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Lapeer County Probate Court - Conservatorships

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PROBATE COURT

Conservatorships

The Probate Court has jurisdiction over conservatorships for minors and adults.  These involve appointment of persons or financial institutions to handle property and financial affairs of persons under 18 or under some disability.

 
 
     


Conservatorships - Adults
 

Adult conservatorships are established by filing a petition of Conservatorship in the Probate Court in the county where the adult resides.  If the adult lives out of state, the proper venue is the Probate Court in the county where the adult's property is located.

Any person interested in the estate of the adult, including the adult individuals themselves, a person who would be adversely affected by the lack of effective management of the individual's property and business affairs may petition the court for conservator appointment of a conservator for a vulnerable adult unable to protect him/herself from abuse, neglect or exploitation because of a mental or physical impairment, or because of advanced age. MCL 400.11.  File a case using Petition for Appointment of Conservator (PC 639).  There is a $150 filing free 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 credit or debit card payments.

The petitioner must give notice of the time and place of the conservatorship hearing to all interested parties: the individual to be protected, the presumptive heirs of the adult, a person name as attorney in fact for the adult pursuant to a Durable Power of Attorney, the nominated conservator, and a governmental agency paying benefits to the adult to be protected.  MCR 5.125

In special circumstances other people who must be notified are the Administrator of Veteran's 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, and special fiduciary and any person who has filed a request for notice with the Court. MCR 5.125

Unless the adult already has an attorney representing him/her, or if the adult's themselves are petitioning for the appointment of conservators because they are mentally competent but aged or infirm, the probate court may appoint a guardian ad litem.  The guardian ad litem will meet with the adult and the petitioner and write a report for the court with recommendations about whether a conservatorship should be granted, and, if so, who the conservator should be.

Once the petition is filed with the court, along with the filing fee and proof that the interested parties have been served with the petition, the court holds a hearing.  At the hearing the court may deny or grant the petition.

An individual or a corporation authorized to act as a fiduciary may be appointed to act as conservator pursuant to the following order of priority; a conservator or similar fiduciary for the adult who has been appointed or recognized by another court, the individual or corporation who has been nominated by the protected person and is of sufficient mental capacity to make an intelligent choice including a nomination made in a Durable Power of Attorney, the protected individual's spouse, an adult child of the protected individual, or parent of the protected individual or a person nominated by the will of a deceased person, a relative of the protected person with whom he or she resided for more than 6 months before the petition is filed, a person nominated by the person who is caring for or paying benefits to the protected individual, or, if none of these persons or corporations are suitable and willing to serve then the court may appoint any willing person that the court determines is suitable.  MCL 700.5409

The court my appoint a conservator if it finds that the adult owns money or property requiring management or protection that cannot otherwise be provided, or needs money for support and education and that protection is necessary or desirable to obtain or provide money.  MCL 700.5401

The conservator must gather secure and list all of the ward's assets and thier values with 56 days of being appointed by the court.  The conservator does this by filing an Inventory form (PC 577) with the court.  Along with the Inventory the conservator should file a tax assessor record showing the current State Equalized value for any real estate owned by the ward and copies of any bank statements.  In addition to filing the Inventory with the court the conservator must serve a copy of the inventory on all interested persons and file a Proof of Service from PC 564 showing that it was served.

The conservator must file with the court an annual accounting or more often if the Court directs, the Annual Account (PC 583) that updates the court on any changes to the amount of money in the ward's estate over the preceding year.  This form must be served on the ward and all interested persons.  The Annual Account form has spaces to show all income and all disbursements made over the past year.  The balance of funds reflected on the inventory should be shown as the "beginning balance" on the second page of the Annual Account.  For all Annual Accounts filed after the first account, the ending balances from the prior year's Annual Account should match the beginning balance on the current year's Annual Account.  When filing the Annual Account the conservator must attach a bank statement confirming the account balance as listed on the Annual Account.

Failure to file annual accountings timely may result in a hearing being set for the conservator to appear before the Court and show cause why they should not be held in contempt of court.

A conservatorship terminates when there is no longer a need for it because the ward has regained their ability to manage thier assets or the ward dies.  Any person interested in the adult ward including the ward themselves, may petition the court to terminate the conservatorship filing a Petition to Terminate or Modify Guardianship/Conservatorship (PC 638).  A final account must be filed with the court showing the final balance of the ward's assets.

Minor Conservatorship
 

Minor Conservatorships are created so that someone, usually their parent, can preserve significant assets that belong to a minor ward and increase their value as much as possible before turning them over to the ward when he or she turns 18 years of age.  The money that is the subject of a conservatorship belongs to the minor ward, not to the conservator, and generally may not be used to provide routine care and support for the minor.

