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Aug
22

Should I Petition for Guardianship or Conservatorship and What is really the difference

Many people come to our office confused about the terms Guardian and Conservator so we thought it would be helpful to briefly explain the differences.  Please note that this article refers to Adult guardianship and conservatorship proceedings.  Very different guidelines exist when these issues arise with respect to minors or individuals with developmental disabilities.

First, it is the Probate Court that will have exclusive jurisdiction over both Guardianship and Conservatorship Proceedings and the appropriate Probate Court is the one in which the subject of the Petition resides or is present.

A Guardian is a person who is responsible to make care, placement and treatment decisions for an individual, who qualifies as an incapacitated individual according to Michigan law.  According to Michigan law, an incapacitated individual is someone “who is impaired by reason of mental illness, mental deficiency, physical illness or 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 decisions.” MCL 700.1105

Often times a full Guardianship is issued.  However, in certain circumstances, a Guardianship may be limited or temporary.  It is important to note as well that any individual may file to be appointed Guardian of another person however there are very specific notice requirements and all interested persons along with subject of the Petition do have the opportunity to appear in court or otherwise object to the appointment of that individual or anyone as Guardian.  A Guardian does have the responsibility to file a form with the Probate Court on an annual basis informing it of the individual’s location, health, etc.

A Conservator is a person who is responsible for the finances of an incapacitated individual.  This person will be required to file an inventory of assets and keep very good records of income and expenses to report back to the court on an annual basis.  Often times the Probate Court will require a bond be posted by the Conservator to secure the funds.  Once again the subject of the Petition and all interested parties must be notified that a Petition for Conservatorship has been filed and any of those individuals can object to the appointment.  Much like with Guardianships, a Conservatorship can also be limited to a specific purpose.  While anyone can Petition, State law outlines a priority list for appointment.

This time-consuming, expensive and public process can be avoided through the execution of a Durable Power of Attorney and a Patient Advocate.  Should you be interested in discussing your estate plan or be seeking Guardianship or Conservatorship of an individual, please contact the attorneys at Sprague Law Firm.

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Permanent link to this article: http://www.michigan-elder-law-blog.com/2011/08/should-i-petition-for-guardianship-or-conservatorship-and-what-is-really-the-difference/

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