In the past, we have examined the history of red flag laws, the arguments both for and against the adoption of red flags laws, and the studies that evaluated how effective the adoption of such laws has been in those states. This week, we are addressing the intersection of due process rights and red flag laws. This blog is not the first nor will it be last time someone has considered the intersection of due process rights and red flag laws. The NRA has evaluated proposed red flags laws in Rhode Island, Utah, and Maryland and opposed those laws on the issue of due process.[1] 

In order to help you evaluate whether any red flag law in Michigan violates due process, an understanding of due process is needed. First, there are two types of due process: substantive and procedural. Substantive due process issues look at how the states exercise their power to regulate certain activities, such as freedom of expression or the freedom of association. Procedural due process issues require an analysis of the procedure required by the Constitution when the states seek to deprive citizens of life, liberty, or property.

In Boddie v Connecticut, 401 US 371, 379 (1971), the United States Supreme Court ruled that due process requires “that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” In Mathews v Eldridge, 424 US 319, 333 (1976), the Court recognized that it “has consistently held that some form of hearing is required before an individual is finally deprived of a property interest.” The Mathews Court stated that “the fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” (quoting Armstrong v. Manzo, 380 U. S. 545, 552 (1965)). This rule has limited exceptions that are triggered only by a true exigency.

In the history of the United States Supreme Court, few circumstances have qualified as exigent ones.  In Bowles v Willingham, 321 US 503,521 (1944), the Court permitted the government to unilaterally set rents in defense-area housing accommodations during World War II. In N Am Cold Storage Co v City of Chicago, 211 US 306, 320, the Court permitted the government to immediately destroy tainted poultry to avoid exposing the public. In Barry v Barchi, 443 US 55, 65 (1979), the Court allowed the government to temporarily suspend a horse trainer from further racing if there was evidence of doping. In Mackey v Montrym, 443 US 1, 17-18 (1979), the Court said that the government can temporarily suspend someone’s drivers license when there is strong evidence that the person was drunk driving. The Court allowed these actions because any delay would have allowed destructive or harmful behavior to continue.

With red flag laws already adopted by states across the United States, the judge can issue an ex parte order that seizes the firearm if there is an immediate risk of harm for a limited period of time (in most states, this is fourteen (14) days).[2] At an ex parte hearing, the judge only hears evidence from the petitioner. The subject of the petition will not be able to prevent a defense until after the firearms have been a seized and a final hearing is held.[3] David Kopel, research director at the Independence Institute, said that he believed Vermont had “a fair system, which requires ‘specific facts’ that show an ‘imminent and extreme risk.’”[4] Kopel said, “When it comes to seizing guns through a temporary order, the standards that a judge uses should be high.”[5] Pinellas County Sheriff Bob Gualtieri said that the standard is high and requires “clear and convincing evidence.”[6] However, in some states the burden of proof required is a preponderance of evidence, which is one of the lowest burdens of proof in civil cases.[7]

In a hearing before the United States Senate Judiciary Committee, David Kopel said, “Constitutional requirements of procedural due process are at their height when an individual is deprived of a “fundamental” enumerated right. The right to keep and bear arms is such a right. McDonald v. City of Chicago, 561 U.S. 742, 778 (2010).”[8] Kopel went on to say that “the courts have identified seven key elements in procedural due process: notice; a neutral decision-maker; an opportunity to make an oral presentation; the opportunity to present evidence; the opportunity to cross-examine witnesses and respond to evidence; right to representation by counsel; and a decision based on the record, and reasoning for the result.”[9] He further stated that “an ex parte system deprives individuals of five of the seven elements of due process: notice, opportunity make an oral presentation, opportunity to present evidence, cross-examination and response to evidence, and the right to counsel.”[10] In response to a question from Senator Ted Cruz (R-Texas), Kopel laid out what he believed should be the minimum due process protections in red flag laws:

  1. Ex Parte hearings only if petitioners prove it to be an absolute necessity in the case of immediate danger;
  2. Evidence should be “clear and convincing” at all levels of hearings throughout the process;
  3. Respondents to the petitions should have a legal counsel, even if appointed by the court;
  4. The right to bring forth witnesses to support their case and cross-examine witnesses brought against them; and
  5. The ability to seek justice for any false or malicious testimony used to strip them of their right to bear arms.[11]

When it comes to evaluating whether any proposed red flag law in Michigan meets the procedural due process, ask yourself does it meet the seven key elements of procedural due process that David Kopel identified and does it have the minimum due process protections that he provided in response to Senator Ted Cruz’s question.                                   


