New Judges Seminar. Guardianships MICHIGAN JUDICIAL INSTITUTE. January 5-9, 2015 Crowne Plaza Hotel, Lansing, Michigan

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1 New Judges Seminar January 5-9, 2015 Crowne Plaza Hotel, Lansing, Michigan Guardianships Material Prepared and Presented by Hon. Kenneth Tacoma Wexford County Probate Court Hon. Milton Mack Wayne County Probate Court Hon. Jennie Barkey Genesee County Probate Court MICHIGAN JUDICIAL INSTITUTE STATE COURT ADMINISTRATIVE OFFICE

2 MINOR GUARDIANSHIPS LEGALLY INCAPACITATED INDIVIDUAL GUARDIANSHIPS CONSERVATORSHIPS PROTECTIVE ORDERS GUARDIANS FOR DEVELOPMENTALLY DISABLED ADULTS I. Minor Guardianships (MCL ) Page 1 of 17 Hon. Kenneth L. Tacoma Wexford County Judge of Probate Revised November, 2014 A. Full or Guardianships ( ) * Appointment by Will or other writing (5202) - Must be signed by the parent and have 2 witnesses - Appointment becomes effective when parents unavailable and guardian files an acceptance in court where minor resides or is present - If both parents are dead, appointment by parent who died last has priority - Minor who is 14 or older may prevent appointment by written objection (5203) -Notice must be given to -The minor, if 14 or older -the person having the minor=s care -each grandparent and the adult presumptive heirs of the minor (MCR 5.125(20)) -An appointment by written designation has priority over a guardian appointed by the court, unless that nominated guardian does not act within 28 days after notice of a guardianship proceeding (5204(4)) * Appointment by Petition {See Pleading List I} -Petition may be filed by Aa person interested in the welfare of a or a minor who is 14 or older (5204) -Court MAY appoint a Lawyer-Guardian ad Litem to represent the minor in a guardianship proceeding (5213) -Minor 14 or older has a right to express preference in appointment -If L-GAL appointed, appointment is subject to same duties and contact requirements of a L-GAL under the child protection statutes in the Juvenile Code (MCL 712A.17d) {Reference: Lawyer-Guardian ad Litem Protocol available through MJI} -Court may also appoint a guardian ad litem -The Hearing: Notice must be given to -The minor, if 14 or older -A person with principal care and custody of minor for 63 days prior to

3 petition filing -Each living parent -If no living parent, adult nearest next of kin -The nominated guardian (5213 and MCR 5.125(19)) -Statutory basis to appoint -Parental rights of both parents are terminated or suspended by prior court order, judgment of divorce or separate maintenance, death, judicial determination of mental incompetency, disappearance, or confinement in a place of detention; OR -The parent or parents permit the minor to live with another person without providing legal authority, and the minor is not residing with a parent when the petition is filed, OR - All of : never-married biological parents, the minor=s parent with custody is missing and the other parent does not have court-ordered legal custody, and the petitioner is related to the minor within the 5 th degree by marriage, blood or adoption. -Minor 14 or older has right of nomination of guardian * The Deschaine problem (Deschaine v. St. Germaine, 256 Mich App 665 (2003)) Petitioner has child in his/her custody without permission of parent; has parent the child to remain with the petitioner without a grant of legal authority? * Suitability of the petitioner=s residence - one step ahead of the Protective Services petition? {Reference: Various questionnaires and screening devices used by various courts- at a minimum, PC 670} * Relationship of petitioner and ward - 19 year old male wants to be guardian for runaway 16 year old girlfriend. *Notice issues generally frequently petitioners don t list a parent because he or she isn t involved anyway *Notice and participation rights of incarcerated parents under MCR 2.004, and the impact of In re Mason 486 Mich 142 (2010) {References: MCR 2.004, MC 286, SCAO MCR 2.004Implementation Memos, In re B.A.D. 264 Mich App 66 (2004)} B. Limited Guardianships ( ) Page 2 of 17 * A creature of statute - a contractual arrangement between the parent and guardian. * Petition must be filed by the minor=s parent or parents (5205) * Court MAY appoint a Lawyer-Guardian ad Litem to represent the minor in a guardianship proceeding (5213) -Minor 14 or older has a right to express preference in appointment -If L-GAL appointed, appointment is subject to same duties and contact requirements of an L-GAL under the child protection statutes in the Juvenile Code (MCL (5) combined with MCL 712A.17d(1)(d))

