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.