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Guardian Legislation Frequently Asked Questions

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Guardian Legislation Frequently Asked Questions

Why is this legislation necessary?

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The status quo is unacceptable.

The Attorney General, members of the Michigan Supreme Court, and legislators met with Michiganders across the state to hear first-hand about experiences with the EPIC adult guardianship system. Time and time again, Michiganders shared concerns about:

  • A lack of due process at guardianship hearings, including notice and a right to be heard.
  • Family members being passed over to serve as guardian in favor of professional guardians.
  • Individuals being moved from their long-time homes into nursing homes, with treasured personal items ending up in the garbage.
  • Guardians preventing visits with loved ones.
  • A lack of transparency about how an individual’s funds are spent.
  • A lack of personal relationship between guardians and the individuals whose lives they control.

In addition to concerns raised by members of the public, members of the Elder Abuse Task Force have met since 2019 to discuss issues from their perspectives as professionals familiar with the EPIC adult guardianship process. Concerns generally focused on a lack of consistent practice across the state, especially regarding:

  • The use of guardians ad litem and their reports.
  • The standard for granting emergency guardianships.
  • The standard for requiring a conservatorship in addition to a guardianship.
  • The use of reports of physician/mental health professional.
  • Alternatives to guardianship.

These issues have led to real life consequences for the tens of thousands of Michiganders subject to EPIC adult guardianship.

Legislation & Guardian Care

  • In 2019, the Attorney General, along with the Michigan Supreme Court and a bipartisan and bicameral group of legislators, launched the Elder Abuse Task Force. The Task Force is made up of over 55 organizations and 100 individuals. Through its committees, the Task Force developed this legislative proposal through consensus. Because the Task Force has been continuously focused on the best possible policy outcomes, the Task Force has continued to meet and has adjusted its legislative proposals since they were first introduced in the previous session. Adjustments include:

    • A proposal to create the Office of the State Guardian.
    • Clarification that financial institutions do not need to be licensed to serve as a conservator.
    • Effective dates that provide realistic timeframes for implementation.
  • Under current law, guardians—whether professional or a “layperson”—are required to visit the individuals they serve only once every three months. Under the legislative proposal, guardians would be required to make additional video visits (or phone visits if video is not possible) during each month when an in person visit does not take place.

  • No. Under this legislative proposal, guardians can continue to serve as many clients as they choose, but they must still fulfill their fiduciary duties to each client. Guardians will have a new option for payment for indigent clients. If a guardian wants to contract with the Office of the State Guardian to serve indigent individuals they must abide by the terms of the contract, which includes a case load cap. But guardians who do not want to participate in the program are free to continue to serve clients without a case cap.

Would courts be prohibited from relying on guardians ad litem?

Quite the opposite!

Guardians Ad Litem will be required to provide even more information. Right now, the role of the GAL (often called the “eyes and ears of the court”) is inconsistent across the state, and the current statute provides minimal requirements. Probate judges have stated that reports range from “novel length reports” that amount to the life stories of all the parties involved to oral statements on the record. The bills will ensure that GAL reports provide uniform, high quality information to probate courts. This information will enable courts to make the best possible decisions in these important cases. These common-sense changes include:

  • Requiring that GALs communicate with the individual subject to a guardianship or conservatorship petition in a way that the individual can understand. This might include using sign language interpreters, simple language, and avoiding complicated legal jargon. If the GAL is unable to do this, they must explain it to the court.
  • Interviewing the individual at their location, outside the presence of any interested persons.
  • Determining if the individual wants to be present at a hearing.
  • Explaining the individual’s legal rights.
  • Determining who the individual wants—and does not want—if a guardian or conservator is appointed.
  • Explaining when, where, and for how long the GAL met with the individual.
  • Identifying barriers which prevent the individual from attending a hearing, so the court can move the hearing or provide other reasonable accommodations.
  • Identify more robust potential alternatives to guardianship like powers of attorney or Medicaid Home and Community Based Services that could provide in-home staffing and care
  • Advising the court of any additional information that may help the court in making a well-informed decision.
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Dangerous and Emergency Situations

  • Yes. This legislation provides a common sense, step by step procedure to appoint emergency guardians.

    Right now, “emergency” is in the eye of the beholder. MEJI is aware of one client who was placed under “emergency” guardianship for fear they could lose capacity in the future and had not done planning such as a Patient Advocate Designation. On the other hand, MEJI is also aware of courts where attorneys report that a respondent “had better be nearly dead” before granting an emergency guardianship.

