Adult Guardianship & Conservatorship

WHAT IS A GUARDIAN AND WHAT IS A CONSERVATOR OF AN ADULT?

A Guardian is a person who is given Probate Court authority to be responsible for the personal and physical well being of an adult who is called a Legally Incapacitated Individual (LII). The Guardian has the same powers and duties over that Legally Incapacitated Individual as parents have over their children. A prospective Guardian may be nominated by petition (filed with the Probate Court) or may be named in a will.

A Conservator is a person who is given Probate Court authority to be responsible for the assets (called an “estate”) of an adult, who is called a Protected Individual (PI). A Conservator may be nominated by a petition filed with the Probate Court.

*If this person is an individual with developmental disabilities (IDD), please refer to the Guardianship of a Developmentally Disable Person tab to your left for a slightly different, but mandatory appointment procedure for guardians of the person or the estate.

WHEN IS A GUARDIAN NEEDED?

When the individual lacks sufficient understanding or capacity to make or communicate informed decisions about his or her personal well being because of impairment by reason of either:

  • Mental illness
  • Physical disability
  • Mental deficiency
  • Chronic use of drugs
  • Physical illness
  • Chronic intoxication

WHEN IS A CONSERVATOR NEEDED?

When the individual is unable to manage his or her property or business affairs effectively because of either:

  • Mental illness
  • Chronic intoxication
  • Mental deficiency
  • Confinement
  • Physical illness
  • Detention by a foreign power
  • Physical disability
  • Disappearance
  • Chronic use of drugs
  • Age or physical infirmity*

*If the individual joins in the request for a conservator’s appointment and, proper management is required because of either of the following:

  • The individual has property that will be wasted or dissipated, or
  • Funds are needed for the support, care and welfare of the individual or those entitled to be supported by that individual

WHO MAY PETITION THE COURT FOR A GUARDIANSHIP?

  • The alleged Legally Incapacitated Individual 
  • Any person who is interested in the welfare of the alleged Legally Incapacitated Individual 

WHO MAY PETITION THE COURT FOR THE APPOINTMENT OF A CONSERVATOR?

  • The alleged Protected Individual
  • Any person who is interested in the individual’s estate, affairs or welfare
  • Any person who would be adversely affected by the lack of effective management of the individual’s property and business affairs

WHERE AND HOW IS A PETITION FILED?

Venue   

  • A Guardianship for an alleged Legally Incapacitated Individual may be initiated in Midland County Probate Court if the alleged Legally Incapacitated Individual resides or is present in Midland County.
  • A Conservatorship for an alleged Protected Individual may be initiated in Midland County Probate Court if the alleged Protected Individual resides in Midland County. If the alleged Protected Individual does not reside in the State of Michigan, a Conservatorship may still be initiated in Midland County Probate Court if the alleged Protected Individual’s property to be protected is located in Midland County.

Probate Court Filing Information

On the right hand side of your screen are the forms that must be completed to start an adult Guardianship or Conservatorship proceeding in the Midland County Probate Court.  These forms are insertable pdf documents that may be completed n Adobe or may be printed, then completed.  Most of the documents are linked directly to the State Court Administrative Office website.

When the required forms are completed, bring or mail them to:

Midland County Probate Court
Midland County Courthouse, Level B
301 West Main Street
Midland, MI 48640

Hours of operation are 8:00 a.m. to 5:00 p.m.

Forms to start an adult Guardianship or Conservatorship may be mailed to the above address provided they contain all signatures and include the appropriate filing fee(s).  There must be a separate file and fee for each individual.
 

WHAT HAPPENS AFTER THE PETITION FOR GUARDIANSHIP AND/OR CONSERVATORSHIP IS FILED?

