July 24, 2015

FAQs

The guardian makes decisions about how the person lives. This includes all matters about health, food, residence and social activity. The guardian applies the values of the incapacitated person in making these living decisions.

A guardian is a person appointed by the court to make healthcare and other mostly non-monetary decisions for someone who cannot make these types of decisions because of an injury, illness, or disability.

It doesn’t matter where you live. The court is only concerned with where the ward is.

In a full adult guardianship the guardian may attend to the ward’s entire needs; however, in a limited adult guardianship the guardian may only act for the purposes stated in the Letters of Guardianship.

A representative payee is a person or an organization. We appoint a payee to receive the Social Security or SSI benefits for anyone who can’t manage or direct the management of his or her benefits. . A payee’s main duties are to use the benefits to pay for the current and future needs of the beneficiary, and properly save any benefits not needed to meet current needs. A payee must also keep records of expenses. When we request a report, a payee must provide an accounting to us of how he or she used or saved the benefits.

NOTE

Being an authorized representative, having power of attorney, or a joint bank account with the beneficiary is not the same as being a payee. These arrangements do not give legal authority to negotiate and manage a beneficiary’s Social Security and/or SSI benefits. In order to be a payee, you must apply for and be appointed by Social Security.

Generally GAL fees are paid from the ward’s estate; however, if the ward’s estate is insolvent, then the GAL will bill the county.

A guardian has responsibility over the ward’s health care and well being, whereas, a conservator has responsibility over the wards finances and assets. Be aware that a guardian may handle regular income such as pension or social security without a conservatorship.

An emergency guardianship hearing would be warranted when medical decisions are immediately necessary to save the ward from serious injury, illness, or death. If an emergency hearing is requested, Oakland County Probate Court requires a letter from the hospital or doctor indicating the medical emergency. Any hearing that is scheduled for a date and time other than the next regularly scheduled hearing date is considered an emergency hearing.

A full minor guardianship may be initiated by anyone, as long as certain criteria are met. A limited guardianship is a voluntary guardianship which may only be initiated by a parent who has physical custody of the child. Also, the guardian powers differ. In a full minor guardianship the guardian may consent to marriage or adoption; however in a limited minor guardianship, the guardian may not consent to either marriage or adoption.

In a minor guardianship, the petitioner would file in the county where the minor resides or is present at the time the proceeding is commenced. In a guardianship for an incapacitated individual, the petitioner would file in the county where the incapacitated individual resides or is present. If the incapacitated individual is admitted to an institution by court order, the petitioner would file in the county in which that court is located.

When two people in the same class both want to be the guardian or conservator, the court will choose based on its opinion of the ward’s best interests. It will consider the petitioners’ abilities and characters, along with the ward’s wishes, if these are known.

If the court feels that the guardianship or conservatorship issue will seriously harm the family’s relationships or the ward, it will skip both petitioners in favor of someone else, usually a more distant relative or a neutral attorney who has been specially trained to handle these matters.

It depends. Being a guardian or conservator enables you to be absolutely sure your loved one is being well looked after. However, it is also a huge responsibility. As a guardian or conservator, you are an officer of the court, and you must give regular reports to the judge. This can be quite time consuming. Being a guardian or conservator is a long-term commitment. It lasts for the rest of the ward’s life, unless the court appoints someone else to take your place. The job of guardian or conservator is very important. You do not want to take on this responsibility unless you are absolutely sure you can do the job.

The court’s first choice is a close family member, usually a spouse or domestic partner, parent, or adult child. If no close family member is available or suitable, the court will consider other relatives or friends. If no family member or friend is available, the court will usually appoint a neutral, specially trained attorney who handles these matters on a regular basis.

If the durable power of attorney covered the types of decisions the person needs to have made (financial, health care, etc.), the agent named in the document has the power to make those decisions.

If the person made a durable power of attorney for one purpose and not another (such as a durable power of attorney for health care, but not a financial durable power of attorney), the court may still appoint a guardian or conservator to step in and make the types of decisions that the durable power of attorney did not include.

No. To make a durable power of attorney, a person must be able to understand and clearly express what he or she wants. Once he or she is incapacitated enough to need a guardian or conservator, the person cannot make a valid durable power of attorney.

