Guardianship And Conservatorship, Part 2: How Is 'disability' Defined?

Let's resume our discussion of guardianship in Michigan.

There are many circumstances that may make it difficult for someone to handle their own financial affairs. As we noted in part one of this post, these challenges can often be navigated by creating a durable power of attorney or setting up a revocable trust,

But what about when the challenges rise to another level, so that someone becomes so disabled that he or she essentially becomes unable to manage their own affairs?

In this part of the post, we will provide an overview of how courts in Michigan approach the appointment of a fiduciary in such cases.

When a disability becomes severe, the question may become whether limitations in someone's physical or mental condition require the courts to get involved by appointing a fiduciary.

Only when that question is resolved does the court consider the question of whom to appoint as fiduciary.

If the court does appoint a fiduciary, the court continues to play a supervisory role. The court does this by engaging in a periodic review of the disabled person's condition and the fiduciary's actions. The goal is to make sure that the best interests of the disabled person are being properly protected.

There is more than one type of fiduciary that courts can appoint. One is conservator. A guardian is another. These are not synonymous terms; it is possible for the same person to have both a guardian and a conservator.

A guardian acts for the disabled person to provide continuing care and supervision. This can include handling finances and managing property, if the appointment is under the Mental Health Code.

If the appointment is not under the Mental Health Code, the court could also appoint a conservator to perform financial management functions.

Keep in mind that in Michigan, there are two basic categories for adults who are classified as disabled.

One of these is developmentally disabled persons (DDP). This refers to those whose condition began before they turned 22 and is expected to have an indefinite duration. It is this group that requires a very particular procedure authorized by the Mental Health Code.

There is a different procedure required for people whose disabilities began after they became adults. There are two possible designations for these people:
• Legally incapacitated individual (LII)
• Protected individual (PI)

For a legally incapacitated individual, a court-appointed fiduciary is called a guardian. For a protected individual, the corresponding term is conservator.

In an upcoming post, we will discuss the role of hearings in making such designations.

Source: State Bar of Michigan, Probate and Estate Planning Section, "Acting for Adults Who Become Disabled," Accessed May 22, 2014

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