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A Guide to Guardianship: Probate vs. Mental Health Code

By Jadranko Tomic- Bobas, J.D., Managing Hotline Attorney; Julia Miller and Emilee Evans, Elder Law of Michigan Interns.

Guardianship is a process that allows for one person, a “guardian,” to make decisions for and ensure the care of a person and their limited assets when that person is unable to do so themselves (MCL 700.5314). While this is most commonly thought of as the relationship between a minor and their parents or adult caretaker, guardians may also be appointed to care for adults who are or have become, unable to care for themselves. This generally occurs for one of two reasons, either a person has a developmental disability, or they become legally incapacitated by some means. While guardianship for both reasons may look very similar in some ways, guardianship follows a different code depending on whether the “ward,” or the person under the care of the guardian, is deemed developmentally disabled or incapacitated. Guardianship for people who have a developmental disability follows the Mental Health Code (MCL 300.1001 et seq.), whereas guardianship for incapacitated individuals follows the Estates and Protected Individuals Code, (EPIC) (MCL 700.5301 et. seq.).

Which Code to Use

Which code a guardianship petition is subject to depends on the determination of the person’s condition. A person who is legally incapacitated means that the person is unable to make informed decisions due to an impairment by reasons of mental illness, mental deficiency, physical illness or disability, chronic use of drugs and intoxication, or other cause (MCL 700.1105(a)). This group can include mentally ill individuals, but not developmentally disabled (Id.).

To be considered developmentally disabled, the ward must suffer from a long-term, likely incurable, mental and/or physical impairment that arose before the person turned 22 years old (MCL 330.1100 a(25)). The impairment must restrict functioning in at least three major areas of life such as learning, mobility, and capacity for independent living (MCL 330.1100 a(25)(a)(iv)). Additionally, the person must display a need for coordinated long-term treatments or other services (MCL 330.1100 a(25)(a)(v)). If a person meets these requirements and is therefore deemed mentally incapacitated, they will be appointed a guardian under the Mental Health Code (MCL 330.1001 et. seq.).

The two codes exist separately to factor in that people who have a developmental disability will likely have a guardian for most, if not all, of their adult lives. Incapacitated people, however, would have spent their life, until they became incapacitated, living as an independent adult and making decisions for themselves. For this reason, it is the goal of guardianships under the Mental Health Code to help the ward develop maximum self-reliance (MCL 330.1602(1)). It is the goal of guardianships under EPIC to help the ward maintain maximum independence, with the ultimate hope that the person will eventually no longer need a guardian (MCL 700.5306(2)).


Under both codes, after a petition is filed by, or on behalf of, the individual needing a guardian, a court will hold a hearing to determine whether a guardian will be appointed (MCL 700.5303; MCL 330.1614). While the petition process is much the same, there are a few differences between the two codes. For example, a petition for guardianship under EPIC must include specific examples of the person’s recent behavior that demonstrates the need for a guardian (MCL 700.5303(1)). A petition under the mental health code instead requires a medical report; however, if a report is not attached the court shall order appropriate evaluations (MCL 330.1612(1) and (3)). A court will appoint a guardian in emergency situations if it is necessary to ensure the well-being and care of the individual (MCL 330.1607(1); MCL 700.5312). EPIC says that before a petition for guardianship can be filed, the court must provide information about alternative options to guardianship that may be less invasive (MCL 700.5303(2)). With the individual’s care being the priority, it is the responsibility of all guardians to provide the ward with any training, educational, medical, or psychological services that they may need (MCL 700.5314(b)). Guardians must visit their ward at least once every three months and report to the court at least annually on the condition of the ward and their assets (MCL 700.5314(a) and MCL 330.1631).

Guardians for incapacitated persons do however have some stricter guidelines. For instance, they must make an effort to confer with the ward before making any decisions if a meaningful conversation is possible (MCL 700.5314). Guardians of persons with a developmental disability do not have to follow this same requirement; however, the guardian has a fiduciary obligation to the ward (In re Guardianship of Grant, 109 Wash 2d 545, 568, 747 P2d 445 (1987), and MCL 330.1632).

Limited/Partial Guardianships

Both codes allow for guardianship relationships that are limited in scope to increase the independence of individuals who only need help with certain aspects of daily life but do not require a full guardian. Under EPIC, these are called limited guardianships. Limited guardians are given only those powers necessary, and the ward retains all other rights (MCL 700.5306(3)).

The mental health code outlines partial guardianships (MCL 330.1620). Partial guardianships are like limited guardianships, in that they give only certain powers to the guardian. In partial guardianships, the individual’s rights are not reduced or removed unless stated otherwise (MCL 330.1620(3)). Instead, the guardian is given specific powers as designated by the court to help the person with a developmental disability (MCL 330.1620(2)). Partial guardianships expire after five years, at which time they must be re-evaluated (MCL 330.1626(2)).

Termination of Guardianship

Guardianships can be terminated when a ward dies or is no longer incapacitated, or upon the death or resignation of the guardian (MCL 700.5308 and MCL 700.5310). Guardians can take steps to ensure the smooth transition of guardianship to someone else before their term as guardian is over (MCL 700.5310(2)). Under EPIC, people who are the guardian of their legally incapacitated spouse can determine who they want to take over as guardian in their will so that when they die, the custody of the ward will transfer upon acceptance by the desired guardian.

Under the mental health code, this type of guardianship transfer is even more common because people with a developmental disability generally need a guardian for their entire lives, meaning that there is a greater chance that a change of guardian may be required. Under the mental health code, courts can designate people to be standby guardians (MCL 700.5301(2)). A standby guardian will become the active guardian without any further court proceedings, immediately following the termination of original guardian’s term (MCL 700.5301(2)). When a standby guardian is not noted, and the current guardian is a parent of the developmentally disabled person, the parent may designate in their will who they would like to become the guardian of their child after their death (MCL 330.1642). This is called a testamentary guardian (Id.). A testamentary guardian becomes effective without, although it may subject to, probate as soon as the guardian dies (Id.). Guardianships under both codes may be modified or terminated, as decided by the court if a petition is filed by an interested party (MCL 330.1634 and MCL 700.5310).


For more information about the rules under EPIC or the Mental Health Code, or about guardianships in general, or for help with guardianship proceedings, please contact a professional attorney. For legal advice or attorney referrals for seniors and/or guardians, you can contact Elder Law of Michigan’s Legal Hotline for Michigan Seniors at 1-800-347-5297.

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