Michigan to Assist Probate Attorneys in Fighting Elder Abuse

In Michigan, when an adult becomes incapable of making good decisions for him- or herself, someone needs to step in and help. Often that person is a guardian or conservator. A guardian makes personal decisions for a legally incapacitated person (ward) such as where to live and what medical treatment to receive. A conservator is in charge of a ward’s finances. Much of the time, a legally incapacitated person needs both a conservator and a guardian, and the same person may fulfill both roles. The services of a guardian or conservator are intended to help prevent harm to a vulnerable adult, including elder abuse. Lawmakers have taken steps to help prevent Michigan elder abuse by the very people who should be working to protect seniors: guardians and conservators themselves.

Much of the time, a guardian or conservator is a member of the vulnerable adult’s family, such as a spouse or an adult child. That person is usually highly motivated to ensure that the adult is protected and well-cared for, although in a small number of cases family members take advantage of their position of trust to enrich themselves at the ward’s expense.

There are also situations in which a vulnerable adult does not have an available family member or close friend to act as guardian or conservator. In those cases, a court may appoint a professional guardian. Like family members, most professional guardians and conservators also take their duties seriously, but there have also been numerous reports of abuse and of overburdened professionals who simply don’t have the capacity to do their job well.

Michigan Elder Abuse Task Force Findings

Michigan Attorney General Dana Nessel formed an Elder Abuse Task Force in 2019 to learn about, and prevent, incidents of Michigan elder abuse by guardians and conservators. The task force was composed of over 100 individuals and members of organizations that work to protect seniors. Task force members traveled throughout Michigan to hear stories of those affected by elder abuse and exploitation, many of which were heartbreaking.

In some cases, professional guardian services were appointed to make decisions for seniors even when qualified family members were available and willing to serve. Some professional guardians moved seniors into care facilities without telling their family members where they were, effectively isolating them. In one case where a professional guardian company was appointed instead of a family member, the company confiscated an elderly couple’s phones and built a tall fence around their property to keep family members from seeing them.

There were also numerous stories of financial abuse and exploitation of seniors, with court-appointed conservators and guardians writing checks to themselves from wards’ accounts or otherwise embezzling funds. A 95 year-old man who needed some basic bookkeeping assistance found himself with a professional conservator who stole funds from his bank account.

The Elder Abuse Task Force also learned of professional guardians who received payment to be responsible for hundreds of vulnerable adults. Common sense dictates that such heavy caseloads prevent guardians from giving each ward the attention they deserve.

Michigan Supreme Court Justice Megan K. Cavanaugh, along with a bipartisan group of legislators from throughout the state announced proposed legislation in 2021 intended to prevent future elder abuse, exploitation, and neglect by guardians and conservators in Michigan.

Proposed Legislation to Stop Elder Abuse by Guardians and Conservators

The Elder Abuse Task Force gathered information that led to proposed legislation that would require the following:

• Courts that choose a professional guardian rather than a family member must clearly explain the reason for that choice, and the decision should be supported on the record.
• Guardians and conservators would be required to undergo training, and to be certified and bonded.
• Guardians and conservators would be limited in the number of protected individuals they could be appointed to serve.
• More frequent in-person visits would be required between a guardian and their ward, and guardians would be required to provide more detailed reporting regarding actions taken on behalf of a ward.
• The wishes of the protected person, where those can be determined, should be given priority over a guardian’s convenience.

Michigan has tried in the past to reform guardianship without success. Some opponents of reform fear that it would clog court dockets without resulting in meaningful change for vulnerable adults. Still others believe that even the proposed reform does not go far enough to protect wards.

Finding a Trustworthy Professional Conservator or Guardian

If you have an elderly or otherwise vulnerable family member in Michigan and you live outside the state, you may be concerned about finding a professional conservator or guardian to assist with their needs. In light of the Michigan Elder Abuse Task Force’s findings, concern is warranted. But remember that most professional guardians and conservators are committed to ethically serving the adults for whom they are responsible.

Guardians and conservators are fiduciaries, which means that they are obligated to act in the best interests of another person rather than their own. If you need to hire a professional fiduciary, here are some questions to ask:

• How long have you been a professional fiduciary?
• What is your training to serve as a fiduciary?
• How often do you visit and/or contact a protected person for whom you are responsible?
• How many adults are you currently serving as fiduciary for? What is the maximum caseload you accept?
• Have there ever been complaints filed against you in your capacity as a fiduciary? Have you ever been disciplined for misconduct?
• How, and how often, will I receive information about your services to my loved one?

If you have further questions about guardianship reform or elder abuse in Michigan, or about hiring a professional fiduciary for a family member, please contact our law office to schedule a consultation.