NOTICE TO ALL PERSONS ASKING FOR CONSERVATORSHIP OF AN
PLEASE READ THIS PACKET BEFORE PROCEEDING.
YOUR PETITION WILL NOT BE ACCEPTED IF IT IS NOT COMPLETED PROPERLY. THERE IS A FILING FEE OF $175.00.
As the petitioner (the person asking for conservatorship), it is your duty by law to:
– serve a copy of the petition on all interested persons
– serve a copy of the notice of hearing form on all interested persons
Failure to serve interested persons as required will result in cancellation of your hearing.
A new hearing will be set. If proper service is not given for the second hearing, your petition may be dismissed.
CONSERVATORSHIP FOR LEGALLY INCAPACITATED ADULTS
THE INFORMATION IN THIS PACKET IS NOT INTENDED TO BE LEGAL ADVICE. It is a brief explanation of the basic procedure that is required to obtain a conservator for an adult who is incapacitated. This information is provided in written form because the Probate Court cannot discuss these issues fully with persons interested in adult conservatorship.
The process for obtaining conservatorship over an adult is one of the more complicated areas of the law. It is strongly suggested that anyone attempting this consult an attorney. While the court cannot require you to have an attorney, the court cannot act as your attorney.
PROBATE COURT PERSONNEL CANNOT GIVE LEGAL ADVICE ABOUT YOUR PARTICULAR SITUATION. THE INFORMATION CONTAINED HEREIN IS THE ONLY INFORMATION COURT PERSONNEL CAN GIVE YOU ABOUT THIS PROCEDURE.
If you do not understand the process enough to proceed by yourself after reading this, then you will have to obtain other assistance.
TERMS AND DEFINITIONS
Some terms and definitions used in this packet may be unfamiliar to you. The following terms and phrases are often used in guardianship matters. Knowing them will help you understand the information in this packet.
PETITION: The form filed with the Probate Court that tells the court why
guardianship is necessary and who should be appointed guardian.
PETITIONER: The person who signs the petition and brings the matter to the
attention of the court.
RESPONDENT: The subject of the petition who is believed to be an incapacitated
individual for whom the petitioner is seeking a guardian.
CONSERVATOR: Someone appointed by the court to manage another person’s
WARD: Once the judge determines that the respondent is incapacitated and
needs a guardian, he/she is named a ward of the guardian.
GUARDIAN: The person the judge appoints to be responsible for the
GUARDIAN A person appointed by the judge to investigate and represent the
AD LITEM: best interests of the respondent.
INCAPACITATED An adult who is impaired by reason of mental illness. mental
INDIVIDUAL: deficiency, physical illness or disability, chronic use of drugs,
chronic intoxication or other cause, to the extent that they lack
sufficient understanding or capacity to make/communicate
informed decisions concerning his/her person.
PROTECTIVE An order that allows a single purpose or transaction. May be used
ORDER instead of a conservatorship or with a hearing pending for
WHEN MAY THE COURT APPOINT A CONSERVATOR
OR ISSUE A PROTECTIVE ORDER?
1. When an adult is unable to manage affairs and property effectively for reasons such as mental illness, mental incompetence, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance, AND
– he/she has property which will be wasted or dissipated, or;
– funds are needed for support, care, and welfare of the respondent or his/her dependents.
2. The adult is mentally competent, but due to age or physical infirmity is unable to manage his/her property and affairs effectively. (In this circumstance the petition may be filed by the person in need of the conservatorship.
ALTERNATIVES TO CONSERVATORSHIP
Before filing the Petition for Appointment of Conservator and/or Protective Order the petitioner must receive and review the Alternatives to Conservatorship. These alternatives are available on the form PC667 which is included in this packet.
