RESOURCES - LEGAL SERVICES
A guardianship should only be considered as a last resort. There are several alternatives to guardianships which should be considered first. These are based on the idea of supported decision-making or Agency theories. Alternatives must always be considered first to protect a person’s basic rights.
A guardianship is a legal transfer of rights from one person (the “ward”) to another person (the “guardian”). Guardianships are handled by the probate court in the county where the prospective ward lives.
There are two types of guardianship in Michigan. One of these is for incapacitated individuals. The other is for persons who have developmental disabilities and don’t have the capacity to make decisions for themselves. These two types of guardianship are governed by different rules and have different features. Here we only consider guardianship for persons with developmental disabilities.
Under the Mental Health Code, guardians of persons with developmental disabilities fall into two types: guardians of the person (who have power to make decisions over matters affecting the ward’s person, such as housing, employment, and education) and guardians of the estate (who manage the ward’s financial matters).
Guardians are also either plenary (full) guardians or partial guardians. Partial guardians have only the powers that the judge has determined are appropriate, which are listed in the letters of guardianship issued by the court.
Partial guardianship are preferred under law. In any guardianship situation, it is crucial to consider all of the ways to make sure that the guardianship is not used to take away the person’s independence and self-reliance, and that the ward is as involved as possible in all decision making that affects the ward’s life.
Guardianship start out with a Petition for Guardianship. Then, a court hearing is held. At this hearing, evidence is produced. The judge considers this evidence carefully. Based on this evidence the judge makes specific decisions.
Those decisions are:
Is a guardian really needed?
Can the ward manage any of his or her own affairs?Does the ward need a full guardian, or only a partial guardian?
If a guardian is needed, in what specific areas is that need?Is help needed to make life choices, financial decisions, or both?
The judge will order a guardianship if the evidence shows that its necessary. Some, or almost all, of the ward’s legal rights, depending on the specific circumstances, will be transferred to the guardian in this process.
After the hearing, the guardian will receive Letters of Guardianship from the judge. These Letters will spell out specifically the powers that the guardian has received. The Guardian then takes the Letters to third party service providers, banks, or other institutions and shows that he or she has the sole power to act for the ward.
The judge can appoint co-guardians to act together, though this can have practical difficulties. A standby guardian, though, is often appointed, and will act in the place of the guardian, with no further need to go to court, if the guardian is unable to serve.