Guardianship and Surrogate Decisionmaking

WHAT IS GUARDIANSHIP AND WHAT WILL IT MEAN FOR ME IF I HAVE A GUARDIAN?[1]

Guardianship is when a probate court appoints a guardian to have legal authority over someone’s care, custody, and control.  A guardianship takes legal authority and decisionmaking away from an individual and gives it to his or her guardian.  

Most guardianships are full guardianships, which means that the guardian has legal authority over all of the person’s rights and decisions regarding care, custody, and control.  This includes authority to decide where the person lives, what personal care and medical treatment the person gets, what training and/or education the person gets, and how the person is treated at the end of his or her life.  If the person doesn’t have a conservator (read more about conservatorship below), the guardian has the legal authority to handle some of the person’s financial affairs. 

Sometimes the court will establish a limited guardianship, where the court specifies the things that the guardian has legal authority over.  In a limited guardianship, the guardian can only exercise the authority spelled out in the guardianship order.

A guardianship gives the guardian authority over someone’s care, custody, and control.  A conservatorship gives a conservator authority over someone’s financial affairs.  This includes authority to handle the person’s money, bills, and bank accounts; manage, buy, or sell the person’s property; and enter into contracts for the person. 

A person might have only a guardian or a conservator, or he or she might have a guardian and a conservator.  A person can have one person who is his or her guardian and one person who is his or her conservator, or he or she can have one person who acts as both a guardian and a conservator. 

The information on this page focuses on guardianship, not conservatorship.  For more information on conservatorship, see the statute governing conservatorship in Michigan: MCL §§ 700.5401 - 700.5433.

WHEN CAN THE COURT APPOINT A GUARDIAN FOR ME?[2]

The court is only allowed to appoint a guardian for you if the judge finds by clear and convincing evidence that you are “incapacitated” and that appointing a guardian for you is necessary to provide continuing care and supervision of you. 

Clear and convincing evidence is a higher standard that the person petitioning for guardianship has to meet than in most other types of cases; the judge needs to be shown pretty strong evidence that you are incapacitated and need a guardian.

For the judge to find that you are incapacitated, he or she has to find that you don’t have enough understanding or capacity to make or communicate informed decisions because of mental illness, mental deficiency, physical illness or disability, chronic drug use, chronic intoxication, or for some other reason.[3]

If there is clear and convincing evidence that you are incapacitated but are able to do some of the things necessary to take care of yourself, the court can appoint a limited guardian for you, but is not allowed to appoint a full guardian.  A full guardian has complete authority over you, but a limited guardian only has authority over the specific things that the judge gives the guardian authority over.  However, many clients have reported that their judges appointed a full guardian even when they thought they only needed a limited guardian.

If the court appoints a guardian for you:

• The court should only give the guardian the powers necessary to provide for your needs, and only for the amount of time necessary to do so.
• The court is supposed to design your guardianship “to encourage the development of maximum self-reliance and independence in the individual.”

If the court knows that you signed a patient advocate designation (a durable power of attorney for health care), the court should not give a guardian any of the powers that you gave to your patient advocate.  However, if the court finds that the patient advocate designation wasn’t done properly, that your patient advocate isn’t complying with the terms of the designation or with the law, or that your patient advocate isn’t acting in your best interest, the court can change the guardianship order to give the powers that the patient advocate had to your guardian.

Under limited circumstances, the court may be able to act as your guardian or appoint a temporary guardian for you.[4]

If:

1. You do not have a guardian; and
2. There is an emergency; and
3. There doesn’t seem to be anyone who has the authority to act in the circumstances; and
4. There is a showing that you are incapacitated…

• The court can act as your guardian or appoint a temporary guardian for you. 
  • If the court appoints a temporary guardian, that guardian will only have the powers and only for as long as ordered by the court.  The court has to give you notice and hold a hearing before it can act as your guardian or appoint a temporary guardian for you under these circumstances.  Then, within 28 days of acting as your guardian or appointing a temporary guardian for you, the court has to hold a full, regular hearing like the one described below under “How Does the Process for Appointing a Guardian For Me Work?”.