[1] Stanglio, Doug. “Should guns be seized from those who pose threats? More states saying yes to red flag laws.” https://www.usatoday.com/story/news/nation/2019/05/01//red-flag-laws-temporarily-take-away-guns/35214910027. Last accessed on August 29, 2019.

[2] Vasilogambros, Matt. “Red Flag Laws Spur Debate Over Due Process.” https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2019/09/04/red-flag-laws-spur-debate-over-due-process. Last accessed on September 19, 2019.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Grogan, David. “Red Flag Laws, Firearms, & Due Process.” Conservative Partnership Institute. https://www.conservativepartnership.org/post/628/red-flag-laws-firearms-due-process. Last accessed on September 18, 2019. 

[8] Kopel, David. “Red Flag Laws: Examining Guidelines for State Action” https://www.judiciary.senate.gov/imo/media/doc/Kopel%20Testimony1.pdf. Last accessed on October 7, 2019.

[9] Id.

[10] Id.

[11] Id.

Over the last few weeks, I have been blogging about the trend across the country to pass what is referred to as “red flag” laws. So far, we have explored what they are, the names that are used to refer to them, and both sides of the argument in support or opposed to red flag laws. Last week, there was a typographical error in the blog. It said that “[p]roponents also argue that red flag laws do little to get help for those in crisis.” “Proponents” was the wrong word and the blog has been corrected to reflect that it is opponents of red flag laws. This week, we will examine the studies of red flags laws and their effectiveness.

Following the Parkland school shooting, President Trump established the Federal Commission on School Safety. The President tasked the Commission to report on policy recommendations to prevent future school violence. That Commission compromised of U.S. Department of Education Secretary Betsy DeVos, U.S. Department of Homeland Security Secretary Kirstjen M. Nielsen, U.S. Department of Human and Health Services Secretary Alex M. Azar, II, and U.S. Department of Justice, Acting Attorney General Matthew Whitacker.[1] In their cover letter to the President, the Commission stated, “There is no universal school safety plan that will work for every school across the country. Such a prescriptive approach by the federal government would be inappropriate, imprudent, and ineffective.”[2]  In the Commission’s report to the President, they discussed red flag laws.

The Commission stated that red flag laws are of recent vintage with the oldest law on the books being less than twenty (20) years old.[3] At the time of the report, over half of the states with laws on the books were less than one year old.[4] The Commission was not surprised that there was little research on the effectiveness of red flag laws.[5] In the report, the Commission discussed two studies that examined the effectiveness of Connecticut’s and Indiana’s red flag laws on the prevention of suicide.[6] The Commission reported that these studies examined the impact on the prevention of suicide and not the impact to violence against others.[7] The Commission concluded that they “do not know whether [red flag laws] impact gun violence more generally, and it appears no studies have yet evaluated the more recent ERPO laws in other states>”[8]

One of the two studies referenced by the Federal Commission on School Safety was conducted by Aaron J. Kivisto, Ph.D., and Peter Lee Phalen, M.A.[9] In their study, Kivisto and Phalen studied the effect of the red flag laws on suicide rates.[10] At the conclusion of their study, they found that “Indiana’s firearm seizure law was associated with a 7.5% reduction in firearm suicides in the ten years following its enactment, an effect specific to suicides with firearms and larger than that seen in any comparison state by chance alone.”[11] They also discovered that the “enactment of Connecticut’s law was associated with a 1.6% reduction in firearm suicides immediately after its passage.”[12] The researchers also determined that following the shooting at Virginia Tech, the reduction in firearm suicides increased to 13.7%, when enforcement of the law substantially increased.[13] The researchers learned that of the 762 individuals exposed to firearm seizures between 1999 and 2013 in Connecticut, 21 committed suicide (six via firearm).[14]

The first study cited by the Federal Commission on School Safety was authored by ten individuals from four different universities.[15] This study focused solely on the impact of Connecticut’s law on reducing suicide. The authors of this study stated that they were able to review the information in “702 risk-warrant petitions was available for review.”[16] The authors found that “suicidality or self-injury threat was listed as a concern in sixty-one percent of cases, and risk of harm to others was a concern in thirty-two percent of cases.”[17] The authors of the study found that in “fifty-five percent of cases police were sufficiently concerned about the mental health or intoxicated condition of the subject that they transported the individual to a hospital emergency department for evaluation.”[18]The authors stated in their summary that “[u]sing the law to prohibit a suicidal person from purchasing a gun is a good idea, but one that will not work—even with a comprehensive background check system—as long as those who are inclined to harm themselves do not fall into some category of persons prohibited from possessing or purchasing firearms under federal or state law.”[19]