4 -Court may also appoint a guardian ad litem * The Hearing: Notice must be given to -The minor, if 14 or older -A person with principal care and custody of minor for 63 days prior to petition filing -Each living parent -If no living parent, adult nearest next of kin -The nominated guardian (5213 and MCR 5.125(19)) *Statutory basis to appoint -Parents, or if only 1 parent has custody, the parent with custody, must consent to the appointment, and -Parent(s) must voluntarily consent to suspension of their parental rights, and -Court must approve a limited guardianship placement plan agreed to by the parent(s) and guardian(s). (5205 and 5206) *The SCAO form must be used for the plan (5205) * AThe parents with custody of the minor consent or, in the case of only 1 parent having custody of the Actual custody? Legal Custody? Physical custody? What about joint legal custody cases? Impact of reasoning of In re AJR Michigan Supreme Court Docket No , June 25, 2014 *Again, suitability of proposed guardian=s home - one step ahead of P.S. petition. *Is it a sham - will the parent be living in the home with the guardian and the child anyway? Proper purposes - established to qualify for some benefits from 3 rd party payer? C. Temporary Minor Guardianships (5213 and MCR 5.403) { Reference: Judge Milt Mack s December, 2006 Memo on Temporary Guardianships following statutory changes} * AIf a temporary guardian may be appointed; authority limited to 6 months * May only be done if done in the course of a Apermanent * Notice may be shortened or dispensed with, except a minor 14 or older must always receive notice *There must be some kind of hearing where testimony is taken and the necessity of appointment of a temporary guardian is specified in detail (MCR 5.403(D)) D. Review and Termination of Minor Guardianships *Guardian must file a written report annually (5207, 5215 and MCR 5.404) *Guardianships with wards under age 6 must be reviewed annually (5207 and MCR 5.404) *The court appoint DHS or any other person to conduct an investigation of the guardianship of a minor (MCR 5.404) *If after informal review, if the court does not approve the report, a hearing must be held within 28 days; an attorney must be appointed for the minor (MCR 5.404) *Unless the minor dies, is adopted, marries or attains majority, guardianships can terminate only by court order (MCR 5.404) { Reference: Various Courts have limitation Page 3 of 17

5 language written into the Orders and Letters no consent to marriage, adoption, leaving state, delegation of residence, return to parent, etc.} * Proceedings to terminate require petition, notice and hearing (5208 and 5209) * Petition to terminate Limited Guardianship may be by Athe parents or the sole parent with a right to custody of the (5208) -Court SHALL terminate the limited guardianship if parent(s) have substantially complied with the limited guardianship placement plan - May structure a reintegration plan over a 6 month period (5209) -If not required to terminate because no substantial compliance with plan, - May terminate if in the best interests of minor, with conditions; reintegration plan over 6 months, and/or order DHS supervision of transition, and/or order DHS family services, OR (5209) -If not required to terminate because no substantial compliance with plan, -May continue the guardianship for up to 1 year, ordering the parents to comply with the plan or a modified plan, with a review set before the year is up after which the guardianship must either terminate or a hearing be set for additional action (either Aextended appointment of attorney for the minor, or refer to DHS for an Abuse/Neglect petition to be filed (5209) *A petition by the limited guardian(s) to resign is treated as a petition to terminate the limited guardianship (MCR 5.404(F)) *Petition to terminate a full or guardianship may be filed by parent(s) -Court may terminate if in the best interests of minor, with conditions if necessary; reintegration plan over 6 months, and/or order DHS supervision of transition, and/or order DHS family services, (5209) OR -Court may order parent(s) to follow a court-structured plan that allows the minor to return to home of parent(s), (5209) OR -Set a review and then terminate the guardianship or take additional action (either Aextended appointment of attorney for the minor, or refer to DHS for an Abuse/Neglect petition to be filed (5209) *The Juvenile Code allows as a basis for involuntary termination of parental rights the failure to comply with a limited guardianship placement plan (MCL 712A.19b(3)(d)) or a court-structured plan for reunification under a full guardianship (MCL 712A.19b(3)(e)and (f)). Complications from this Private attorneys for the guardians? Court appointed attorneys for the respondent parents? DHS role? * Guardians that do not understand that their responsibilities continue until terminated by the Court; some guardians think that when the parents have it together they can just return the child. * Parents repeatedly petitioning to terminate limited guardianships with no progress in placement plan limit by time or conditions. Page 4 of 17

