Michigan law provides for the appointment of both guardians and conservators, and there are significant differences between the two. While both are designed to handle the affairs of a minor or otherwise incapacitated person, the roles have completely different functions.
A guardianship is necessary to handle all the affairs of a minor or an incapacitated person, as determined by a court. Guardians, in general, are appointed to oversee a legally incapacitated person’s care, personal needs, and well-being. However, a conservatorship is established for the purposes of handling a minor or incapacitated person’s property and assets. A conservator is placed in charge of handling all financial affairs of a legally protected person.
One person can serve in both roles, if desired, but in many cases, a close relative or family friend will serve as guardian, whereas an attorney or another trusted individual will serve as conservator. This is especially the case if the person owns significant assets. The appointment of a guardian or conservator can be permanent. In any case, the court can review the appointments that it previously made on an annual basis.
In a guardianship, the court can appoint a guardian ad litem, whose role is to look out for the incapacitated person’s best interests, investigate the situation, and provide recommendations to the court. If the incapacitated person is an adult, the court can order a report about the person’s medical condition by physician or mental health professional who has examined the individual. In order to grant a guardianship, the court must find by clear and convincing evidence that the individual lacks the understanding or capacity to make or communicate informed decisions, and that appointment of a guardian is necessary to provide the individual with necessary care and supervision.
Conservatorship proceedings are extremely similar to guardianship proceedings. If the petition for conservatorship alleges that the individual is mentally incompetent, then the court will appoint a guardian ad litem to investigate the situation. In order to grant a conservatorship, the court must find that the individual is unable to manage his or her property and affairs effectively due to mental or physical illness, disability, mental deficiency, chronic usage of drugs or alcohol, or confinement, among other reasons. The court also must find that the individual has property that will be wasted or dissipated unless properly managed, or that the property is necessary for the person’s support or those entitled to his or her support, and management is necessary to safeguard needed support from the individual’s resources.
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