Special issues in Guardian and Conservatorships topic of ICBA probate section meeting

By Roberta M. Gubbins

Legal News

"The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPA) provides a procedure to resolve interstate jurisdictional controversies," Rhonda M. Clark said in opening her discussion of guardian and conservatorships for the Ingham County Bar Association probate section monthly luncheon and meeting.

As our population ages they move from place to place and children do not live near their parents anymore. This act (UAGPPA) creates a process to determine which state will have jurisdiction by giving priorities to an individual's home, then a state with a significant connection and then all other states. It is meant to help facilitate transfers of guardian and conservatorship cases. It specifies procedures to transfer one case from one state to another and a form of acceptance by the receiving state.

Under the Uniform Law, orders from the sending state can be enforced once the receiving state has accepted jurisdiction. The law aides in improving cooperation among the courts, can assist in emergency situations that arise in a foreign state and can decrease the need to relitigate a guardianship when the ward is a resident of a new state. Four states have passed the law--Illinois, DC, Utah and Alaska have passed the law.

Michigan, one of the few states that has a "bifurcated guardianship situation" whereby guardianship proceedings can be found under the Mental Health code as well as under EPIC, (Estate and Protected Individuals Code) is working on a form of the statute.

At the end of the summer, the committee came up with a pared down statute that would establish a procedure to allow appointment a temporary foreign guardian or conservator in Michigan for thirty days. That person must be in good standing in the home state. The benefit could be to ultimately appoint the person as a full guardian and prevent the relitigating the proceeding.

A Second issue : Does a guardian have a right to issue a Do Not Resuscitate (DNR) order for the ward? The DNR statute does not include the word guardian. There is a conflict of opinion by the probate judges with one judge believing the common law supports the right for a guardian to sign a DNR. He argues that the statute says a guardians rights are not removed by the act. The committee believes the easiest solution is to add the word 'guardian' to the statute.

The third issue that has come up recently is that there is no uniformity of practice in the state. For example, Ionia and Macomb counties require physician statements when filing for a guardianship or conservatorship. Clark suggested that lawyers practicing probate "should know everybody in the probate court and if you are going into a new court, you should check out their websites for procedures."

Health care powers of attorney and mental health problems can be an issue. Clark recommends that practitioners discuss with their clients the issue of whether their patient advocate can agree to a mental health evaluation or treatment. Without this right, the advocate must go to court to seek an order for evaluation. "The question is 'how much mental health treatment are you going to allow?' the only way to allow voluntary inpatient or forced medication is to have a 'clear and convincing' statement in the power of attorney."

Other miscellaneous issues are:

* Ask for courts blessing if not clear as to powers in power of attorney.

* There is a lot of confusion regarding the age of Powers of Attorney and their validity. It is possible to have a lawyer certification of the form.

* You don't give powers to an advocate that are already given to a guardian.

Rhonda M. Clark, practices in the areas of elder law, estate planning, probate, trust administration, guardian and conservatorships. Her office, Rhonda M. Clark, PC is located in St. Louis, MI.

Her undergraduate degree is from Michigan State University and she is a graduate of Thomas M. Cooley Law School. She also received an LLM from the London School of Economics and Political Science. Clark is an active member of the State Bar of Michigan Probate and Estate Planning section.

Next meeting of the Probate Section will be on November 16th at the State Bar of Michigan at noon. The speaker will be Chris Savage speaking on "Multiple trust drafting under the new Michigan Trust Code."

Published: Thu, Oct 28, 2010

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