6 E. Delegation of Parental Authority / Parent-Minor Power of Attorney ( MCL ) *Requires Aproperly executed power of {Reference: General Form of Parental Delegation} *Only valid for 6 months generally exception for military personnel, then up to 31 days after the end of deployment *If given by a guardian to delegate guardian s authority, guardian must give notice to court within 7 days *What is enough to constitute Aproperly executed? Does this mean must comply with Sec et seq.? What about the handwritten piece of paper? *Does a delegation of parental authority under this section block appointment of a guardian as this constitutes Alegal under Sec. 5204(2)(b)? II. Guardianships of Incapacitated Individuals (MCL ) A. Petition to Find Incapacity and Appoint a Guardian. { See Pleading List II } * May be filed by just about anybody. Proper petitioners include Aan individual in his or her own behalf, or any person interested in the individual=s (5303) *Court is required to provide the proposed petitioner with written information on alternatives to guardianship. (5303) { Reference: PC 666 } * DHS Adult Protective Services as petitioner Unauthorized Practice of Law? Contested cases who represents the department? * The ASecond Childless problem (This refers to the situation where the LII had children with a spouse who he or she later divorced (or the spouse died); the LII then remarried and the children of the first marriage hate new stepparent. If the second spouse also had children with the LII, then things can be even messier.) B. The Guardian ad Litem * If petition is then filed, Court must appoint a GAL to represent the subject of the petition unless the individual has legal counsel of his or her own choice. (5303) *GAL must visit the subject, explain rights and make an independent determination of need, possible alternatives and Ainform the court of those (5305) *If the individual requests legal counsel or the GAL believes individual=s best interests dictate legal counsel, the court must appoint legal counsel. This terminates the appointment of the GAL. (5305) *Adequate GAL performance of duties {Reference: Local training materials?} Page 5 of 17

7 C. The Physicians=s Report * AIf necessary, the court may an examination by a physician or mental health professional, with a report to court at least 5 days prior to the hearing. (5304) -Report not to be part of the public record -Must be provided to court, the individual, the petitioner, their attorneys and Aother persons as the court -Individual may request an independent evaluation, at public expense if he or she is indigent. *Doctors unfamiliar with the process who raise HIPAA concerns {Reference: PC 629, PC 630, 45 CFR , Local Memo to Medical Offices } D. The Hearing * The individual has a right to be present; hearing site may be moved to accommodate this wish. (5304) *There is a right to jury trial. (5304) *The hearing may be closed for the portion of the hearing dealing with the issue of incapacity; also this determination can be without a jury. (5304) * Notice of hearing must be given to -The alleged LII (Note - personal service required) -A known attorney-in-fact under a durable power of attorney -LII=s spouse -LII=s children; if no living adult children, LII=s parents -If no living spouse, children or parents, presumptive heirs -Person having custody and care of LII -A nominated guardian. (MCR 5.125(22)) -Also check MCR 5.125(A) for special case rules as Attorney General, foreign counsel, Veterans Administration, or fiduciary for a person otherwise entitled to notice may be required to be served. *Inter-family disputes where the petitioner deliberately omits an interested party from the petition and does not give notice to them very common with in pro per litigants. Page 6 of 17

