Guardianship vs. Power of Attorney
Webinar with 
Michele P. Fuller
Michele P. Fuller
An elderly mother hugging her grown daughter as they sit outside in front of fall foliage
Date:
September 11, 2024
Time:
12:00pm - 1:00pm (Eastern Time)

Deciding between guardianship and power of attorney is an important decision that can significantly impact the care and protection of a loved one. In this webinar, we will guide you through the key differences between these two legal tools and explain when each is appropriate. You’ll learn when guardianship is necessary, particularly in cases of incapacity or vulnerability, and how the broader authority and court oversight it provides can offer additional protection. Conversely, we’ll explore situations where a power of attorney may be sufficient, offering flexibility without the need for court involvement. Whether you’re planning for your own future or caring for someone else, this webinar will equip you with the knowledge to make informed, confident decisions about the best legal protections for your unique situation. Join us to ensure you understand how to safeguard your loved one’s well-being and rights.

Guardianship vs. Power of Attorney
Webinar with 
Michele P. Fuller
Michele P. Fuller
Webinar Video Coming Soon
September 11, 2024
Categories:

Understanding Michigan Guardianship and Power of Attorney

Guardianship is a legal tool that allows one person to make decisions for another. This typically happens when the latter can no longer make decisions independently, whether due to age, accident, illness, or a developmental disability. Understanding the guardianship process can be daunting. In this webinar and accompanying article, we will explore the basics of Michigan guardianships, including who needs a guardian, the legal process involved, and alternatives like power of attorney.

Who Needs a Guardian?

In Michigan, guardianship is established when an individual is unable to make decisions for themselves. Guardianship can be necessary for various groups of people.

  1. Adults with diminished capacity: This includes individuals who were capable of making decisions at one point but lost that ability due to an accident, illness, or injury. For example, someone might suffer from a traumatic brain injury or experience the cognitive decline associated with Alzheimer’s disease.
  1. Minors: Guardianships are also used for minors who are living with someone other than their parents. This is especially common in situations where grandparents or other relatives are raising children and need legal authority to make medical and educational decisions.
  1. Adults with developmental disabilities: Adults with conditions such as autism or Down syndrome may require guardianship if they have been unable to manage their affairs from a young age. This type of guardianship presents its own set of challenges and is governed by specific laws.

The Legal Controversies Around Guardianships

Guardianship is not something to take lightly. When the court appoints a guardian, it is limiting a person’s constitutional right to make their own decisions. Therefore, there are legal hurdles in place to ensure guardianships are established only when absolutely necessary.

Michigan’s guardianship laws, part of the Estates and Protected Individuals Code (EPIC), require thorough court proceedings. The court’s responsibility is to protect the individual's best interests while balancing their rights.

Controversial guardianships, like the highly publicized Britney Spears case, have shed light on the need for strict oversight in these situations. Also, the highly fictional movie “I Care a Lot” painted an outlandish and scary view of guardianship. It was so outrageous that Michele and two other experts made a reaction video (I Care a Lot: Could It Happen to You?).

The Role of a Guardian

A guardian is a fiduciary, meaning they are legally responsible for making decisions that are in the best interest of the person under their care, known as a ward. The guardian is accountable for various aspects of the ward’s life, including:

  • Health and medical decisions: A guardian makes decisions regarding the ward’s healthcare, ensuring they receive proper treatment and managing any necessary medical benefits such as Medicare or Medicaid.
  • Living arrangements: Guardians are responsible for where the ward lives, whether it’s in their own home, with family, or in a care facility.
  • Financial decisions: In some cases, a guardian may also oversee financial matters. When it comes to securing public benefits like food stamps or housing assistance, guardians are also involved.

Filing for Guardianship in Michigan

The guardianship process begins when someone petitions the probate court to become a guardian. This could be a family member, a friend, or any other person who knows the individual and believes they need assistance. The process follows several steps:

  1. Petition for guardianship: The person seeking guardianship must file a petition with the local probate court. These forms can be downloaded from the State Court Administrative Office (SCAO) or obtained at the probate court.
  1. Doctor’s certification: To support the petition, a medical evaluation is usually required. The doctor’s report outlines the individual’s condition and explains how it impacts decision-making. Care must be taken not to use the term “capacity,” as that is a legal term of art that can only be determined by a judge.
  1. Filing fee: $175, can be waived under certain circumstances
  1. Court hearing: Once the petition is filed, a hearing will be scheduled. The person seeking guardianship must notify family members and others who have an interest in the individual’s care. At the hearing, the court will appoint a guardian ad litem (GAL), a professional tasked with investigating the situation and reporting back to the judge.
    1. Probate court is approachable as a layperson, but in more complicated cases you may need or want an attorney. Michigan Law Center attorneys represent people in probate court cases that emphasize special needs planning. Other resources include state bar associations, specialty probate bar associations, and legal aid.
  1. Appointment of guardian: If the court agrees that guardianship is necessary, they will issue an order appointing the guardian. The guardian’s responsibilities and the duration of the guardianship will be clearly outlined. The guardian must remember to do everything necessary to maintain the guardianship from that point on, including filing paperwork with the court.

