Guardians

The U.S. follows a policy, ranging from the Constitution to state laws, that each individual person has the right to make their own decisions, with certain limitations. The courts recognize, though, that certain individuals are unable to make some or all decisions on their own. Michigan follows the Estates and Protected Individuals Code (EPIC) policy that restrictions upon an individual’s personal decision making must be limited only to the extend necessary. Guardians are most often put in place when an individual is born with cognitive difficulties, or when someone is injured in an accident or suffers from a dementing illness such as Alzheimer’s. While EPIC promotes a guardianship only to the extent necessary, it is often crucial to obtain a full guardianship, since often, the individual over whom the guardian acts has a condition that will deteriorate over time. Thus, a full guardianship ensures that the guardian does not have to go into court every time the guardian needs broader powers, and also ensures that the protected individual’s needs are met by the guardian.

A guardian is not to be confused with a patient advocate. A patient advocate is charged with making medical decisions for the individual. Thus, if the individual has a property executed patient advocate, the guardian will not be allowed to make medical decisions. On the other hand, if there is not a designated patient advocate, the court may grant the guardian the ability to make medical decisions.

Who may serve as a guardian? Under EPIC, any competent person may be chosen as guardian of an incapacitated individual. MCL 700.5313(1)MCL 700.1106(n) defines person as “an individual or an organization.” MCL 700.1106(h)defines an organization as “a corporation, business trust, estate, trust, partnership, limited liability company, association, or joint venture; governmental subdivision, agency, or instrumentality; public corporation; or another legal or commercial entity.”

EPIC defines the order that a court must follow in appointing a guardian. While too lengthy to describe here, the court generally defers to the person the ward choose to be their guardian, but some exceptions apply. EPIC also defines which family member the court should appoint as guardian in the event the ward’s proposed guardian (or patient advocate) is not suitable.

To review your estate plan, or establish an estate plan, please contact Benjamin Long of Schmidt & Long.