Who Can Serve as Guardian in Michigan?

Plenty of Michigan residents know a family member or loved one who is experiencing difficulty managing their own care. Oftentimes, these residents want to be able to step up and help that family member or loved one manage their care, but they are met with resistance. Medical facilities will not listen to their input or release medical information to them, housing and care facilities will not allow them to make arrangements for their loved one’s care, and financial institutions will not release any of their loved one’s finances to them to help cover medical and living costs.

Perhaps the best way around this resistance is to seek court appointment as the loved one’s guardian. But when does the court agree that a guardianship is necessary, and who is allowed to serve as guardian? This article is designed to provide a broad overview of the answer to these questions.

What is a guardian?

A guardian is a court-appointed individual who is tasked with managing the needs, care, and control of another person who has been deemed to be legally incapacitated. Guardians must obtain court appointment, and guardians can be “private” entities such as family members, or “public” entities such as employees of a given county’s guardianship program.

When does an individual need a guardian?

Michigan probate courts appoint a guardian for an individual when they determine, at a hearing, that the individual has a qualifying medical or mental health condition, and as a result of that condition, the individual lacks sufficient understanding or capacity to make or communicate informed decisions. Qualifying conditions include, but are not limited to, mental illness, chronic intoxication, mental deficiency, chronic drug use, and physical illness or disability.

Note that while some qualifying condition must be present, the nature of the condition is less important than the effect. The court is most concerned with whether the existence of the  condition prevents or impairs the person’s ability to make or communicate informed decisions. An all-too-common condition that frequently causes this is Alzheimer’s or Dementia. Typically, these patients have significant issues with their memory and cognitive function, and are unable to remember the important medical information necessary to make and communicate informed decisions. This is exactly the type of situation where the court will appoint a guardian to assist the patient in making and communicating those decisions.

When the court determines that an individual has a condition resulting in that individual’s inability to make or communicate informed decisions, the court finds that individual “legally incapacitated” and in need of a guardian. This naturally leads to the second question we will explore: who is allowed to serve as guardian?


Who may serve as guardian of a legally incapacitated individual?

Once the court has determined an individual is legally incapacitated, it will appoint a guardian. The primary concern of the court when selecting who will serve as guardian is “suitability” and “willingness.” Willingness is exactly as it sounds; the person seeking the guardianship must be willing to step into the role of guardian. 

Courts have determined that a “suitable” guardian is one who is qualified and able to provide for the ward’s care, custody, and control, including financial, medical, and social needs.

The central questions a court asks when it comes to suitability are whether the proposed guardian has met these responsibilities in the past or can do so going forward. Therefore, a suitable guardian is one who is responsible and sophisticated enough to manage the care and needs of the legally incapacitated individual. 

It can be important to have legal representation that understands the most effective way to prove an individual’s suitability in court, especially when multiple different parties are competing to serve as an individual’s guardian. This begs one final question: who is appointed when multiple individuals are suitable and willing to be a person’s guardian?

What is the order of priority for appointment of a guardian?

When multiple suitable and willing individuals are competing to serve as a legally incapacitated individual’s guardian, the court will follow the order of priority set by Michigan statute. The order is as follows:

  1. Any person already serving as guardian in good standing in Michigan or another state;

  2. A person nominated by the legally incapacitated individual in a medical power of attorney or other writing;

  3. The relatives of the legally incapacitated individual in the following descending order of priority: spouse, adult child, parent, and any relative with whom the legally incapacitated individual has lived for more than 6 months;

  4. The nominee of the legally incapacitated individual’s caregiver or payor of benefits; and

  5. A public guardian, if nobody is suitable and willing.

It is important to remember that while the order of priority exists to guide the court, the court is not compelled to follow it. The central considerations are suitability and willingness, and if a proposed guardian with greater priority to serve is less suitable, the court has discretion to appoint a proposed guardian of lower priority. Additionally, courts will only appoint a public guardian when no other competent, suitable, and willing person is available to serve as guardian.

Conclusion

Overall, there are several considerations when the court decides who will serve as guardian. The court must find that the vulnerable individual is legally incapacitated, and it must also find that the individual seeking guardianship has priority and is suitable and willing to serve.

It is important to consult with an attorney who is experienced in guardianships and can assist you in preparing the filings and demonstrating the necessary facts to the court.

If you’re interested in discussing guardianships or other probate court procedures, please call Kimball & Wells for help. Our firm specializes in guardianship law, and we pride ourselves on creating lasting, meaningful relationships with our clients and placing the needs of the legally incapacitated individual first. 

We are located in Grand Rapids, and we offer a free consultation to discuss how best to achieve your goals. We’ll advise you on the best and most effective means to make sure your loved ones are cared for. To get started, call us at (616) 317-8489 or click the “Contact Us” link on our website.


Adam J. Kimball
Kimball & Wells, PLLC
Adam@kimballwells.com
(616) 317-8489