8 E. Legal Standards *Definition of Incapacitated Individual - Aan individual who is impaired by reason of mental illness, mental deficiency, physical illness of disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed *The evidentiary standard is clear and convincing evidence. (5306) *Separate findings must be made and supported for both -The individual is legally incapacitated, and - A guardian is necessary as a means of providing care and supervision of the individual. (5306) *Powers granted to the Guardian should be limited in scope and time to only provide for the demonstrated need of the individual, and designed to maximize the individual=s self-reliance and independence. (5306 and 5316) *A limited guardianship is to be ordered if the individual has the capacity to do some, but not all, of the tasks necessary to care for himself or herself. Full guardianship is only for an individual who is Atotally without capacity to care for himself or (5306) * The competing social policies of protecting a person and maximizing the LII=s self-reliance and independence; no judge is prescient enough to tailor these orders that narrowly. *The intervention of advocacy groups in a case where they so poison the case that the guardian resigns. F. Who Should be Appointed? (5313) * AA competent BUT NOT an agency that benefits financially from directly providing care for the individual. * Priorities (2013 Amendments) 1. Person already appointed in another state proceeding 2. A person the ward chooses to serve 3. A person nominated in a durable power of attorney or other writing 4. A person named in patient advocate or attorney in fact in a DPOA. *If none of the above, statutory priorities after that: 1. Spouse, including a nominee of a deceased spouse named in a will 2. Adult child(ren) 3. Parent, including a nominee of a deceased parent named in a will 4. A relative with whom the individual has resided for more than 6 months before the petition is filed. Page 7 of 17

9 5. A person nominated by a caregiver or financial supporter. 6. If none of above available, any competent person, including a professional guardian. *Note that all of these options are conditioned upon suitability and willingness to serve * Competing parties with equal priority - e.g. two adult children who both want to be appointed because there is a family dispute on how Mom or Dad should be cared for, particularly when one faction wants to place in nursing home and other doesn=t. * The ASecond Childless problem again. * What if nobody wants to serve? G. Powers and Duties of Guardians (5314) * General duty to consult with the LLI before making major decisions * General Care, Custody and Control * Duty to visit not less than once every 3 months, report change of residence to the court within 14 days of the change * May execute a DNR order ( 2013 Amendments) Safeguards - Must consult with the ward no more than 14 days prior to executing the DNR order - Must consult directly with the Ward s attending physician to the specific medical indications that warrant the DNR - At least annually visit and consult with the Ward about it, and also again with the Ward s attending physician with the same specific standard as at the first DNR decision. H. Temporary Guardians (5312 and MCR 5.403(C)) * AEmergency guardianship proceedings - Must have an and no other person appears to have authority to act. -Notice must be given to the alleged LII of the petition. - Must appoint a guardian ad litem, unless LLI would likely suffer serious harm if no immediate action. -Court must hold a hearing. -Court may act as guardian. -Full hearing with notice to interested parties must be conducted within 28 days. Page 8 of 17 *Prior guardian not fulfilling duties - AImmediate required to protect ward -Temporary guardian can be appointed for up to 6 months

