by Christine Steinmetz, J.D., Hotline Attorney
This post is the fifth in our series on caregivers. In our previous posts, we discussed the different legal documents that can assist a caregiver before the person being cared for becomes incapacitated.
The Legal Hotline for Michigan Seniors receives phone calls each week from loved ones and caregivers asking what he or she can do when the person being cared for is no longer competent. The caller often states that the incapacitated person does not have a Power of Attorney or Trust document and wants to know what can be done. The caller is then informed that when someone no longer has the capacity to sign legal documents and does not have the required legal documents in place, then he or she will need court involvement to assist the incapacitated person. Any person interested in the welfare of the alleged incapacitated person may petition the probate court. There are two different petitions that can be filed with the probate court; guardianship and conservatorship.
The first petition we will discuss is for a guardianship. A guardian is a person appointed by the probate court to care for the day-to-day needs of a legally incapacitated person. The legally incapacitated person is called the “ward.” A “legally incapacitated person” is a person who a judge finds cannot make informed decisions about his or her care because of:
- Mental illness or a mental deficiency;
- Physical illness or physical disability;
- Chronic use of drugs; or
- Chronic intoxication.
The duties of the guardian are decided by the court. Some guardians are given limited powers and others are given full guardianship. Under MCL 700.5314, the guardian is responsible for the ward’s care, custody, and control.
The other petition that can be filed with the probate court is for a conservatorship. A conservator is a person or financial institution appointed by the probate court to manage the financial affairs of someone who cannot manage his or her finances because of age or a physical or mental disability. A conservator has a duty to act primarily for the benefit of a legally incapacitated person. Once appointed, a conservator takes title to and manages the ward’s assets.
A conservator has broad powers to protect the ward’s assets and to spend money only to support, educate, and care for the ward and his or her dependents. These powers include opening a bank account, investing or reinvesting funds, dealing with real estate, and hiring professionals to help manage the ward’s assets. The court can appoint the same person as guardian and conservator.
In our next post, we will continue our discussion regarding caregivers. After reading this, I hope you realize the important role a caregiver plays in the life of the person they are caring for. If you are a caregiver or have questions regarding caregivers, please contact the Legal Hotline for Michigan Seniors at 800.347.5297 and our hotline attorneys will be happy to answer your questions.