What is a guardian and conservator?
A conservator is a person appointed by the Probate Court to manage the financial affairs or property of an individual who is unable to manage his/her finances or property effectively.
A guardian is a person who is appointed by the Probate Court to make personal decisions for an individual who lacks the capacity or understanding to make those decisions. If no conservator has been appointed, the guardian also has the authority to manage the
Who might need a guardian?
An individual who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other condition to the extent that the
individual lacks sufficient understanding or capacity to make or communicate informed decisions concerning his/her person may need a guardian.
Who might need a conservator?
An individual who is unable to manage his/her property or financial affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance, may need a conservator where the
individual has property that will be wasted or dissipated unless proper management is provided or where money is needed for the
individualís [or his/her dependentsí] support and legal intervention is necessary or desirable in order to provide the money. A conservator may also be appointed for an
individual who is mentally competent but unable to manage his/her financial affairs effectively due to age or physical disability where the
individual recognizes the disability and requests the appointment.
Who may petition the Probate Court for appointment of a guardian or conservator?
Anyone who is concerned with the welfare of an
individual may petition the
Probate Court for appointment of a guardian. Anyone who is interested in an individualís financial affairs or welfare, including the
individualís parent, guardian, custodian, or a creditor, may petition the
Probate Court for appointment of a conservator.
Who may be appointed as guardian or conservator?
The law requires the
Probate Court to follow an order of preference in deciding whom to appoint as guardian or conservator.
Unless there is a person appointed by a court in another state and currently
serving as guardian or conservator, the first priority is
person named by the individual who is the subject of the petition. The
second priority is a person nominated as guardian or conservator in a power of attorney
document or other writing.
The third priority is a person designated as a patient advocate or financial
power of attorney. The next priority is a spouse, followed by adult children. The Court can skip
over a person with higher preference if that person is not suitable. The
same person may be appointed as guardian and conservator. If an individual
resides in another state but has property in Michigan that requires management
and a conservator was appointed by a court in the individual's home state, that
conservator can be appointed by a probate court in Michigan to manage the
Michigan property by filing a certified copy of the letters of appointment from
the court in the individual's home state and serving notice to interested
Where and how is a petition filed?
Forms are available from the Probate Court Clerkís office which is located on the fifth floor of the Genesee County Courthouse, 900 S. Saginaw Street, Flint. A petition for guardianship must contain specific facts about the individualís condition and specific examples of recent conduct that show the need for a guardianship. It should be accompanied by a
physician's statement explaining why the individual meets the criteria for guardianship. A petition for conservatorship must contain a general description of the individualís property, including estimated values, and sources of income, and should also be accompanied by a
physician's statement explaining the need for a conservator.
What happens after the petition is filed?
After the completed petition and supporting documentation is filed the
court will set a hearing date. It will then be the petitionerís responsibility to serve notice of the hearing on all interested persons. The notice must be served 14 days prior to the hearing if it is mailed or 7 days prior to the hearing if it is personally served.
The individual who is the subject of the petition must be personally served. A proof of service must be filed with the Court prior to the hearing date.
The Court will appoint a guardian ad litem on behalf of the subject of the petition. The guardian ad litem will meet with the individual, explain the petition, advise the individual of his/her right to contest the appointment of a guardian and/or conservator, to request limits on the guardian/conservatorís powers, to object to a particular person being appointed, the right to be present at the hearing, the right to be represented by an attorney at the hearing, and the right to a court-appointed attorney if the individual cannot afford to retain an attorney. The guardian ad litem will prepare a report to the Court describing his/her investigation
and confirming that the individual was advised of his/her rights. The
report may also include a recommendation to the Court on the need for a guardian
and/or conservator. If the individual states to the guardian ad litem or
to the Court that he/she objects to any aspect of the petition or wants to be
represented by an attorney the Court will appoint an attorney.
At the hearing the Court
will decide whether the individual meets the legal definition of an incapacitated individual and,
if so, whether a guardianship is necessary in order to provide continuing care and supervision of the individual. If the Court finds that a full guardianship is not necessary the Court
will order a limited guardianship which will give the guardian specific decision-making authority and allow the individual to make other decisions. A guardian must file an acceptance of
trust after which the Court will issue Letters of Guardianship.
If the Court finds that the
individual is unable to manage his/her property or financial affairs effectively and that legal intervention is necessary the Court will appoint a conservator or enter an appropriate protective order. If a full conservatorship is not necessary the Court will order a limited conservatorship,
which would give the conservator control of specified property and income
sources. In order to protect the assets in the conservatorship
estate the Court will require the conservator to post a bond in an amount determined by the Court
or require that certain accounts be restricted (requiring a court order for any
withdrawals from the account). If a bond is required the Court will not
issue the Letters of Conservatorship until the bond is filed. A
guardian or conservator must obtain prior approval from the Court before selling real
What if there is an emergency need for a guardian or conservator?
In an emergency situation where there is no one who appears to have the authority to act on behalf of an individual or where the appointed guardian or
conservator is not effectively performing his/her duties, the Court can appoint a temporary guardian, special conservator, or enter a protective order. The petitioner must attempt to notify the individual prior to seeking a Court order. If necessary the order can be entered the same day that the petition is filed.
What are the guardian and/or conservatorís responsibilities after appointment?
The guardian must file a written report annually with the Court within
56 days after the anniversary date of the Order appointing the guardian and at other times as may be ordered by the Court. The report details the condition of the ward, the condition of the wardís estate that is subject to the guardianís control, any medical treatment which the ward received during the reporting period, the wardís living arrangements, services received, visits by the guardian, and a recommendation as to the need for continuation of the guardianship.
Some Probate Courts, including Genesee County, also require the guardian to file an annual accounting,
listing all income and other monies received on behalf of the ward during that year, expenditures, and the assets remaining at the end of the year, with copies of statements verifying the balances in bank accounts.
The conservator must file a complete inventory of the wardís assets with the Court within
56 days of appointment. The conservator must also file an annual accounting with the Court.
and conservator should keep the wardís funds in a separate account and keep
receipts for all transactions. The Court may decide to conduct a complete
audit of the ward's account, requiring the guardian or conservator to produce
copies of receipts and other documents to verify the assets and expenses listed
in the accounting.
The failure of a guardian
or conservator to file an annual report or an inventory or annual accounting
can result in suspension of the guardian or conservatorís authority. If
the failure persists the Court can remove the guardian or conservator and
appoint a successor.
Since guardianship and conservatorship proceedings can result in substantial restrictions of an individualís rights and in
the assumption of substantial legal responsibilities by the guardian or conservator it is advisable to consult with an attorney prior to filing a petition.
The information in this brochure is a summary of the law and procedures relating to guardianships and conservatorships as of the date this brochure was written. An attorney will be able to tell you whether there have been any changes since this brochure was written and advise you on how the law applies to your situation. The Court staff can give your general information about Court procedures and forms but cannot give legal advice.