If:

1. You already have a guardian; and
2. Your guardian isn’t performing his or her duties effectively; and
3. The court finds that your welfare requires immediate action…

• The court can appoint a temporary guardian for you, but not for longer than six months. 
  • While you have a temporary guardian, your original guardian doesn’t have any authority over you or your affairs.

ARE THERE ALTERNATIVES TO GUARDIANSHIP?

Depending on your needs and circumstances, there are several alternatives to a guardianship that you might prefer and that may be more appropriate for your situation.  If that is the case, you should talk with your lawyer, your guardian ad litem, the person petitioning for guardianship of you, and/or the judge in your guardianship case about using one of these alternatives instead of a guardianship.

As discussed above, the court is only allowed to appoint a guardian for you if you are “incapacitated” and appointing a guardian is necessary to provide continuing care and supervision of you.  If there is an alternative to guardianship that makes a guardianship unnecessary to provide continuing care and supervision of you, the court shouldn’t appoint a guardian for you.

In addition, if you have a guardian ad litem, he or she is supposed to make a determination regarding and inform the court if there are appropriate alternatives to the appointment of a full guardian for you.  Your guardian ad litem is supposed to consider a number of options, including the execution of a patient advocate designation and the execution of a durable power of attorney.[5]

So not only are there alternatives to guardianship, if any of these alternatives are available to and appropriate for you, the court and your guardian ad litem (if you have one) must, at a minimum, seriously consider them.

Durable Power of Attorney

A power of attorney is a document in which you give someone else (your “agent”) the power to handle some or all of your affairs.  A durable power of attorney (sometimes abbreviated “DPOA”) stays in effect if and when you become incapacitated. 

A durable power of attorney can be a good alternative to guardianship, because it can make sure there is someone to handle your affairs when you are incapacitated, which is what a guardian would do.  However, you need to have capacity to execute a durable power of attorney, so it wouldn’t work as an alternative to guardianship if you’re already incapacitated. 

If you want to execute a durable power of attorney, you get to decide the following things:

• Who to appoint as your agent
• Which powers you want your agent to have
• Whether you want your agent to have authority to handle your affairs starting when you sign the document, or starting if and when you become incapacitated

While a durable power of attorney can help make sure your wishes are honored if and when you lose capacity and can be a good alternative to guardianship, a durable power of attorney can also be used to abuse or exploit you.  Therefore, it is important that you only appoint someone as your agent under a durable power of attorney whom you trust completely.

As mentioned above, you can choose which and how many powers to give to your agent.  But keep in mind that if the durable power of attorney really limits your agent’s authority, a court may find that there is no one with authority to make certain decisions for you and that you therefore still need a guardian.

After you execute a durable power of attorney, you can revoke (cancel) it at any time, as long as you still have capacity.  This means that if you later decide that you don’t want the person you named as your agent to be your agent anymore, you don’t want your agent to have certain authorities, and/or you don’t want to have a durable power of attorney at all, you can revoke the durable power of attorney and execute a new one if you want to (as long as you still have capacity). 

Patient Advocate Designation[6]

There are many different terms for the document in which you can appoint someone to make medical treatment and related personal care decisions for you, including:

• Patient advocate designation
• Durable power of attorney for health care
• Health care proxy

Patient Advocate Designations are the only legal documents in Michigan by which you can designate someone else to make medical treatment decisions for you.  A financial durable power of attorney doesn’t give the agent you named in that document the power to make medical treatment decisions for you.[7]  On the flip side, a patient advocate designation doesn’t give the person you designate general power to handle all of your property and finances (although you can give your patient advocate power to arrange for medical and personal care services for you and pay for those services using your funds).  If you want to designate someone to handle your property and financial decisions if and when you can’t do so yourself, you should explore creating a durable power of attorney for finances.[8]

If you are of “sound mind,” you can designate someone to be your patient advocate who can exercise powers concerning your care, custody, and medical or mental health treatment decisions when you can’t participate in making medical or mental health treatment decisions yourself.  For example[9], you can decide to designate your patient advocate to make some or all of the following decisions for you:

• Consent to medical treatment
• Refuse medical treatment
• Sign a Do-Not-Resuscitate Order
• Arrange for mental health treatment
• Arrange for home health care
• Arrange for adult day care
• Admit you to a hospital
• Admit you to a nursing home or home for the aged
• Arrange for medical and personal care services and pay for those services using your funds
• Make a gift of your organs or your body when you die

You can pick anyone you want to be your patient advocate, as long as this person is at least 18 years old.  Since this person may be making important health care decisions for you, and maybe even life and death decisions, you should appoint someone whom you trust completely. 

