The web Browser you are currently using is unsupported, and some features of this site may not work as intended. Please update to a modern browser such as Chrome, Firefox or Edge to experience all features Michigan.gov has to offer.
Guardian Legislation Frequently Asked Questions
Guardian Legislation Frequently Asked Questions
Why is this legislation necessary?
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
-
How was the legislation developed?
-
How often would guardians need to visit the individuals they serve under this proposal
-
Will this legislation place a cap on the number of clients a guardian can serve?
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.
Dangerous and Emergency Situations
-
Do these bills allow courts to act in emergency situations?
-
Would guardians be able to move clients out of dangerous situations?
-
Will this legislation increase the paperwork guardians must complete?
-
Will this legislation drive professional guardians out of business?
Would courts be forced to choose unqualified family members instead of professional guardians?
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.
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.