FILING THE PETITION
The process starts when someone interested in the welfare of a person who is thought to be in need of a conservator files a Petition for the Appointment of a Conservator and/or Protective Order. The petition, when completed properly, signed and dated, is filed with the Probate Court in the county where the respondent resides at the time of filing. If the respondent resides outside the state but owns property to be protected in this state, the petition can be filed in the county where the property is located that needs protecting. The petition must contain specific facts and an example explaining why the petitioner believes the respondent is incapacitated and needs a conservator.
After the petition is filed, a hearing is scheduled before the Probate Judge. The hearing normally takes place 4-8 weeks later. The petitioner must serve all persons who are, by law and Supreme Court Rule, entitled to notice of this proceeding. The petitioner must also arrange for the respondent to be present at the hearing, if at all possible. The guardian ad litem may waive the respondent’s appearance at the hearing providing that the respondent does not object to the petition. At the hearing, the petitioner must present testimony and evidence of the need for a conservator.
DURABLE POWER OF ATTORNEY AND/OR PATIENT ADVOCATE
A copy of any durable power of attorney or patient advocate for the respondent must be filed with the petition for appointment of conservator of incapacitated individual.
REPORT OF PHYSICIAN
A report of physician or current doctor’s statement (dated within 60 days) must also be filed if the petition states that protection is necessary because of mental illness or mental incompetence, physical illness or physical disability, or chronic use of drugs or chronic intoxication.
ATTORNEY FOR THE PETITIONER
The law regarding conservatorship is quite complicated and the Probate Court and court personnel cannot give you legal advice or act as your attorney. Therefore, it is recommended that the petitioner seek the help of an attorney. This information packet and the forms included are provided to help you understand the procedure involved. It is not a complete statement of the law in this area and it is not intended to teach you the law. If you have legal questions, you will need to speak with an attorney.
GUARDIAN AD LITEM – ATTORNEY FOR THE RESPONDENT
You should be aware that the respondent may contest the petition and is entitled to be present at the hearing. He/she also has the following rights: to be represented by an attorney, to see and hear all evidence, to examine witnesses, and to a trial by jury. The law also requires the court to appoint a guardian ad litem for the respondent if he/she does not have his/her own attorney. The guardian ad litem is appointed to investigate the matter, to make recommendations to the court, and to represent the best interests of the respondent. If the respondent objects to the petition for appointment of Conservator and/or Protective Order, an attorney will be appointed for the respondent.
THE PETITIONER WILL BE REQUIRED TO PAY THE FEES OF THE COURT-APPOINTED GUARDIAN AD LITEM/ATTORNEY FOR THE RESPONDENT AT THE COURT-APPOINTED RATE OF $50.00 PER HOUR.
NOTICE OF HEARING
The notice of hearing tells the interested persons where and when the hearing will take place. After the court gives you a date and time for the hearing, you must give notice of the hearing and a copy of the petition to the people who have a right to know about the matter.
1. The respondent must be served personally at least seven days before the hearing, regardless of the respondent’s physical or mental capacity. He/she must also be served a copy of the notice to alleged incapacitated individual. This means physically handing them the papers, or at least touching them with the papers if they are completely incapacitated.
2. The respondent’s spouse and children, or, if no children are living, his/her parents must be served. These persons can be served by mail at least 14 days before the hearing.
3. If the respondent has no living spouse, children, or parents, the heirs/next of kin must be served in the same manner as #2.
4. In addition to the persons mentioned above, any person who has care and custody of the respondent and any conservator or attorney in fact under a durable Power of Attorney or Patient Advocate for the respondent must be served. These persons can be served by mail at least 14 days before the hearing.
5. The nominated guardian, if he/she is not the petitioner, must be served in the same manner as #2.
6. In special circumstances other persons are also entitled to notice. For example, the Veteran’s Administration must have notice if the respondent is eligible for veteran’s benefits, the Attorney General must have notice if there are no heirs of the respondent, and any persons who have filed a Request for Notice with the court.
If the address of an interested party is unknown, the petitioner must publish a notice (PC563) of the hearing in a newspaper that is circulated in Ionia County, for example the Sentinel Standard. Please call the court if you are unsure if the newspaper you want to use qualifies as a “legal publication” that is circulated in Ionia County.