There is no “magic” patient advocate designation form that you have to use.  You can write out your own document or have a lawyer draft one for you, or there are some organizations that provide different, free forms that you can fill out yourself; here is an example of a form you can print and fill in yourself (see p. 28-46). 

Whatever format you put your designation in, there are some requirements that have to be met for your designation to be effective: 

• It has to be in writing.
• You have to sign it.
• It has to be dated.
• You have to be making the designation of your own free will and not under duress, fraud, or undue influence. 
• You have to understand that you’re giving another person the power to make certain decisions for you if and when you aren’t able to make them for yourself.
• You have to sign the document with two witnesses present, and the witnesses also have to sign the document.  Neither of the witnesses can be your spouse, parent, child, grandchild, sibling, someone who is going to inherit from you, your doctor, the person you are appointing as your patient advocate, or an employee of your life or health insurance company, a health facility that is treating you, a home for the aged where you live, or a community mental health services program or hospital that is providing mental health services to you.

Before its implementation, the designation has to be made a part of your medical record with the health care professionals or facilities that are providing treatment to you.

You can customize your patient advocate designation.  You can:

• Choose which powers you want your patient advocate to be able to exercise.
• Include a statement in the designation about what you want for your care, custody, and medical or mental health treatment.  There are certain mental health treatment decisions that your patient advocate will be able to make only if you’ve specifically given him or her that authority. 
• Include a statement about your wishes about donating your organs and/or body. 
• Designate a successor patient advocate, who will be your patient advocate if at any time the first person you named for some reason can’t or doesn’t want to be your patient advocate.

The patient advocate designation must include a statement that the authority conferred under this section is exercisable only when the patient is unable to participate in medical or mental health treatment decisions, as applicable. 

Before the designation goes into effect, you have to give a copy of the designation to the person you picked to be your patient advocate.  That person has to sign an acceptance of the patient advocate designation.  By law, that acceptance has to include 10 statements about the patient advocate designation.  You can see a sample acceptance that includes these statements here (at p. 36-37).

The patient advocate is only allowed to exercise the authority that you gave him or her in the designation.  He or she has to act like a fiduciary – that is, in a trustworthy way with only the things you have said you want and/or your best interests in mind.

Once you have created the patient advocate designation, you can revoke it at any time, even if doctors have found that you are unable to participate in treatment decisions.  If you included in the original designation that you waived your right to revoke the designation regarding the power to make mental health treatment decisions, you can still revoke the designation, but your ability to revoke as to certain treatment will be delayed for 30 days after you communicate that you want to revoke.

As explained above, the patient advocate can only act for you when you can’t participate in making medical or mental health treatment decisions.  Usually your doctor and another doctor or psychologist will examine you and decide whether you can or cannot participate in these decisions.  They have to review their decision at least once a year. 

Your patient advocate can only make mental health treatment decisions for you if a doctor and a mental health practitioner examine you and both certify that you can’t give informed consent to mental health treatment.  You can specify in the document containing the patient advocate designation which doctor and/or mental health practitioner you want to make this decision.  If either of them can’t or won’t examine you and make this decision within a reasonable time, another doctor and/or mental health practitioner will do so. 

When you’ve given your patient advocate the authority to donate your organs or body, he or she can only act after you’ve been declared unable to participate in medical treatment decisions by your doctor and another doctor or psychologist, or after you’ve been declared dead by a doctor.

The patient advocate designation will be suspended when you’re able to participate in treatment decisions again, and will only go back into effect if and when you’re no longer able to participate in treatment decisions again.

Your patient advocate can’t give his or her powers to another person unless you’ve given him or her the authority to do so.