The effectiveness of red flag laws to prevent mass shootings is simply not known as there has been no studies into this type of prevention. The two studies that have studied the effectiveness of red flag laws on the prevention of suicide by firearm indicate that the impact of the laws is reducing suicide by firearm by less than 20%. The authors of the Connecticut study raise a question to ponder, “Will using the law to prohibit a suicidal (or homicidal) person from purchasing or possessing a gun work to prevent future death?” It may take years to understand the effectiveness of red flag laws on the prevention of mass shootings and suicide. The answer for now is that we just do not know if the passage of red flag laws will achieve the desired effect of those that propose such laws.

Take the time to read and study the report from the Federal Commission on School Safety and the two studies that have been published. Educated yourself fully on red flag laws as passed in other states, so you will know what legislators are proposing in our state and if the public policy behind the law is sound.  Next week, we will explore the due process of red flag laws.


[1] Final Report of Federal Commission on School Safety, December 18, 2018, https://www2.ed.gov/documents/school-safety/school-safety-report.pdf, accessed on September 12, 2019.

[2] Id.

[3] Final Report, page 90.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Aaron J. Kivisto, Ph.D., and Peter Lee Phalen, M.A., “Effects of Risk-Based Firearm Seizure Laws in Connecticut and Indiana on Suicide Rates, 1981–2015” https://ps.psychiatryonline.org/doi/full/10.1176/appi.ps.201700250, accessed on September 12, 2019.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Swanson, Jeffrey W. et al, “Implementation and Effectiveness of Connecticut’s Risk-Based Gun Removal Law: Does It Prevent Suicides?”, https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4830&context=lcp, accessed September 12, 2019.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

Red flag laws seek to temporarily remove guns and prohibit future purchases of gun for those individuals who have been identified as being in crisis and presenting a significant risk of harming themselves or the community at large. There are two opposing views to the passage of red flags laws. This week, I will be examining the arguments in favor of and in opposition of red flag laws.

APM Research Lab conducted a study of 1,000 American adults from July 16 to 21, 2019. This was just two weeks prior to the mass shootings in El Paso, Texas and Dayton, Ohio.[i] The study found that over three-fourths of those surveyed supported family-initiated red flag laws. For police-initiated red flag laws the support dropped slightly to seventy (70%) percent.[ii] The Brady Campaign to Prevent Gun Violence reports in their fact sheet on red flag laws that two other studies conducted in 2015 and 2017 had similar results from those polled.[iii] Senator Lindsey Graham of South Carolina has publicly declared his support of passage of red flag laws at the state level.[iv] Following the shootings in El Paso, Texas and Dayton, Ohio, Senate Majority Leader Mitch McConnell from Kentucky and Senator Richard Blumenthal of Connecticut have expressed their support for red flag laws.[v]

The advocates of red flags laws promote the limited number of people who can request the protective order from a court. The laws limit the individuals who can request the order to law enforcement or family members. However, some states have expanded the list of individuals to include romantic partners or cohabitants.[vi]

Proponents of red flag laws state that a judge can order the temporary removal of guns from an individual once evidence has been presented that shows the individual is a risk of inflicting harm on himself or the public at large. The judge can issue the order prior to a hearing on an ex parte basis, but the individual is entitled to a hearing and the opportunity to present his own evidence refuting the petition’s allegations.[vii] This temporary removal of guns will save lives is the argument made.[viii] Proponents of the laws also state that the current laws in effect require evidence to be presented before the order can be issued and include punishments for filing false petitions. The punishments may include fines or jail time.[ix]

Those who oppose red flag laws state that the laws violate due process rights of the individual that the order is issued against.[x] In an opinion piece in the Courier Journal, Thomas Massic and Jim Jordan wrote that there is no evidence that the laws are reducing the frequency of mass shootings in public places where the laws have already been adopted.[xi] For law enforcement and the citizens, the service of the protection order can be hazardous. This is why some sheriffs, such as the sheriff in Weld County, Colorado are announcing that they will not order their deputies to participate in the service of these orders and the seizure of guns from individuals.[xii]

