Guardianship, Part 1: When Is It Needed In Cases Of Disability?

"Guardian" is a powerful word.

After all, it harkens back to deeply established images of protection, such as guardian angels.

But guardianship, in modern American law, does not only call to mind symbolic images. It is also a well recognized status in the law. In this two-part post, we will discuss its applicability in Michigan to the protection of adults who become disabled.

There are many conditions that can contribute to some degree of disability. These can include:
• Physical or mental illness
• Developmental disability
• Motor vehicle crashes and other serious accidents
• Cognitive decline due to aging
• Drug or alcohol addiction

When someone is struggling with these conditions, they may be unable to take care of their financial affairs.

A guardianship is not the only way of making sure that a responsible party is taking care of someone's finances. A durable power of attorney, executed prior to the disability, can enable a person or a bank to serve as a financial fiduciary. It is also possible to create a revocable trust on behalf of someone who is struggling with a disabling condition.

Neither a durable power of attorney nor the creation of a trust requires court involvement to become effective. For example, an aging parent dealing with mild dementia who gives a financial power of attorney to a son or daughter does not need to get court approval to take that step.

But what happens when someone's disabling conditions become so severe that they are unable to manage their own care? In those cases, the probate court may need to determine whether a guardian should be appointed

In part two of this post, we will provide an overview of how those determinations are made under Michigan law.

Source: State Bar of Michigan, "Acting For Adults Who Become Disabled," Accessed May 15, 2014

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