If you make any spoken wish to have a specific life-extending treatment provided, that wish must be honored at the time by a patient advocate, even if the wish contradicts a written directive.[10]

If the court knows that you signed a patient advocate designation, the court should generally not give a guardian any of the powers that you gave to your patient advocate. 

HOW DOES THE PROCESS FOR APPOINTING A GUARDIAN WORK?[11]

If someone wants to become your guardian, they have to file a petition for guardianship with the probate court.  You have to be personally served with a notice of hearing informing you that there is going to be a hearing on the petition for guardianship.  The notice has to tell you the nature, purpose, and legal effects of having a guardian appointed for you.  The notice also has to tell you what your rights are during the guardianship proceeding, including your right to have a lawyer appointed for you.   A copy of the petition for guardianship has to be included with the hearing notice.  You have a right to contest the petition for guardianship.

Before the hearing, the court may order that you be examined by a doctor or mental health professional.  The person evaluating you will write a report about your health, conditions, and abilities and give it to the court before your hearing.  You and the person petitioning for your guardianship are allowed to see a copy of it.  You have a right to have someone else perform an independent evaluation of your capacity.  If the court decides that you can’t afford to pay for an independent evaluation, the state will pay for it for you.

You have a right to be at the hearing.  The hearing usually has to be held in the place where you live or are present.  If it is hard for you to get to the courthouse where the hearing is being held, the court has to take all practical steps to make sure you are at the hearing, including moving the hearing to a place that is easier for you to get to if necessary.  However, lawyers sometimes encounter difficulty when they ask to have hearings moved to places that are more convenient for their clients.  You also have a right to see or hear all of the evidence that is presented in the hearing.

You have a right to a lawyer of your own choice during the guardianship hearing.  If you can’t afford to hire your own lawyer, you have the right to request that the court appoint a lawyer for you and pay for that lawyer.  In some situations, the judge will appoint a lawyer for you even if you don’t request or want one.  But a lot of the time clients report that their judges won’t appoint lawyers for them on their own or even ask them if they want a lawyer.  So if you want a lawyer, you should make sure to ask for one.

During the hearing, you have a right to present evidence showing why you aren’t “incapacitated,” why you don’t need a guardian, why the person petitioning to be your guardian shouldn’t be allowed to be your guardian, or any other evidence that is relevant to the guardianship petition.  You can testify in the hearing, have other witnesses testify on your behalf, and introduce documents or medical records.  You are allowed to cross-examine any other witnesses at the hearing, including the court-appointed doctor or mental health professional and the visitor.  You have the right to request limits on the guardian’s powers if one is appointed, and you have the right to object to a particular person being appointed as your guardian.  Even though judges are all relying on the same statute, practices in guardianship hearings differ from court to court.

Most guardianship hearings are in front of a judge, and the judge decides whether or not to appoint a guardian for you.  However, you have the right to a trial by a jury, where the jury will decide if you are incapacitated and need a guardian.

Sometimes the court will appoint someone called a guardian ad litem (sometimes called a GAL) for you.  The guardian ad litem is supposed to visit you in person and explain to you the reason that a guardian would be appointed and what that would mean for you, and tell you who is trying to become your guardian.  The guardian ad litem is also supposed to explain to you how the guardianship hearing will work and what rights you have in the hearing.  The guardian ad litem has to decide and then tell the court a few things, including whether there are alternatives to appointing a full guardian that would be appropriate, whether there are things that should be done in addition to appointing a guardian for you, and whether there is a dispute about the guardianship petition that could be resolved through mediation.  The guardian ad litem also has to make determinations about what you want and then tell the court, including whether you want to be present at the hearing, whether you want to contest the petition and argue that you don’t need a guardian, whether you want limits placed on the guardian’s powers, whether you object to having a do-not-resuscitate (DNR) order executed on your behalf, and whether you object to a particular person being appointed as your guardian.  Sometimes once the court appoints a lawyer for you, the guardian ad litem will stop working on your case.

Sometimes the court will appoint someone called a visitor to your case.  This is someone trained in law, nursing, or social work.  He or she works for the court and has no personal interest in the proceeding.[12]

WHO WILL BE APPOINTED AS MY GUARDIAN?