    This legislation provides a clear standard for when emergency guardianships can be ordered: If an emergency exists that is likely to result in substantial harm to the individual’s physical health, safety, or welfare; no other person appears to have authority to act; there is a basis for finding the individual is legally incapacitated; and an emergency guardian is necessary for providing continuing care and supervision for the individual. The court can then immediately appoint a guardian.

    This legislation includes important due process safeguards to ensure the emergency guardianship process is not abused. As is the case for nearly every other type of emergency relief such as a personal protection order or temporary restraining order, the petitioner needs to provide the court with an affidavit attesting to the facts supporting the petition. Additionally, the court must move quickly to ensure the individual subject to the emergency guardianship is promptly notified of the proceedings so they can object. Finally, the emergency guardianship cannot go on for more than 28 days (with the option for a single extension of an additional 28 days) without having a full hearing on the matter.

  • This legislation explicitly grants guardians the authority to immediately move people from their permanent homes in situations where it is necessary to protect the individual’s health, safety, or welfare without needing to wait on a court order.

    Some professional guardians have cited gut-wrenching situations of individuals living in squalor as the basis for opposing these bills. Contrary to these statements, under this package guardians will be able to protect people in dangerous situations.

    Elder advocates know that most people want to age in place in their own homes. Unfortunately, many people in the guardianship system are promptly moved out of their longtime homes and into nursing homes, with their treasured possessions tossed in the dumpster. The legislation will require a guardian to keep an individual in their permanent residence so long as it is “consistent with the well-being and preferences” of the individual.

  • No. Currently there is no mandatory accounting requirement for guardians, and this package does not change that. It does clarify when, in addition to a guardian, the court must also appoint a conservator.

    A full guardian is required to handle everything on behalf of an individual—including their finances—unless a conservator is also appointed. If a conservator is appointed, the guardian is relieved of the financial responsibilities and the conservator handles them.

    Right now, there is no consistent practice across the state for when a court appoints a conservator—with the requirement to make basic annual accountings. This legislation would ensure that guardians of people with more than modest assets (400% of the federal poverty level, or about $54,360 in 2022) ask the court for the appointment of a conservator, ensuring that the individual’s assets are subject to the basic annual accounting. For individuals with more modest assets, Social Security is often the major—if not only—source of income. The Social Security Administration’s Representative Payee program already provides oversight to protect the finances of those individuals.

  • No. This legislative proposal passed out of the House Judiciary Committee with several professional guardians in support.

    The legislation creates common sense requirements that good guardians, conservators, and guardians ad litem are already meeting. Checking in with a client once a month is not an undue burden—it’s something good guardians already do. Keeping a client in their home of 50 years when feasible is not an undue burden—it’s something good guardians already do. Keeping an eye out for a wedding album, military service memorabilia, or personal correspondence before consigning other things to the dumpster is not an undue burden—it’s something good guardians and conservators already do.

Would courts be forced to choose unqualified family members instead of professional guardians?

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Courts are only required to choose a family member over a professional guardian if the family member is suitable.

Courts have minimal guidance on what constitutes “suitable,” relying upon case law from a couple of Michigan Court of Appeals cases. Additionally, a court does not have to explain why it has found a family member to be unsuitable. This legislation gives courts factors to consider in determining whether someone is suitable to serve as guardian. Additionally, the court must explain on the record why it is passing over someone who would otherwise have priority to serve (such as a family member), describing in what way that person is deemed unsuitable.

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What would the Office of the State Guardian do?

Currently, there is no education, training, or other requirement to serve as a professional guardian or conservator. Additionally, people who have concerns about professional guardians or conservators have nowhere to voice these concerns other than the court, at substantial personal expense. Laypeople serving as guardians or conservators for their loved ones receive inconsistent support and training, depending on the resources available at their probate court.

Under the proposed legislation, the Office of the State Guardian would ensure that guardians and conservators have the necessary knowledge and experience to take on the solemn duty of overseeing another adult’s life. The Office of the State Guardian would have a Board made up of stakeholders and an executive director. The Office of the State Guardian would issue licenses to qualified professionals, provide support and training to laypeople serving as guardians and conservators, handle complaints regarding guardians and conservators, contract with guardians to serve indigent clients, and handle disciplinary proceedings. While professionals would need to be licensed, laypeople serving their loved ones would not.