GUARDIANSHIPS and CONSERVATORSHIPS
About the Professor:
Dr. Donald J. Baranski, received his Bachelor of Arts in Humanities Pre Law, from Michigan State University. This was a triple major of American History, Philosophy, and Psychology. He then received a Master of Arts degree in Philosophy from Michigan State University. He then obtained his Juris Doctor from Michigan State University College of Law. Dr. Baranski has been a licensed Attorney and Counselor at Law in the State of Michigan since 1988, practicing probate law including Last Wills & Testaments, Trusts, Powers of Attorney, Guardianships, Conservatorships, and Deceased Estates in Michigan. Dr. Baranski has been teaching since 1989. He has taught at Western Michigan University Cooley Law School, Michigan State University College of Law, Jackson College, and the Eaton Rapids High School.
GUARDIANSHIPS & CONSERVATORSHIPS
What is a Guardian?
A guardian is a person who has been court appointed to make personal decisions for the
ward, such as where to live and medical care decisions.
When is a Guardianship needed?
When the ward is unable to make informed decisions for themselves because a minor, mentally incapacitated, or developmentally disabled.
What responsibilities does a Guardian have?
A guardian is responsible for the ward’s wellbeing. A guardian is required to file an annual report detailing the ward’s care and condition.
What is a Conservator?
A conservator is a person who has been court appointed to manage the ward’s finances,
such as paying bills or applying for Medicaid.
When is a Conservator needed?
When the ward is unable to handle their own finances because a minor, mentally incapacitated,
or developmentally disabled.
What responsibilities does a Conservator have?
A conservator is required to handle the ward’s finances, which includes paying bills, ensuring taxes
are filed, and applying for governmental benefits when appropriate. A conservator is required to file an inventory (what the ward had when the conservator took over), an annual accounting for each year the conservator serves (showing income and expenses for the ward), and a final accounting.
What are common sources of litigation in Guardianships and Conservatorships?
Common sources of litigation are whether a guardian or conservator is actually needed, who the guardian or conservator should be, whether someone took advantage of the ward prior to appointment of the guardianship or conservatorship and how that can be remedied, the conservator’s accounting
or lack thereof, and whether the appointed guardian or conservator is doing an adequate job.
How does a Guardian or Conservator get appointed?
Any person concerned about an individual’s welfare can file a petition for appointment of a guardian or conservator for an individual. The same person may be both the guardian and conservator, although this is not required.
Who can be a Guardian or Conservator?
Any suitable person. Typically, if a person needs a Guardian and Conservator, this is the same person. If there are multiple suitable persons interested in serving, the priority is set forth by Michigan statute.
Is there such a thing as a Guardian or Conservator that just assists with specific needs?
Yes. When a guardian or conservator is appointed, the ward is basically stripped of his or her legal rights. There are less drastic options if appropriate. The powers of a guardianship or conservatorship can be
“limited” so that the ward can maintain some of his or her rights. Alternatively, the Court can enter a
“protective order” to give another person the authority to act on someone else’s behalf for a
particular issue only or single transaction.
POWER OF ATTORNEY AND PATIENT ADVOCATE DOCUMENTS
What is a Power of Attorney?
A power of attorney (POA) is a document giving another person legal authority to act on
his or her behalf regarding finances. The person giving the authority is called the “principal,” and the
person getting the authority is called the “agent.” A POA is “durable” if the agent has power to
continue to act once the principal is mentally incapacitated. POA is a powerful document, and
this power is often abused by the agent, leading to litigation. When does the Agent under a Power of Attorney have the authority to act? This depends on the language of the POA. Some agents can act immediately. Some, agents do not have authority to act for the principal until the principal is
incapacitated (referred to as a “springing” power of attorney).
What is the difference between a Power of Attorney and Conservator?
The principal appoints their own Power of Attorney without court involvement, while the Court appoints
the Conservator. An agent appointed as Power of Attorney has no duty to exercise this power. However, a Conservator is required to take over managing the ward’s finances upon appointment.
A principal who names a Power of Attorney maintains the ability to handle his or her finances alongside his or her agent (if and until deemed incapacitated), while a person who has a full Conservator no longer has any legal authority to make decisions for himself or herself.
