Pursuant to MCL 700.5306(1), a Court "may appoint a guardian if the court finds by clear and convincing evidence both that the individual for whom a guardian is sought is an incapacitated individual and that the appointment is necessary as a means of providing continuing care and supervision of the incapacitated individual."
MCL 700.1105(a) defines an "Incapacitated individual" as "an individual who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions."
As such, there is no specific illness, infirmary, or mental deficiency that automatically qualifies an individual for a guardianship and each case is evaluated on its specific facts.
Determine where to file the Guardianship
In Michigan, guardianship proceedings can be commenced in a Probate Court in the County in which the indiviudal resides or is present.
Gather all necessary information to file the Petition for Guardianship
1. You will need the basic contact information for the proposed ward, i.e. name, address, phone number and birth date.
2. You will need any estate planning documents of the proposed ward.
3. You will need the name, address, and phone number of the proposed guardian.
4. You will need to determine who the interested parties and their names, addresses, and phone numbers. Interested parties besides the ward would be any power of attorney, spouse, child, or parents, and the nominated guardian. If none of these exist then any presumptive heirs would need to be notified.
5. You will need to determine who has priority to be appointed Guardian. Priority is as follows:
A. Person nominated by ward
B. The Spouse
C. Adult Child
E. Relative who the person has resided with for the last 6 months
F. Any Competent Person who is suitable and willing to serve, including a professional guardian
Complete the necessary paperwork to file the Petition for Guardianship
You will need to complete the following paperwork to file the Petition for Guardianship:
1. Petition for Appointment of Guardian of an Incapacitated Individual -- SCAO PC 625
2. Notice of Hearing -- SCAO PC 562
3. Notice to Alleged Incapacitated Individual -- SCAO PC 626
4. Order Appointing Guardian of Alleged Incapacitated Individual -- SCAO PC 631
5. Letters of Guardianship -- SCAO PC 633
6. Acceptance of Appointment -- SCAO PC 571
7. Filing Fee of $150
8. Some Court require a physician certificate to be filed as well so it is a good idea to call the court in advance to determine if this is required.
Serve the Petition for Guardianship
After filing the paperwork in the previous step, the Court will provide a hearing date. If there is an emergency, the court may grant a temporary guardianship on the date of the filing or shortly thereafter. However, even if temporary guardianship is granted or denied, at least several weeks later a full hearing will take place. Prior to the hearing, you will need to serve the Petition, Notice of Hearing, and Notice of Alleged Incapacitated Individual on the proposed ward by personal service. The Notice of Hearing and Petition will need to be served on all other interested parties. After this is done, a proof of service will need to be filed prior to or on the hearing date.
Review the Report of the Guardian Ad Litem
In between the filing of the Petition and the hearing, the Court will likely appointment a Guardian Ad Litem. This person is an attorney who prepares an independent third party report to the court regarding their recommendations regarding the proposed guardianship and advises the proposed ward of their various rights in the process. The report is filed with the Court prior to the hearing.
Attend the Hearing for Guardianship
At the hearing, the Court will conduct a hearing based upon the Michigan Rules of Evidence and Michigan Court Rules. The petitioner and proposed ward will have an opportunity to call and cross examine witnesses and present evidence. The petitioner must prove by "clear and convincing evidence" that the proposed ward is an "incapacitated individual" and the appointment is necessary to provide for the continuing care and supervision of the proposed ward. If this standard is met, the Court will order a guardianship and determine who the guardian will be. If this burden of proof is not met, the Court may dismiss the petition. Similarly, the Court may order a limited guardianship depending upon the facts and circumstances of the case.
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