Conservatorships of Adults
When is a conservatorship necessary?
- Appointment can be requested by the individual to be protected.
- When an individual because of age or physical infirmity is unable to manage his/her property and affairs effectively.
- Appointment can be requested by another individual.
- When the individual is unable to manage his/her property and affairs effectively by reasons such as: mental illness, mental incompetency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, and disappearance; and
- The individual has property which will be wasted or dissipated unless proper management is provided; or
- Money is needed for support, care, and welfare of the individual or those entitled to be supported by the individual; and
- Protection is necessary or desirable to obtain or provide money.
Who may file the petition?
An individual mentally competent but due to physical infirmity needs a conservator.
An Individual interested in the person's estate, affairs, or welfare.
Where do you file the petition?
In the court at the place in this state where the individual to be protected resides whether or not a guardian has been appointed in another place.
If the individual to be protected does not reside in this state, in the court at a place where property of the individual is located.
Who are the interested persons?
The individual to be protected if 14 years of age or older; and
The presumptive heirs of the individual to be protected; and
If known, a person named as attorney in fact under a durable power of attorney; and
The nominated conservator; and
A governmental agency paying benefits to the individual to be protected or before which an application for benefits is pending.
The following may be additional interested persons required by law or court rule: The Attorney General if the protected person has no known presumptive heirs;
The Attorney General if the protected person has no known presumptive heirs;
Foreign counsel, if required by law;
Administrator of Veteran's Affairs, through the administrator's Michigan district counsel if the individual's benefits are payable by the Veterans' Administration;
A guardian, conservator, or guardian ad litem of an interested person;
A special fiduciary;
A person who filed a demand for notice.
Who prepares the notice of hearing?
A petitioner, fiduciary, or other moving party must cause to be prepared, served, and filed, a Notice Of Hearing ( PC 562). It must state the time and date, the place, and the nature of the hearing.
What must be included in the proof of service?
The Proof of Service must include a description of the papers served, the date of service, the manner and method of service and the person or persons served.
What are the rights of the individual at the hearing?
The Notice on Petition for Conservator or Protective Order (PC 668) must be served on the individual along with the petition, which lists the rights as follows:
- An independent evaluation;
- To be present at the hearing;
- To be represented by an attorney;
- To present evidence at the hearing;
- To cross-examine witnesses at the hearing;
- To a trial by jury;
- To request that the hearing be closed to the public;
- To nominate a conservator.
Who can waive the right to notice of a hearing and consent to the relief requested in the petition?
The Waiver/Consent may be made by
- A legally competent person;
- A person designated to be served on behalf of an interested person who is a legally disabled person;
- On behalf of an interested person, whether competent or legally disabled, by an attorney who has previously filed a written appearance.
However, a guardian, conservator, or trustee cannot waive or consent with regard to petitions, motions, accounts, or reports made by that person as guardian, conservator or trustee.
When does the notice have to be served?
Personal service - 7 days before the date set for hearing.
Mail - 14 days before the date set for hearing.
Publication - 14 days before the date set for hearing.
What is the form of the petition and its contents?
Petition For Appointment of Conservator or Protective Order (PC 639)
Contents - The petition shall contain specific examples of the individual's recent conduct that demonstrates the need for a conservator's appointment.
What does the Court do upon the filing of a Petition For Appointment of Conservator or Protective Order?
Set a hearing date.
Appoint a guardian ad litem to represent the individual who is the subject of the petition unless he/she has legal counsel of his/her own choice.
If necessary, the court may order that the individual who is the subject of the petition be examined by a physician or mental health professional appointed by the Court.
On what does the Court base a decision?
The Court must find that a basis for a conservator's appointment or other protective order is established by clear and convincing evidence.