A court will void (in other words, cancel out) a durable power of attorney if it finds the person who signed it was incapacitated at the time.

Guardians can handle small amounts of money, such as monthly stipends, Social Security benefits, VA benefits, and the like. If the guardian will need to handle more than $24,000 annually, then the judge will usually appoint a conservator as well.

Yes, but the court can also appoint different people to serve as guardian and conservator.

Yes, if the court finds it appropriate.

A conservator is a person appointed by the court to take care of someone’s finances when he or she cannot make these types of decisions because of an illness, injury, or disability.

When will the court appoint a guardian, and when will it appoint a conservator?

It depends on the situation, and in what ways the ward is incapacitated. Every situation is different, so the court has to look at each set of facts when making its decision.

Example where conservator is needed, but guardian is not: Ronnie H. was in a serious auto accident and had minor head injuries. After the accident, Ronnie lived in his parents’ basement, went to church, played chess, and walked around the city all on his own. He had no ability to do math, however, and had a conservator handle the insurance settlement, invest it, pay his rent, and send him a small amount of spending money each month.

Example where guardian is needed, but conservator is not: Wanda M. had a massive stroke and was totally incapable of speech or motion. As a result, she was placed in a nursing home. Because Wanda had no assets or income beyond Social Security, she did not need a conservator to make her financial decisions, but she did need a guardian to make her medical decisions.

Note that other states may use different terms for these roles, such as personal representative or tutor.

A guardian is a person appointed by the court to make healthcare and other mostly non-monetary decisions for someone who cannot make these types of decisions because of an injury, illness, or disability.

The incapacitated person may petition the court to end the guardianship. If the person is able to show that he or she is able to care for and manage his or her own affairs, the judge will end the guardianship. Alternatively, the judge may also appoint another person to be guardian.

The guardian makes decisions about how the person lives. This includes all matters about health, food, residence and social activity. The guardian applies the values of the incapacitated person in making these living decisions.

The conservator is responsible for identifying the person’s property in a process called “taking an inventory”. When it is finished, the conservator must file the inventory with the Commissioner of Accounts. After the inventory is recorded, the conservator takes charge of the management of the incapacitated person’s property. The incapacitated person’s money must be kept separate and cannot be put into the conservator’s own bank account. The conservator is authorized to make investments and make other financial decisions for the incapacitated person. On a regular basis, the conservator must give an accounting to the Commissioner of Accounts.

A judge will make the decision. The judge may ask for an evaluation of the person that may include medical, psychiatric, psychological and social information. Based on the evaluation, the judge will decide whether a guardian or conservator is needed.

A person may need a conservator if:

He or she has a physical or mental problem that prevents him or her from managing their own financial affairs;

He or she has no family member or other person available to assume this responsibility for them; and other kinds of help with money management will not protect the person.

Sometimes, an illness, injury, or disability can make it difficult or impossible for someone to make decisions about his or her health care, money, living situation, or other personal matters. Examples may include:

  • Someone who is in a coma.
  • Someone who is mentally challenged.
  • Someone who has Alzheimer’s disease or other forms of dementia.
  • Someone who has had a stroke.
  • Someone who has suffered a brain injury.

If a court finds that a person cannot make any or all of his or her important life decisions, that person is incapacitated.

To decide whether someone is incapacitated, the court holds a hearing and looks at all the facts. It will find that a person is incapacitated if it believes the facts show the person cannot:

understand the facts about his or her financial, health care, or living situation well enough to make decisions about any or all of those matters, or clearly communicate his or her wishes about any or all of those matters.

If the court decides to appoint a guardian or conservator for an incapacitated person, the incapacitated person is called the ward.

Any person/s or agency (Adult Protective Services, hospital, etc) that feels the individual needs a guardian.

GFAS, as policy, does not petition the court for guardianship of an individual. The petition is filed by a third party (family, friend, or agency), GFAS is listed on that petition as the recommendation, and we simply accept the appointment at the initial hearing if it is in the best interest of client for us to serve them.

Yes, we do charge for our services, but we have contracts available to help cover our fees for our clients who qualify.

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