NOTICE TO ALL PERSONS ASKING FOR GUARDIANSHIP 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 guardianship), 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.
GUARDIANSHIP 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 guardian 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 guardianship.
The process for obtaining guardianship 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
FULL GUARDIAN: A person authorized to make all decisions (except financial) for
LIMITED A person authorized to make some, but not all, decisions for
GUARDIAN: another person.
TEMPORARY A person who is authorized to make decisions for another person
GUARDIAN: in emergency situations and for no more than 28 days when a
hearing is pending for full guardianship.
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.
There are two major types of guardianships over adults, one for Incapacitated Individual and one for Individuals with Developmental Disabilities. The information in this packet will only deal with the process for GUARDIANSHIP OF AN INCAPACITATED INDIVIDUAL. This refers to an adult who was once competent and able to make decisions on his/her own, but now is not able to do so. There is another law and different information that deals with guardianships for individuals with developmental disabilities (usually adults who have been developmentally disabled since childhood)
HOW A GUARDIAN IS APPOINTED
There is a $150 filing fee to be paid at the time the petition is filed.
ALTERNATIVES TO GUARDIANSHIP (PC666)
Before filing the Petition for Appointment of Guardian, the petitioner must receive and review the alternatives to guardianship. These alternatives are available on the form PC666.
FILING THE PETITION (PC625)
Any person interested in the welfare of a person who is thought to be in need of a guardian may file a petition for the appointment of a guardian. The petition, when completed properly, signed and dated, is filed with the Probate Court in the county where the respondent is presently (resides or where he/she can be found) at the time of filing. The petition must contain specific facts and examples explaining why the petitioner believes the respondent is incapacitated and needs a guardian. It must also indicate whether the respondent is unable to make any decision for him/herself, and needs a full guardian, or whether the respondent can make some decisions and therefore only needs a limited guardian.
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 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 is not in objection to the Petition for Appointment of Guardian of Incapacitated Individual.
At the hearing, the petitioner must present testimony and evidence of the need for a guardian. The court may appoint a guardian if it is satisfied by clear and convincing evidence that the respondent is incapacitated and that the appointment of a guardian is necessary or desirable as a means of providing continuing care and supervision of the person.
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 guardian of incapacitated individual.
ADULT GUARDIANSHIP QUESTIONNAIRE
The judge requires this form to be completed and filed with the court by the proposed guardian.
REPORT OF PHYSICIAN (PC630)
A report of physician or a current doctor’s statement (dated within 60 days) must also be filed with the petition.
ATTORNEY FOR THE PETITIONER
The law regarding guardianships 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. He/she may even disagree with the petitioner’s request for full or limited guardianship. If the respondent objects to the Petition for Appointment of Guardian of Incapacitated Individual, an attorney will be appointed.
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 GUARDIAN
Any competent, suitable, willing adult designated by the respondent has first priority for being appointed guardian. 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 six 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
The petitioner must locate and nominate a person to be the guardian.
At the hearing, if the judge is convinced that the proper procedure has been followed and sufficient evidence has been presented, a guardian will be appointed. The court will then issue the Order Appointing Guardian and Letters of Guardianship. The Letters of Guardianship is the guardian’s proof that he/she has the authority to make decisions for the ward.
After the hearing, one certified copy of the Letters of Guardianship will be given to you. Additional copies can be obtained for a fee of $12.00.
RESPONSIBILITIES AND AUTHORITY OF THE GUARDIAN
The guardian of an incapacitated individual has many responsibilities. A full guardian basically has the same powers, rights, and duties respecting the ward that a parent has for a minor child, such as authority to make decisions about medical care and where the ward should live.
If a conservator has not been appointed, a full guardian can receive limited funds and apply them toward the ward’s living expenses. The guardian must keep careful records of income and expenses. If large financial transactions are necessary for the ward or if the ward has assets such as real estate, stocks, bonds, or bank accounts, a conservator may have to be appointed to handle those matters.
A limited guardian has only those powers that the Probate Judge grants in the order.
The guardian must file a report with the court each year, beginning one year from the date the Letters of Guardianship are issued. The form is called Report on Condition of Ward (PC634). You will receive a notice a month before the report is due along with the proper form to fill out to facilitate your filing of this report.
The guardian must also notify the court within 14 days if the guardian’s or the ward’s place of residence change.
The court will periodically review the guardianship to make sure it is necessary and that the guardian is acting appropriately.
If there are any questions about what a guardian should or should not do concerning his/her ward, the guardian should consult his/her own attorney.
A separate petition and procedure is necessary to have a conservator appointed. Such a petition can be filed along with the guardianship petition, and both can be scheduled for hearing together. An information packet regarding conservatorship is also available.
When filing petitions to have both a guardian and a conservator appointed, the filing fee is $150.00, in addition to the $150.00 for a petition for guardianship.