Probate Court

Post Hearing Procedure for an Adult Guardianship

A guardian of a legally incapacitated individual is responsible for the care, custody, and control of the ward, but is not liable to third parties by reason of that responsibility for acts of the ward. For example, if the ward needs a medical procedure performed, the guardian would be the party consenting to such procedure. If a decision has to be made concerning the ward's living arrangements, the decision is made by the Guardian. If co-guardians have been appointed, they must jointly give such consents.

A guardian of a legally incapacitated individual has a duty to restore the ward to the best possible state of mental and physical well-being so that the ward can return to self management at the earliest possible time. Therefore, the guardian should allow the ward to make his or her own decisions when possible. If a conservator has not been appointed for the ward, the guardian of a legally incapacitated individual may exercise limited control of the ward's finances. The guardian can institute proceedings to compel a person under a duty to support the ward to perform that duty and can receive money and tangible property deliverable to the ward and apply the money and property for the support, care and education of the ward. The guardian may not use funds from the ward's estate for room and board which the guardian or the guardian's spouse, parent or child have furnished the ward unless a charge for the service is approved by order of the court.

A guardian of a legally incapacitated individual is required to file once a year within 56 days after the anniversary date of the issuance of the Letters of Guardianship a written report detailing the ward's condition, the condition of the ward's estate subject to the guardian's possession or control, any medical or sanitary treatment or care to which the ward was subjected during the reporting period, and reason, if any, for the continuation of guardianship. The court may require that the report be filed on a more frequent basis. The report is filed on form (PC 634) which is entitled Annual Report of Guardian on Condition of Legally Incapacitated Individual. Failure of the guardian to file this report in a timely fashion will result in the guardian having their powers suspended by the court and possibly being removed as guardian. The guardian of a legally incapacitated individual also has a duty to notify the court within 14 days of any change in the ward's place of residence.

The court must review all guardianships of legally incapacitated individuals which it establishes. The procedure for such reviews is established by MCR 5.408. The court shall commence a review of a guardianship of a legally incapacitated person not later than 1 year after the appointment of the guardian and not later than every 3 years thereafter. The court must appoint a person to investigate the guardianship and report to the court by a date set by the court. The person appointed must visit the legally incapacitated individual or include in the report to the court an explanation why a visit was not practical. The report must include a recommendation on whether the guardianship should be modified. The report is filed on form (PC 636) which is entitled Report on Review of Guardianship of Legally Incapacitated Individual. After informal review of the report, the court shall enter an order continuing the guardianship, or enter an order appointing an attorney to represent the legally incapacitated individual for the purpose of filing a petition for modification of guardianship. If an attorney is appointed, the attorney shall file the proper pleading within 14 days of the date of appointment. Form (PC 637) entitled Order Following Review of Guardianship is used. The court must send a copy of the report and order to the legally incapacitated individual and the guardian.

Any person interested in the ward's welfare or the ward may petition the court for an order removing the guardian or other modification of the guardianship. A request, as distinguished from a petition, for such order may be made by informal letter to the court or judge. Form entitled Petition to Terminate or Modify Guardianship/Conservatorship should be used when such a petition is filed. The court must follow the same procedures to safeguard the rights of the ward as apply to a petition for appointment of a guardian. The interested persons for the purpose of such petition are the same as for the initial petition to appoint the guardian with the addition of any guardian or conservator. Michigan Court Rule 5.408 deals with some additional procedural matters when such a request is made. If a petition for modification or written request for modification comes from the legally incapacitated individual and that person does not have an attorney, the court shall immediately appoint an attorney. If a petition for modification or written request comes from some other interested person, the court shall appoint a guardian ad litem. If the guardian ad litem ascertains that the legally incapacitated individual contests the relief requested, the court shall appoint an attorney for the legally incapacitated individual and terminate the appointment of the guardian ad litem. A petition or request for removal or the guardian or modification of the guardianship must be set for hearing within 28 days. After hearing the matter the court will either terminate the guardianship, modify it or continue the existing order. The court may also specify a minimum period, not exceeding 180 days, during which a petition or request for a finding that a ward is no longer incapacitated or an order removing the guardian, modifying the terms of the guardianship or terminating the guardianship may not be filed without special leave of the court.

Upon the death of the ward, the powers and authority of the guardian ceases. However, if a conservator has not been appointed for the ward and if the guardian has possession of any money of the deceased ward, the court may, upon petition of the guardian and with or without notice, hear a claim for burial expense or any claim as the court considers advisable. Upon hearing the claim, the court may enter an order allowing or disallowing the claim or any part of it. If the claim is allowed the court may order that it be paid immediately if the payment can be made without injury or serious inconvenience to the ward's estate. This procedure is usually allowed when the payment of the claim will exhaust all the assets thereby avoiding the necessity of opening a decedent estate.