Opponents also argue that red flag laws do little to get help for those in crisis, but instead irritate the person by taking the firearms and leaving them without mental health help.[xiii] Without treatment, someone who is determined to hurt himself or others will find another weapon to use. This was the case with David Krystyniak.[xiv] Police removed firearms from Mr. Krystyniak twice before he used a samurai sword to kill his mother.[xv] He was known to be mentally ill and had a long history of erratic behavior.[xvi] The removal of firearms, with the last removal being on July 14, 2019, did not prevent the death of his mother as he found something else.[xvii]

Next week, I will explore the studies of red flag laws on how effective they are. In the meantime, do your own research on the issue of red flag laws before you decide if red flag laws are a solution to mass shootings.


[i] “What do Americans think about key gun policies?” https://www.apmreasearchlab.org/stories/2019/08/19/survey-guns-america-poll-red-flag-erpo-suicide-homocide-mass-shootings-storage accessed September 5, 2019.

[ii] Id.

[iii] “What are Extreme Risk Laws?” https://www.bradyunited.org/fact-sheets/what-are-extreme-risk-laws accessed August 29, 2019.

[iv] Stanglio, Doug. “Should guns be seized from those who pose threats? More states saying yes to red flag laws.” https://www.usatoday.com/story/news/nation/2019/05/01/red-flag-laws-temporarily-take-away-guns/35214910027.

[v] Lee, Kurtis. “Here’s what you need to know about ‘red-flag’ laws, the latest trend in gun control.” https://www.latimes.com/world-nation/story/2019-08-14/nationwide-red-flag-gun-laws-have-inceased-but-do-they-work, accessed August 29, 2019.

[vi] Jordan, Jim and Massic, Thomas. “Why red flag laws, background checks and an assault weapons ban won’t stop mass shootings.” https://www.courier-journal.com/story/opinion/2019/08/23/red-flag-laws-universal-background-checks-infringe-constitutional-rights/208839400/, accessed August 29, 2019.

[vii] “What are Extreme Risk Laws?”

[viii] Id.

[ix] Id.

[x] “Why red flag laws, background checks, and an assault weapons ban won’t stop mass shootings.”

[xi] Id.

[xii] Id.

[xiii] Id.

[xiv] 2nd Amendment Daily News. “Red Flag Failure: Police take guns from Illinois man, kills mother with samurai sword.” https://gunowners.org/red-flag-failure-police-take-guns-from-Illinios-man-kills-mother-with-samurai-sword/ accessed September 5, 2019.

[xv] Id.

[xvi] Id.

[xvii] Id.

At the beginning of this month, two shootings, El Paso, Texas and Dayton, Ohio, along with President Trump’s call for states to pass extreme risk protection order laws stirred up discussions among people I know about the intent of these laws and the potential conflict with due process rights. However, extreme risk protection orders, also known as “ERPO laws” or red flag laws (in this series, I will refer to them as “red flag laws”), have been gaining popularity among the states since the first law passed in 1999 in Connecticut following a fatal shooting at the Connecticut Lottery headquarters in Newington.[i] In my discussions, I have learned that some individuals were not aware of the history of the extreme risk protection order laws. This is the first in a series of blogs that is meant to educate on the history of passage of these laws, the viewpoints from both sides, outcomes relating to studies surrounding these laws, the impact on an individual’s due process rights and what the courts in other states have said, and what is happening in Michigan. This week, I am discussing the history of red flag laws.

Red Flag Law History

The first thing to know about red flag laws is that as of August 14, 2019 a total of 17 states and the District of Columbia have passed extreme risk protection laws. These laws are meant to prevent a person in crisis from harming themselves or others by temporarily removing guns and prohibiting the purchase of guns. Each state has passed its own version of these laws and refers to these laws by differing names. The laws have been referred to as extreme risk protection orders, red flag laws, or gun violence restraining orders. Some states restrict those who can request the protective order to law enforcement officials only while other states have expanded the group of people to include family members, dating partners, former spouses or dating partners, to roommates.[ii] About 21 other states have taken some steps toward adopting a red flag law.[iii]

The second thing to know about red flag laws is that most states have enacted their version of this law following a mass shooting. It started with Connecticut in 1999. Matt Beck, a employee at the Connecticut Lottery killed four of his supervisors before killing himself with a 9mm Glock pistol with a 19-round magazine.[iv] Beck had a history of attempted suicide, failed to win a promotion, and had filed a work-related grievance over a salary dispute.[v] He was under a doctor’s care and on medications.[vi] His father said that there was nothing unusual about his demeanor as he left that morning.[vii]

