By Matthew A. Quick When people cannot care for themselves, others are required to help. If Powers of Attorney, Patient Advocate Designations or Living Wills have not been executed (meaning no one has been appointed to help) then people must rely upon a Court to select someone. A Court will choose anyone who is suitable and willing to serve and will designate them a Guardian or a Conservator, or both (a Guardian and a Conservator could be the same person or entity, or different people or entities). MCL 700.5313 and MCL 700.5409.
A Guardian is a person who has been qualified and appointed by the Probate Court to act on behalf of a ward with respect to personal care and custody. A ward, in most adult instances, means an incapacitated individual. An incapacitated individual is a person who, by definition, “is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions.” MCL 700.1105.
A Conservator is a person who has been qualified and appointed by the Probate Court to act on behalf of another person with regard to their property and financial affairs. The appointment of a Conservator is appropriate if both of the following exist: (i) The person for whom a conservatorship is sought is unable to manage their property and financial affairs due to mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power or disappearance; and (ii) The person for whom a conservatorship is sought has property that will be wasted without proper management, requires financial support or welfare or has a dependent that requires financial support or welfare. MCL 700.5401.
In sum, a Conservator does not have the power to consent to personal care and custody; and, if a Conservator is appointed, a Guardian does not have the power to consent to the care of property and finances.
As a practical note, to avoid the time and expense of guardianship and conservatorship proceedings, advanced directives, such as Powers of Attorney, Patient Advocate Designations and Living Wills, should be executed prior to incapacity. Not only do these documents allow someone the power to designate their own caretakers, but they also allow for instructions to be given as to care.