LEGAL

What do I need to know about guardianship?

 

WHAT AREA THE TIMELINES WHEN MAKING PERSONAL DECISIONS REGARDING LIFE PLANNING?
Before your 18th birthday, your parents are your legal guardians. This changes when you turn 18 and become an “adult” in Michigan.


When you become an adult, things change legally. Adults have legal rights- such as the right to manage your money; the right to keep your medical, school and other records private; to decide about your education; to decide where and how to live; to make
health care decisions.

 

Usually, when you become an adult, people who provide services to you, such as doctors, case managers, school people, or others will now look to you, instead of your parents, for permission and consent. This could be consent to do a medical exam, or consent to release your records, or things like that.
 

Things may go on just as before, with the provider looking to you and your parents to work together for consent and permission issues. If nothing changes in how providers work with you as an adult, then there is no need to rush to do anything. But some providers might now require you, as an adult, to make decisions and provide permission and consent on your own. This can get pretty complicated. If you need to have someone help you manage things, you will probably need to take some legal, formal action to continue to get those services.
 

Usually, all that is needed is for you to give a trusted person legal permission to help you. This can be done as soon as you turn 18, and any time after that. You do this by signing legal papers called “powers of attorney.” A trusted person must help you with
this.

 

You should get legal help with powers of attorney. Generally, it can take a few days or a week or so to get these completed if you can show that you understand some basic ideas. It’s never too early to start educating yourself about important concepts. Talk to
a trusted person about these ideas, for starters:
• Adult
• Waive rights
• HIPPA, FERPA
• Agent
• Power (or authority)
• Financial
• Knowing and voluntary
• Privacy

 

In some cases, if you struggle with these ideas, and don’t feel that you can understand these types of documents, you may need a guardian. A guardianship should always be done as a last resort.
 

If a guardianship seems to be necessary, there’s no need to rush and do this automatically when you turn 18 unless circumstances demand it. It can be done at any time. Later on, you might be better able to understand those concepts, and if you can, you would not need a guardianship. The bottom line is, as long as you are getting the services you need from doctors, the school, and your caseworker, and others, and as long as you have trusted people to support you in making important decisions, there’s no immediate need to do anything.


It usually takes at least a month to get a guardianship put into place. Guardianships generally have to be renewed in court every five years.

WHAT IS A GUARDIANSHIP?
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 guardianships 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 guardianships are governed by different rules and have different features. Here we only consider guardianships 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 guardianships 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.


Guardianships 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.

WHAT ARE SOME OF THE MOST COMMON ALTERNATIVES TO GUARDIANSHIPS?
Guardianships are a last resort.
These common alternatives can help you to remain as independent as possible.

 

INFORMAL ARRANGEMENTS:
With individualized supports, almost everyone can make some decisions. Third party providers, in areas such as education, training, and health care, sometimes agree that people can make supported decisions when using their services.


For informal arrangements to work, you need to:
• Have a strong support network of trusted people.
• Educate yourself before the appointment. Have your support person help.
• Understand the issues and consequences of your decisions. The more prepared
you are, the more likely you are to succeed.
• Educate your providers that these are your decisions, and that you need to be
involved even if this process takes longer to work through.
• Insist on having your support person with you when making these decisions.
• Take an active part in the decision making process. Ask questions, and consider
alternatives.

 

IF INFORMAL ARRANGEMENTS DON’T WORK FOR YOU, TRY THESE OTHER OPTIONS:
1. Representative Payee (RP):

  • For managing social security benefits only; set up through the Social Security Administration (SSA). 

  • Your RP receives your benefit check, and manages your funds.

  • RPs must file an accounting every year with SSA.

  • Once this is set up, it can only be changed or revoked if SSA consents. On

 

2. Bank account provisions: Automatic Bill Paying

  • Eliminates the ongoing need for bill payment assistance.

  • Check with your bank about other options.

 

3. Legal “Agency” Documents
Here, you to select a trusted “Agent” to act for you, and sign legal documents sharing powers with your Agent.

To give powers away, you need to have “capacity.” Capacity is the ability to understand what you are doing, and to understand the consequences of doing or not doing it. You can’t legally give authority to someone unless you
understand what you are doing.