10 -Court can do this with or without a hearing. -This appointment automatically suspends the power of the previously appointed guardian. * Always remember that it is the situation with the ward that needs to be evaluated for the not the organization, institution or petitioner that wants to do something with or to the ward. Every call from the hospital social worker is an emergency in her eyes, because she needs a guardian to sign a patient out. * ALife and situations; the calls in the middle of the night, or when somebody wants to withdraw life-sustaining medical treatments. I. Review of Guardianships (5309) * Must be reviewed no later than 1 year after initial appointment and not later than every 3 years thereafter III. Minor Conservatorships ( MCL ) A. Minor Conservatorships {See Pleadings List III } *Petition may be filed by - The individual to be protected - A Aperson who is interested in the individual=s estate, affairs or welfare, including a parent, guardian or or - A Aperson who would be adversely affected by the lack of effective management of the individual=s property and business (5404(1)) *The fights between lawyers for divorced parents who want to sign up the kid=s PI case *The insurance company lawyers who obviously don=t represent the petitioner but ghostwrite all the pleadings so they can set up a settlement on the insurance company=s terms B. The Guardian ad Litem (Attorney) *Appointment of an attorney (who has Athe powers and duties of a guardian ad may be appointed, but not required. *If minor is over 14, must give consideration to the minor=s choice. (5406(1)) *Note that if the conservator will share in the settlement, a guardian ad litem must be appointed and consent to the settlement. ( MCR 5.407) Page 9 of 17

11 * Attorneys who don=t have requisite skill to evaluate merits of PI claims * ACaptive who are proposed by the petitioner=s attorney to grease the skids on a deal - To prevent this, be sure your court administrator who handles the appointment is aware of and complies with Sec. 5108, which prohibits the petitioner from choosing or indicating in any manner a preference in appointing the GAL. C. The Hearing *The individual subject to the petition has a right to be present *Right to a jury trial *Standard of proof is clear and convincing evidence (5406) *Notice must be given to - Individual to be protected if 14 or older -Presumptive heirs of the individual to be protected (note this catches both parents) -The nominated conservator -A governmental agency paying benefits or to which an application for benefits has been filed. (MCR 5.125(24)) * Dad or Mom trying to go through the proceeding without notice to the other * Kids getting some form of Social Security benefits with a Representative Payee D. Legal Standards * Reason to Appoint Conservator and Basis for Appointment; Minor -AOwns money or property that requires management or protection that cannot otherwise be or -AHas or may have business affairs that may be jeopardized or prevented by or -ANeeds money for support and education and that protection is necessary or desirable to obtain or provide (5401(2)) Page 10 of 17

12 E. Who should be appointed? *Statutory order of priorities -A fiduciary with financial powers appointed in another jurisdiction where the individual resides -If 14 or older, the individual=s choice -The individual=s spouse (this might be possible) -A parent, or a person nominated by the will of a deceased parent -A relative of the individual with whom he or she has resided for over 6 months -A person nominated by the person caring for or paying benefits to the individual -If none of the above suitable or willing to serve, you figure it out. (5409(1)) *Several people in the order of priority can transfer their priority to a designate. (5409(2)) *In cases of equal priority, pick the one you believe Abest qualified to (Ibid) *Also, acting in the individual=s Abest you can skip somebody with higher priority, or appoint someone with no priority at all. (Ibid) *Divorced parents who can t agree on who should be conservator *The conflicting standards when you consider people within the same priority or with competing priorities. F. Monitoring the Conservator {Very Important Cheats are everywhere} *Bond Requirement Amended in If the value of the cash and property readily converted to cash exceeds the adjusted amount from the Small Estate Assignment statute ( ), the Court SHALL require bond unless a statutory exception applies: - No property readily convertible to cash and cash is in a restricted account - Conservator has bank trust powers - Court determines bond would be a financial hardship on the estate, or - Court states on the record the reasons that a bond is not necessary. (5410) * The general rule for amount is aggregate capital value of property plus 1 year=s income, net of any securities or land restricted from sale by the conservator. (5410) * If accounts are restricted, must file proof of restricted account with 14 days of the conservator=s qualification or as otherwise ordered by the court (MCR 5.409(C)(4)) *Must file an inventory within 56 days and serve on interested parties; inventory must now list joint or commonly- owned property (5417 and MCR 5.409) *Must file annual accounts, including a statement from financial institution dated within 30 days of the account for all liquid assets, with service and notice of hearing to approve the Page 11 of 17

