Probate Court -Guardian of Incapacitated Adult

Changes and Choices - Surrogate Decision Making for Health Care in Michigan

 

Filing Fee is $185.00 at the time of filing. Probate Court can accept cash, money order or check payable to the Chippewa County Probate Court.

An incapacitated individual is someone who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, to the extent that he or she lacks sufficient understanding or capacity to make or communicate informed decisions.

-Who may file the petition? The petition may be filed by anyone interested in the individual’s welfare, including the individual.

-After the Court receives the Petition for Appointment of Guardian of Incapacitated Individual and required filing fee, the Court schedules a hearing and appoints a guardian ad litem to represent the person in the proceeding. The guardian ad litem personally serves the alleged incapacitated individual with the required documents and makes determinations and reports to the court on whether there are alternatives to the appointment of a ftill guardian, if the individual wishes to be present at the hearing, contest the petition, or request the appointment of legal counsel. There is a small fee payable to the guardian ad litem after the hearing which is the responsibility of the petitioner.

-The court also orders the alleged incapacitated individuals treating physician to report to the court regarding his or hers infirmities and recommendations to the court regarding appointment of a guardian.

Who must receive notice? There are certain people entitled to know the hearing is taking place. Those are the individual who is the subject of the petition, the spouse of the individual, adult living children and the parents; if there are no children or parents, the presumptive heirs of the individual; the person who is caring for or who has the custody of the individual; the person who is nominated as guardian. If there are not heirs the Attorney General must be notified. If the individual is a veteran, the Veterans Administration must be given notice.

-All interested persons must be served with the notice of hearing 14 days by mail or 7 days personal service prior to the hearing date.

What must the court find to appoint a guardian and determine the guardian’s powers? At the hearing, the court must determine, by clear and convincing evidence, two things: first, the individual is legally incapacitated, and second, the appointment of a guardian is necessary for the care and supervision of the individual. Each of these requirements is important. First and foremost, the court must determine incapacity. Incapacity means the inability of the individual to make informed decisions concerning himself or herself. And while a person is unable to make informed decisions about certain aspects of life, the person may be able to make decisions about others. For example, the person may be perfectly capable of deciding where to live but incapable of deciding what medical procedures should be engaged in. The court will tailor the guardianship to meet the individual’s needs and encourage the individual’s independence.

What will happen at the hearing? The hearing may be short if everyone is in agreement and everything is in order. If proper persons have not been served or the file is not otherwise in order, the case may be postponed or the petition dismissed. If the petition is contested, the hearing may take longer to give all interested parties time to testify.

What are the duties of a guardian? In general, a guardian should talk with the individual, if communication is possible, before making major decisions. The guardian is responsible for the individual’s care, custody and control but is not liable to third persons by reason of that responsibility. It is important to carefully read the court’s order and the document called “Letters of Authority” to see the full extend of the guardian’s duties. A guardian must visit the individual at least once every three months. If the individual moves to a difference address, the guardian must notify the court. The guardian must take reasonable care of the individual’s belongings and take reasonable steps to restore the individual to the best possible state of mental and physical well being.

-The guardian must report the condition of the individual annually on a report form supplied by the court. The Court mails out pre-notices with the form one month prior to your due date. The guardian may wish to keep a diary to make this important task simpler and more meaningful. The following areas are important to keep track of: the ward’s current condition, how the condition has changed in the past year, present living arrangements, whether there is a more appropriate living arrangement that could be made, medical treatment received during the year, services received by the individual, a list of the guardian’s visits with the individual, and a statement concerning whether the guardianship may be continued.

-The court orders a review of the guardianship not later than one year after the appointment of the guardian and every three years thereafter. The person appointed to review the guardianship must visit the legally incapacitated individual and report to the court whether the guardianship should continue without or with modification or be terminated. After informal review of the report, the court enters an order continuing the guardianship or schedule a hearing if modification of the guardian is recommended.

 Last modified 6/11/19