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HANDBOOK FORGUARDIANS OF ADULTSTENTH EDITION, 2012BRADLEY GELLERMICHIGAN STATE LONG TERM CAREOMBUDSMAN PROGRAM

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Handbook forGuardians of Adults3

Copyright 2012 by Bradley Geller4

TABLE OF CONTENTSIntroduction1. Guardianship and Alternatives92.Process of Being Appointed Guardian133.Visiting the Individual214.General Powers and Duties255.Handling Finances and Property296.Obtaining Income for the Individual377.Paying for Medical Care398.Determining Place of Residence459.Making Medical Treatment Decisions5710.Responding to Changed CircumstancesA. Termination or Modification of Guardianship 65B. Delegation of Powers66C. Resignation or Removal of Guardian67D. Appointing a Successor Guardian68E. Death of Individual695

11. Liability7112.Charging for Your Services7313.Reporting to the Court7714. Agency Contact InformationA. Area Agencies on Aging85B. Michigan Waiver Agents89C. Michigan Dep’t of Human Services95Diary1056

INTRODUCTIONYou may be considering whether to become a guardian for anotherindividual, or you may have been appointed by the court as guardian. Whetheryou are a relative, a volunteer, or a professional guardian, this is an importantjob. There is potential for invaluable contribution to the welfare of the individualand personal satisfaction for you.Being a guardian is not a simple role, but one demanding responsibility,patience, compassion and sensitivity. There are a number duties you owe to theperson you have agreed to assist. There are also duties you owe to the court.Historically, guardianship developed as an exercise of parens patriae - thestate as protector of its citizens. Under Michigan's guardianship reform law, thecourt must balance that goal with values of personal independence and selfdetermination. Under the law, guardianship should only be imposed when thereis no alternative.Since the abilities and disabilities of each person differ, whenguardianship is appropriate the powers of the guardian should be tailored to theneeds of the individual. To avoid labels, this booklet refers to a person for whoma guardian has been appointed as an "individual."In any guardianship, there are certain powers you have as guardian, andcertain rights kept by the individual. It is important to be familiar with yourpowers, and to respect and advocate for the individual's rights. You should alsorecognize the impact of guardianship upon an individual's outlook, and try tominimize negative effects.To help you in your new and challenging role, this booklet has beenprepared to answer questions you may have. The information is based onMichigan law and court rules, and on federal law.Please realize that although probate courts throughout the state operateunder the same laws and rules, there can be significant differences in procedureand practice from court to court and from judge to judge.7

An important topic of this book is the powers you have as guardian.Realize even if you have legal authority, there may be practical problems youencounter in exercising that authority. For example, although you may havepower to consent to medical treatment, it may be difficult to convince theindividual to go to the doctor.This handbook focuses on guardianships for adults under the Michiganlaw known as the Estates and Protected Individuals Code. If an adult suffersfrom a developmental disability, somewhat different provisions of the MentalHealth Code apply. One difference is the requirements for an evaluation knownas a 612 Report under the Mental Health Code. A second, a partial guardianshipexpires after five years. Third, a guardian under the Mental Health Code musthave explicit court authority to choose a nursing home as the individual'sresidence.Entirely different procedures and forms apply to guardianship forindividuals under age 18.The book makes reference to certain court forms used in guardianshipproceedings. Each type of court form has a number, such as PC 625, found atthe bottom left-hand corner. Not every form is used in every case.Blank forms should be available from the probate court office or can becopied on-line:www.michigan.gov. Click on Michigan Government on the topleft of the screen, then on Judicial Branch in the drop down menu. Click onAdministration of the Courts (listed under Michigan Courts Website).Click onResources at the top of the page and and on Court Forms in the drop down menu.Scroll down to the last section and click on Conservator and Guardian.Ifquestions arise in the future about your duties to the individual or to thecourt, you can contact the probate court. For more information about programsand services available to the individual, please call upon the community agencieslisted in Chapter 14,Thank you to Kathryn L. Cook for guiding me through the labyrinth ofMedicaid, to Sarah J. Slocum for her continued support, and to Irene M.Kazieczko for 34 years of inspiration.8

1. GUARDIANSHIP AND ALTERNATIVESWhat is a guardian?A guardian is a person appointed by a probate court and given power andresponsibility to make certain decisions about the care of another individual.What types of powers might a probate court grant a guardian?These powers can include consenting to medical treatment, determiningwhere the individual lives, handling the individual’s income and property, andarranging for appropriate services.Upon whom may a court impose a guardianship?The individual must be an incapacitated individual and imposition ofguardianship must be necessary to provide for the individual's care.Who is an incapacitated individual?An incapacitated individual is an adult who is impaired by reason of mental illness, mental deficiency, physicalillness or disability, chronic use of drugs, chronic intoxication, orother cause . to the extent of lacking sufficient understanding orcapacity to make or communicate informed decisions.How isinformed decisiondefined?An individual makes an informed decision when she or he realizes thechoices available, and understands the consequences of each choice.9

A choice may be informed even if other people feel is is not the bestdecision, or is not a responsible decsion.What are some circumstances when guardianship might not be necessary?An individual may have signed a durable power of attorney for healthcare, appointing a patient advocate. The patient advocate has authority to makehealth care and personal care decisions when the individual is unable toparticipate in those decisions.If an individual is enrolled in Medicaid, or is terminally ill, a closerelative may be authorized to make medical decisions if the individual is unableto make those decisions.Are there circumstances when there is a more appropriate legal proceedingthan guardianship?Yes. For example, if the individual can make informed medical andpersonal care decisions, but is unable to manage her or his financial affairs,seeking a conservator and not a guardian is appropriate.What is a conservator?A conservator is a person or financial institution appointed by the probatecourt to handle an individual’s property and financial affairs. Sometimes thesame person serves as both guardian and conservator.There anshipandforAre there other circumstances when there is a more appropriate legalproceeding?Yes. If an individual needs inpatient mental health treatment, but refusesto agree to go into the hospital, it is better to seek civil commitment through theprobate court.10