  • A hearing date will be set in approximately 3 to 4 weeks
  • The petitioner (the person who signs the Petition) must serve a Notice of Hearing and a copy of the Petition on the alleged Legally Incapacitated Individual and Protected Individual and all other interested persons
  • The petitioner must file a Proof of Service of the Petition and Notice of Hearing with the Court prior to the hearing
  • The case will be dismissed if the proper persons have not been served, or if the Proof of Service was not filed
  • A Guardian Ad Litem will be appointed to protect the interests of the alleged Legally Incapacitated Individual or Protected Individual*
  • The Court will appoint legal counsel if the Guardian Ad Litem determines it is in the best interest of the alleged Legally Incapacitated Individual or if the alleged Legally Incapacitated Individual wishes to contest the petition, limit the Guardian’s powers, or object to a particular person being appointed Guardian
  • The Court will conduct a hearing to determine whether appointing a Conservator, Guardian, and/or Limited Guardian is in the best interest of the individual. The petitioner must attend unless otherwise directed by the Court
  • The Court will appoint a Conservator, Guardian, and/or Limited Guardian only to the extent necessary, and only when satisfied that such an appointment will serve the best interest of the individual
  • The Conservator, Guardian, and/or Limited Guardian must file an Acceptance of Appointment or a bond, as required by the Court
  • The Conservator, Guardian, and/or Limited Guardian cannot act until the Court issues Letters of Authority and/or Letters of Guardianship
  • If an emergency exists, the Court may appoint a Temporary Guardian or Conservator at a hearing following shorter than normally required notice.

* Exception: If the individual has chosen counsel or the alleged PI is mentally competent but aged or physically infirm.

Guardian Ad Litem

The guardian ad litem who is appointed for an individual has the following duties:

  • Visit the individual at his or her residence
  • Explain the nature, purpose and legal effects of the proposed appointment
  • Explain the hearing procedure and the individual’s rights, including the right to be present at the hearing, to contest the petition or object to a particular person
  • Inform the individual of the name of each person seeking appointment
  • Determine whether there are appropriate alternatives
  • Confirm to the court that the Guardian Ad Litem has performed the required duties

WHAT CONTACT WILL THE GUARDIAN AND THE CONSERVATOR HAVE WITH THE COURT AFTER APPOINTMENT?

Guardian  

  • Must file a written report at least annually with the Court within 56 days after the anniversary of the Order Appointing Guardian
  • Must use the Annual Report of Guardian on Condition of Legally Incapacitated Individual form. (PC 634)
  • Must serve the report on the Legally Incapacitated Individual and all other interested persons
  • Must cooperate with reviews of the guardianship as required by law or court order (generally one year after appointment and every three years thereafter). A review may include an interview and/or home visit
  • May be suspended and/or removed for failure to file and/or serve the annual reports

Conservator

  • Must file a complete Inventory of the protected person’s assets with the court within 56 days of appointment. Names and addresses of financial institutions must be listed.
  • Must file an itemized accounting of all income and expenses on an annual basis with the court within 56 days of the anniversary of appointment. (PC 583)
  • Must present a copy of the financial institution statement along with the Account for all liquid assets (anything except real or personal property) dated within 30 days after the end of the accounting period
  • Must be able to prove disbursements with receipts or cancelled checks, if necessary
  • Must pay a $20 account filing fee per account
  • Must serve the Inventory and Annual Accounts upon the protected person and other interested persons
  • Must file a Proof of Service with the court at the time the Inventory and Accounts are filed (or prior to hearing if set for hearing)
  • Must set accounts for hearing to determine whether they will be allowed at least once every three years
  • May be suspended or removed for failure to file and/or serve an Inventory or Annual Account or properly fulfill fiduciary duties

WHAT ARE THE DUTIES OF THE GUARDIAN?

  • Consult with the Legally Incapacitated Individual prior to any major decision affecting the Legally Incapacitated (whenever meaningful communication is possible)
  • Provide for the Legally Incapacitated Individual’s care, comfort, and maintenance, except that:
    • The Guardian is not legally obligated to provide for the Legally Incapacitated Individual from the guardian’s own money; and
    • The Guardian is not liable to third persons by reason of the “parental” relationship for the Legally Incapacitated Individual’s acts
  • Arrange, when appropriate, for training and education
  • Care for the Legally Incapacitated Individual’s clothing, furniture, vehicles, and other personal effects
  • Commence a protective proceeding, if necessary, to protect the Legally Incapacitated Individual’s property
  • Give consent or approval necessary for the Legally Incapacitated Individual to receive medical or other professional care, counsel, treatment or service
  • Report at least annually on the condition of the Legally Incapacitated Individual
  • Receive and expend money for the Legally Incapacitated Individual's support, care, and education (if a Conservator is not appointed)

WHAT ARE THE DUTIES OF THE CONSERVATOR?  