The proper venue to file a petition for conservatorship is the county where the minor resides.  If the minor lives out of state the proper venue is the place where property of the minor is located.

Any person interested in the estate of a minor, or the minor themselves if they are 14  years of age or older, may petition the court for the appointment of a conservator.  File a case using the Petition for Appointment of Conservator (PC 639).  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 petitioner must give notice of the time and place of the conservatorship hearing to all interested parties, the individual to be protected if 14 years of age or older and the nominated conservator.  MCR 5.125 (C) (24).  The biological father of a child born out of wedlock need not be served notice of proceedings in which the child's parents are interested persons unless his paternity has been determined in a manner provided by law.  MCR 5.125 (B) (4).

In special circumstances other people who must be notified are the Administrator of Veteran's Affairs if benefits are payable by the Veterans Administration to the respondent, guardian, conservator, or guardian ad litem of a person who is an interested person, an attorney who has filed an appearance with the court, and special fiduciary and any person who has filed a request for notice with the court.  MCR 5.125.

If the Court determines that the minor's interest is or may be inadequately represented the Court may appoint a lawyer guardian ad litem to represent the best interest of the minor.

Once the petition is filed with the Court, along with the filing fee, and the interested parties have been served with the petition and notice of hearing the court holds a hearing.  At the hearing the Court may deny the petition so that no conservator is appointed, or grant the petition and appoint a conservator.

An individual or a corporation authorized to act as a fiduciary may be appointed to act as conservator in the following order or priority: a conservator or similar fiduciary for the minor who has been appointed or recognized by another court, the individual or corporation who has been nominated by the protected person if they are 14 years of age or older and of sufficient mental capacity to make an intelligent choice including a nomination made in a Durable Power of Attorney, a parent of the protected individual or a person nominated by the Will of a deceased person, a relative of the protected person with whom he or she resided for more than 6 months before the petition is filed, a person nominated by the person who is caring for or paying benefits to the protected individual or if none of the aforementioned persons or corporations are suitable and willing to serve then the court may appoint any person willing to serve who the court determines is suitable.  MCL 5409.

The Court may appoint a conservator if it finds that the minor owns money or property requiring management or protection that cannot otherwise be provided, has or may have business affairs that may be jeopardized or prevented by minority, or needs money for support and education and that protection is necessary or desirable to obtain or provide money.  MCL 700.5401(2).  The Court may appoint a conservator if a basis for the appointment is proven by clear and convincing evidence.  MCL 700.5406.

If the Court appoints a person or persons to be conservators of a minor the judge will sign Letters of Conservatorship PC (645) and Order Regarding Appointment of Conservator (PC 640.)  In Lapeer County the Letters and the Order are signed at the conclusion of the hearing the file is brought by court staff from the courtroom to the Probate Court office where a certified copy of the Letters are made and given to the conservator.  The conservator signs the Acceptance of Appointment (PC 571) and the Confidential information Sheet.  The conservator also is provided an opportunity to view a DVD describing the duties of a guardian/conservator to the minor ward and to the Court.  The Letters of Authority are restricted so that no funds of the minor may be used unless by Order of the Court.

It is the policy of the Lapeer County Probate Court and a "Best Practice" according to the Michigan State Court Administrator's Office to require that all of the minor's assets be deposited into restricted accounts, to prevent withdrawal of the minor's funds without a prior court order.

The Conservator must gather secure and list all of the ward's assets within 56 days of being appointed by the Court and file an Inventory form (PC 577) with the Court and Proof of Restricted Acct PC 669.  Along with the Inventory, the Conservator should file a tax assessor record showing the current State Equalized Value for any real estate owned by the ward and copies of bank statement confirming the value of the assets shown on the Inventory forum.  In addition to filing the Inventory with the Court the Conservator must serve a copy of the Inventory on all interested persons and file a Proof of Service from (PC 564) showing that it was served.

Every year that the conservatorship continues, the Conservator must file with the Court the Annual Account (PC583) which updates the  Court on any changes to the amount of money in the minor ward's estate over the preceding year.  This form must be filed each year within 56 days of the anniversary date of appointment of Conservator.  This form must be served on a ward 14 years of age or older and all "interested persons".

Lapeer County Probate Court will send a delinquency notice to the Conservator when the Annual Accounting is not filed timely.  If the Court does not receive the Annual Accounting within 28 days from the delinquency notice being sent, a hearing will be scheduled for the Conservator to come to court and explain why the form was not timely filed.

A minor conservatorship typically terminates on the minor's 18th birthday.  When the minor turns 18 the Conservator must file a Final Account (PC 648) along with a bank statement verifying the amount in the account, and a Receipt of Ward and Discharge (PC 649) signed by the minor showing that they received their assets in full.

 

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