A conservatorship or guardianship proceeding gives a conservator or guardian the right to make decisions for a person who lacks capacity or sufficient understanding to communicate. When you have an aging relative or when someone you love is no longer able to protect him or herself, you may want to consider a conservatorship or guardianship proceeding.
At Willis Law, we offer experienced counsel and advocacy to help families through conservatorship and guardianship proceedings to manage care or finances. A combined conservatorship and guardianship action will entrust another individual to manage the person and the finances of a disabled person.
Our law firm is dedicated to a Christian model of service with a mission to protect clients as they make the right decisions for their family and future. Let us guide you with dignity and discretion.
When Is It Needed In Cases Of Disability?
Guardianship, in modern American law, does not only call to mind symbolic images. It is also a well recognized status in the law.
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
How Is 'Disability' Defined?
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.
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.
Guardianship of Incapacitated Persons
According to Michigan law, an incapacitated person lacks sufficient understanding or capacity to make or communicate informed decisions.
The court may appoint a guardian if it finds that the individual is incapacitated and cannot make wise personal decisions regarding:
- Health care
- Daily activities
- General well-being
Our Kalamazoo guardianship attorneys can help you create a durable power of attorney for health care, which allows you to appoint an advocate of your own choosing. A guardian may also be designated to take care of your surviving dependents through a will or trust. If a guardian was not selected before an individual's death, we can work with his or her family to achieve an appropriate guardian appointment.
Conservatorship to Manage Finances
A conservator is necessary if a person cannot manage his or her own finances, including medical bills.
In Michigan, the court may appoint a conservator if it finds that the individual satisfies the following conditions:
- Cannot effectively manage property and business affairs
- Has property that will be wasted without proper management
- Requires assistance to successfully obtain money
As with a guardianship, you can direct the appointment of your conservator by appointing an agent. Our Kalamazoo conservatorship attorneys can help you create a general durable power of attorney, which allows you to establish the person you trust to handle your affairs on your behalf. If you have not made such a designation and a conservatorship becomes necessary, our lawyers can work with your family and the court to help guide the appointment of a sensible conservator.
Contested Guardianships & Conservatorships in Michigan
Decisions over guardians and conservators can often lead to disputes that divide family members, leaving them fighting over who should be appointed. Money and control are often at the heart of these disagreements.
At Willis Law, our conservatorship and guardianship lawyers in Kalamazoo have helped numerous families overcome disputes.
We can help you resolve issues regarding:
- Whether an individual is actually disabled and in need of a guardian or conservator
- Who should be appointed as a guardian or conservator
- Allegations of fraud or abuse within a guardianship or conservatorship
Our team strives to find a resolution that prioritizes the best interests of the disabled individual while restoring peace and harmony within the family as much as possible.
For a free consultation, please call our firm at (888) 461-7744 to speak with our Kalamazoo guardianship & conservatorship attorneys. We serve clients from our offices in Kalamazoo, Grand Rapids, and Paw Paw.
Michael Willis J.D., C.P.A. Director and Co-Founder
Shaun Willis J.D. Director and Co-Founder
Frank Willis J.D. Chief Senior Counsel
Donald Smith, J.D. Attorney/Partner
Mariko Willis, J.D. Of Counsel Attorney
Samuel Gilbertson J.D. Managing Partner
Davis Martin, J.D. Of Counsel Attorney
Paul Morgan, J.D. Senior Counsel Attorney
Chico Obande J.D. Attorney
Jennifer Grahek, J.D. Attorney
Aric Kasel, J.D. Attorney
Cody Hayward, J.D. Attorney
Austin Beaudet Attorney
Adam Bancroft, J.D. Of Counsel Attorney
Verelle Kirkwood J.D. Of Counsel Attorney
Kristyn Meulenberg J.D. Of Counsel Attorney
Nicholas Vogelzang Of Counsel Asbestos Litigation Attorney
Robin Vleugel Receptionist
Michele Guyman Paralegal
Brian Thompson Paralegal
Patty Stickels Legal Assistant
Kay Davidson Legal Assistant
Karen Zimmerman Legal Assistant
Robert Wilson Chief Financial Officer
Mark Zigterman Accountant
Margarita Jensen Intake Coordinator
Patrick Willis Courier
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