Deciding between guardianship and power of attorney is an important decision that can significantly impact the care and protection of a loved one. In this webinar, we will guide you through the key differences between these two legal tools and explain when each is appropriate. You’ll learn when guardianship is necessary, particularly in cases of incapacity or vulnerability, and how the broader authority and court oversight it provides can offer additional protection. Conversely, we’ll explore situations where a power of attorney may be sufficient, offering flexibility without the need for court involvement. Whether you’re planning for your own future or caring for someone else, this webinar will equip you with the knowledge to make informed, confident decisions about the best legal protections for your unique situation. Join us to ensure you understand how to safeguard your loved one’s well-being and rights.
Guardianship is a legal tool that allows one person to make decisions for another. This typically happens when the latter can no longer make decisions independently, whether due to age, accident, illness, or a developmental disability. Understanding the guardianship process can be daunting. In this webinar and accompanying article, we will explore the basics of Michigan guardianships, including who needs a guardian, the legal process involved, and alternatives like power of attorney.
In Michigan, guardianship is established when an individual is unable to make decisions for themselves. Guardianship can be necessary for various groups of people.
Guardianship is not something to take lightly. When the court appoints a guardian, it is limiting a person’s constitutional right to make their own decisions. Therefore, there are legal hurdles in place to ensure guardianships are established only when absolutely necessary.
Michigan’s guardianship laws, part of the Estates and Protected Individuals Code (EPIC), require thorough court proceedings. The court’s responsibility is to protect the individual's best interests while balancing their rights.
Controversial guardianships, like the highly publicized Britney Spears case, have shed light on the need for strict oversight in these situations. Also, the highly fictional movie “I Care a Lot” painted an outlandish and scary view of guardianship. It was so outrageous that Michele and two other experts made a reaction video (I Care a Lot: Could It Happen to You?).
A guardian is a fiduciary, meaning they are legally responsible for making decisions that are in the best interest of the person under their care, known as a ward. The guardian is accountable for various aspects of the ward’s life, including:
The guardianship process begins when someone petitions the probate court to become a guardian. This could be a family member, a friend, or any other person who knows the individual and believes they need assistance. The process follows several steps:
Guardianships for adults with developmental disabilities are governed by Michigan’s Mental Health Code, not EPIC. This is a crucial distinction because the process and requirements differ significantly. The guardianship process for a person with a developmental disability is designed to assess their ability to function independently.
Two types of guardianships are available under the Mental Health Code:
The process is different from that described under EPIC.
While the guardian is responsible for all personal care, placement, medical decisions, and government benefits, they are not all powerful. The ward still has agency. If they won’t listen and make bad decisions, at least the guardian can unwind or void some mistakes, such as marriage or creditor issues. A professional guardian cannot sign a do-not-resuscitate order without court authority, nor can they commit someone for involuntary mental health treatment.
Guardianship is not the only way to support someone who needs help making decisions. In some cases, a power of attorney (POA) might be a more appropriate and less restrictive option. A power of attorney allows an individual (the grantor) to appoint someone else (the agent) to make decisions on their behalf.
A power of attorney is more flexible than a guardianship. Unlike guardianships, which require court intervention, a POA is created by the individual themselves, as long as they have legal capacity (and only a court can declare that the person lacks legal capacity). A POA lists all of the things it applies to specifically, and can be a long document. There is no reduction in the grantor’s legal rights, and they retain the right to revoke or modify the POA as long as they have legal capacity. In short, regardless of ability or disability, everyone over the age of 18 with legal capacity should have a power of attorney.
There are several types of POAs:
In 2024, Michigan adopted the Uniform Power of Attorney Act (UPOAA), bringing the state’s POA laws in line with those of 31 other states. The UPOAA simplifies the process by creating uniform rules for powers of attorney, making it easier for Michigan residents to use their documents across state lines.
One of the most significant changes is that financial institutions and other entities now face penalties if they refuse to honor a valid POA. This eliminates a common frustration people face when trying to use their POA documents.
Now is a great time to update your POA. Not only will it conform to changes in the law, but it can better reflect changes in your situation if you haven’t revisited it in a while. Michigan Law Center would be ready and willing to help, but if you can, go to whoever set up your original document.
While Michigan’s probate courts are designed to be accessible to non-lawyers, it can still be helpful to consult an attorney, especially in contested or complicated guardianship cases. Legal representation ensures that all documents are correctly filed, and the process goes smoothly. Moreover, an attorney can provide valuable advice on alternatives like powers of attorney, which may be a less restrictive option for many families.
Whether you're considering guardianship for a loved one or exploring the use of a power of attorney, it’s essential to understand your options and the legal responsibilities that come with each decision. Guardianship is a powerful legal tool, but it’s not the only one. Exploring all options ensures you can make the best choice for your situation.