13 accounts on all interested parties. (MCR (C) and (D)) *EXCEPT if the assets are suitably restricted, no annual account needed unless court orders, but still needs to file an annual verification of funds from the financial institution. (MCR 5.409(C)(4)) *Some Circuit Judges and PI lawyers do not follow the requirements of MCR 2.420(B)(3) that the Probate Judge verify, in writing, the sufficiency and proper filing of the bond of a conservator before settling a PI case. *Parents (and some PI lawyers) can=t understand that the minor=s money is not theirs to do with as they please. (Every kid wants to buy the family=s spring break trip to Florida, don t they?) *Some parents are just plain crooks or need the money for their drugs. *Some parents are investment geniuses who want to play the stock market with the kid=s money. *What do you do with the immature kid who gets a boatload of money when he or she turns 18? * Put language in orders that allow restricted accounts making the lawyer liable if the money is not properly deposited in a restricted account. IV. Legally Incapacitated Adult Conservatorships (MCL ) A. Petition may be filed by { See Pleadings List III } *The individual to be protected *A Aperson who is interested in the individual=s estate, affairs or welfare, including a parent, guardian or or *A Aperson who would be adversely affected by the lack of effective management of the individual=s property and business (5404(1)) *The self -initiated petitions under Sec. 5401(4) - a mentally competent person may request appointment of a conservator if he or she is unable to manage property and affairs effectively due to age or physical infirmity. *DHS Adult Protective Services or other social agencies as petitioners *The ASecond Childless problem B. The Guardian ad Litem *Must be appointed unless individual has Achosen or the petition is a 5401(4) Arequested (5406(2)) *GAL must consider alternatives to conservatorship, limits on conservator=s authority, and report to the court. (5406(4)) Page 12 of 17

14 *Note that if the conservator will share in a settlement, the GAL consent to the settlement. ( MCR 5.407) *Adequate GAL performance of duties C. The Hearing (5406(2)) *If the petition is based on one of the statutory grounds that challenge competency, the court may direct a medical exam and report, or send a visitor to interview the LII. *If the alleged LII has the right to secure an independent evaluation at his or her own expense *The individual subject to the petition has a right to be present *Right to a jury trial *Standard of proof is clear and convincing evidence *Notice must be given to - Individual to be protected -Presumptive heirs of the individual to be protected ( note this catches both parents) -A known attorney-in-fact under a durable power of attorney -The nominated conservator -A governmental agency paying benefits or to which an application for benefits has been filed. (MCR 5.125(24)) *Doctors unfamiliar with the process who raise HIPAA concerns *Counsel for alleged LII in contested cases who request a full geriatric assessment at public expense D. Legal Standards * Reason to Appoint Conservator and Basis for Appointment -AUnable to manage property and business affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic alcoholism, confinement, detention by a foreign power, or or -Aproperty will be wasted or dissipated unless proper management is or -Amoney is needed for the individual=s support, care or welfare or for those entitled to the individual=s support, and that protection is necessary to obtain or provide or -Aan individual who is mentally competent, but due to age or physical infirmity is unable to manage his or her property and affairs effectively and who, recognizing this disability, requests a conservator=s Page 13 of 17

15 *What is effective and proper use of money by Dad may seem to be waste and dissipation to the kids E. Who should be appointed? *Statutory order of priorities -A fiduciary with financial powers appointed in another jurisdiction where the individual resides -the individual=s choice if of sufficient mental capacity to make an intelligent choice, including a nomination in a durable power of attorney -The individual=s spouse - Adult Child(ren) -A parent or a person nominated by the will of a deceased parent -A relative of the individual with whom he or she has resided for over 6 months -A person nominated by the person caring for or paying benefits to the individual -If none of the above are suitable or willing to serve, you figure it out. (5409(1)) *Several people in the order of priority can transfer their priority to a designate. (5409(2)) *In cases of equal priority, pick the one you believe Abest qualified to (Ibid) *Also, acting in the individual=s Abest you can skip somebody with higher priority, or appoint someone with no priority at all. (Ibid) *The ASecond Childless problem *The conflicting standards when you consider people within the same priority or with competing priorities. *Disputes with representative payees appointed through the Social Security Administration F. Monitoring the Conservator *Bond Requirement Amended in If the value of the cash and property readily converted to cash exceeds the adjusted amount from the Small Estate Assignment statute ( ), the Court SHALL require bond unless a statutory exception applies: - No property readily convertible to cash and cash is in a restricted account - Conservator has bank trust powers - Court determines bond would be a financial hardship on the estate, or - Court states on the record the reasons that a bond is not necessary. (5410) * The general rule for amount is aggregate capital value of property plus 1 year=s income, Page 14 of 17

