Lapeer County Probate Court

PROBATE COURT

Guardianships for Developmental Disabled Persons

What is a Developmental Disability? MCL 330.1100A(20)




A developmental disability is 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 is 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-directions, 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 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
MCL 330.1602

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 a guardian? MCL 330.1600(c)

The individual with the developmental disability can petition for appointment of a guardian. An adult relative or friend, an official or representative of an agency concerned with the welfare of developmentally disabled person, or any other person found suitable by the Court may also petition to appoint a legal guardian.

Who may be Appointed Guardian MCL 330.1628

The Court may appoint any suitable person or agency to serve as guardian. The Court will not appoint any agency directly involved in providing service 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, the court will give the preference due consideration.

Petitioning for Guardianship of a Developmentally Disabled Individual
MCL 330.1609; MCL 330.1612; MCL 1614

If a person believes that an individual who appears to be developmentally disabled needs a guardian, they must file Petition for Appointment of Guardian, Individual with Alleged Developmental Disability (PC 658) with the Probate Court. The petition should name all interested 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. An evaluation of the developmentally disabled individual must be filed with the petition along with Report to Accompany Petition to Appoint, Modify or Discharge Guardian of Individual with Developmental Disability (PC 659) along with thier attachments. The Court will appoint an attorney within 48 hours of the filing of the petition for the individual identified as being developmentally disabled if the individual has not retained an attorney.

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 individual that completed the evaluation, and the respondent's legal counsel. MCL 330.1614(3) The petitioner has the responsibility to server 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 complete Proof of Service (PC 564) must be returned to the court or the hearing will not occur.

At the Hearing MCL 330.1617

The respondent and thier legal counsel must attend the hearing. The petitioner and the preparer of the evaluation 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 thier 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.

Guardian Appointment by Will MCL 330.1642

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 appointment 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 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 or Modify Guardianship (PC 638). 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.

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