  • Accumulate, preserve and protect the assets of the Protected Individual
  • Handle those assets as any other competent adult would handle his or her own funds
  • Expend reasonable sums as necessary for the ordinary care and support of the Protected Individual
  • Ask court permission before selling or otherwise disposing of the Protected Individual’s real estate (by petition with a copy of the most recent assessor statement or tax statement showing the state equalized value)
  • Conservators may be held responsible for improper management of the funds if it is a result of bad faith or negligent handling.

WHEN MAY A GUARDIANSHIP OR CONSERVATORSHIP BE TERMINATED?

  • When the individual is no longer legally incapacitated or in need of protection
  • When the individual has moved to another state and this court is presented with proof of authority from that state, and a receipt of the individual’s funds (if applicable) or
  • Upon the individual’s death

WHO MAY PETITION? WHAT IS THE PROCEDURE? 

Any interested person may petition including the Legally Incapacitated Individual or Protected Individual.   File one of the following, depending on the circumstance: 

  • Petition to Terminate or Modify a Guardianship (PC 675) or Conservatorship (PC 676)
  • The LII does not need to use a court form; a simple letter is sufficient
  • Proof of authority from another state; or
  • Proof of death

A $20 fee to file a Petition is required for everyone except the Legally Incapacitated Individual

A court hearing will be scheduled for all petitions before the Conservator can be discharged.

The Conservator must file and serve a Final Account and present the Financial Institution Statement(s).  The Court must approve the Final Account.  The Court must be satisfied that the assets have been properly protected and preserved.  The Court must be satisfied that the protected individual has received the remaining assets

ARE THERE ALTERNATIVES?

If you have any questions about alternatives, please refer to the brochures entitled What You Need to Know Before Filing a Petition to Appoint a Guardian for an Incapacitated Adult (PC 666), and What You Need to Know Before Filing a Petition to Appoint a Conservator (PC 667). Since the above described legal procedures and duties can substantially effect the rights of Legally Incapacitated Individuals or Protected Individuals, as well as to subject the Guardian or Conservator to personal liability, it is recommended that a person who is seeking to be appointed (or who is actually appointed as a Guardian or Conservator) consult with an attorney.

INVENTORIES, ANNUAL ACCOUNTS AND REPORTS

COMMUNICATION

One of the major duties of a Personal Representative, Conservator or Guardian is communication with interested persons.* Common sense and Michigan law require that interested persons be advised in writing of the progress of estate administration, the status of a protected person’s property, and/or the condition of the Legally Incapacitated Individual (LII) or Individual with Developmental Disability (DD). The most critical communications are made through the forms that are described in this brochure.

* “Interested persons” is a legal term. The identity of interested persons will vary depending on the facts of your particular matter.

COURT FORMS

When you act in the capacity of a personal representative, conservator or guardian, you are called a “fiduciary.” Probate laws and court rules require that fiduciaries prepare certain forms depending on the circumstances. These include: Inventory, Proof of Restricted Account and Verification of Funds, Account and Annual Report. You may add information to the required form that will further explain your fiduciary actions to the interested persons and to the court. The forms are available at the court or on the court’s website. This brochure gives you an overview of all of these forms.

INVENTORY (PC 674)

What Is An Inventory?

An inventory is a list that describes and places a monetary value on all of the property of the estate or protected person.  All Personal Representatives, Conservators, and Guardians of the Estate (DD) are required to prepare inventories.

What Does It Contain?

The inventory must list all assets owned by the deceased as of the date of death, or owned by the protected person or the individual with developmental disability as of the date of fiduciary appointment. You should:

  • Describe real estate by using both the legal description and street address
  • List the names and addresses of all financial institutions where assets are held along with the   amounts.
  • Describe motor vehicles by stating make, model and vehicle identification number (VIN)
  • Combine ordinary items into categories such as clothing, furniture, household items, and tools
  • Separately list items with special value (i.e. stamp/coin/figurine collections, antiques, art, oriental rugs, fine silverware and dishes)
  • List property the protected person owns with others, along with the type of ownership (joint tenancy or tenancy in common)

How is Property Valued?