16 net of any securities or land restricted from sale by the conservator. (5410) *Must file an inventory within 56 days and serve on interested parties; inventory must now list joint or commonly- owned property (5417 and MCR 5.409) *Must file annual accounts, including a statement from financial institution dated within 30 days of the account for all liquid assets, with service and notice of hearing to approve the accounts on all interested parties. (MCR (C) and (D)) *Kids anticipating their inheritance *Some kids are just plain crooks or need the money for their drugs. *Some kids (or spouses) take care of their parent (or spouse) and charge for it and their siblings (or stepchildren) think they should be doing it for free, and not eating up their inheritance *Some Circuit Judges and PI lawyers do not follow the requirements of MCR 2.420(B)(3) that the Probate Judge verify, in writing, the sufficiency and proper filing of the bond of a conservator before settling a PI case. V. OUT-OF-STATE GUARDIAN AND CONSERVATOR TRANSFERS * 2012 PA 545 and ADM File { See Copies Provided} * Note that the amendments cover Minor Guardianships, LII Guardianships and Conservatorships. * Allows a Guardian or Conservator from another state to obtain immediate appointment as a Temporary Guardian or Conservator in Michigan by filing an Application for Appointment, authenticated copy of the appointment in the other state and an Acceptance of Appointment in our local court. * The Temporary Appointment lasts for 28 days. * The Guardian or Conservator so appointed then must give notice to all interested persons of the appointment within 14 days from the issuance of the Temporary Order. * The amended Court Rules in ADM define interested persons for each kind of case. * If objection is filed, the appointment continues unless a court of this state enters an order removing the guardian or conservator. * Note that the legislation also amends the LII priorities statute (MCL ) to give first priority for appointment as a guardian a person appointed in some other state. too soon to tell It is curious, however, that the statute does not require a court to convene a hearing to review the objection. Is it treated like a petition to remove a guardian procedurally? Neither the statute nor the new Court Rules address the process. VI. AND PROTECTIVE ORDERS Page 15 of 17

17 A. Petition may be filed by { See Pleading Packet IV } *The individual to be protected *A Aperson who is interested in the individual=s estate, affairs or welfare, including a parent, guardian or or *A Aperson who would be adversely affected by the lack of effective management of the individual=s property and business (5404(1)) B. The Guardian ad Litem *May be appointed if the individual is a minor and the court believes his or her interests are inadequately represented; GAL for minor must be an attorney. (5406(1)) *Must be appointed unless individual has Achosen or the petition is a 5401(4) Arequested (5406(2)) *GAL must consider alternatives to conservatorship, limits on conservator=s authority, and report to the court. (5406(4)) *Note that if the conservator will share in a settlement, the GAL consent to the settlement. ( MCR 5.407) *Adequate GAL performance of duties C. The Hearing (5406(2)) *If the petition is based on one of the statutory grounds that challenge competency, the court may direct a medical exam and report, or send a visitor to interview the LII. *The alleged LII has the right to secure an independent evaluation at his or her own expense *The individual subject to the petition has a right to be present *Right to a jury trial *Standard of proof is clear and convincing evidence *Notice must be given to - Individual to be protected if 14 or older -Presumptive heirs of the individual to be protected ( note this catches both parents) -A known attorney-in-fact under a durable power of attorney -The nominated conservator -A governmental agency paying benefits or to which an application for benefits has been filed. (MCR 5.125(24)) *Doctors unfamiliar with the process who raise HIPAA concerns *Counsel for alleged LII in contested cases who request a full geriatric assessment at public expense Page 16 of 17

