An adult guardianship is used when mental illness, mental deficiency, physical illness of disability, chronic use of drugs, chronic intoxication or other cause, impair an individual so that they lack sufficient understanding or capacity to make or communicate informed decisions and need someone to make such decisions for them MCL 700.1105

The proper venue (place) to file a petition for guardianship is the Probate Court in the county where the adult resides or is found.

An adult individual can petition the court to have a guardian appointed for them, or any person interested in the adult's welfare may petition for the appointment of a guardian.  An interested person or the subject of a guardianship petition may file an answer to the petition and either object to the guardianship altogether or ask the court to order different relief than requested in the petition.

To file a case, use form Petition for Appointment of Guardian of Incapacitated Individual (PC 625).  There is a $150 filing fee that must be paid when the petition is filed.  The Probate Court accepts payment by cash, check or money order.  The Probate Court does not accept payment by credit or debit cards.  The petition may include requests for various types of relief including an order preventing a person from moving the adult in question from thier home or facility or that visitation is set.  The petition must either request that full guardianship or limited guardianship be ordered, and must specify the scope of the limited guardianship if requested.  Whichever type of guardianship is requested, the petition must contain specific facts about the adult's condition and specific examples of the adult's recent conduct, which demonstrates the need for the appointment of a full or limited guardian along with the

It is the petitioner's responsibility to give notice to all interested persons of the petition and the time and place of the hearing on the petition.  Interested persons for adult guardianship cases include the adult who is alleged to be incapacitated, a person name as attorney-in-fact under Durable Power of Attorney, if any, the spouse, and children or presumptive heirs if there is no spouse or children of the allegedly incapacitated person, the person who has the care and custody of the allegedly incapacitated person and the person who is nominated to be the guardian of the allegedly incapacitated person.  MCR 5.125

In addition to those individuals, in some circumstances other interested persons must be given notice including the Administrator of Veterans' Affairs if benefits are payable by the Veterans' Administration on account of the respondent, a guardian, conservator, or guardian ad litem of a person who is an interested person, an attorney who has filed an appearance with the Court, any special fiduciary and any person who has filed a request for notice with the Court.

Because the law views limiting or removing an adult's right to make decisions or to care for themselves very seriously, the court must give written information to a petitioner for an adult guardianship about alternatives to appointment to a full guardian.  These alternatives include a limited guardian, a conservator, a patient advocate designation, a do-not resuscitate designation and a Durable Power of Attorney.  MCL 700.5303

If the incapacitated adult has designated someone to serve as guardian for him or her, the Court must appoint that person to be guardian unless they are unfit or unwilling to serve.  If no designation is made by the incapacitated adult, the Court may appoint a person related to the individual of the petition in the allowing order or preference: spouse, an adult child, a parent, another relative with whom the adult has lived with for more than 6 months before the petition was filed or a person nominated by the person who is caring for or paying benefits to the subject of the petition.

MCL 700.5313  If no person having priority is available or willing to server as guardian, the court may appoint any competent adult to serve, including a professional guardian.

Upon receiving the petition for appointment of guardian, unless the person who is the subject of the petition has an attorney of his or her own choice, the court must appoint a guardian ad litem to represent the best interest of the person who is the subject of the petition.  The guardian ad litem must personally visit the person who is the subject of the petition, explain to the individual the nature, purpose and legal effects of a guardianship, and must report to the court their findings and recommendations regarding the guardianship petition.  Guardian ad litem fees are charged back to the appointed guardian and may be paid from the wards funds if there are sufficient funds available.

If necessary, the Court may order that the person who is the subject of the petition be examined by a physician or mental health professional for the purpose of reporting to the Court thier findings concerning the capacity of the individual, what thier infirmities are and how they impact the individuals' ability to receive or evaluate information in making decisions, a listing of medication that the individual is taking and the prognosis for the individual.  The person who is alleged to be incapacitated has the right to an independent evaluation at their own expense unless the Court finds them to be indigent.  The report is not part of the public record and is available only to the Court, the individual who is alleged to be incapacitated, the petitioner, thier legal counsels and anyone else the Court may determine.  MCL 700.5304

At the hearing the individual who is alleged to be incapacitated has the right to be present and to see and hear all of the evidence about thier alleged incapacity.  The Court must dismiss the guardianship petition, or enter an alternative order, unless there is clear and convincing evidence that the person is incapacitated and that the appointment is necessary to provide continuing care and supervision of the individual.  MCL 700.5306  If there is clear and convincing evidence that the individual is incapacitated and is totally without capacity to care for themselves the court must specify that finding of fact in the Order Regarding Appointment of Guardian of Incapacitated Individual (PC 631)

The Court will also sign Letters of Guardianship (PC 633) which gives the guardian the legal authority to act on behalf of the incapacitated adult.  The guardian will receive these letters at the conclusion of the hearing.  The Guardian signs the Acceptance of Appointment (PC 571)  The guardian may be scheduled to review the training tape if the individual has not at the time of the hearing regarding the duties and responsibilities as a guardian for the adult ward.

If an emergency arises concerning the individual who is the subject of the guardianship petition and no one has the authority to act on behalf of the individual, the court may hold a hearing if the petitioner gives notice to the person who is the subject of the petition.  The Court must appoint a guardian ad litem for the individual unless doing so would cause a delay such that the individual would suffer serious harm.  If the court is satisfied at the hearing that adequate proof exists to find that the subject of the petition is incapacitated, the court may enter and order appointing a temporary guardian and spell out any limitations on the guardian's power.  The appointment of a temporary guardian may occur only in the course of a proceeding for the appointment of a permanent guardian. If temporary relief is granted, the hearing to appoint a full guardian must be held within 28 days of the order appointing a temporary guardian.

Every year that the guardianship continues, the guardian must file with the court the Annual Report of Guardian on condition of Legally Incapacitated Individual (PC 634) which updates the court on the condition of the adult ward.  This form must be filed each year on the anniversary date of the issuance of the Letters of Guardianship and must be served on the ward and all interested persons.

The court may review an adult guardianship whenever necessary but it must review after the first year and every three years of the anniversary of the issuance of the Letters of Guardianship.  Lapeer County attorneys or court employees may complete this investigation with a face-to-face with the adult ward and observing thier environment.  The investigator prepares a report, which is filed with the court.  The Court reviews the report and may take further action as needed.

Anyone interested in a ward's welfare or the ward themselves may file a petition with the court to have the guardian removed, appoint a successor guardian or modify the terms of guardianship.  The petitioner does this by filing a Petition to Terminate or Modify Guardianship (PC 638) along with a $20 motion fee with the court.  If the legally incapacitated individual petitions for termination or modification of the guardians hip and they do not have an attorney the court must appoint an attorney for them. MCR 5.408  IF another person petitions for the modification or termination of the guardianship the court must appoint a guardian ad litem to represent the best interest of the incapacitated person.  The petitioner must serve notice of the hearing on the petition to all parties.

At the hearing on the petition the court may terminate the guardian, modify it or continue it.  The guardianship will also terminate upon the death of the guardian, death of the ward, or determination that the guardian is incapacitated.

 

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