In addition to identifying assets, an inventory also shows the monetary value of the property. You should:

• Use the fair market value as of the date of death (for decedent estates) or date of fiduciary appointment (for other matters)

  • Calculate real estate value by doubling the State Equalized Value (SEV)* or by using an appraised value
  • Obtain qualified and disinterested appraisals for valuable assets, when necessary

• List the type and amount of any encumbrance, mortgage, or lien on any particular asset

  • List the value of any interest in land contracts

• Keep accurate records of each valuation

• Estimate the resale value of common household items or personal effects

For purposes of calculating the inventory fee in decedent estates, deductions are allowed for real estate mortgages up to the value of the real estate for decedents with a date of death of 3/28/13 and after.

* All real estate is given a SEV (State Equalized Value) for tax purposes – double it to obtain the fair market value.

Interested persons may object to the value given to any particular asset. Be prepared to defend your valuation.

Who Gets a Copy?

You must serve a copy on “interested persons” for that particular matter.

Who Must File? When?

Personal Representative

    Supervised Administration:

Must be filed within 91 days of the date your letters of authority were issued.

   Unsupervised Administration:

 Inventories do not need to be filed, but they must be submitted for computation of the inventory fee within 91 days of the date your letters were issued. (The court will file at your request)

Conservator

        Must be filed within 56 days of your appointment

Guardian of the Estate (DD)

        Must be filed within 56 days of your appointment

Any Fees?

The inventory fee (also known as the gross estate fee) is calculated according to Michigan law from the value of the assets listed on the inventory. It only applies to decedent’s estates. The inventory fee must be paid by the personal representative no later than one year after the appointment of the personal representative or no later than the date a Petition for Complete Estate Settlement or Sworn Statement is filed, whichever is earlier. The court will calculate the fee for you. You may call for an estimate as well. The fee is rounded up for a value ending in .50 or more, and down for less than .50.

There is no separate filing fee for inventories.

What about Mistakes?

Inventories must be supplemented when you discover property that was not included in the original inventory or when you learn that a value or description listed in the original inventory is wrong or misleading. Copies must be served on the same persons entitled to receive an original inventory.

PROOF OF RESTRICTED ACCOUNT AND VERIFICATION OF FUNDS (PC 669)

The conservator of a minor must prepare and file this form within 28 days of the conservator’s qualification if the assets are ordered to be placed in a restricted account. The conservator must obtain the signature of the authorized representative of the financial institution/insurance company/brokerage firm. It must then be filed annually with a copy of the corresponding financial institution statement attached (at the same time the account is filed). This form allows the court to verify that the minor’s assets are protected. A conservator for an adult may file this form in lieu of presenting a Financial Institution Statement. It is not required for adult conservatorships.

ACCOUNT (PC 583)

What Is an Account?

An account is a statement that shows the yearly income and expenses for an estate or protected person. Personal Representatives, Conservators, and Guardians of the Estate (DD) are required to prepare accounts.

What Does It Contain?

      · An itemized list of income and expenses for the accounting period and assets remaining.

      · A written description of services by the fiduciary if compensation is requested.

Who Gets a Copy?

All fiduciaries must serve accounts on interested persons annually and prepare a proof of service.

When to File?

Personal Representative

    Supervised Administration:

  • Annually, within 56 days after the end of the accounting period
  • A final account must be filed when supervised estate administration is completed and when any fiduciary resigns or is removed

    Unsupervised Administration:

  • Not required, but the court will accept for filing if requested

Conservator

  • Annually, within 56 days after the end of the accounting period unless otherwise directed by the court
  • Conservators must file a proof of service when the accounts are filed or prior to any hearings for their allowance

Guardian of the Estate (DD)

  • Must be filed within 56 days after the end of the accounting period.

Hearing?

Supervised Estates

The court requires that accounts be filed on supervised estates, but they do not need to be set for hearing.

Conservatorships

The court reviews or allows accounts annually. Accounts shall be set for hearing to determine whether they will be allowed at least once every 3 years.

All Matters

If there is a hearing required, the court sets the date and time. You must send a Notice of Hearing together with a copy of the account as filed with the court to all interested persons (including the protected person if 14 or older). You must also file a Proof of Service with the court. You may avoid a formal hearing on your account if all interested persons acknowledge receiving the account, consent to its allowance, and sign a Waiver and Consent.

Account Preparation

Use the Account forms (PC 583 or PC 584). Most of the blanks are described sufficiently for you to complete the form. Additional instructions:

       Accounting Period

The accounting period begins on the date that the fiduciary qualifies to act by filing a bond or   an Acceptance of Appointment. The accounting period ends one year later unless the court orders a shorter period. Your Letters will indicate your accounting period. All accounts require a $20 filing fee.

