We do not all retain our physical and mental faculties until our dying day. Many people, even those we love, develop a physical or mental illness that renders them incapable of making informed decisions regarding their care.
In Michigan law, this condition is referred to as “incapacity.” Incapacitated persons in Michigan may need a court-appointed guardian.
What is guardianship?
An incapacitated person may need the assistance of a guardian. A guardian is an individual appointed by the court to attend to an incapacitated person’s personal needs. These needs include:
- Proper nutrition and clothing
- An appropriate place to live
- Necessary medical care
- The safe-keeping of personal property
Guardians are limited to the duties enumerated in a court order.
How does one become a guardian?
There is a legal process for appointing a guardian. First, a concerned individual referred to as the “petitioner” files a petition for guardianship with the person’s local probate court. A concerned individual can be anyone worried about the incapacitated person’s well-being.
Following that, a hearing will be conducted where the court will examine the petition and determine if guardianship is necessary and, if so, who should be appointed guardian.
The incapacitated person will be represented at the hearing by their attorney, or if they do not have one, by a court-appointed guardian ad litem.
The role of the guardian ad litem is to explain to the person the contents of the petition, the hearing process and what their rights are. The guardian ad litem will ask person for their opinion on the petition and will let them know who the petitioner was and who could potentially be their guardian.
At the hearing, the judge will decide through clear and convincing evidence whether the person is incapacitated and if so, that a guardian must be appointed to meet the incapacitated person’s continuing needs.
Guardianship is sometimes necessary
If necessary, the court will appoint a willing, suitable and competent adult to serve as guardian of an incapacitated person. This is generally deemed to be in the incapacitated person’s best interests.