FindLaw KnowledgeBasePublished: 2011-07-29
All families must eventually confront issues about the future of vulnerable loved ones. New parents must consider their preferences for a child’s care as part of the estate planning process, and adult children may be confronting an aging parent’s inability to make medical or care decisions, handle financial details or manage a household.
The appointment of a guardian or conservator under Michigan law provides legal authority to act and make decisions on another person’s behalf. Combined with other legal strategies, a guardianship or conservatorship can create unique solutions customized to circumstances such as a slowly developing illness, the aftermath of major surgery, a debilitating accident or other conditions.
Guardianship and conservatorship are very serious legal steps that receive close scrutiny from Michigan probate courts for an obvious reason: they take away an individual’s rights and freedom. For that reason, it is helpful if the person to be protected can participate in the decision, particularly if he or she has not already detailed relevant wishes in an estate plan.
Differences Between Conservators and Guardians
The concept of guardianship is well understood by most people, particularly in the case of a child who is suddenly left without parents. If a person is a minor or deemed incapacitated in court, a legal guardian can be appointed to take care of their affairs, such as medical and residency decisions. A person subject to a guardianship in Michigan is referred to as a “legally incapacitated individual.” In general, guardians are concerned with the person and their well-being.
A conservator is empowered to handle an individual’s financial matters and make decisions about property and assets owned by a minor or incapacitated person. A person subject to a conservatorship in Michigan is referred to as a “legally protected individual.”
Either or both legal powers can be established with respect to a given individual, and the same person can handle both roles. Particularly if significant assets are involved, a family member is often chosen as the guardian while conservatorship is granted to an attorney or other trusted professional.
In either case, the legal appointment may be permanent and is subject to yearly review by the Michigan probate court. For situations involving temporary incapacity or a lack of legal incapacity, various powers of attorney typically will better serve a family’s needs; however, the option for a guardian or conservator still exists and might even be appropriate in some instances.
Powers of Attorney Under Michigan Law
The one crucial distinction between powers of attorney and formal probate proceedings is the role of the individual who is giving up his or her legal rights. Powers of attorney are granted by that person to someone they trust, not imposed upon them by others. Various powers can be specified and limited in many ways to best serve that person’s needs and wishes.
For instance, an elderly individual who no longer feels up to managing complex assets could grant a durable power of attorney to a son or daughter that authorizes certain types of financial decisions. In the event that the person is suffering an illness and expects to recover, or faces uncertainty following a major surgical procedure, the power can be made temporary. An experienced Michigan estate planning lawyer can craft a power of attorney to achieve virtually any practical solution.
Powers of attorney are also an important part of health care planning. A health care power of attorney (or a patient advocate designation) can be created to designate a certain individual (the patient advocate) to make health care decisions in the event of incapacity. And while Michigan does not expressly recognize a “living will,” many clients use their health care powers of attorney to outline their specific wishes regarding life support and other critical issues.
A Michigan Probate Attorney Can Adapt Solutions to Your Unique Challenges
In some cases, establishment of a trust can be the most effective way to preserve a person’s security and prevent wasting of assets. Like any matter involving complex financial issues, a wide range of factors may have to be taken into account, such as taxation implications, business succession and charitable intentions. A host of options are available, including special needs trusts that can serve an adult child’s needs after the death of his or her parents.
Existing estate planning documents that detail an individual’s wishes are an important part of any incapacity-related legal strategy. In the event that formal guardianship and conservatorship are sought, such expressions of intent can play an important role in the nomination of a conservator or guardian.
A Michigan estate planning attorney can advise you about a range of options regardless of your situation. From trust administration to challenging guardianship proceedings in probate litigation, a dedicated legal professional can help you negotiate the legal thicket and settle on a strategy that meets your goals.