       Identifying the Account

 To identify the account and the accounting period, you should state, for example: “First Annual Account,” “Second Annual Account,” “Third and Final Account,” as applicable. The account date must start on the day of your qualification and end one year later (unless the estate is closed sooner).

        Income and Expenses

The income column should list all income of the estate. Each source should be separately listed, but payments from each source may be totaled, i.e., “Social Security $9,600 ($800/month for 12 months.)”

The expense column must be identified in such a way that expenses may be easily verified. Amounts in the same category may be combined for the year (such as groceries for the year). Please remember that the accounts must be sent to interested persons, therefore, the accounts must be easy to understand.

         Summary

The “summary” on the form summarizes what has happened during the accounting period. Start with the inventory value (if this is your first account), or with the balance on hand from the previous account (if this is any subsequent account). Add the sum of your income to the above figure. This total represents the assets for which you are responsible. Subtract the total expenses. The balance is the dollar value of those assets that you hold at the end of the accounting period. This amount will be the beginning balance of your next account.

        Balance of Assets Remaining

The balance is made up of assets such as bank accounts, stocks, bonds, real estate, etc. Each item must be identified so that it can be compared with your inventory. Real estate must be shown by the legal description shown in your inventory.

         Interested Persons

Additional interested persons must be named if they were not identified on the initial petition or if addresses have changed. Also, creditors must be named if claims were filed during an accounting period. If you enter nothing in this section, the court and all persons receiving a copy of the account will assume that there are no additional interested persons and there are no changes to those named in the first petition filed.

         Additional Representations

You are also representing to the court and to all persons receiving the account that it is correct and contains all of the income and expenses.

FINANCIAL INSTITUTION STATEMENT

All conservators of adults must present financial institution statements dated within 30 days after the end of the accounting period for all liquid assets (anything except real or personal property) to verify assets on hand, or they may file a Proof of Restricted Account and Verification of Funds (PC 669) instead. For minor files, the Financial Institution Statement must be filed with each Annual Account.

ANNUAL REPORTS

If you are Guardian of a Minor, an Incapacitated Individual, or an Individual with Developmental Disability you are required to file a report annually with the court. You must use the form that applies:

Annual Report of Guardian on Condition of Minor, (PC 654)

Annual Report of Guardian on Condition of Incapacitated Individual, (PC 634)

Report of Guardian on Condition of Individual with Developmental Disability, (PC 663)

These forms will guide you in evaluating your ward’s condition. Areas covered are the ward’s living arrangements, physical health, mental health, social activities, and any unmet needs. If you need to further explain any condition, you may add additional pages.

· Note that while all Guardian reports are extremely important, you, as Guardian, must follow through by petitioning the court or taking any other action you believe necessary for the well-being of your ward. Your failure to act will not be excused because you have merely indicated an unsatisfactory situation or condition on your report.

Who Gets a Copy?

The Annual Report of Guardian must be filed with the court and served on the ward, the person who has principal care and custody of the ward, and the spouse, adult children, or the presumptive heirs of the individual.

When to File?

The Annual Report of Guardian is due each year within 56 days of the anniversary of your appointment and at other times as the court may order.

Any  Fees?

There is no fee to file an Annual Report of Guardian.

Resources & Links

Midland County Probate & Juvenile Court
2014 Annual Report

State Court Administrative Office
Court Forms 

Probate Filing Fees 

Options You Should Know Before Filing a Petition for Full Adult Guardianship (PC 666)

What You Need to Know Before Filing a Petition to Appoint a Conservator (PC667)

Petition for Appointment of Guardian of Incapacitated Individual (PC 625)

Acceptance of Appointment (PC 571)

Proof of Service (PC 564)

Notice of Rights to Alleged Incapacitated Individual (PC 626)

Annual Report of Guardian on Condition of Legally Incapacitated Individual (PC 634)

Petition to Terminate/Modify Guardianship (PC 675)

Petition for Appointment of Conservator and/or Protective Order (PC 639)

Bond of Fiduciary (PC 570)

Account of Fiduciary, Short Form (PC 583)

Inventory (Conservatorship) (PC 674)

Petition to Allow Account (PC 585a)

Petition to Terminate/Modify Conservatorship (PC 676)

 

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