 

Start now. Get help, if needed, to educate yourself about these and other important concepts:

  • Power, authority

  • Delegate

  • Agent

  • Privacy

  • HIPPA, FERPA

  • Waive, or give up, rights

These are some standard legal documents:
A. Powers Of Attorney (POA):
Different types of POAs can be prepared, tailored to give as much poweraway as you, the “Principal,” desire.

  • Powers need to be effective immediately.

  • Financial POAs are very common and usually are accepted; most adults should have this in place.

  • Less common are POAs for Education, Training programs, Community Mental Health, and Health Care. These give your agent permission to help in these areas of your life. You may have more difficultly getting some providers to accept these, but many
    will.

​​

B. Stand Alone Records Releases:

You can sign releases allowing your educational records (FERPA records) and/or health care records (HIPAA records) to be  shared with your Agent. This information can help your Agent to help you.


C. Patient Advocate Designation (PAD):

These are not effective unless and until you become unable to participate in your health care or mental health treatment, whereas a Health Care Power of Attorney is effective immediately. Most adults should have this document in place.

WHAT ARE THE ADVANTAGES AND DISADVANTAGES OF GUARDIANSHIPS AND THE ALTERNATIVES TO GUARDIANSHIP?
 

GUARDIANSHIPS:
Advantages:
• Guardians act on behalf of the “ward” without being questioned by third parties. A court has sanctioned guardianships, and third  parties generally don’t question the guardian’s authority to act for the ward.


Disadvantages:
• Someone has to go to court to Petition for guardianships. In court, your competence will be challenged. This can be a dispiriting  process.
• You have to go back to court to modify or terminate a guardianship.

• Any power that is given to your guardian is correspondingly taken away from you. A guardianship prevents you from making  personal decisions or exercising legal rights.
• Generally, if you are under a guardianship you are not invested in decision making about your life. You would not be required to participate in the process of learning how to make good decisions, or debate the consequences of making decisions. You are  unlikely to learn about your rights or about the issues that affect you. All of these are important skills to develop. While a guardian should consider your preferences, there is no requirement that the guardian act on your preference.

 

ALTERNATIVES TO GUARDIANSHIPS:
Advantages: There are many benefits to avoiding a guardianship and using alternatives to guardianships instead:
• Using these alternatives is recognition of how important it is for people to have individual rights, and the process of putting  alternatives in place is a valuable learning experience.
• You avoid the court proceeding where your competence is challenged and where you may be found incompetent to manage some or all of your affairs.
• If your only financial challenges are dealing with SSI or SSDI, Representative Payees solve those problems at no cost and without you having to demonstrate capacity. Likewise automatic bill paying is easy and inexpensive.
• Alternatives promote your dignity, independence, and freedom of choice. With Legal Agency Documents, you choose the Agent, can choose what powers to share and what powers not to share, and are much more likely to be involved in
decision-making.
• In short, avoiding a guardianship promotes your full and effective participation and inclusion in society.
• For families who are philosophically opposed to guardianship, and are now using only supported decision-making strategies with third parties, it can be reassuring to have properly drafted and signed Powers of Attorney available. This is
because families often worry that, at some point, providers will not allow the informal arrangements to continue. These documents can provide a sense of security.

 

Disadvantages:
• Legal Agency alternatives require that you and your support people work together to put these documents in place. It can take time to master the ideas that you need to understand in order to sign legal documents.
• Not all people can demonstrate the capacity to sign legal documents.
• Legal costs are involved in setting up some of these alternatives.
• There can be trial and error involved. A provider may need to be convinced that these documents actually work as they should.
• A provider could reject legal documents and the only options would be to go to court or file for guardianship.

HOW DOES SOMEONE OBTAIN A GUARDIANSHIP AND WHAT CAN I EXPECT FROM THE COURTS?
Due to the transfer of rights from one person to another, a guardianship should only be considered as a last resort.
The guardianship process has well-established rules, forms, and procedures. The process isn’t difficult, and usually people don’t need to hire a lawyer. Safeguards protect you to make sure that you really need to have a guardian.

