Proposed Guardianship Reforms in Michigan

Proposed Guardianship Ref…

Legal guardianship is not an issue most people think about unless it is splashed across websites and tabloid television, as in the Britney Spears guardianship saga. But the reality is that guardianship abuse is widespread, even though it rarely gets the publicity that the Spears case did. Governors, attorneys general, and lawmakers have been trying to reform Michigan guardianship laws for years, even if the public hasn’t been aware of it. Let’s talk about what guardianship is, how abuse happens, and what Michigan’s leaders are trying to do about it.

Understanding Michigan Guardianship Laws

In Michigan, a probate court appoints a guardian for an adult who is legally incapacitated and unable to make appropriate decisions about such personal matters as where to live and what medical treatment to receive. A conservator is the term used in Michigan for a person who oversees the financial affairs of a legally incapacitated person. Legal incapacity can arise from dementia, mental illness, a traumatic brain injury, and other conditions.

Often, the same person or entity serves as guardian and conservator for a protected person, who is also referred to as a “ward.” Guardians and conservators are fiduciaries, which means that they have an obligation to put the interests of the ward above their own. Most guardians and conservators do just that.

For example, a typical guardianship/conservatorship situation might involve an elderly person with advancing dementia. Their adult child might realize that it is no longer safe for the parent to be in charge of their own decisions and petition the probate court to make the child guardian or conservator. The court is not supposed to appoint a guardian or conservator unless there is clear and convincing evidence of incapacity and the adult’s inability to make informed decisions regarding their welfare.

Guardianship and conservatorship are intended to protect vulnerable adults. Because the process strips adults of their autonomy and legal rights, however, vulnerable wards are subject to abuse and neglect at the hands of unethical or overburdened fiduciaries.

How Guardianship Abuse Happens in Michigan

Often, when a Michigan adult needs a guardian or conservator, a family member serves in that capacity. While being a family member is no guarantee that the fiduciary will act appropriately on behalf of the ward, most family members truly do have the best interests of the ward at heart and work to make sure they are safe and cared for.

Technically, anyone who is over the age of 18 who is legally competent, suitable, and willing to serve can be a guardian. However, there is a priority as to who should be appointed as guardian for an adult, starting with:

  • A guardian who has been appointed as guardian for the protected person in another state;
  • A person nominated by the person in need of a guardian;
  • A person nominated in the ward’s durable power of attorney;
  • A person nominated in a Designation of Patient Advocate (medical power of attorney).

A judge may decline to appoint a person with priority as guardian if they are deemed unsuitable to serve in that role. If there is no suitable potential guardian with priority, the probate judge may appoint a professional guardian.

The majority of professional guardians, like family members, try to do what is best for the ward. Unfortunately, the caseload of some professional guardian services means that they cannot give their wards the attention they deserve. Some professional guardians are responsible for up to 400 wards.

Still other guardians deliberately isolate wards from their families and take financial advantage of them. Among the many instances of elder abuse that have been reported are seniors who have been moved to nursing homes, with their locations kept secret from family members who want to visit them and ensure they are safe. In some cases, the guardians had the wards’ landlines disconnected or took away cell phones so there was no way for family members to check in with them.

Some seniors have had a guardian or conservator appointed despite lack of evidence that one was needed. Seniors who needed a guardian or conservator had professional fiduciaries appointed with no explanation for why a family member with priority was rejected.

And there have been many instances of a professional guardian/conservator committing financial abuse, either by inflating their own fees (which are paid from the ward’s assets) or outright writing checks on the ward’s bank accounts to themselves or their family or friends.

Proposed Michigan Guardianship Reforms Being Considered

Michigan Attorney General Dana Nessel formed an Elder Abuse Task Force in 2019, composed of dozens of members with a stake in the outcome: judges, probate attorneys, service providers, and advocates for the elderly. The Task Force traveled around Michigan, gathering information, and developing recommendations for reform.

Together with AG Nessel and a bipartisan group of state legislators, Michigan Supreme Court Justice Megan Cavanaugh proposed a reform of Michigan guardianship laws in June 2021. Among the changes the law would make if enacted:

  • If a court chooses a professional guardian over a family member or someone with priority under Michigan law, the reasons for the choice must be stated and supported on the record.
  • Guardians and conservators would be required to undergo training and to be certified and bonded.
  • There would be a limit on the number of protected individuals a guardian or conservator could be appointed to serve, and frequent in-person visits with wards would be required.
  • Guardians would have to prioritize the ward’s wishes over their own convenience.
  • Guardians and conservators would be required to provide more detailed reporting of their actions on behalf of a ward.

The proposed Michigan guardianship laws would be an excellent step in the right direction to protect Michigan seniors. There are some concerns that the legislation does not address every issue. And some advocates fear that probate judges will oppose Michigan guardianship reform, believing that it will overlord their dockets.

If you have questions about Michigan guardianship or the proposed Michigan guardianship laws, or if you need a guardian or conservator for your loved one, we invite you to contact our law office to schedule a consultation.