WHAT YOU NEED TO KNOW BEFORE FILING A PETITION TO APPOINT A GUARDIAN FOR AN INCAPACITATED ADULT
»» What is a guardian?
A guardian is a person appointed by a probate court and given power and responsibility to make certain decisions about the care of another individual. These decisions might include treatment decisions or where the individual should live. If the individual has a reduced life expectancy due to advanced illness, the guardian may have the power to make an informed decision on behalf of the individual regarding receiving, continuing, discontinuing, or refusing medical treatment. The duties of a guardian are listed in statute.
A full guardian can make all decisions for the individual. A limited guardian, can only make decisions for the individual that the court allows.
»» How is a proceeding for a guardian started?
Any person interested in the individual's welfare may complete a Petition for Appointment of Guardian of Incapacitated Individual (form PC 625) and file it, along with the filing fee, with the probate court where the individual resides or is presently located.
»» Is a lawyer necessary?
No, but a lawyer can be helpful, especially if someone objects to the appointment of a guardian, the authority you are asking to be given, or the person you are asking to be appointed guardian.
»» Can mediation be used for disagreements about a guardianship?
Certain disagreements about a request for a guardian may be mediated outside the court if all parties agree to attend mediation or if a judge order parties to attend mediation. The court clerk can tell you if mediation services are available in your court.
»» What happens when the court accepts a petition for filing?
After the petition is accepted for filing, the court will appoint a guardian ad litem to visit the individual to explain the guardianship proceedings and to make recommendations to the court as a result of the visit. It is important for you to cooperate with the guardian ad litem. The guardian ad litem does not have the authority to make decisions for the individual. The individual may have to pay for the guardian ad litem. If necessary, the court may also order the individual to be examined by a physician or a mental health professional.
»» What will the guardian ad litem do?
The guardian ad litem will personally visit the individual and explain to the individual the nature, purpose, and legal effects of the appointment of a guardian.
The guardian ad litem will:
1) explain the hearing procedure and the individual's rights during the hearing.
2) inform the individual of the name of anyone seeking appointment as guardian; and
3) inform the court of his or her determinations about the individual's wishes.
»» Can the individual get a guardian immediately in an emergency?
If an emergency exists, the judge may appoint a temporary guardian to serve until a hearing on the petition can be held.
ALTERNATIVES TO A FULL GUARDIAN
The following two alternatives must be planned by the individual before he or she becomes mentally incapable of making the decisions.
1. Health Care Power of Attorney
Also called a patient advocate designation or a durable power of attorney for health care. This document enables a person to name an agent (called a patient advocate) to make his or her health care decisions when not capable or not competent to do so.
The document may cover any type of health care decision including guidance to the agent about the type and extent of health care desired. It can also include authority to withhold or to withdraw life support services.
2. Do-Not-Resuscitate Order
A do-not-resuscitate order is a document directing that the patient named in the order not be resuscitated if the patient's spontaneous respiration and circulation stop in a setting outside a nursing home, hospital, or mental health facility owned or operated by the Department of Community Health. The patient must sign the document in the presence of his/her attending physician and two adult witnesses.
To locate free or low cost legal assistance:
Visit the Michiganlegalaid.org home page and search for local assistance by entering your zip code in the box marked “Find a lawyer, organization or related service to help you with your problem.” or
Look under "attorneys" in the yellow pages to find your local legal aid office, or
Contact the Michigan State Bar Lawyer Referral Service at (800) 968- 0738.
Persons age 60 or older, regardless of their income, may be able to receive free advice from the Legal Hotline for Michigan Seniors by calling (800) 347-5297.
This article appears courtesy of the SCAO.