Guardianship for an Individual with a Developmental Disability
- When may a guardianship be necessary for an individual with a developmental disability?
- What is the difference between a guardian of the person and a guardian of the estate?
- How are guardians appointed?
- How does the process work?
- What are the duties of a guardian of the person?
- What are the duties of a guardian of the estate?
- When may a guardianship be terminated?
- Do I need an attorney?
When an individual with a developmental disability needs protection for any reason, including protection from neglect, exploitation, or abuse, the person may be in need of a guardian. An individual with a developmental disability may need a guardian of the person to make daily living decisions. An individual with a developmental disability may need a guardian of the estate to manage his or her property or finances.
The law states that a guardian may be appointed if a court determines that a person is an individual with a developmental disability. The law defines a developmental disability as:
"A severe, chronic condition attributable to mental and/or physical impairment likely to continue indefinitely that results in substantial functional limitations in at least three of the following areas: self-care, language, learning, mobility, self-direction, capacity for independent living, and economic self-sufficiency."
Generally, it can be said that the guardian of the person makes decisions about the person, such as medical or housing decisions, and the guardian of the estate makes decisions about the property or the finances of an individual with a developmental disability. A guardian of the person and a guardian of the estate can be the same person or institution, or they may be different. For example, a guardian of the person could be a person and a guardian of the estate could be a trust company or bank.
Unless an emergency exists and the appointment of a temporary guardian is requested, evaluations of the individual with a developmental disability must be conducted.
Whoever files the petition for the appointment of a guardian for an individual with a developmental disability, they must attach evaluations of the proposed ward’s mental, physical, social, educational condition, adaptive behavior, and social skills. These evaluations can be obtained by contacting your own private sources or by contacting the Detroit-Wayne Intergrated Health Network (DWIHN). If a facility or program director is the petitioner, then a recommendation from the Informed Consent Board is required.
A guardian of the person and estate may be appointed by a Probate Judge after a petition is filed in the Probate Court. The petition may be filed by anyone interested in the well-being of an individual with a developmental disability.
When the petition is filed, professionally licensed persons must evaluate the individual with a developmental disability and report their findings to the court. Upon receipt of the evaluations, a hearing will be scheduled and held within 30 days. The person who files the petition has the responsibility to properly notify the persons who have a right to know about the hearing.
On the date of the hearing, the petitioner and anyone else who wants to take part in the hearing goes before the Judge (all hearings are being done by ZOOM due to the health emergency) and explains the need for a guardian of the person or guardian of the estate. The court will appoint an attorney to represent the individual with a developmental disability at the hearing. Sometimes, the court will also appoint a guardian ad litem to assist the attorney. In addition, detailed testimony must be taken from one report evaluator. The Judge will decide whether to appoint a guardian of the person and/or a guardian of the estate.
The person who is appointed guardian of the person is required to file an Acceptance of Appointment. The person who is appointed guardian of the estate may also be required to file a Bond to protect the assets of the individual with a developmental disability. After filing the Acceptance of Appointment (and Bond, if required), Letters of Guardianship will be issued to the guardian of the person or the guardian of the estate. The Letters of Guardianship give the guardian of the person or guardian of the estate the right to perform certain duties, unless the court restricts the authority.
- The guardian generally has the same authority and responsibility for the individual with a developmental disability as a parent has for a minor child.
- The guardian is required to file annually a report on the condition of the individual with a developmental disability. The report must be filed within 56 days of the anniversary date of the appointment. The information contained in the report allows the court to assess how the guardianship is working and whether it is still necessary.
- The guardian may not consent to certain surgical procedures and may not place the ward in certain health facilities without a court order.
- A major goal of the guardian is always to try to restore the individual with a developmental disability to independence.
- Within 56 days of being appointed, the guardian of the estate must file an Inventory. The Inventory is a listing of all assets of the individual with a developmental disability. Assets may consist of real estate, stocks, bonds, certificates of deposit, savings and checking accounts, and personal belongings and everything in which the individual with a developmental disability has an interest.
- It is the duty of the guardian of the estate to care for and preserve all of the assets of the individual with a developmental disability, and to represent the individual in any legal proceeding.
- The guardian of the estate must keep careful records of all income of the individual with a developmental disability and all disbursements of the individual's funds. The guardian of the estate must keep the assets of the individual with a developmental disability separate from his or her own assets and never "borrow" from the individual's assets.
- It is the duty of the guardian of the estate to file an Annual Account each year within 56 days after the anniversary date of the guardian of the estate's appointment.
The Account must list receipts (monies in) and disbursements (monies out). Save your receipts; one must be presented to the court for each disbursement.
Anyone, including the individual with a developmental disability, may file a petition to modify or terminate the guardianship or to have a different guardian appointed. When the individual no longer has a developmental disability or dies, the guardian must notify the court immediately so that the guardianship can be ended and the court's case closed. Before the guardian can be discharged, a final account will have to be filed and approved by the court and the court will have to be satisfied that the individual or his or her estate has received whatever assets remain.
If you have questions that this page did not answer, please seek advice from an attorney.