An Easy Guide to Obtaining a Guardianship for an Adult in Michigan
This is a guide to the steps necessary to obtain Guardianship of an adult in Michigan. The guide discusses when a Guardianship is necessary, how to file a Petition for Guardianship, the procedure for Guardianship and the various types of Guardianship.
When is Guardianship necessary?A Guardian is a substitute decision maker for individuals who are unable to make their own medical and placement decisions. A Guardian is necessary if an individual does not have the capacity to make medical decisions for himself or herself and there is no medical power of attorney naming a patient advocate. Guardianship is also necessary if the patient advocate designation was not executed in accordance with Michigan law, or there is an existing patient advocate who is unable to act on behalf of the individual or is not acting in the best interests of the individual.
Where do I file a Petition for Guardianship?In Michigan, you have to file a Petition for Guardianship in probate court. Each county in Michigan has a separate probate court. There are several choices of county to file a Petition for Guardianship (this is called venue). You can file a Petition in the county in which the individual has his or her residence. You can also file a Petition in the county in which the individual is present, such as a county in which he or she is currently hospitalized. Finally, if the individual is admitted to an institution by court order, venue is also in the county in which that court is located.
Who can be appointed as Guardian?Any competent person may be appointed Guardian for an individual. However, some people have priority over others. The Court MUST appoint a person in the following order of priority
a) A person previously appointed in good standing as Guardian for person in another state
b) A person chosen by the individual subject to the Petition
c) A person nominated as Guardian in a durable power of attorney or other writing by the individual subject to the petition
d) A person named by the individual as a patient advocate or attorney in fact in a durable power of attorney
e) The legally incapacitated individual's spouse
f) An adult child of the incapacitated individual
g) A parent of the incapacitated individual
h) A relative of the incapacitated individual
i) A person nominated by a person who is caring for the individual with whom the incapacitated person has resided for more than 6 months before the petition.
However, any person who is seeking to be appointed as Guardian must be suitable to do so. In other words, if a friend of the individual is seeking to be appointed as Guardian, another interested person can object to the appointment on the basis that the proposed Guardian is not suitable. The Court will also likely find someone unsuitable if that person has a felony conviction, or has been appointed as Guardian in the past and removed from that position. The Court will then consider whether another person or even a professional Guardian should be appointed.
The proposed Guardian will need to submit a driver's license with the Petition so that the Court
What is the Process for Petitioning for Guardianship?The Petitioner must fill out a form called a Petition and include specific information about why a Guardian is necessary. The probate court will have copies of these forms to give to you to fill out. If the Petitioner has any medical records, letter from a doctor or other documentation in support of the Petition, that should be attached to the Petition. The Petitioner must also pay a filing fee of $175.00. When a Petition is filed, the Court will schedule a hearing date. The Petitioner will be required to send a copy of the Petition to all interested persons such as the spouse, parents and/or children of the alleged incapacitated individual. A copy of the Petition must also be personally served on the alleged incapacitated individual. Once the Petition has been filed, the Court will appoint a Guardian Ad Litem (GAL), which is a local attorney appointed by the Probate Court who will visit the alleged incapacitated individual and explain the proceedings. The GAL will also likely contact the Petitioner and any other interested persons to discuss the proceedings. The GAL will file a report and recommendation to the Probate Court advising whether the GAL believes that Guardianship is appropriate. The Court will hold an initial hearing to address the Petition. If the alleged incapacitated individual agrees to the Guardianship and the proposed Guardian is suitable, the Court will approve the Guardianship. If the alleged incapacitated individual objects to the Guardianship Petition or the proposed Guardian, the Court will schedule an evidentiary hearing and appoint an attorney to represent the alleged incapacitated individual.
What authority does a Guardian have?There are two types of Guardianship in Michigan. A full Guardianship is appropriate where the alleged incapacitated individual requires substitute decision making in all activities of daily living.
A limited Guardianship allows substitute decision making in specific areas of an individual's life such as medical, placement, mental health, financial and legal. Courts always prefer a limited guardianship where possible. The Guardianship can always be modified to change the type of Guardianship in place.
Can I get a Temporary or Emergency Guardianship?In Michigan, you can obtain a Temporary or Emergency Guardianship under certain circumstances.. In the event of an emergency, the Court can appoint a temporary Guardian if the Court determines that the person does not have a Guardian, an emergency exists and no other person appears to have the authority to act in the circumstances. You must still file a Petition for Guardianship and advise the Court that there is an emergency such that you cannot wait for the hearing. If you have any documentation supporting the fact that an emergency exists, you should attach that to the Petition for Temporary Guardianship. The Court may also require testimony as to why the temporary emergency Guardian is necessary. Even if the Court grants a temporary Guardianship, a hearing for Guardianship with notice to interested persons must be held within 28 days of the temporary appointment.