Guardianship Changes Announced by Michigan Supreme Court

The issue of adult guardianship caught the attention of many Americans this year amidst the drama over Britney Spears’s 13-year guardianship and the singer’s effort to take control over her life and decisions back from her father. Few guardianship cases get nearly that level of public attention, but guardianship in Michigan has been under scrutiny since long before the Spears case burst into the spotlight, and the Michigan Supreme Court has announced changes to address it.

In 2019, Michigan Attorney General Dana Nessel formed an Elder Abuse Task Force and traveled all over Michigan on a listening tour, gathering stories of elder abuse from individuals whose loved ones had suffered at the hands of their legal guardians and conservators. In Michigan, a guardian makes personal decisions for a protected person and a conservator makes financial decisions.

Protected individuals may have a guardian, a conservator, or both, depending on their needs. Guardians and conservators are fiduciaries, obligated to act in the best interest of another person rather than their own. Often, the same person acts as both guardian and conservator. Guardians and conservators are meant to protect vulnerable individuals, but in some cases, physical abuse or financial exploitation occur.

One woman told of the Elder Abuse Task Force how her mother’s court-appointed fiduciary intentionally placed the older woman in a facility where her daughter could not find her and visit her or take her on outings. The fiduciary also wrote checks from the senior’s account to the guardian’s own friends. A 95-year-old World War II veteran just needed some help with simple bookkeeping and car repair. He ended up with a court-appointed professional fiduciary who embezzled money from his bank account. These are only two of the many stories Nessel and the task force heard.

In June 2021, the Attorney General, Michigan Supreme Court Justice Megan K. Cavanaugh, and a bipartisan group of Michigan legislators announced proposed bills intended to reform the guardianship process in Michigan.

In June 2021, the Attorney General, Michigan Supreme Court Justice Megan K. Cavanaugh, and a bipartisan group of Michigan legislators announced proposed bills intended to reform the guardianship process in Michigan.

Guardianship Changes Proposed by Michigan Supreme Court

The proposed legislation would make a number of changes to the way adult guardianship is handled in Michigan. If enacted, the law would:

• Require guardians and conservators to undergo training;
• Require guardians and conservators to be certified and bonded;
• Limit the number of individuals guardians and conservators can be appointed to serve;
• Require frequent in-person visits with protected individuals;
• Require more detailed reporting of actions taken on behalf of protected individuals;
• Prioritize the wishes of the person under guardianship over the convenience of the guardian;
• Require a court that chooses a professional guardian over a family member to be transparent regarding the reasons for the choice, which should be supported on the record. Family members should have priority to act as guardian or conservator, so if a family member who is willing to serve is passed over by the court, the reason for the decision should be clear and well-documented.

This legislation is not the first attempt at Michigan guardianship reform. An elder abuse and neglect task force formed and issued a report under Gov. Granholm’s administration, but meaningful reform did not materialize. Some elder law attorneys observe that in the past, probate judges have resisted reform to the system, often out of concern that the proposed changes would clog court dockets.

Is the Proposed Michigan Guardianship Reform Enough?

Most people familiar with the guardianship reform efforts agree that the proposed legislation is a good, and much-needed, start. That said, there are some concerns that it does not go far enough. For example, the bills that are moving through the legislature do not address professional guardians who have already been appointed.

Some professional guardians are responsible for managing the medical, residential, and financial affairs of up to 400 people. Common sense dictates that a guardian responsible for that many people cannot give each of them adequate attention.

Nor does the legislation deal with public administrators. In Michigan, county public administrators may act as guardians for mentally disabled adults or other adults without a family member to act on their behalf. The guardianship bills do not address prevention of misconduct by public administrators. Four public administrators were removed from their positions in Oakland and Macomb Counties in 2019. Some had served in that role for decades.

The good news is that more than 100 people from 55 organizations serve on the Elder Abuse Task Force, including the Michigan Probate Court Judges Association and the Michigan Guardianship Association. That broad representation should mean that many perspectives and issues have been considered in drafting the proposed guardianship legislation.

It remains to be seen what the final form of Michigan guardianship reform legislation will take. If you have a family member who is under guardianship or who needs a guardian, we invite you to contact our law office to schedule a consultation to discuss your concerns.