may a guardianship be necessary for an individual with a developmental
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
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
is the difference between a guardian of the person and a guardian of the
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.
Does the Process Work?
Unless an emergency
exists and the appointment of a temporary guardian is requested, evaluations of the individual with a developmental disability must be
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 Community Mental Health Agency (CMH). If a facility or program director is the
petitioner, then a recommendation from the Informed Consent Board is required.
are guardians appointed?
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 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 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.
are the duties of a guardian of the person?
- 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
are the duties of a guardian of the estate?
- 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
- 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.
may a guardianship be terminated?
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
I need an attorney?
If you have questions
that this page did not answer, please seek advice from an attorney.