UNDERSTANDING MICHIGAN PROBATE
The Probate Court attorneys at LawCounsel, P.L.C. can assist you or your family in three substantive areas: Decedents’ Estates, Guardianships and Conservatorships, and Mental Health Proceedings.
Whenever possible, our attorneys will attempt to administer the estate of your loved one under informal probate procedures outlined in Michigan’s Estates and Protected Individuals Code (EPIC). Specifically, when traditional probate proceedings are required in a decedent’s estate, the administration may be either court supervised or unsupervised. Further, proceedings to commence an unsupervised administration may be formal or informal. Informal proceedings are defined as “proceedings for probate of a will or appointment of a personal representative conducted by the probate register without notice to interested persons.”
Informal proceedings are designed to simplify administration and appoint a personal representative without unnecessary intervention by the court. You will generally choose this method of opening an estate, because it is more flexible and efficient, unless you are aware from the onset of the probate action that there is likelihood of a contest over the existence or validity of a will, the determination of heirs, the decedent’s domicile, or the appointment of the personal representative. The personal representative, appointed by the probate register without prior notice to interested persons, has all the duties of reporting to beneficiaries, paying debts, distributing assets, etc., but does so without reporting to the court.
SHORTCUTS FOR THE MICHIGAN PROBATE PROCESS
Before we begin a probate proceeding, however, we determine whether the estate is small enough, or the liabilities are great enough, that we do not need to conduct a traditional proceeding because we can transfer title to all your loved one’s assets using abbreviated probate-avoidance procedures.
For instance, an alternative procedure is available for an estate valued at $15,000 or less if the estate consists entirely of personal property. The $15,000 eligibility limit for this procedure is indexed and amounts to $24,000 for decedents dying in 2021.
Beginning 28 days after the decedent’s death, a person possessing the decedent’s property must deliver it to the decedent’s successor on presentment of the death certificate and a sworn statement of the successor (subject to perjury) stating that (1) the estate does not include real property; (2) the estate value, net of liens and encumbrances, does not exceed $15,000; (3) 28 days have elapsed since the date of death; (4) an application or petition for appointment of a personal representative is not pending; (5) the successor is entitled to the payment; and (6) any other entitled party’s name and address is disclosed. A person who transfers property pursuant to this procedure is released from liability.
Regardless of size, LawCounsel, P.L.C. will strive to administer your loved one’s estate in a professional, yet economic, manner.
GUARDIANSHIPS AND CONSERVATORSHIPS
The right to make decisions concerning how we live our lives and pursue our own version of happiness and the right to take risks to achieve our chosen goals are essential to our sense of self worth, independence, and dignity. Our constitution, laws, and legal traditions reflect a belief that every individual is entitled to certain basic civil liberties. However, as a society, we also recognize that an individual’s decision-making abilities can become impaired, placing the individual’s welfare and safety at risk.
To protect the interests of those individuals, every state has enacted comprehensive statutes to provide for the appointment of substitute decision makers and for the creation of specialized courts to act as parens patriae for such individuals. Those courts are given the authority to appoint substitute decision makers and are charged with the responsibility of supervising the decision makers to protect the interests of the individuals subject to their jurisdiction.
In Michigan, these substitute decision makers are the guardians and conservators appointed by the Probate Courts, pursuant to Article V of the Estates and Protected Individuals Code or, in the case of an individual with developmental disabilities, pursuant to Chapter 6 of the Mental Health Code.
A guardian is a person appointed to make personal decisions, such as decisions about medical treatment and place of residence, for an individual (deemed an incapacitated individual) who lacks the capacity or understanding to make those decisions. A conservator is a person appointed by the probate court to manage the financial affairs or property of an individual (deemed a protected individual) who is unable to manage their finances. The impairment of decision-making ability can result from a number of conditions, including dementia, traumatic brain injury, stroke, mental illness, or substance abuse.