There are two main types of guardians: family guardians and corporate guardians. 

• A family guardian doesn’t necessarily have to be related to you, but this person is someone that you know well, like a family member or close friend.
• A corporate guardian is someone who makes his or her living by being people’s guardian.  There are private corporate guardians, who work for private companies or agencies, and there are public corporate guardians, who work for a state agency or have a contract with the state.  If you are going to have a corporate guardian and don’t have a lot of money to pay someone to be your guardian, you will probably have a public guardian who will be paid by the state.

While different courts have different practices, when deciding who to appoint as your guardian, the court is supposed to appoint a willing and suitable person in the following order[13]:

1. A person who was already appointed your guardian in another state (if he or she is qualified and has been a good guardian)
2. A person that you choose to be your guardian
3. A person you nominated as your guardian in a durable power of attorney or some other document
4. A person you named as your patient advocate or attorney in fact in a durable power of attorney
5. Your spouse (or someone your spouse nominated in writing before he or she died)
6. Your adult child
7. Your parent (or someone your parent nominated in writing before he or she died)
8. Your relative with whom you’ve lived for more than 6 months before the guardianship petition was filed
9. A person nominated by someone who is caring for you or paying benefits to you
10. Any competent person who is suitable and willing to serve, including a professional guardian

WHAT IS MY GUARDIAN SUPPOSED TO DO AND HOW IS HE OR SHE SUPPOSED TO ACT?[14]

Your guardian has a fiduciary relationship with you.  This means that your guardian is in a position of trust and therefore has to act in a trustworthy way with only your best interests in mind.  Your guardian is not allowed to use his or her authority to do things just because they help him or her or someone other than you – he or she has to use this authority to do what is best for you.

Your guardian’s duties and responsibilities come from the guardianship order that the judge issued when he or she appointed your guardian.  You should look at that order for information specific to your situation, but usually in a full guardianship your guardian has the duties and responsibilities that are discussed here.

Your guardian has a duty to provide for your “care, comfort, and maintenance.”  He or she has to arrange for services for you that will bring you back “to the best possible state of mental and physical well-being” so you can go back to caring for yourself and handling your own affairs as soon as possible.  When it is appropriate, your guardian has a duty to arrange for training and education for you.  If you have a professional guardian, he or she has to make sure there are enough people working with him or her so that they are doing all the things they have to do to make sure you get proper and appropriate care. 

Your guardian is supposed to consult with you before making a major decision that affects you, if it is possible for your guardian to have “meaningful communication” with you.  And your guardian is supposed to visit you at least once every three months (although if you have a professional guardian, someone the guardian works with can visit you at least every three months instead of the guardian him or herself).

Your guardian has to take care of your personal possessions, but he or she is not allowed to sell them or any property that you own without some additional authority or permission from the court.  If your guardian has some control over your money, he or she has to be careful to save any leftover money for your needs.

Your guardian can execute a do-not-resuscitate (DNR) order for you, but only if he visits and consults with you about it (if meaningful communication is possible) and consults with your doctor about why this order is appropriate for you.  After your guardian has put in place the do-not-resuscitate order, at least once a year he has to consult with you and your doctor again about reaffirming the order.

At least once a year, your guardian is supposed to report to the court about your condition and any of your money or property that the guardian has control over.  The guardian has to put this report in writing and give it to you, the court, and other people that are interested in your well-being.  The report has to:

• Talk about your mental, physical, and social condition and any changes in your condition over the last year 
• Explain your living arrangement, any changes to it over the last year, and whether your guardian recommends a better living arrangement for you
• State the services and medical treatments you have gotten
• State whether your guardian has signed a do-not-resuscitate order for you over the last year
• List all of the guardian’s visits with you and other things that he or she has done on your behalf. 
• Include a recommendation as to whether you still need a guardian. 

Apart from this report, the guardian has to tell the court within 14 days if you or your guardian move.

WHAT CAN I DO IF I'M HAVING PROBLEMS WITH MY GUARDIAN?

There are a number of things you can do if you’re having problems with your guardian.  These are just some suggestions; not all of them will make sense in all situations.  You know the details of your situation better than anyone and should do what makes the most sense and feels most comfortable to you.  Before deciding to take action, think about if that action might put you at risk in some way.

