Guardianship is a legal relationship by which a court gives a person (the “guardian”) authority to make decisions about another person’s welfare, finances, or both. Because it limits individual autonomy, Michigan law requires that guardianship be used only when necessary, and that less restrictive alternatives be considered first.

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Before pursuing guardianship, many people explore options such as:

• Powers of attorney

• Health care / patient advocate designations

• Advance directives

• Supported decision‐making arrangements

 

If those are insufficient to protect the well‐being of the person, guardianship may be appropriate.  Michigan’s Mental Health Code governs guardianship for individuals with I/DD.  "Developmental disability” under Michigan law generally means a severe, chronic condition (mental or physical, or both) that:

• is attributable to an impairment or combination of impairments;

• manifests before age 22;

• is likely to continue indefinitely;

• results in substantial functional limitations in three or more areas of major life activity (e.g., self‐care, social skills, learning, communication). 

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When a court finds someone has a developmental disability and needs help making decisions for themselves, it can appoint a partial guardian who has only those powers specifically given by the court or a plenary guardian who has full powers over the person and/or estate.  There are also temporary guardians (in emergency) and standby guardians (someone designated to take over if the guardian is unavailable) under certain circumstances.

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To establish a guardianship, the person with the developmental disability  themselves, or any “interested person or entity” (family member, agency, etc.) may file a petition.  The petition must include facts and reasons why guardianship is necessary. Crucially, a report must accompany it, containing current evaluations of the person's mental, physical, social, educational condition; adaptive behavior; social and living skills; opinion on whether guardianship is needed; recommendation for rehabilitation plan and living arrangement. The evaluations must be recent (usually within the past year), and at least one evaluator must be a psychologist or physician competent in developmental disability evaluations.  After the petition is filed, the court will usually appoint a Guardian ad Litem to investigate the circumstances any may appoint legal counsel for the individual.  After a hearing where interested parties have a chance to present facts and arguments about whether guardianship is necessary and what powers should be granted, the court will decide whether to grant the petition and appoint a guardian.  If granted, the court issues an order appointing either a partial or a plenary guardian (for person, estate, or both) and defines the scope of powers, sets duties, possibly designates a standby guardian.

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A court-appointed guardian will have ongoing responsibilities to report annually to the court about the person and possibly provide an accounting of finances. A guardian must secure services, training, or therapeutic supports as appropriate, with goal of restoring self‐management if possible.

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Guardianships may be time-limited or may need to be renewed.

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To discuss obtaining a guardianship, modifying a guardianship,  ending a guardianship, or exploring alternatives to guardianship, call Maple Law Group at (734) 519-1019 or email info@maplelawgroup.com for a free consultation.