Developmental Disabilities and Guardianship

Guardianships for adults with developmental disabilities are governed by Michigan’s Mental Health Code, not EPIC. This is a crucial distinction because the process and requirements differ significantly. The guardianship process for a person with a developmental disability is designed to assess their ability to function independently.

  1. The person must be diagnosed with a developmental disability prior to age 22
  1. It must be a mental or physical impairment that continues indefinitely
  1. It must result in functional limitations of at least 3 major life activities
  1. It must reflect the need for specific care that is lifelong

Two types of guardianships are available under the Mental Health Code:

  1. Guardianship of the person: care, custody, living arrangements, medical treatments
  • Partial Guardianship: This is the more common type and expires after five years. It allows for a reassessment of the individual’s condition and whether guardianship is still necessary.
  • Plenary Guardianship: Reserved for individuals with very low functional abilities, plenary guardianship is more restrictive and may not require renewal.
  1. Guardianship of the estate: legal and financial matters
  • Highly advisable to seek a special needs planning attorney to consult on legal and financial planning, such as benefits preservation and other complex situations

Filing for Guardianship for a Developmentally Disabled Person

The process is different from that described under EPIC. 

  1. Different court form: Petition for Appointment of Guardian for a Developmentally Disabled Person
  1. Different doctor’s report: far more exhaustive, different in each court, often courts have a list of preferred doctors, a doctor must testify at the hearing
  1. Proposed ward gets a court-appointed attorney: not a guardian ad litem
  1. Court procedure is different: proposed ward sits with their attorney, not family, doctor testifies to the proposed ward’s state, the ward should be prepared for this ahead of time as it may cause anxiety or fear
    1. Should you hire your own attorney? As with EPIC guardianships, if things get complicated, in cases of abuse or neglect, or if you can afford it and want the best, seek an experienced special needs attorney

Limitations

While the guardian is responsible for all personal care, placement, medical decisions, and government benefits, they are not all powerful. The ward still has agency. If they won’t listen and make bad decisions, at least the guardian can unwind or void some mistakes, such as marriage or creditor issues. A professional guardian cannot sign a do-not-resuscitate order without court authority, nor can they commit someone for involuntary mental health treatment.

Alternatives to Guardianship: Power of Attorney

Guardianship is not the only way to support someone who needs help making decisions. In some cases, a power of attorney (POA) might be a more appropriate and less restrictive option. A power of attorney allows an individual (the grantor) to appoint someone else (the agent) to make decisions on their behalf.

A power of attorney is more flexible than a guardianship. Unlike guardianships, which require court intervention, a POA is created by the individual themselves, as long as they have legal capacity (and only a court can declare that the person lacks legal capacity). A POA lists all of the things it applies to specifically, and can be a long document. There is no reduction in the grantor’s legal rights, and they retain the right to revoke or modify the POA as long as they have legal capacity. In short, regardless of ability or disability, everyone over the age of 18 with legal capacity should have a power of attorney. 

There are several types of POAs:

  • Durable Power of Attorney: This remains effective even if the grantor becomes incapacitated.
  • Springing Power of Attorney: This only takes effect if the grantor becomes incapacitated.
  • Non-Durable Power of Attorney: This ends if the grantor becomes incapacitated.

Michigan’s Uniform Power of Attorney Act

In 2024, Michigan adopted the Uniform Power of Attorney Act (UPOAA), bringing the state’s POA laws in line with those of 31 other states. The UPOAA simplifies the process by creating uniform rules for powers of attorney, making it easier for Michigan residents to use their documents across state lines.

One of the most significant changes is that financial institutions and other entities now face penalties if they refuse to honor a valid POA. This eliminates a common frustration people face when trying to use their POA documents.

Now is a great time to update your POA. Not only will it conform to changes in the law, but it can better reflect changes in your situation if you haven’t revisited it in a while. Michigan Law Center would be ready and willing to help, but if you can, go to whoever set up your original document.

When Do You Need an Attorney?

While Michigan’s probate courts are designed to be accessible to non-lawyers, it can still be helpful to consult an attorney, especially in contested or complicated guardianship cases. Legal representation ensures that all documents are correctly filed, and the process goes smoothly. Moreover, an attorney can provide valuable advice on alternatives like powers of attorney, which may be a less restrictive option for many families.

Whether you're considering guardianship for a loved one or exploring the use of a power of attorney, it’s essential to understand your options and the legal responsibilities that come with each decision. Guardianship is a powerful legal tool, but it’s not the only one. Exploring all options ensures you can make the best choice for your situation.

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