In some situations, you might be able to resolve your problems by talking to your guardian about the problems.  Maybe your guardian doesn’t know that you are having problems with him or her, or your guardian will work with you to fix the problems if he or she knows that you’re concerned about them. 

In some situations, you might be able to resolve your problems by getting someone else involved.  This person might be able to talk to your guardian for you, or work with you to talk to your guardian.  Here are some people who might be able to help you resolve problems you’re having with your guardian:

• An attorney
• A family member or close friend who you trust
• Your caregiver
• If you live in a nursing home or assisted living facility, a social worker or someone else who works at your facility
• If you live in a nursing home, home for the aged, or adult foster care home, a long-term care ombudsman

If you don’t think you can or you don’t want to resolve the problems you’ve having with your guardian, you can petition to modify your guardianship and have a new guardian appointed for you, or petition to terminate your guardianship if you think you no longer need a guardian.  (You can read more about petitioning to modify or terminate your guardianship below at “Once a Guardian Is Appointed for Me, Is He or She My Guardian Forever?.”) 

Here are some things to think about when considering petitioning to modify or terminate your guardianship (some of the people listed above may be able to provide you with more information and/or help you think about these things):

• Have your needs or conditions changed such that a judge might find that you are no longer “incapacitated” and don’t need a guardian anymore?
• Is there someone else who you would rather have as your guardian?
• If so, how likely is the court to agree to appoint this person?
• If the court agrees to appoint a new guardian, who is the court likely to appoint?  Would you prefer this person to your current guardian?
• How likely is the court to grant a petition to modify or terminate your guardianship?
• Did the court appoint your guardian less than 6 months ago?  (If so, you may have to get special permission from the court to petition to modify or terminate the guardianship.  You can read more about this below.)
• Are you physically and emotionally up for another guardianship hearing?

ONCE A GUARDIAN IS APPOINTED FOR ME, IS HE OR SHE MY GUARDIAN FOREVER?

The short answer is no, the person who was appointed to be your guardian won’t necessarily be your guardian forever.  But it can sometimes be hard to get a different guardian or cancel the guardianship altogether once it has been established.

The court is supposed to review your guardianship within one year of appointing the guardian, and then at least every three years after that.[15]  You have the right to a hearing and to have an attorney appointed for you if any issues come up during the review of your guardianship.[16]

You or anyone else who is looking out for you can petition the court to change the guardianship.  You or someone else can ask that the court remove your guardian, appoint a different guardian, change the details of your guardianship, or end your guardianship altogether. You can ask the court to do this in just an informal letter to the court or judge.  However, sometimes the first order that the court issued appointing a guardian for you says that there is a certain period of time (which can’t be more than 182 days) after that order where you can’t ask to change or end your guardianship without special permission from the court.[17] 

Usually once someone asks the court to review, change, or end your guardianship, the court is supposed to have a hearing about it within 28 days.[18]  A notice has to be given to you and your guardian.[19]  Before the hearing, the court might send a visitor to your guardian’s home and to the place where you live to see how the guardianship is working and write a report about it for the court.[20]

You have the same rights and protections during the hearing about whether to change or end your guardianship as you did during the original hearing when your guardian was first appointed.[21]  

RESOURCES

Resources on Guardianship

• Michigan guardianship law, MCL §§700.5301 – 700.5319.     

• A Model Code of Ethics for Guardians.  National Guardianship Association.  

• Standards of Practice.  National Guardianship Association.  

Resources on Alternatives to Guardianship

• Consumer’s Toolkit for Health Care Advance Planning.  American Bar Association. 

  • An online toolkit for consumers; examples of the tools included are: how to select a health care agent or proxy, how to weigh odds of survival, personal priorities and spiritual values important to one’s medical decisions, a proxy quiz for family and physician, and what to do after signing an advance directive.

• Legal Tools to Avoid Guardianship.  American Bar Association and National Consumer Law Center.  

  • A PowerPoint presentation that discusses various alternatives to guardianship, including the advantages and disadvantages and types of abuse associated with some of the alternatives.