Probate Court -Guardian for Individual With Developmental Disability
What is a Developmental Disability?
A developmental disability in an individual who is over five years of age and has a severe, chronic condition which meets all of the following requirements:
• It is attributable to a mental or physical impairment or a combination of mental and physical impairments.
• It manifested before the individual is 22 years old.
• It is likely to continue indefinitely.
• It results in substantial function limitations in three or more of the following areas of major life activity: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, economic self- sufficiency.
• It reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or sacrifices that are of lifelong or extended duration and are individually planned and coordinated.
For individuals from birth to age five for whom services are not yet provided, a substantial developmental delay or specific congenital or acquired condition with a high probably of resulting in developmental disability as defined above is necessary for classification as developmentally disabled.
Purpose of a Guardianship for a Developmentally Disabled Individual
A guardianship establishes a relationship between the Guardian and the ward similar to a parent child relationship. The Guardian undertakes duties and responsibilities to the ward guided by the order of the Probate Court. A guardianship for a developmentally disabled person should be undertaken only to promote and protect the well-being of the ward and encourage the development of maximum self-reliance for the ward. The guardianship should be limited by the Court based on the developmentally disabled individual’s actual mental and adaptive limitations.
Who may Petition for Appointment as Guardian for an Individual with a Developmental Disability?
An adult relative or friend, an official or representative of an agency concerned with the welfare of developmentally disabled persons, or any other person found suitable by the Court may also petition to appoint a legal guardian for a person with a developmental disability.
Who may be Appointed Guardian of a Person with a Developmental Disability?
The Court may appoint any suitable person or agency to serve as guardian. The Court will not appoint any agency directly involved in providing services to the developmentally disabled person unless no other suitable person can be found. Before a person is appointed guardian, the Court will make an effort to question the developmentally disabled person concerning their preference of a person to be appointed guardian. If the developmentally disabled person articulates a preference, then court will give the preference due consideration.
What Is The Difference Between A Guardian Of The Person And The Guardian Of The Estate?
Generally, a guardian of the person makes decisions about the person, such as decisions related to medical care or housing. A guardian of the estate makes decisions about the property or the finances of the individual with a developmental disability. A person can serve as both the guardian of the person and guardian of the estate or two separate people can function in these roles, such as a parent being guardian of the person and an attorney being guardian of the estate.
Types of Court Appointed Guardians
Plenary guardian: possesses all the legal rights and powers of a full guardian of the person or, of the estate, or both of the person and of the estate. MCL 330.1600(d).
Partial guardian: possesses fewer than all the legal rights and powers of a plenary guardian. These powers, rights, and duties are enumerated in the Court’s order of appointment. MCL 330.1600(e).
Temporary guardian: possesses only those powers, rights, and duties specifically set forth in the Court’s order of appointment. This appointment is made pending the appointment of a plenary or partial guardian when under emergency circumstance it is necessary for the welfare or protection of the person. MCL 330.1607.
Petitioning for Guardianship of a Developmentally Disabled Individual
If a person believes that an individual who appears to be developmentally disabled needs a guardian, they must file a Petition for Appointment of Guardian. Individual with Alleged Developmental Disability (PC 658) with the Probate Court. The petition should name all interested persons, including the developmentally disabled person's living parents, children (if applicable), and siblings. After a petition is filed, the Court will set a hearing date which will be within 30 days of the filing. The Court will also contact professionals who will perform the required evaluation of the developmentally disabled person and prepare a 612 Report. No fililng fees are required for proceedings brought under Mental Health Code
Hearings, Notice of Hearing
Notice of the date and place of hearing is to be given to the petitioner, the respondent (the alleged developmentally disabled individual), the respondent's presumptive heirs, the 612 Report preparer, the director of the facility where the respondent is residing, and the respondent’s legal counsel. MCL 330.1614(3) . The petitioner has the responsibility to serve the Notice of Hearing. It must comply with the requirements of the Michigan Court Rules. The parties must be given notice 7 days before the hearing if by personal service or 14 days before the hearing if by mail. A completed Proof of Service (PC 564) must be returned to the court or the hearing will not occur.
At the Hearing
The respondent and their legal counsel must attend the hearing. The petitioner and the preparer of the 612 report must also attend the hearing. At the hearing both the petitioner and the preparer of the 612 report must testify. The respondent has the right to request independent evaluation, the right to request a jury trial about issues of fact, and the right to legal counsel.
The Court must find by clear and convincing evidence that the person is developmentally disabled and must find the degree of their disability. The guardian, if appointed, will be authorized to do only what the respondent cannot do for themselves and is limited by the court order. If the Court makes such a finding, the judge will sign an Order Appointing Guardian for Individual with a Developmental Disability (PC 660) and Letters of Guardianship of Individual with Developmental Disability (PC 662). A certified copy of the Letters of Guardianship will be provided to the guardian by the Probate Court office.
Guardian Appointment by Will
A surviving parent of a minor with a developmental disability for whom a guardian has not already been appointed may appoint a guardian by a Will. A parent who had been appointed guardian of a developmentally disabled minor or adult may also appoint a guardian by Will if a standby guardian has not been named by the Court. If a guardian is nominated in the Will, the guardianship is effective immediately upon the death of the testator. The new guardian should give notice of the change to the Probate Court where the guardianship is filed and to the Probate Court handling the estate of the prior guardian. The new guardian must obtain letters of guardianship from the Probate Court.
Terminating a Guardianship for an Individual with a Developmental Disability
Anyone, including the individual with a developmental disability, may file a Petition to Terminate/Modify Guardianship for Developmentally Disabled Individual (PC 677). When the individual is no longer developmentally disabled or dies, the court should be notified immediately in order to terminate the guardianship and close the file. Before the guardian of an estate can be discharged, the guardian must file a final account, which must be approved by the court.