Estate Planning - Care Giving
As a practical matter, you are likely to be recognized as having the authority to make care giving decisions for your spouse without needing legal documents. Society expects you to speak for your spouse, and rarely challenges your legal authority to act. Issues will arise in financial transactions such as buying or selling stocks or realty, cashing in a pension, or certificate of deposit (CD). If your spouse prepared and signed a Durable Power of Attorney giving you broad authority to act on his behalf as his agent, you can handle the financial paperwork with little trouble.
If no Durable Power of Attorney is available, and is no longer possible, then your authority to act will need to come from the Probate Court. If you need ongoing authority -- for example, to cash a quarterly dividend check -- then a petition for a conservatorship should be filed. If you aren’t having other difficulties, but you need just the authority to sign the deed to sell the jointly owned house, it may be that a Protective Order, also granted by the Probate Court, is the best solution. A Protective Order is a one-time grant of authority for a certain act without ongoing court supervision and oversight and annual accountings.
Legal aspects of decision making for your spouse usually arise in the medical area. With a valid Health Care Power of Attorney, a Living Will or, if wanted, a Do-Not-Resuscitate document, you have the legal authority to make or enforce medical decisions on your spouse’s behalf.
If some dispute on medical care arises, and you don’t have one of the previously mentioned advance directives, the authority to act needs to be legally granted by the Probate Court through a guardianship.
As a practical matter, institutions and organizations are not going to be as willing to accept your word without some documentation of your legal authority to act, when acting for adult disabled children. All of the options described above can also be used to be the legally appointed patient advocate, attorney in fact, guardian or conservator for a disabled child.
If your disabled child only has financial income from Social Security or SSI checks, you might be able to avoid seeking a court ordered conservatorship by using the SSA equivalent, called the representative payee. A representative payee, appointed by SSA after applying and providing medical documentation that the child needs assistance in handling the check, will have the authority to cash the SSA/SSI check and use it for the child’s benefit.
Grandchildren
Most Americans have not completed either a Health Care Power of Attorney or a Living Will. If you do not complete an advance directive before you are unable to act for yourself, who makes the personal decisions? These are handled by a guardian, appointed by the Probate Court after a hearing to determine if you are legally incapacitated and unable to handle your personal affairs.
This process begins with a petition for guardianship in which someone (often a family member) files papers in court stating that they do not think you can take care of your personal affairs, and asking that someone be appointed to handle them for you. The standard the court uses to determine if you need a guardian is: are you capable of making an "informed decision" about your affairs and is a guardian deemed necessary to provide continuing care and supervision. The person appointed by the court is the guardian, and the legally incapacitated person is referred to as the ward. No matter who requests to be your guardian, you may express your preference as to who you want appointed, and the court is to take your wishes into account unless that person is not "suitable and willing to serve." Perhaps a petition has been filed but you don’t feel you need a guardian; you can request a lawyer be appointed to represent you. The court should not appoint a guardian who will financially benefit from you, by providing paid housing or medical services. Thus, your adult foster care owner should not be appointed your guardian. If you also need someone to handle your business affairs, a petition to appoint a conservator would also be filed in Probate Court.
Once the petition is filed the court appoints a temporary guardian to look after your interests. This person is called the guardian ad litem. They are to visit you and learn if you understand the guardianship proceedings, whether you want to contest the entire petition, want to be represented by a lawyer, or if you have another preference for who should be appointed your guardian.
If the court appoints a guardian, you have a right to later petition to have the guardianship changed or terminated. Under Michigan law you, as a ward, may write an informal letter to the Probate Court, requesting a change or termination. The court may decide to have a hearing on the matter.
[Back to Top]