Dolores M. Coulter

Attorney at Law

8341 Office Park Dr. Ste C

Grand Blanc, MI 48439

Phone:  (810) 603-0801

 Email: coulterdm@sbcglobal.net

 

 

Guardian and Conservator

Dolores M. Coulter © May 2008 

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Q:   What happens if the court appoints a guardian and conservator for someone?  Does that mean that the person no longer has any right to make their own decisions?

A guardian is a person who is appointed by the Probate Court to make personal decisions for another individual after the Court has made a finding that the individual lacks the capacity or understanding to make informed decisions.  A conservator is a person appointed by the Probate Court to manage the financial affairs or property of another individual after the Court has made a finding that the individual is unable to manage his/her finances or property effectively.  In both cases the Probate Court must also make a finding that the guardianship or conservatorship is necessary and that there is not a less restrictive means of protecting the individualís interests.  The same person may be appointed as guardian and conservator.  In many cases a family member or close friend is appointed.  However if there is no suitable or willing family member or friend the Court will appoint a third party, such a non-profit agency or an attorney.

The appointment of a guardian or conservator results in a drastic restriction of the personís right to make their own decisions.  A guardian has the right to choose heath care providers and consent to treatment, decide where the person will live, and arrange for social services.  A conservator takes over management of the personís finances and property.  A guardian cannot limit the personís access to the courts or to seeking help from attorneys or law enforcement.  A guardian should not limit the personís access to visitors unless the visitor poses a risk and should not limit access to religious services or to private communications. 

There are detailed procedures that must be followed before a guardian or conservator can be appointed.  These procedures are meant to assure that the person who is the subject of the proceeding has a fair opportunity to contest the petition if he/she wishes to do so and to avoid unnecessary guardianships or conservatorships.  Anyone who is concerned with the personís welfare may file a petition with the Probate Court requesting appointment of a guardian or conservator.  In many cases, the petitioner is a family member or close friend, but in some instances a social worker or Adult Protective Services worker will file the petition.  The petition must include specific facts about the personís condition and examples of recent conduct that show the need for a guardian or conservator.  The Court also requires that a doctorís statement be attached explaining why the person needs a conservator or guardian. 

When the petition is filed the Court will set a hearing date and give the petitioner instructions on serving copies on the interested persons. In an emergency situation, such as the need to have someone authorize immediate medical treatment, the Court can appoint a temporary guardian.  If necessary the order can be entered the same day that the petition is filed.  The Court will also appoint a guardian ad litem on behalf of the person who is the subject of the petition.  The guardian ad litem will meet with the person, explain the petition, advise the person of his/her right to contest any aspect of the petition, the right to be present at the hearing, the right to be represented by an attorney,  and the right to a court-appointed attorney if the person cannot afford to retain an attorney.  The guardian ad litem will file a report and recommendation with the Court.  At the hearing the judge will listen to all of the evidence and make a decision.  If the judge decides to appoint a conservator the judge will order the conservator to post a bond, except in limited circumstances, or require that liquid assets be placed in a restricted account, before the conservator can assume control of the personís assets.  The order will also stipulate that the conservator must obtain Probate Court approval prior to selling  real estate.

A person who is appointed as guardian or conservator takes on important legal responsibilities.  The guardian or conservator must act in the best interests of the person and must use the personís money and property strictly for that personís benefit.  The guardian or conservator must keep  good records related to his/her management of the person's income and property, such as copies of bank statements and other financial accounts and records of any sale or purchase of assets,  and must be able to account for  all  monies received and expenses paid.   A guardian or conservator who takes the personís money or property and uses it for his/her personal benefit is violating the law and risks civil or criminal prosecution.

The guardian must file an annual report with the Probate Court that includes information on the personís living situation, medical treatment, social services received, visits by the guardian, and a recommendation as to the need for continuation of the guardianship.  A conservator must also file an annual account. The account must list all income and other assets received on the personís behalf during that year, expenditures, and the assets remaining at the end of the year, with copies of statements verifying the balances in all financial accounts.  If a guardian has control of any of the ward's money some probate courts, including Genesee County, also require the guardian file an annual account.  The Probate Court will schedule a hearing for approval of the account by the probate judge.

The job of a guardian or conservator can be difficult and time consuming, but for those family members, friends, or others in our community who can no longer care for themselves, a conscientious guardian or conservator can make a critical difference in their well being and quality of life. 

 

 

 

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