What Authority Does a Legal Guardian Have in Michigan?

If you are considering seeking guardianship of a loved one, you have almost certainly not come to this decision point easily. Particularly if that loved one is an older relative who is suffering from dementia, you may have spent months wrestling with the question of whether it is more appropriate to act for their protection by seeking guardianship, or to preserve their independence. The good news is, even if you become guardian of a loved one, you can (and must) still help them to be as independent as reasonably possible.

You may also be wondering, if you choose to pursue guardianship, what your powers and duties will involve. Let’s talk about what you can and should do if you are serving as a legal guardian in Michigan.

Powers of a Michigan Guardian

There are various circumstances in which you might be serving as a guardian for another person in Michigan. For purposes of this article, we will be talking about guardianship of a legally incapacitated adult, though many of the same rights and responsibilities apply to guardianship of a child. Typically, however, it is obvious when a child needs a guardian. It is often less so for an adult, and family members may be more conflicted about the decision to pursue guardianship. Understanding a guardian’s powers in Michigan may help.

The power to make decisions about one’s own life is an important one. Guardianship removes much of that power from a protected person (the “ward”), and places it in the hands of the guardian. Michigan law strives to give a guardian enough power to effectively protect a ward, while still preserving for the ward as much independence and autonomy as possible.

Michigan Compiled Laws Section 7000. 5314(b) dictates that a guardian shall secure services to restore a ward to the best possible physical and mental condition possible, so that the ward can return to self-management as soon as possible. Of course, in some cases, such as dementia that is progressing, a return to self-management may not be possible.

In Michigan, guardians may exercise the following powers to the extent they are granted by court order:

• To decide where the ward will live, whether inside or outside the state of Michigan.
• To provide for the ward’s care, comfort, and maintenance, and, if appropriate, training or education. This includes decisions regarding food, clothing, and shelter.
• To take care of the ward’s personal property and to start a protective proceeding if necessary to protect other property belonging to the ward.
• To consent to medical or mental health treatment or other professional care, subject to limitations discussed below.
• To execute, reaffirm, or revoke a do-not-resuscitate (DNR) order on behalf of the ward, subject to certain requirements, including having recently visited the ward and discussing the issue with him or her, if meaningful discussion is possible, and consulting with the ward’s doctor.
• In some cases, a conservator will be appointed to care for the ward’s estate and finances. If no conservator is appointed, the guardian has the authority to receive money and property due to the ward and to spend it for the ward’s care. The guardian is required to use care to keep any excess funds for the ward’s needs.

Limitations on the Guardian’s Power

Depending on the ward’s needs, the court may restrict the guardian’s power, creating a limited guardianship. Even in those circumstances in which a guardian has power, he or she should consult with the ward before making a decision, if meaningful discussion is possible. And importantly, there are some powers even a full guardian does not have:

• A guardian cannot make a last will and testament for a ward.
• A guardian cannot authorize a psychiatric hospitalization for a ward, unless the ward consents to it.
• A guardian cannot vote on behalf of a ward in local, state, or federal elections.
• A guardian who is not also a conservator cannot sell a ward’s real estate or stocks without special permission of the court (A conservator must also obtain court permission).
• A guardian may not use corporal punishment on a ward.

One question many guardians ask, especially when the ward is an older person in mental decline, is whether they can take away the ward’s ability to drive. Although a guardian does not have the right to revoke a ward’s driver’s license per se, the guardian may notify the Michigan Secretary of State that there is concern about the ward’s ability to safely operate a motor vehicle. The Secretary of State may then take steps to suspend or revoke the ward’s driver’s license if circumstances warrant.

The decision to seek guardianship of a loved one is a one that calls for serious deliberation. If you have questions about the process of seeking guardianship, or the rights and responsibilities of a guardian, please contact our law office to schedule a consultation.