Indiana was next to pass a red flag law in 2005. The state passed the law after a fatal shooting.[viii] Kenneth Anderson, a 33-year-old man, carried a semi-automatic rifle and two handguns while he opened fire on homes and vehicles in an Indianapolis neighbor after he killed his mother.[ix] A police officer was shot and killed during the shootings.[x] Five months, prior to the fatal shootings, police had put Anderson under “immediate attention” at a hospital and seized weapons and ammunition from his home.[xi]

California was next following the Isla Vista killings by Elliott Rodger. Rodger was 22-years old.[xii] He used his vehicle, guns and knives to kill seven people, himself and wounded another 13 people.[xiii] He ran down skateboarders and bikers, fired through shop windows, and killed two women on a sorority house lawn.[xiv] His body was found near three handguns and more than 400 rounds of ammunition.[xv]  His was a planned attack that he publicized with a video stating that “he had no choice but to exact revenge.”[xvi] Even though family and doctor had very clear warnings about his risk to himself or others, there was little anyone could do.[xvii]

Washington was the next to pass a red flag law in 2016[xviii]. Oregon followed in early 2018.[xix] At that time, there were five states with red flags on their books.

After the shooting at Marjory Stoneman Douglas High School in Parkland, Florida in February 2018, another eleven states passed red flag laws.[xx]  Florida passed its law three weeks after the shooting and started a wave of states to follow.[xxi] This was a bipartisan movement after evidence showed that 19-year-old suspect showed several signs that he would act violently in the months prior to the shooting.[xxii] Family members alerted police about his disturbing social media messages and that he expressed a desire to kill.[xxiii] The FBI acknowledged failing to act on a tip prior to the shooting that killed 17 people.[xxiv]

Red Flag Laws in Michigan? Are They on the Way?

Currently, a version of a red flag law has been introduced in both the Michigan House of Representatives and the Michigan Senate. I will further explore and detail what the six bills propose and what their status is in upcoming blogs.

Even Republican Senator Lindsey Graham of South Carolina, chairman of the Senate Judiciary Committee, is a supporter of red flag laws at the local level.[xxv] He told “Face the Nation” on April 28, 2019 that he “is pushing his committee for a national grant program to ‘incentivize’ states to pass them.”[xxvi] He believes such a law would have made a difference in the Parkland shooting.[xxvii]

The first step in deciding whether to support or oppose an extreme risk protection order is educate yourself on what they are, how and when they are passed, whether they have worked in other states, and what you can do to protect yourself from being a respondent to one. Follow this series of blogs to learn more about red flag laws, and then do more research on your own to form your independent opinion on red flag laws.


[i] Stanglio, Doug, “Should guns be seized from those who pose threats? More states saying yes to red flag laws” https://www.usatoday.com/story/news/nation/2019/05/01/red-flag-laws-temporarily-take-away-guns/35214910027, accessed August 29, 2019.

[ii] Id.

[iii] Id.

[iv] Id.

[v] Id.

[vi] Tuohy, Lynne, “”Killer’s Parents Apologize” https://www.courant.com/news/connecticut/hc-xpm-1998-03-08-9803080035-story.html, accessed August 30, 2019.

[vii] Id.

[viii] Stanglio, Doug

[ix] Id.

[x] Id.

[xi] Id.

[xii] Id.

[xiii] Id.

[xiv] Id.

[xv] Id.

[xvi] Id.

[xvii] Id.

[xviii] “What are Extreme Risk Law?” https://www.bradyunited.org/fact-sheets/what-are-extreme-risk-laws, accessed August 29, 2019.

[xix] Id.

[xx] Lee, Kurtis. “Here’s what you need to know about ‘red-flag’ laws, the latest trend in gun control.” https://www.latimes.com/world-nation/story/2019-08-14/nationwide-red-flag-gun-laws-have-increased-but-do-they-work

[xxi] Id.

[xxii] Id.

[xxiii] Id.

[xxiv]

[xxv] Stanglio, Doug.

[xxvi] Id.

[xxvii] Id.

Everyone needs an estate plan. It does not matter if you have minimal assets, no children, pets, or millions of dollars in assets. Everyone needs to have a detailed plan for their future that others can refer to when the individual can no longer plan. Estate planning is just not about what should happen when you die, but what should happen when you are not able to speak for yourself.