Can I name two or more people to serve as my Power of Attorney?
Yes.
Can the Court appoint Co-Guardians or Co-Conservators?
Yes.
What is a Patient Advocate Designation?
A Patient Advocate Designation is a document giving another person legal authority to
make medical care decisions for you if you are not capable of doing so. Sometimes, this
decision-making power given to another person is referred to a Power of Attorney for
Healthcare.
What is the difference between a Guardian and a Patient Advocate Designation?
The principal appoints their own patient advocate without court involvement while still
capacitated, while the Court appoints the Guardian.
What is a Guardian Ad Litem?
While confusing, this is not a Guardian in the typical sense. A Guardian Ad Litem (GAL)
is appointed by the Court on a temporary basis to represent a person before the court
where the person is unable to adequately represent themselves. The GAL may make a
recommendation to the Court as to what should be done in the person’s best interests,
but has no authority to make decisions for the person (as compared to a “Guardian”).
Can a person change their estate plan after a Guardian or Conservator is appointed?
Yes. Appointment of a Guardian or Conservator does not automatically preclude a
person from updating their estate plan. However, this scenario often leads to litigation
regarding whether the person had sufficient mental capacity to update their estate plan.
CONTESTED GIFTS
Can a gift be “undone”?
Yes, with Court involvement. Sometimes a transfer is called a “gift” but was not
actually intended to be a gift, or was the gift or was tricked or lacked mentally capacity
to understand what he or she was gifting.
LACK OF MENTAL CAPACITY CLAIMS
What is the standard for mental capacity to make a will or a trust?
To have sufficient mental capacity to make a will or a trust, an individual must satisfy four requirements. First, the individual must be able to understand that he or she is providing for the disposition of his or her property after his or her death. Second, the individual must be able to know the nature and extent of the property that he or she owns. Third, the individual must be able to know the identity of his or her heirs. Fourth, the individual must be able to generally understand the significance of signing the document.
Does the same mental capacity standard also apply to will or trust amendments or
revocations?
Yes. Just as an individual must possess sufficient mental capacity to make a will or trust, the individual must also possess sufficient mental capacity to execute a document that amends or revokes the will or trust.
When is mental capacity evaluated?
In lackofcapacity litigation, the Court’s job is determine whether the individual had sufficient mental capacity at the time the estate-planning document was signed. Even if the person lacked mental capacity before and after the signing, if the person had sufficient mental capacity at the precise time it was signed, the estate-planning document will be upheld.
How do you prove lack of mental capacity?
In lack-of-capacity litigation, it will be highly relevant whether the individual who made the will or trust
trust was diagnosed with any mental illness, such as dementia or Alzheimer’s disease; whether the individual was suffering from extreme pain or weakness; whether the individual was taking any medication with the potential to cause side effects; and whether the individual’s medical records
reflect mental impairments. The doctors who treated the individual will be key witnesses, as will be those who had the opportunity to observe the individual’s conduct, statements and thought processes.
The parties to the litigation may retain expert medical witnesses to provide opinions. The opinions of the attorney who drafted the challenged document, as well as persons who witnessed or notarized the document, will also be important.
UNDUE INFLUENCE CLAIMS
What is undue influence?
It is a claim brought to “undo” an estateplanning document, gift, or other transfer of property. To establish undue influence it must be proven that the person was subjected to “threats,
misrepresentation, undue flattery, fraud, or physical or moral coercion”sufficient to “overpower volition, destroy free agency and impel” the person to act “against his inclination and free will.” Because undue influence typically happens behind closed doors, Michigan has established a presumption of undue influence if the evidence establishes: (1) the existence of a confidential or fiduciary relationship between the person transferring the property through the transaction and the fiduciary; (2) the fiduciary benefits from the ransaction; and (3) the fiduciary had an opportunity to influence the person’s decision
in that transaction. If the presumption is satisfied, then the burden shifts to the fiduciary to prove there
was no undue influence. If the fiduciary fails to rebut the presumption, then the interested person challenging the transaction wins and the transaction will be undone.
