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Guardianship Bills Seek to Prevent Elder Abuse

Clarkston Legal Sept. 23, 2013

By: Timothy P. Flynn

An adult guardianship is a probate court proceeding that protects an individual that cannot take care of his own affairs by appointing a fiduciary -a guardian or conservator- to care for the incapacitated individual. In our free-society founded on individual liberties, guardianships although disfavored as a legal status, are sometimes necessary to protect individuals made vulnerable through age or mental illness.

As a Public Administrator, I have served the Waterford & Clarkston Probate Court by accepting appointments as the guardian and conservator for individuals deemed by a judge to be incapacitated, but who do not have suitable family members to serve as their fiduciary. Currently serving as guardian for just over 75 protected individuals, and for hundreds over the past decade, I have acquired vast experience in dealing with all aspects of adult guardianships and conservatorships.

Two weeks ago, companion bills were introduced in the Michigan Senate to amend the guardianship provisions of the Estates and Protected Individuals Code -Michigan’s probate code- to adopt the Uniform Guardianship Jurisdiction Act. The companion bills seek to restrict the subject matter jurisdiction of the county probate courts by adopting a complicated three-tier test to ascertain the allegedly incapacitated individual’s contacts with the forum state prior to granting a guardianship.

Under the present probate code, a guardianship can be granted for any incapacitated individual physically present in Michigan. One benefit touted by supporters of the Senate bills is prevention of conduct known as “grannysnatching” whereby a person takes a vulnerable individual into Michigan from another state and immediately files for guardianship in order to control the person’s income and assets, and to prevent contact by other family members.

If adopted, the Senate bills would revise our guardianship act, making the initial establishment of a guardianship much more difficult, and complicated. Under the present guardianship procedures there are effective safeguards already in place. For example, prior to the establishment of a guardianship, a Guardian Ad Litem is appointed by the probate court to function as the “eyes and ears” of the court; to investigate the guardianship petition and make a recommendation to the judge.

Also, under the present law, all “interested persons” -other family members- must be served with a copy of the petition and can appear at the hearing on the petition and object to the guardianship or to the appointment of the nominated individual. Such notice provisions, along with the GAL’s report to the probate judge, operate as an effective set of safeguards against cases of reprehensible “grannysnatching”.

We here at the Law Blogger see these companion bills, SB 465 and SB 466, as more trouble than they are worth. If adopted, probate court staffs across the state will need to absorb and digest the complex provisions of the Uniform Guardianship Jurisdiction Act and the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act; this will require staff training and increase the administrative costs associated with the delivery of these public services.

Such cost and complication will come just as the Waterford & Clarkston Probate Court has managed to trim staff and control expenses to stay on-track with Waterford & Clarkston’s perennially-balanced budget; a rarity in this day and age, especially considering that the services provided by the probate administrative staff have remained first-rate.

For these reasons, we say “no” to the companion bills and urge the Michigan Senate to leave well enough alone. The present guardianship system in Michigan is not broken thus, it does not need to be “fixed” by a uniform act.

Related Note: A documentary on elder abuse titled, Last Will and Embezzlement, was profiled in today’s Freep. The film, which takes a look at the ways criminals take advantage of the elderly, is playing in Clinton Township and West Bloomfield.