Estate planning is not just having a will or a trust. Estate planning includes planning for medical emergencies when you cannot speak on your behalf, planning for your last illness, planning for your financial affairs when you are not capable of managing them, deciding who will care for your children when you are not able to, and planning for what happens after you pass away.  Young adults heading off to college should at a minimum have three estate planning documents: Patient Advocate Designation, including a Living Will and HIPAA Authorization; Durable Power of Attorney; and Last Will and Testament. What documents you need for your estate plan will depend on your desired goals, your assets, and your family situation. Estate plans are not a one size fits all. Your estate plan should be tailored to you, your family, and your future goals.

There are times in your life that you should consider if your estate plan will accomplish your goals. Those times include graduating from high school (or turning eighteen years old), graduating from college, getting married, the birth of a child, the youngest child turning age eighteen, the birth of a grandchild, getting divorced, retiring, or moving to a new state. These are major life events that should trigger at minimum pulling out your current estate plan and reviewing it. When you finish reviewing the estate plan, ask yourself, “Does this still accomplish my goals?” and “Have my goals changed since I last reviewed these documents?” In your review, you should also consider if the designated persons are still the right people for the roles you have assigned.

Besides the major life events, an estate plan should be reviewed at least every two years. Life changes quickly and what worked two years ago may no longer be ideal for today. You should consult with your estate planning attorney at a minimum of every three years to discuss funding issues, to review your goals, to ensure that your documents will accomplish your goals, and to ensure that your financial institutions will not consider the estate planning documents stale. We have learned from our client’s situations that some banks and credit unions will not accept any Durable Power of Attorney that was signed more than five years ago. This can create a problem if your Durable Power of Attorney is one that only becomes effective upon your disability. We have assisted successor agents in overcoming this hurdle when the grantor of the power became disabled and was not able to sign a new document. This can be prevented during a review with your attorney and by checking with your bank or financial institution when you shortly after you draft the estate plan.

Start, or review, your estate plan with our office today! Call and have your fifteen minute free phone consultation with our client coordinator today!

We make plans all the time. We plan what to wear, what to eat, where to go on dates or vacations, which neighborhoods to live in, or what kind of car to drive. But less than half of Americans have taken the steps to plan what will happen to their estate when they die. When LexisNexis conducted a survey, less than half of the respondents said that they had a will, which is the most basic estate planning document. Furthermore, less than one in four said that they had a Living Will or document to direct what happens in when they are ill or injured and cannot speak for themselves with doctors. Only one in five of the respondents said that they had a trust, which is a comprehensive estate plan.

The reasons for not having an estate plan can vary. Some reasons have been stated to individuals do not feel that they have sufficient assets to do the estate planning. Others have felt as if they were not old enough. Ten percent of the respondents have said that they do not want to think about it. One or all of these reasons may sound like how you view estate planning.

When a person dies without an estate plan, a will or trust, this is known as dying intestate. When this happens, as it did with Aretha Franklin and Prince, the state’s intestacy laws dictate how the estate will be passed. However, many individuals do not understand that the state’s intestacy laws are the same for everyone, are inflexible, or causes issues for blended families or families with special need individuals. There is little your loved ones can do when this happens. Your loved ones will have to wait why the probate court decides what will happen to your estate according to the intestacy laws. When singer and songwriter Prince died without a will, 45 people came forwarded and claimed that they had an interest in his estate. The court will have decided who in addition to his six siblings is entitled to receive anything from his estate. This will cost the estate time and money in reaching this decision.

Taking the time to plan for what will happen to your assets, who they will go to and what steps will be taken to care for your family when you die can speed up the process and allow for the flexibility that you and your family need. With a will or trust, you can provide unequal shares to your children, disinherit a child, donate to a charity, leave a share to stepchildren, or provide for a long-time friend or caregiver. If you have a special needs family member, you can create a special needs trust upon your death to assist in providing for the care of that family member without eliminating any government assistance that may be received.

When Aretha Franklin died, she left four sons and one of them had special needs. Her $80 Million estate cannot be used to assist in providing for that child’s care until the probate court has determined what her assets are and how they will be distributed. There is nothing anyone can do to speed up the process for the welfare and needs of her special needs son. He will just have to wait.

If you want to avoid the turmoil and costs of probate that Prince and Aretha Franklin’s families are enduring, then you need an estate plan. Estate planning is varied as the flavors of ice cream. Plan to today to consult with an attorney about what options are available for you. We are ready to take that first step with you. Schedule your free 15-minute telephone consultation with our Client Coordinator here.