NOTICE MUST BE PUBLISHED AT LEAST 14 DAYS BEFORE THE HEARING. THE PETITIONER MUST PAY THE NEWSPAPER FOR THIS PUBLICATION IN ORDER FOR THE NOTICE TO BE PUBLISHED IN THE PAPER. It is the petitioner’s responsibility to ensure that the newspaper send an Affidavit of Publication to the court prior to the hearing.
PROOF OF SERVICE
The original notice of hearing must be filed with the court along with a proof of service. The proof of service will be examined by the court to ensure that all persons were properly served. If the proof of service is not filed prior to the hearing, or if everyone did not receive proper service, the court will adjourn the hearing to a later date. If proper service is not given for the second hearing, the petition may be dismissed.
WHO WILL BE APPOINTED CONSERVATOR
Any competent, suitable, willing adult designated by the respondent has first priority for being appointed conservator. The petitioner must locate and nominate a person to be the conservator. If the respondent does not express a preference the priority is:
– a person previously named in a durable power of attorney
– the spouse or someone nominated by the spouse in his/her will
– an adult child of the respondent
– a parent or someone nominated by a parent in his/her will
– a relative the respondent has lived with for 6 months before the petition was filed
– someone nominated by the person who is caring for the respondent or paying for his/her care
– any competent adult suitable and willing to serve
At the hearing, if the judge is convinced that the proper procedure has been followed and sufficient evidence has been presented, a conservator will be appointed. The conservator must then sign an Acceptance of Appointment or, if the court orders, obtain a surety bond. The court will then issue the Letters of Conservatorship. The Letters of Conservatorship is the conservator’s proof that he/she has the authority to make financial decisions for the ward.
After the hearing you will be given one certified copy of your Letters of Authority. There will be a fee for any additional copies at the rate of $12.00 for each copy.
RESPONSIBILITIES AND AUTHORITY OF THE CONSERVATOR
The conservator has tremendous authority and responsibility. The conservator is accountable to the protected person, the other heirs, and to the court for everything he/she does. The conservator should seek legal advice in this regard to ensure that he/she is properly performing the duties required by law.
The conservator must file an inventory within 56 days after being appointed and must file an annual account each year. There is a $20.00 filing fee due when filing the account. The court cannot advise the conservator about exercising his/her authority or about whether or not to take any specific action after appointment.
THE COURT CANNOT ASSIST WITH FILLING OUT THE INVENTORY OR ACCOUNTINGS
FAILURE TO FILE THE INVENTORY OR ANNUAL ACCOUNTS CAN RESULT IN THE SUSPENSION OF THE CONSERVATOR’S AUTHORITY.
A separate petition and procedure is necessary to have a guardian appointed. Such a petition can be filed along with the petition for conservatorship and both can be scheduled for hearing together. An information packet regarding guardianship is also available.
When filing petitions to have both a guardian and a conservator appointed, the filing fee is $300.00 ($150.00 for the Petition for Guardianship, $150.00 for the Petition for Conservatorship)
PROCEDURE FOR EMERGENCIES
IF AN EMERGENCY EXISTS, the Probate Judge may issue a Protective Order until a full hearing can be held. In an emergency situation, follow these procedures:
1. In addition to completing all other parts of the Petition for Appointment of Conservator and/or Protective Order (PC639), check and fill out #14 – 15.
2. When filing the petition, schedule an emergency hearing
3. You must serve the respondent with a copy of the Petition and Notice of the Hearing before the emergency hearing, regardless of their physical or mental capacity, by personally handing them the papers or touching them with the papers if they are completely incapacitated. Then file a Proof of Service with the Probate Court. Give notice of the hearing to as many of the interested persons as possible.
4. Appear at the emergency hearing and give testimony and evidence that the welfare of the respondent requires an immediate protective order. A hearing on the conservatorship must then be held within 28 days. The protective order expires on the date of the full hearing.