How Does the Court Establish Conservatorship?

What Is a Conservator?

In Michigan, a conservator is a person, a corporation authorized to exercise fiduciary powers, or a professional conservator, appointed by a court to manage the finances of an individual who can no longer manage their property or business affairs. A court also may appoint a conservator for a minor in specific circumstances and for certain mentally competent individuals who request an appointment for themselves.

A conservatorship proceeding may be necessary if an individual becomes unable to manage their financial affairs. However, if the individual has a valid durable power of attorney for finances naming a person to act on their behalf in the event of incapacity, appointment of a conservator may not be necessary. In some cases, a revocable living trust provides the same protection as a durable financial power of attorney.

Before a court can appoint a conservator for an individual unable to manage their financial affairs, Michigan law requires the judge to make two specific findings: 1) “The individual is unable to manage property and business affairs effectively” due to mental or physical disability or other specific reasons, and 2) The individual’s property “will be wasted or dissipated unless proper management is provided, or money is needed for the individual's support, care, and welfare or for those entitled to the individual's support, and that protection is necessary to obtain or provide money.”

The process for establishing conservatorship starts when a qualified person files a petition with the appropriate court requesting appointment of a conservator. The court then gathers information about the situation and about the individual for whom protection is sought. In some cases, the court may decide the outcome based on the information gathered after the petition is filed. However, in many cases, the judge holds a formal hearing to determine appropriate action on the petition. If the court determines that a conservatorship is necessary, the judge selects a conservator and issues a court order appointing the conservator.  A judge can also enter a protective order or other appropriate order in lieu of appointing a conservator.

The court order appointing the conservator establishes the scope and extent of the conservatorship. A conservator also has significant fiduciary responsibilities under Michigan statutes. After appointment, a conservator is subject to ongoing court supervision and reporting requirements.

Who Can Serve as a Conservator?

The court may appoint a person, professional conservator, or a fiduciary corporation as the conservator for a protected individual. Michigan law establishes the following priority order of entitlement to consideration for appointment:

1. A conservator, guardian, or similar fiduciary appointed by a court where the individual resides
2. A qualified person or corporation designated by the individual, including in a durable power of attorney
3. The individual’s spouse
4. An adult child of the individual
5. A parent of the individual or person nominated in a deceased parent’s will
6. A relative with whom the individual resided for more than six months prior to filing of the petition
7. A person nominated by the person caring for or paying benefits to the protected individual

The persons in categories 1, 3, 4, 5, and 6 may designate a substitute, who will have the same priority. If more than one person has equal priority, the judge selects the person best qualified to serve. The judge has authority to pass over a person with priority if doing so is in the best interest of the protected individual. If none of the persons with priority are suitable and willing to serve, the court may appoint any person it determines to be willing and suitable.

Filing a Petition

The laws establish who may file a conservatorship petition. MCL 700.5404 provides that a petition may be filed by “[t]he individual to be protected, a person who is interested in the individual's estate, affairs, or welfare, including a parent, guardian, or custodian, or a person who would be adversely affected by lack of effective management of the individual's property and business affairs.” The section also states requirements for the contents of the petition. In addition, the statute requires notification of the individual for whom the appointment is sought and other specific interested persons when a petition is filed.

Michigan courts have jurisdiction to appoint a conservator if the individual for whom protection is sought resides in Michigan or is present in the state and has a significant connection to the state. If the individual is a Michigan resident, the petition must be filed in the county where the individual resides. If the individual is not a Michigan resident, the petition is filed in the county where the individual’s property is located.

The statute provides that a court exercising the authority to appoint a conservator must “encourage the development of maximum self-reliance and independence of a protected individual and shall make protective orders only to the extent necessitated by the protected individual's mental and adaptive limitations and other conditions warranting the procedure.”  The judge has broad authority to take necessary action to protect the individual and to fashion an order that fulfills the court’s obligation under the law.

Investigation and Hearing

After a petition is filed asserting that an individual cannot manage their own financial affairs, the judge sets a date for a hearing. The individual for whom a conservator is sought has the right to be present at the hearing and to be represented by legal counsel. If the individual does not have an attorney, the court appoints a guardian ad litem for the individual.

Before the hearing, the court may direct that the individual be examined by a medical professional appointed by the court. The individual has the right to get an independent evaluation as well. The judge also may send a visitor to meet with the individual to be protected, which may be a guardian ad litem or court officer or employee. Persons designated by the court to meet with and evaluate the individual are required by the statute to: 1) Consider appropriate alternatives to conservatorship, 2) Consider the desirability of limiting the scope and duration of the conservator’s authority, and 3) Report to the court concerning the first two considerations.

At the hearing, the judge receives evidence from the petitioner, the individual for whom protection is sought (who is the respondent in the proceeding), and any other interested person the court allows to present evidence. Presentation of evidence in the hearing follows established procedural rules.

At the conclusion of the hearing, the judge decides whether appointment of a conservator is necessary based on the evidence. If so, the judge selects the conservator. In a court order, the judge appoints the conservator and establishes the terms of the conservatorship.

Do You Need a Lawyer for a Michigan Conservatorship?

Court appointment of a conservator is subject to complex substantive laws and procedural rules. If you wish to seek an appointment, or you have an interest in a conservatorship proceeding initiated by another person, the best way to protect your interests — and those of the individual for whom a conservator is sought — is to consult with a lawyer who has experience handling conservatorship proceedings.

In some cases, the process for appointing a conservator goes smoothly, as long as the petitioner follows the statutory requirements and presents evidence sufficient to warrant the appointment. However, proceedings may be contested if there is a dispute about whether appointment is necessary, who should be appointed as conservator, or what extent of protection is necessary and appropriate. Whether or not a conservatorship is contested, the petitioner and other interested persons should be represented by an attorney to ensure that all legal requirements are satisfied during the process.

Talk With Our BRMM Michigan Conservatorship Attorneys

If you need assistance with a situation that involves a Michigan conservatorship, our experienced probate litigation lawyers and elder law attorneys at BRMM are here to help. Our substantial experience positions us extremely well to help clients who encounter any issue involving Michigan conservatorship laws and procedures.