Probate Court can appoint a guardian for a minor, a legally incapacitated individual, or an individual with a developmental disability. The process for each type of filing is different and is detailed in the following sections.
As an overview, there are standard steps that occur after a petition for guardianship is filed with all required accompanying documentation. Specifically, for a minor and adult guardianship, the Court orders a Guardian-ad-litem to be appointed to investigate and submit a report prior to the scheduled hearing. For I.D.D. filings, an attorney will be appointed for the protected individual unless he/she already has an attorney. (The appointed Guardian-ad-litem and /or attorney fee and payment will be the responsibility of the petitioner. At the hearing, the petitioner must establish the statutory grounds for a guardianship. Depending on the circumstances, the Court may appoint a Full or Limited Guardian.
Below you will find a description of each type of guardianship and the required forms for each type of processing.
Please note the Probate Court cannot tell you what type of guardianship to file. If you have legal questions, please consult with an attorney.
LEGALLY INCAPACITATED ADULT INDIVIDUALS (LII)
If an adult is an incapacitated individual such he/she lacks sufficient understanding or capacity to make or communicate informed decisions due to mental illness, mental deficiency, physical illness or disability the Probate Court may appoint a guardian for the individual. Depending on the circumstances, the Court may appoint a full or limited guardian.
DEVELOPMENTAL DISABLITY GUARDIANSHIP (D.D.I.)
Guardianship for an individual with a developmental disability must be brought under the Mental Health Code rather than Estates and Protected Individuals Code. This type of guardianship, a report containing a current psychological of the individual’s mental, physical, social, and educational condition, adaptive behavior, and social skills must accompany the petition. The psychological evaluation must have been completed within the past year and one of the individuals who conducted the evaluation must be a physician or psychologist who is competent in evaluating individuals with developmental disabilities.
If you have not secured an evaluation as stated above and you need assistance, please contact Lapeer Community Mental Health at 810-667-0500 to see if they can assist. You may use your own private physician but remember they will need to testify at the court hearing.
Probate Court may appoint a guardian for an unmarried minor if any of the following situations exist:
- The parental rights of both parents or of the surviving parent have been terminated or suspended by death, dis appearance, confinement in a place of detention, judicial determination of mental incompetency, a previous court order other than an order appointing a limited guardian of the minor, or a judgement of divorce or separate maintenance;
- The parent(s) have permitted the minor to reside with another person, but have not provided that other person with legal authority for the care and maintenance of the minor, and the minor is not residing with the parent;
- The biological parents of the minor were never married to each other, and the custodial parent has died or disappeared, and the other parent has not been granted legal custody by court order. (Under this situation, the proposed guardian must be related to the minor within the fifth degree by marriage, blood, or adoption).
Also, under MCL 700.5205, a custodial parent can petition the Court to have a Limited Guardian appointed for their minor child. In those situations, the parent is voluntarily agreeing to the suspension of parental rights and a Limited Guardianship Placement Plan must be filed.