If a person has a guardian, yet the psychiatric record (and psychiatrist) clearly state that the person is alert and competent to make their own decisions, which would take precedence? I know that the guardianship would imply that the person is incompetent/unable to make decisions, in this case due to mental illness/drug abuse, yet the person's psychiatrists states otherwise. If the person demonstrates a behavior (nothing illegal) is he/she considered competent to make that decision of the behavior in question? The person lives in Michigan. Thank you.
You don't mention if the guardianship is over the person or estate. If a guardianship over the person, the court was convinced the ward subject to harm because he or she cannot manage their health. If a guardianship over the estate, the judge was convinced the ward cannot manage his or her financial affairs. There was probably other evidence to make a judge decide for guardianship. If the reasons to warrant the guardianship no longer exists, you can petition the court to terminate the guardianship.
This answer does not represent an attorney client relationship nor attorney client privileges
In Michigan the Guardianship would be over the person. A conservatorship would be over the stuff like property and bank accounts. You ask a good question and this is the kind of question that would appear on a law school exam.
There is a convergence of Medical and Legal decision making going on. The medical experts will inform the court on what exactly is the medical condition of the person involved and then the court will make a legal determination if indeed the person is legally incapacitated or with some of all capacity.
The problem facing Guardianship in America is the very thing you put your finger on. YOU have medical opinions saying the person has this or that competency.
The problem is this, there are clinical opinions and forensic opinions. The clinical medical opinion is just that the medical folks tell you what they think medically and it stops at the medical border. The forensic medical opinion merges medicine with law such that the medical opinion references the law in your state and tells the Judge - this is what the medical condition is and applying this condition to the legal framework in the state you are in, I can safely recommend Guardianship or No Guardianship and or a less restrictive form of Guardianship including the person retain certain rights including the right to vote, to drive a car or to marry. On the other hand I can recommend that there should be no Guardianship and that the person can manage his or her affairs with a named payee on social security or an agent under a Durable Power of Attorney for Health care of fin aces. In Michigan the name is PAD , Patient Advocate Designation for health care and there is a statutory for used for mentally ill, that means it is unrevokable for at least 30 days after notice is given so you can have a Durable Power of Attorney for Health care that is set up for those diagnosed with mental illness and this document is unrevocable for at least 30 days - meaning when you announce you wish to revoke it in the emergency room of the hospital when the agent is seeking to save your life by seeking medical treatment and you announce you fire your agent and revoke the power - this 30 day clause in Michigan delays the taking effect of the revocation and the thought process is that within 30 days someone off their medicines can be stabilized and made safe.
So you need to ask your medical person are they giving you a clinical opinion or a forensic opinion addressed to the Judge in your case? This does make a difference since the forensic opinion with merge with the law and explain to the Judge why you should not have a Guardian.
I hope this helps you.
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