Without a commitment order, a guardian cannot force an individual toundergo such inpatient treatment if the individual resists.What else might I consider in petitioning for guardianship?There is a difference between what the court can empower you to do, andthe practical exercise of that power. For instance, the court order may provideyou can make medical decisions for one of your parents. You parent might stillrefuse to go see the doctor, even if you make the appointment.11

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2. PROCESS OF APPOINTMENTWhat initial steps are followed in guardianship proceedings?1. A petition is filed in probate court by a person interested in the individual'swelfare. Though not required in most courts, the petition can include a letter or acourt form completed by a doctor offering a diagnosis of the individual’scondition and an opinion whether the individual can make informed decisions.The court form is shown on the next page.2. The court sets a date for a court hearing.3. The petitioner notifies the individual by handing the petition and notice ofhearing to the individual at least 7 days before the hearing. The petition includesa list of the individual’s rights in the process.4. The petitioner notifies interested persons, such as family members, in personor by mail. If notice is by mail, it must be sent at least 14 days before thehearing.5. The court appoints a guardian ad litem.PC 625 Petition for Appointment of GuardianPC 630 Report of Physician or Mental Health ProfessionalPC 626 Notice to Individual of RightsHow much is the filing fee?The fee is 150.00. If an emergency petition is brought, the fee is 170.00 in some counties. The court can waive this fee if the petitioner cannotafford it. If the petitioner pays the fee, he or she can be reimbursed from fundsof the individual if a guardianship is established.13

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How does the process differ in emergencies?In an emergency, interested persons need not receive notice. Theindividual still receives notice and a hearing must be held. If an emergencypetition is granted, the court appoints a temporary guardian. A second hearingwith notice to all interested persons must occur within 28 days.What is an emergency?An emergency is a crisis from the perspective of the individual, forinstance, when a health care decision must be made in a life and death situation.It is not an emergency when a hospital wishes to discharge an individual to anursing home.Does the guardian ad litem have any power to make decisions for theindividual?No. Although there is often confusion over the role, a guardian ad litemdoes not have authority to make decisions for the individual. It is accurate tothink of the guardian ad litem as an investigator.What is the role of the guardian ad litem?The initial duty of the guardian ad litem is to visit the individual who issubject of the petition and to explain to her or him the nature of guardianship andher or his rights in the process.The guardian ad litem must explore whether there is an alternative toguardianship, and whether mediation might be helpful.The guardian ad litem must ask the individual if he or she wishes to be atthe hearing. The individual has a right to be at the hearing, even if the courtneeds to change the site of the hearing to a nursing home or hospital.15

Does the guardian ad litem have other duties?Yes. One of the more important duties is to determine if the individualobjects to appointment of a guardian, objects to the individual seeking to beappointed, or wants limits placed on the guardian’s powers.What if the individual objects to guardianship?The guardian ad litem reports this in writing to the court. By law, thecourt must appoint a lawyer to represent the individual at this point. The role ofthe guardian ad litem ends upon appointment of a lawyer. She or he reportsnothing further to the court and does not appear at the court hearing.What is the role of the lawyer?The role of the lawyer is to vigorously advocate for the wishes of theindividual, even if those wishes are at odds with the petitioner or anyone else.If the individual does not object to guardianship, what further does theguardian ad litem determine and report?The issues include –Is guardianship warranted?Is the person seeking guardianship an appropriate person to serve?What powers should the guardian have?Does the individual have sufficient income and assets so that aconservatorship is needed?16

What happens upon the guardian ad litem reporting to the court?The court appoints a lawyer to represent the individual if the individualrequests a lawyer or objects to any aspect of the guardianship petition.A hearing is held, usually at the courthouse At the hearing, the petitionerpresents examples of the individual’s behavior and any other relevant evidence.If there is still a guardian ad litem, the guardian ad litem presents her or hisreport.If instead the individual is represented by a lawyer, the lawyer can presentevidence and cross-examine the petitioner’s witnesses. The individual has thesame procedural rights even if she or he decides not to have a lawyer.What happens at the end of the hearing?After hearing all testimony, the judge determines if there is clear andconvincing evidence to merit appointment of a guardian. The judge can thenissue a court order appointing a guardian and setting forth powers of theguardian. In the aternative, the judge can dismiss the petition.Do all guardians have the same powers?No. By law, the judge must tailor each guardianship to the needs of theindividual, and cannot grant a guardian power over areas where an individual canstill make informed decisions. For example, an individual may not be able toparticipate in medical treatment, but still be able to decide where to live.A guardian with fewer than all powers a guardian may have is known as alimited guardian. Under the law, the judge must first consider appointing alimited gurardian. Only if that is inadequate is the judge permitted to appoint afull guardian.17

What happens when the judge appoints a guardian?If the judge appoints a guardian, the judge issues a court order. Theguardian then files an acceptance of appointment with the court. Finally, thecourt issues letters of guardianship to the guardian.PC 631 Order Appointing GuardianHow does the judge decide who should serve as guardian?The judge is required by law to honor certain priorities. First priority is aperson selected by the individual, him or herself, if that person is willing andable