Estate Planning Lawyer in Michigan: Understanding Conservatorships and Guardianships
Conservatorship
Conservatorship is a process a court uses to grant someone (the conservator) legal authority to make decisions on behalf of another person (the Protected Person, in Michigan) regarding finances. The term, however, is confusing because it is used for multiple purposes and different states substitute it with the term guardian, which is a term more often used when speaking of minor children.
Conservatorship process
A general conservatorship is created when an adult (typically an elderly person but can be a younger adult person) cannot manage their finances or health due to deteriorated mental capacity or impairment caused by an illness or injury. While they recover from the illness or injury, a conservator may be appointed by a court to address their financial needs. If you think you are too young to have a conservatorship affect you, then think of this famous case: Britney Spears and her father.
Examples of when a general conservatorship may be needed include but are not limited to the Protected Person, regardless of age:
- falls into a coma due to an injury or illness
- develops a neurological disease, like Alzheimer's, Parkinson's, dementia
- drug dependency
- suffers from a physical trauma––like a head injury, a fall, or a stroke––that impairs their ability to think or express their wishes
- suffers from any other type of mental or physical incapacity
One word of caution: People who suffer from any of the above can become vulnerable to bad actors who may try to manipulate the situation for their own financial gain. These bad actors may, for example, attempt to divert your disability payments (fraud) or coerce you into changing a will (undue influence). Here, think of Britney Spears again and the allegations against her family misusing the conservatorship for their financial gain.
To avoid a court-appointed conservator when or if you become ill or incapacitated in some way, you should ensure your estate plan includes things like a living will or durable power of attorney. What type of document you need will depend on your life circumstances, so speaking with an estate planning attorney in is important.
Guardianship
Guardianships come in 3 types in Michigan:
- adult guardianships for legally incapacitated individuals
- minor guardianships for individuals under the age of 18
- developmentally disabled guardianships for individuals who require assistance in at least 3 areas of major life activity due to a developmental disability that manifests before age 22
The purpose of guardianship is to manage the individual's personal affairs such as housing and medical decisions (and in some cases their financial affairs). All of these types of guardianship are handled in the Probate Court. Developmentally disabled guardianships are controlled by Michigan's Mental Health Code. The others are governed by Michigan's Estates and Protected Individuals Code. An adult or minor guardianship is often accompanied by a conservatorship.
Process for Guardianship or Conservatorship
These arrangements are made through the Probate Court. An interested person may petition the Court to appoint a conservator or guardian or both. The Court holds a public hearing to receive the evidence in support of the need for the appointment, and to hear objections as well. The Court's decision to appoint a guardian or conservator needs to be supported by clear and convincing evidence.
Learn more about adult guardianships and conservatorships here.
Learn more about developmentally disabled guardianships here.
Learn more about minor guardianships and conservatorships here.
Contact an Estate Planning Attorney to Understand Conservators and Guardians in Michigan
These arrangements are serious, and the Legally Incapacitated or Protected Person can lose control of some or all of their personal and financial affairs. Speaking to an attorney to determine what makes sense in your unique situation is critical. At Lex Novus, our estate planning attorneys will address your concerns and guide you through the process. Contact us online or at (248) 581-0987 to schedule a consultation.