June is full of events that signify the change of life. One of those events is high school graduation. It is a milestone for high school seniors as they transition from following their parents’ rules to illusion of freedom that accompanies entering adulthood. They are celebrating this milestone with graduation parties. They look forward to cards full of money and gifts to adorn their college dorm rooms or first apartments. But have you thought of giving the gift of lifelong peace? 

Instead of giving cash or much needed dorm supplies, consider purchasing a gift certificate for a basic estate plan. Every college student or young adult should have these three basic estate planning documents: a durable power of attorney for finances, a patient advocate designation with HIPAA waiver, and a last will and testament.  

A durable power of attorney for finances will allow the young adult to designate a financially responsible adult to act on their behalf when they are unable to do so. This power designation will allow the agent to access bank accounts; deal with creditors; pay rent, utilities and credit cards; and manage loans, including student loans. The young adult will have a say before the need arises to appoint who they trust to manage their financial affairs when they cannot. 

A patient advocate designation with HIPAA waiver allows the young adult to designate a person to advocate on their behalf regarding healthcare decisions. This is a role parents fulfilled throughout childhood but no longer can legally do so once the age of eighteen is attained. With a properly prepared patient advocate designation, the young person can name a person or persons that they trust to fulfill this role when they are incapable of speaking on their behalf. The young person can provide directions on what actions to take if an injury or illness will likely result in death. The designated person will also be granted access to medical records, so informed decision regarding healthcare can be made on behalf of the young adult. 

A last will and testament will allow the young adult to direct the distribution of their estate upon their death. Many young adults do not think of what will happen when they pass away. Death is not within their immediate goals. But a last will and testament give the young adult a voice in what will happen to his personal belongings upon death.  

If you have a young adult preparing to head off to college or move into their first apartment on their own, give them the gift of peace. Purchase a gift certificate for an estate plan with an attorney who understands what a young person needs at the beginning of their life adventures. 

The probate court in your county appointed a guardian to act on your behalf. Now, you want to end your guardianship so that you can make your own decisions about your life, including where you live, how you spend your money, and other important choices. The question often arises on how to terminate the guardianship. In Michigan, there is a law that informs the court on how to terminate a guardianship. It is MCL 700.5310. The first thing to do is to determine if your guardian and other interested parties (your immediate relatives) all agree that terminating the guardianship is the best thing to do. If everyone agrees, file a petition with the probate court that granted the guardianship. If everyone does not agree, that is not the end as you can file your own request with the court.

If there is not an agreement on terminating the guardianship, you will need to get a report and letter from your doctor or a few of your doctors, if more than one treats your condition, to state that you are no longer incapacitated or in need of a guardian. It is often helpful to ask if your doctor or doctors are willing to testify on your behalf in court, if needed.

The next step is to decide whether you can afford to hire your own attorney or if you will need to ask the court to appoint one on your behalf. If the court has also appointed a conservator, you would have to ask the conservator if you can financially afford an attorney. If finances are an issue, then ask the court to appoint you an attorney. An attorney can advise on what other evidence would need to be presented to the court to prove that you no longer need a guardian. An attorney can also make sure that the form is filled out properly. But if you cannot afford an attorney, some organizations, such as Michigan Protection & Advocacy Services, have form letters that you can use to request the termination of the guardian. If you are the person who has the guardian, there is no filing fee for you to file this petition.

Once you file your petition or request to terminate the guardianship, the court has twenty-eight (28) days to schedule the hearing. Prior to this hearing, the court will likely send a person known as guardian ad litem to the residence of the ward. The guardian ad litem will report to the court on the individual’s living conditions and other factors the court should consider before rendering its decision. At the hearing, the judge will determine if the request to terminate is approved. The court may order a modification of the guardianship by appointing a new guardian or modifying what the guardian can do.  If the court denies the request, it can set a time limit before another request to terminate or modify the guardianship can be filed.

If you would like to terminate a guardianship, contact our office to schedule a pre-engagement meeting to find out what more you need to do.

Your loved one is aging, suffers from disability or has an addiction, how do you know when you need to apply for legal guardianship or conservatorship to assist them in carrying for their daily needs. In Michigan, MCL 700.1105(a) defines what an incapacitated individual is. It states that the individual is impaired because of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, not including minority. The law further states that the individual’s impairment is to the extent that the individual lacks sufficient understanding or capacity to make or communicate informed decision. There are two prongs that must be shown to the court before a legal guardianship or conservatorship can be granted. First, the person suffers from one of the listed conditions. Second, that impairment prevents the individual from understanding or being able to make or communicate an informed decision.

