and gives decision-making power to another person. Before the court determines if you need a guardianship, the judge will want to be sure other options won't meet your needs. Before filing your petition for guardianship or conservatorship, you and your probate attorney should consider:

• Patient advocate designation
• Durable power of attorney (for financial or medical purposes)
• In-home care or adult respite day care

Deciding if you need a guardianship is not easy. It should not be taken lightly, or made by yourself. Before you file a petition for guardianship, consult with your loved one, his or her medical providers, and an experienced probate attorney to decide if that is the right solution for you and your loved one.

Rebecca J. Braun, J.D., is a probate and elder law attorney for Mobile Legal Services, PPLC, in Southeast Michigan. She can help with petitions for guardianship and conservatorship. She will travel to clients, free of charge, in Livingston, Oakland, Washtenaw, Wayne, and Southern Macomb Counties. Contact us for an initial assessment.