Law Office of Shannon DeWall, PLLC

Blog

Blog

view:  full / summary

Guardianship, Part 2

Posted on January 5, 2020 at 5:55 PM

How to File for Guardianship

Once a person decides that a guardian is needed for a loved one, a petition for guardianship must be filed with the probate court in the county where the loved one lives. The person who files the petition is called the “petitioner” and the loved one is called the “proposed ward.” Once the petition is filed, a hearing will be scheduled for a later date.

 

Under Michigan Court Rules, the petitioner is required to notify certain individuals that there is a guardianship hearing. This includes the proposed ward, their spouse, and certain family members. These interested persons may object to the guardianship.

 


Guardian Ad Litem

A guardian ad litem (GAL) is a person appointed by the court to serve as the court’s “eyes and ears.” They are sent to visit the proposed ward and to explain the petition, the proposed ward’s rights, and the hearing process. The GAL must review the circumstances and make a report to the court. This could include recommending a different person act as guardian or even telling the court they don’t think a guardian is needed at all.

 


Probate Court Hearing

The primary purpose of this hearing is for the judge to determine whether guardianship is necessary. To grant a guardianship, the judge must determine by clear and convincing evidence that

• The individual lacks the capacity to make or communicate informed decisions; and

• A guardian is necessary to provide care for the individual.

 

Once the judge establishes these two things, the judge will appoint a guardian. A guardian can be any competent person over the age of 18 who is willing to serve. To choose a guardian, the judge will follow the priority spelled out in the law, which is as follows:

• The guardian already appointed in another state for the ward;

• The person chosen by the ward

• The person nominated in the ward’s durable power of attorney;

• The person who serves as the ward’s patient advocate.

• If none of the options above are available, then ward’s spouse, adult children, or other family members

 

If the judge cannot find someone to serve as guardian from this list, a professional guardian may be appointed.

 


Questions?

Do you have questions about filing for guardianship? We can help. Contact us at (734) 237-8507 or e-mail us at [email protected] We can help you navigate this complicated area.

 

 

Guardianship, Part 1

Posted on December 1, 2019 at 4:35 PM

What is Guardianship?

Guardianship is a legal process where someone’s rights are taken away and given to someone else. The person whose rights are taken away is called the “ward.” The person who makes decisions for the ward is called the “guardian.” The probate court appoints a guardian when the ward can no longer make their own decisions due to injury, illness, or disability. The guardian has the responsibility of making healthcare decisions and decisions about where the ward will live. To obtain a guardianship, a petition must be filed with the probate court.

It is important to keep in mind that the probate court judge decides who will be guardian. In Michigan, a judge is supposed to follow a certain order of priority when choosing a guardian. For example, a spouse should be first choice, and if there is no spouse, then an adult child. However, a judge may reject this order and appoint a professional guardian instead.

 


What is Conservatorship?

Conservatorship is similar to guardianship, but instead of making healthcare and custody decisions, a conservator makes financial decisions for the ward.

 


What is a Financial Power of Attorney?

A financial power of attorney is a document that gives someone else the authority to handle an individual’s financial matters if they are unable to handle their own affairs. The person creating the power of attorney is called the “principal.” The person who handles the principal’s financial matters is known as an “attorney-in-fact.” Usually, the attorney-in-fact has broad powers including, but not limited to, signing checks, paying bills, and selling property for the principal.

 

Creating a financial power of attorney is a private matter where the principal has complete control to choose who will be the attorney-in-fact. The court is not involved in this decision. Also, the principal does not lose their rights like a ward does. The principal remains in control and has the ability to cancel a financial power of attorney at any time. Having a financial power of attorney in place prevents the need for a conservator.

 


What is a Healthcare Power of Attorney?

A healthcare power of attorney is a document that grants someone called the patient advocate the authority to handle an individual’s medical decisions when that person is unable to make their own decisions. The patient advocate has the power to make decisions involving the principal’s medical treatment, medication, and even whether to start or stop life-saving treatment. Having a healthcare power of attorney in place prevents the need for a guardian.

 


Questions?

Do you have questions about guardianship or conservatorship? Whether you need help establishing guardianship or conservatorship for a loved one, or finding alternatives, we can help. Contact us at (734) 237-8507 or e-mail us at [email protected] We can help you navigate this complicated area.

 

New VA Benefit Rules Effective October 18th, 2018

Posted on September 19, 2018 at 5:20 PM

What are VA Pension Benefits?

The VA pension benefit is a monthly cash benefit paid to eligible wartime Veterans or their surviving spouses. This benefit can help pay for care costs, but the recipient must meet financial and medical requirements to qualify.



Who is Eligible?

To receive VA benefits, specifically the non-service connected pension, otherwise known as aid and attendance, an applicant must be a Veteran as defined by federal statute. That is “a person who served in the active military, naval, or air service and who was discharged or released therefrom under conditions other than dishonorable.” They also must also be disabled or over age 65.


 

What’s New in the Law?

On September 18, the Department of Veterans Affairs (VA) published new rules that make it more difficult to qualify for this important benefit. The major changes include:

    1. A new 36-month look back period. This means if any asset was transferred for less than fair market value during the 36 months before an application is submitted, there will be a penalty period up to five years.

    2. The VA has also provided a rule regarding the Veteran’s assets. The amount is currently set at $123,600.00.

 

These new rules take effect October 18, 2018.

 


What Can I Do?

Even with these new rules there are planning strategies we can take advantage of.  If you have questions about these new rules and what they mean for you or a family member, please give us a call at (734)237-8507.


Rss_feed