18 D. Legal Standards * Reasons to enter a Protective Order -AUnable to manage property and business affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic alcoholism, confinement, detention by a foreign power, or or -Aproperty will be wasted or dissipated unless proper management is or -Amoney is needed for the individual=s support, care or welfare or for those entitled to the individual=s support, and that protection is necessary to obtain or provide or -Aan individual who is mentally competent, but due to age or physical infirmity is unable to manage his or her property and affairs effectively and who, recognizing this disability, requests a conservator=s *What is effective and proper use of money by Dad may seem to be waste and dissipation to the kids E. Why a Protective Order? *Statutory preference for the least-obtrusive option in the individual=s affairs, maintain maximum level of autonomy, self-reliance and independence (5407) *Helpful option for single transactions, or as a mechanism to facilitate a less-formal protective arrangement (e.g., establish a trust) (5408) *Court has broad authority to achieve these goals; may -authorize, direct or ratify a transaction -authorize virtually any form of transaction in property -approve contracts for care, annuities, training and education -adding to or establishing a trust *Watch out for notice to proper parties; because a protective order may be limited in the request for action, attorney may gloss over the interested parties that need to be given notice *Often a vehicle for Medicaid qualification planning; how closely should the court review these for fraud on the federal and state fisc? Page 17 of 17

19 PLEADING LIST I STATE COURT ADMINISTRATIVE OFFICE FORMS FOR MINOR GUARDIANSHIP PROCEEDINGS ********************************************** PC Petition for Appointment of Limited Guardian of Minor PC Petition for Appointment of Guardian of Minor PC Limited Guardianship Placement Plan PC Order Regarding Appointment of Guardian/Limited Guardian of a Minor PC Annual Report of Guardian on Condition of Minor PC Report for Court Review of Minor Guardianship PC Petition to Terminate or Modify Guardianship PC 638a - Order Regarding Appointment of Guardian for Minor or LII/Conservator PC Order Following Hearing on Status of Minor Guardianship PC Order Following Hearing to Terminate Minor Guardianship PC Acceptance of Appointment PC Letters of Guardianship PC Minor Guardianship Social History PC Notice of Appointment of Temporary Guardian for Minor and of Right to Object PC 685 Application and Order for Appointment of Out-of-State Guardian of Legally Incapacitated Individual

20 PLEADING LIST II STATE COURT ADMINISTRATIVE OFFICE FORMS FOR ADULT GUARDIANSHIP PROCEEDINGS ********************************************** PC 625 PC 626 PC 642 PC 627 PC 628 PC 631 PC 632 PC 633 PC 634 PC 635 PC 636 PC 637 PC 675 PC 638a PC 571 Petition for Appointment of Guardian of Incapacitated Individual w/attached Instructions for Completing Notice to Alleged Incapacitated Individual on Petition to Appoint Guardian Order Appointing Guardian ad Litem/Attorney/Lawyer-Guardian a Litem Acceptance of Appointment and Report of Guardian ad Litem of Alleged Incapacitated Individual Order Appointing Attorney Order Regarding Appointment of Guardian of Incapacitated Individual Order Appointing Temporary Guardian of Incapacitated Individual Letters of Guardianship Annual Report of Guardian on Condition of Legally Incapacitated Individual Order Appointing Person to Review/Investigate Guardianship Report on Review of Guardianship of Legally Incapacitated Individual Order Following Review of Guardianship Petition to Terminate or Modify Guardianship Order Regarding Termination/Modification of Guardian for Minor/LII/Conservator Acceptance of Appointment

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