The appointment of a guardian or conservator for an individual involves a drastic restriction of the right to make decisions concerning one’s welfare, a loss of control over the course of one’s life, and a loss of privacy. For an adult, this loss of control over basic decision-making equates to being treated as a child. Reflecting the importance of the rights at stake in guardianship and conservatorship proceedings, the legislature has enacted detailed procedural and due-process protections. Michigan statutes also require the Probate Court to consider less restrictive alternatives and to consider limiting the powers of the guardian, both in scope and in time, in appropriate situations.
For most clients, the thought that they may someday be unable to manage their affairs is not a pleasant one; and the prospect of having a court determine that they are incapacitated or unable to manage their financial affairs, with the resulting ongoing supervision by the Probate Court, is an even less desirable scenario. Basic estate planning for a client of any age, but particularly for an older client, should involve consideration of alternatives to guardianships and conservatorships. These alternatives include trusts, financial powers of attorney, representative payees for government benefits, patient advocate designations, and adding joint owners to bank accounts. For many older adults, planning may cover most but not all situations requiring substitute decision-making, but probate court involvement may still be required to cover other unforeseen situations. This can occur, for example, if a financial institution refuses to recognize a POA, an attorney-in-fact mismanages the individual’s finances, or a successor trustee is unable or unwilling to serve.
MENTAL HEALTH PROCEEDINGS IN MICHIGAN
Mental health proceedings in Michigan generally involve one of two separate legal procedures: civil commitment and assisted outpatient treatment.
No individual in Michigan may be involuntarily committed for mental health treatment unless a court first determines that the person is a “person requiring treatment.” Our Mental Health Code defines a person requiring treatment as a individual who has a mental illness, and who as a result (a) can reasonably be expected within the near future to seriously physically injure himself, herself, or another individual, and who has engaged in an act or acts or made significant threats that are substantially supportive of the expectation; (b) is unable to attend to those of his or her basic physical needs such as food, clothing, or shelter that must be attended to in order for the individual to avoid serious harm in the near future, and who has demonstrated that inability by failing to attend to those basic physical needs; or (c) demonstrates an unwillingness to voluntarily participate in or adhere to treatment that is necessary, on the basis of competent clinical opinion, to prevent a relapse or harmful deterioration of his or her condition, and presents a substantial risk of significant physical or mental harm to the individual or others.
Mental illness is defined as “a substantial disorder of thought or mood that significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.” In many cases, an individual whose cognitive abilities have been impaired from dementia is not a person requiring treatment.
A finding that an individual is a person requiring treatment must be supported by clear and convincing evidence. Our Probate Court attorneys are familiar with the procedures for involuntary commitment, the rights of individuals subject to an involuntary commitment orders, and the rights of recipients of mental health services.
Assisted Outpatient Treatment Services
In addition to involuntary hospitalization, Michigan courts may order “assisted outpatient treatment” if the court determines that an individual meets the criteria described in the Mental Health Code. If a petition is filed, the court must give notice to the subject of the petition and to the local community mental health services program and hold a hearing. The subject of the petition is entitled to the same due process safeguards as the subject of a petition for involuntary hospitalization.
Assisted outpatient treatment services may include medication, blood or urinalysis tests, individual or group therapy, day or partial day programs, educational and vocational training, supervised living, assertive community treatment team services, alcohol or substance abuse treatment and testing, and any other services prescribed to treat the individual’s mental illness and either assist in their functioning in the community or prevent a relapse or deterioration that would reasonably be likely to lead to hospitalization or to suicide. If the individual fails to comply with the order for assisted outpatient treatment, the Court, without holding a hearing, may order the individual to be taken into custody and hospitalized for a period not to exceed 90 days or for the duration of the assisted outpatient treatment order, whichever is less.
The Probate Court attorneys at LawCounsel, P.L.C. representing an individual involved in a mental health proceeding will advocate for support services from the local community mental health agency that are appropriate and meet the client’s needs. In some cases, the client may be able to continue to live in their home and receive mental health services on an outpatient basis. If the client is homebound due to physical disabilities or if the nature of the client’s mental illness makes it unlikely that the client will follow through with clinic appointments, the attorney should advocate for in-home mental health services.
WE LOOK FORWARD TO HEARING FROM YOU
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200 Viridian Drive
Muskegon, MI 49440
15130 Wildfield Drive
Spring Lake, MI 49456
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