 

First, a PETITION FOR APPOINTMENT OF GUARDIAN, INDIVIDUAL WITH ALLEGED DEVELOPMENTAL DISABILITY is filed in the county where you live. These standardized Petitions, and lots of helpful information, are usually available on your county’s Probate
Court website. Any interested person can file the Petition, including you or your parents. Almost any suitable person or agency can be appointed as guardian.


There is no fee to file this Petition.
 

To complete the Petition, you provide basic information about yourself and your situation. See the sample form for more information.


Every Petition must include a report about your capacity for self-care, to ensure that a guardian is really needed. The judge usually appoints a professional to prepare this report when the Petition is filed. The professional will examine you, complete some testing, and prepare a report for court. The report includes results of the examination and an opinion as to whether you need a guardian or not.


An attorney will usually be appointed to represent you when the Petition is filed. This attorney will talk to you and find out what you want, whether you want a guardian or not, and if so who you want to be your guardian, and will advocate for what you want in court.


A hearing is held within 30 days after the Petition is filed. This hearing is respectful and can be closed to the public.


You will be at the hearing, with your lawyer, the proposed guardian and the professional who prepared the report. People will testify under oath. The judge may ask you questions, and carefully consider your opinions, about whether you feel you need a
guardian and, if so, who should be appointed.


The judge must make several legal findings based on the testimony, about how well you can care for yourself and manage your property. If the judge decides that you have capacity to care for yourself and your property, the Petition will be dismissed.
 

If the judge decides that you have some capacity for self-care and can manage your property, in some areas, but not others, a partial guardian of you and/or your estate will be appointed. The Letters of Guardianship explain the scope of a partial guardian’s
powers.


If the judge finds that you don’t have enough capacity for self-care or to manage your property, a full (plenary) guardian will be appointed over you and/or your estate, and will have very broad authority.


Separate guardians can be appointed for you and for your property, or one guardian could be appointed. Co-guardians could be appointed but rarely are.

 

A standby guardian can also be appointed in case your guardian can’t serve for some reason.

WHAT ARE THE GUARDIAN’S DUTIES AND RESPONSIBILITIES? WHAT ARE THE WARD’S RIGHTS?
If the judge grants the Petition of Guardianship, he/she will make specific findings based on sound evidence presented at the hearing. The specific details of the guardianship depend on what the judge decided is in your best interest. The more help that the judge decided you need, the more power the guardian will be given over you, over your finances, or over both.


Guardianships can be full (plenary) or partial. Guardianships can also be given over you (guardianship over the person), over your financial matters (guardianship over the estate) or over both you and your finances.


A full guardian will be appointed if the judge decides that you can’t manage any important parts of your life without help. If the judge finds that you only need some help, a partial guardian will be appointed.


Generally, a guardian of the person has the responsibility to make reasonable efforts to make sure that you have appropriate housing, as well as the medical, educational, employment and other services that will help you to achieve maximum independence.
 

A full guardian has nearly full control over you (but you can still vote). A partial guardian has control over some aspects of your life, and these responsibilities will be carefully spelled out in the Letters of Guardianship that the court issues after the hearing. You
keep any rights not included in that court order. If there is a dispute with your guardian over some area not covered by the Letters of Authority, your decision controls.


All guardians must report to the court at least once a year, providing information about their management of your person, your estate or both, depending on the responsibilities that they have been given.


Guardians have the responsibility and legal obligation to act in your best interests. They must safeguard your money or property with the highest standard of care.


Guardians also have the responsibility to always consider what you want, in an area in which they’ve been given authority, though they don’t have to do it. Guardians may not provide paid services to you.


Your rights as a “Ward”
If the judge decides that you need a guardian, you will legally considered to be a “ward.” You will receive written information about your rights, and information the procedures that must be followed in order to request that the guardianship be changed (modified) or ended (terminated).


You, the guardian, or any interested person can ask the judge to change, or end, the guardianship if there is a good reason. You can just call the court or write an informal letter, and then the judge will appoint someone to act on your behalf, and represent
you at the hearing. At any guardianship hearing, you have several important rights, which will be explained to you, including the right to have a lawyer represent you.


Guardianships in Michigan expire after at most 5 years. At this time, you get all of your authority back unless there is another hearing and the guardianship is renewed.

LINKS

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Email:   miglddn@gmail.com

Greater Lansing Developmental Disability Network

GLDDN