Few things are more difficult than seeing your elderly parent in physical and mental decline, and having to provide care for the person to whom you have always looked to for care and guidance. Unfortunately, when a senior becomes unable to care for him- or herself, the only way to protect them and their well-being may be for an adult child to apply for guardianship of their elderly parent.
In Michigan, guardianship of an adult involves the probate court appointing a competent adult (the guardian) to make important decisions on behalf of a legally incapacitated person (the ward). A guardian is often a family member, but need not be. The guardian may decide where the ward will live and what medical care they will receive, as well as making other day-to-day decisions. Whenever possible, the ward should be consulted about their preferences and their wishes should be honored if reasonable.
A guardian may handle some minor financial matters for the ward, but if there are significant assets, a conservator may need to to be appointed to make financial decisions and conduct financial transactions. In many cases, the same person may act as both guardian and conservator.
It can be hard to decide to seek guardianship of an elderly parent. They likely value their independence, and you may not want to accept that they can’t care for themselves, either. However, there are some signs that you should not ignore:
If you observe the signs above, especially multiple indicators that have developed recently, your parent may need to have a guardian appointed for their safety.
You are not required to have an attorney to file for guardianship of a parent, but an elder law attorney can provide valuable support and guidance, especially if you expect conflict (such as where you and a sibling may be fighting for guardianship of a parent), or if you would simply like objective legal guidance.
An attorney can also help you gather evidence and testimony to support your petition and represent you at the guardianship hearing.
You need to file a Petition for Guardianship of Incapacitated Individual in the probate court for the appropriate county: either the county where your senior parent lives, or the county where they are present if they are not in their home county (such as if they are in a nursing home there).
You will need to explain specific facts that lead you to believe that your parent needs a guardian in the petition. You will also have to identify any spouse, adult children, or parents of the person (if there are no living children) for whom you are seeking guardianship.
After you file the petition, the probate court will set a hearing to determine whether your parent needs a guardian, and who should be appointed. You must notify all interested parties of the hearing, including the person for whom you are seeking guardianship and:
The probate court will appoint a guardian ad litem for your parent in advance of the hearing. A guardian ad litem, or GAL, is appointed as a safeguard for the person alleged to be incapacitated. The GAL speaks to the proposed ward and others and makes recommendations to the court. If the proposed ward wants an attorney of their own, they have the right to have one. They can hire an attorney or the GAL can ask the court to appoint one for them.
Prior to the guardianship hearing, you should gather evidence in support of your position and enlist any witnesses who can testify regarding the need for a guardianship
The court will first address the issue of whether your parent needs a guardian. A person needs a guardian if they cannot make or communicate informed decisions due to “mental illness, mental deficiency, physical illness or disability.” In order to appoint a guardian, the probate judge must find by “clear and convincing” evidence that the ward is legally incapacitated and that a guardian is needed to provide them the proper care and protection.
Witnesses, such as the ward’s doctor or other medical providers, can testify as to their lack of capacity to make and communicate decisions. If the court agrees that a guardian should be appointed, Michigan law establishes a priority for who should serve in that role.
Sometimes, family members with equal priority may find themselves fighting for guardianship of a parent; in that situation, the court will make an appointment that is in the best interest of the ward.
Guardianship hearings are usually relatively straightforward, but they can be difficult if your parent doesn’t want a guardian, or if other family members disagree that they need one. Regardless of whether a guardianship is contested, an experienced Michigan guardianship attorney can make the process much easier. An attorney can also guide you in fulfilling your duties once you have been appointed.
To learn more about how to file for guardianship of a parent, or to get advice on serving as a guardian, contact Suzanne R. Fanning PLLC to schedule a consultation.
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