Guardianship of an Individual with Developmental Disability
Michigan's Mental Health Code provides for the appointment of a plenary guardian of an individual if found by clear and convincing evidence that he/she is developmentally disabled and totally without capacity to care for himself or herself or his/her estate. The Mental Health Code provides for the appointment of a partial guardian if found by clear and convincing evidence that he/she is developmentally disabled and lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself or his/her estate. A developmental disability is defined as either of the following:
- An individual older than 5 years with a severe, chronic condition that meets all of the following:
- Attributable to a mental or physical impairment or combination of physical and mental impairments.
- Is manifest before the individual of 22 years of age.
- Is likely to continue indefinitely.
- Results in substantial functional limitations in 3 or more of the following areas of major life activity:
- Receptive and expressive language
- Capacity for independent living
- Economic self-sufficiency
- Reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services that are of lifelong or extended duration and are individually planned and coordinated.
- An individual from birth to age 5, with a substantial developmental delay or a specific congenital or acquired condition with a high probability of resulting in development disability as defined in (1.) if services are not provided.
What are the purposes of guardianship?
The guardianships for individuals with developmental disabilities shall be:
- Utilized only as is necessary to promote and protect the well being of the individual, including protection from neglect, exploitation and abuse;
- Designed to encourage the development of maximum self-reliance and independence in the individual; and
- Ordered only to the extent necessitated by the individual's actual mental and adaptive limitations.
If the Court determines that some form of guardianship is necessary, partial guardianship shall be the preferred form of guardianship for an individual with a developmental disability.
Who may petition for appointment of a guardian?
A petition for appointment of a guardian for an individual who has been allegedly diagnosed as developmentally disabled may be filed by any interested person or entity, or by the individual. Petition for Appointment of Guardian, Individual with Alleged Developmental Disability (Form PC658). It may be filed at the Probate Court of the county of residence of an individual with the alleged developmental disability or with the county in which an individual with alleged developmental disability was found if a county of residence couldn't be determined. See Addresses/Phone Numbers for contact information or Maps for directions. Such a petition generally needs to be filed and a guardian appointed when the individual reaches the age of majority because a parent can no longer make decisions on the individual's behalf.
The guardianship process
The Petition For Appointment Of Guardian, Individual with Alleged Developmental Disability (Form PC 658) must be accompanied by a Report to Accompany Petition to Appoint, Modify or Discharge Guardian of Individual with Developmental Disability (Form PC659) which includes an evaluation of the mental, physical, social, educational, adaptive behavior and social skills of the person. The name and title of the person performing such evaluations and the dates performed (which must be within one year of the date of filing the petition) must be included on this report and, in addition, a list of all psychotropic medications, as well as any and all other medication that the individual is receiving on a continual basis that may or may not affect behavior
The petition and accompanying report will be reviewed for completeness and compliance with the Mental Health Code. If the report does not accompany the petition, the Court will order appropriate evaluations to be performed by qualified persons who may be employees of the state, the county, Community Mental Health and Substance Abuse Services, or the Court. The Court may order payment for evaluations of an individual with an alleged developmental disability by a public agency that serves the developmentally disabled. A date for hearing on the petition will be scheduled within 30 days from the date of filing the petition. The Court will appoint legal counsel for the respondent. Unless the petitioner is represented by private counsel, the Court, or petitioner at the direction of the Court, will prepare the necessary legal documents and notices, and cause them to be served on interested persons. An individual with an alleged developmental disability in guardianship proceedings has the right to:
- A jury trial;
- Present evidence and to confront and cross-examine witnesses;
- A closed hearing;
- To present at all proceedings; and
- To secure an independent evaluation at his/her own expense, or at the expense of the state if the alleged individual with developmental disability is indigent.
The guardian ad litem will visit with the individual with alleged developmental disability and make a report to the Court, either in writing or in person on the day of hearing. A Notice of Right to Request Dismissal of Guardian or Modification of Guardianship Order (Form PC661) is served on the ward, usually by the guardian ad litem. This notice informs the ward about his/her rights regarding future requests for modifications or the dismissal of the guardianship.
If the Court, after a full hearing and testimony, determines that a guardian is required, the appointment will then be made. The guardian must provide an Acceptance of Appointment (Form PC571) or bond, so Letters of Guardianship of Individual with Developmental Disability (Form PC662) can be issued. A guardian appointed by the Court shall not have the power, unless specified by Court order, to place an individual with developmental disability in a facility.
It is a good idea to nominate a standby guardian at the time of filing the petition. The Court can make a determination during the hearing and appoint the standby guardian, who would then also file an Acceptance of Appointment (Form PC571). In case of emergency and the guardian is unable to act, the standby guardian is then in place to make important decisions concerning the ward.
Who may be appointed guardian?
The Court may appoint as guardian for an individual with a developmental disability any suitable individual or agency, public or private, including a private association capable of conducting an active guardianship program for an individual with a developmental disability. The Court shall not appoint the Department of Mental Health as guardian or any other agency, public or private, that is directly providing services to the individual with developmental disability unless no other suitable individual or agency can be found.
Before the appointment, the Court shall make a reasonable effort to question the individual concerning his or her preference regarding the person to be appointed as guardian, and any preference indicated shall be given due consideration.
What is the guardian's responsibility after appointment?
To the extent ordered by the Court, the guardian has the following duties:
- Custody of the ward;
- Make provisions from the ward's estate or other sources for the ward's care, comfort and maintenance;
- The duty to make a reasonable effort to secure for the ward training, education, medical and psychological services, and social and vocational opportunities that are appropriate and as will assist the ward in the development of maximum self-reliance and independence;
- Within 63 days of the appointment, the plenary guardian of the estate must: a) file with the Court a completeInventory(Form PC577) of the ward's assets; b) provide the ward with a copy of the Inventory; c) provide the ward's presumptive heirs with a copy of the Inventory; and d) provide the parent or guardian with whom the individual resides a copy of the Inventory (MCR 5.409);
- The guardian of the individual, plenary or partial, shall file with the Court at intervals ordered by the Court, but not less often than annually on the anniversary date of appointment, a report which shall contain statements about the ward's current mental, physical and social condition, living arrangements, treatment programs, medical, educational, vocational and other professional services given to the ward, and also a list of the guardian's visits with and on behalf of the ward. The Report of Guardian on Condition of Individual with Developmental Disability (Form PC663) and a booklet concerning their preparation are available at the Probate Court office by calling 269-383-8666.
When may a guardian be discharged or have his/her duties modified?
A guardian for an individual with developmental disabilities may be discharged or have his/her duties modified when the individual's capacity to perform the tasks necessary for the care of his/her person in the management of his/her estate have changed so as to warrant modification or discharge. The individual with developmental disability, the person's guardian, or any interested person on his/her behalf may petition the Court for a discharge or modification order. A request if made by the individual with developmental disability, may be communicated to the Court by any means, including oral communication or an informal letter. Upon receiving this communication, the Court shall appoint a suitable person to prepare and file with the Court a petition reflecting the communication. Upon receipt of this petition, the Court shall conduct a hearing.
Upon conclusion of the hearing, the Court may do any of the following:
- Dismiss the petition;
- Remove the guardian and dissolve the guardianship order;
- Remove the guardian and appoint a successor;
- Modify the original guardianship order;
- Make any other order, which the Court considers appropriate and in the interest of an individual who is developmentally disabled.