The definition of incapacity has evolved over time and can vary from jurisdiction to jurisdiction. However, the one common principle is that all adults are presumed competent until proven otherwise. The burden is on the contestants to prove that an individual is incapacitated or incompetent. In re Estate of Wood374 Mich 278, 132 NW2d 35 (1965); Vollbrecht v Pace26 Mich App 430, 182 NW2d 609 (1970). The finding of legal incapacity is a determination made by the probate court after hearing clear and convincing evidence that a guardian is “necessary as a means of providing continuing care and supervision.” MCL 700.5306(1). If medical personnel provide their opinion that your loved one suffers from incapacity because of a listed condition in MCL 700.1105(a), it is just an opinion until a probate court renders a decision that your loved one is in fact incapacitated.

The definition of incapacity varies by jurisdiction and has evolved over time, but the one thing the various definitions have in common is the principle that all adults are presumed competent until proved otherwise. The burden is on the contestants to prove that an individual is incompetent. In re Estate of Wood374 Mich 278, 132 NW2d 35 (1965); Vollbrecht v Pace26 Mich App 430, 182 NW2d 609 (1970). The finding of legal incapacity is a determination made by the probate court after hearing clear and convincing evidence that a guardian is “necessary as a means of providing continuing care and supervision.” MCL 700.5306(1). If medical personnel provide their opinion that your loved one suffers from incapacity because of a listed condition in MCL 700.1105(a), it is just an opinion until a probate court renders a decision that your loved one is in fact incapacitated.

Total incapacity is a rarity. The state statutes recognize that capacity is task specific. It may depend on the type of transaction or decision to be made and the surrounding circumstances. For instance, a person may be able to handle personal safety and hygiene but not financial matters. Statutes recognize this by calling for the appointment of a limited guardian when possible and granting a guardian “only those powers and only for that period of time as is necessary to provide for the demonstrated need of the incapacitated individual.” MCL 700.5306(2), (3). In addition, MCL 700.5407(1) allows the court to “encourage the development of maximum self-reliance and independence of a protected individual.” The court can order that the incapacitated individual to function without the consent or supervision in handling some money or limited access to bank accounts. The probate court judge will look for the least restrictive means of assisting the incapacitated individual. If you need help in determining if a petition should be filed with the probate court to provide assistance to your loved one who is experience some level of incapacity, call us today to evaluate the options available to provide the least restrictive assistance to your loved one.

Frequently, we are asked what the difference between a conservatorship and a guardianship is. This is often followed up why do I need both. These are excellent questions to ask when considering what to do for your loved one whose memory is failing, has a disability that limits his own decision making, or has addiction that impacts his life. The court refers to the individual as “incapacitated.” A conservatorship and a guardianship are not the same, although both require the court to appoint an individual to act.

First, a conservatorship is when the court appoints one or more persons to manage the financial assets and to make financial decisions for the benefit of the incapacitated individual. The authority granted by the court will allow the person to pay the monthly bills, manage the bank accounts, manage stock or brokerage accounts, file tax returns, and secure insurance, whether as a government benefit or privately.

Second, a guardian is when the court grants authority to one or more persons to make personal and health-related decisions on behalf of someone who has been deemed to be incapacitated. The guardian will be allowed to make decisions regarding medical care, living arrangements, and safety for the incapacitated individual.

Finally, the court may appoint the same person to fulfill both roles for the incapacitated individual. This is often the most efficient way to care for an incapacitated individual. However, if there is a family conflict on who should be the conservator or guardian, the court can in its discretion appoint one person as conservator and another individual as the guardian. This is done in hopes of providing some checks and balances to the accusations raised by competing family members over the ability to care for the incapacitated individual. If there is an estate plan in place, the court can decide to appoint the individuals named in the Durable Power of Attorney and the Patient Advocate Designation since these documents indicate who the incapacitated individual wanted to make these decisions when this need arose. If your loved one needs someone to make their decisions and failed to create an estate plan, we will guide you through the process of becoming appointed by the court as the conservator and guardian. If your loved one already has an estate plan, we will guide through what actions you need to take, including whether you need to file for conservatorship or guardianship. Call today to schedule your Pre-engagement meeting.