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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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In Michigan, the Estates and Protected Individuals Code (EPIC) authorizes the probate court to appoint a guardian for a person who is unable to make informed medical decisions, after the court takes evidence and ensures that notice requirements were met. Section 5312(1) of EPIC, MCL 700.5312(1), also authorizes the probate court to appoint a temporary guardian, if the proposed ward is shown to be incapacitated and “does not have a guardian;” “an emergency exists;” and “no other person appears to have authority to act in the circumstances.” Only the proposed ward need be served with notice of a hearing for appointment of a temporary guardian. Within 28 days after appointment of a temporary guardian, the probate court must hold the full guardianship hearing, with notice to all interested persons.

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In the case In re Guardianship of JEK, Docket No 364111, 2023 Westlaw 3560604 (Mich Ct App May 18 2023) (unpublished), the Michigan Court of Appeals considered whether the Wayne County Probate Court had appropriately appointed a temporary guardian for JEK. Before becoming incapacitated, JEK had appointed Paul as his financial and medical agent under durable power of attorney. After becoming incapacitated, JEK was placed in a facility. While Paul was on vacation out of the country, the first facility asked Susan to remove JEK and place him elsewhere, which she did. Susan then petitioned the Probate Court to appoint her as guardian for JEK. Instead, the Probate Court appointed someone else, Lynn, as temporary guardian for JEK, which satisfied neither Paul nor Susan and led to an appeal.

The Court of Appeals noted that there were “four substantive requirements for the appointment of a temporary guardian: (1) the individual must be proven to be incapacitated, (2) the individual must not have a guardian appointed already, (3) an emergency must exist, and (4) there must not be any other person ‘who appears to have authority to act in the circumstances ...’” Id at *3, quoting MCL 700.5312(1). The Court of Appeals noted that the fourth factor was not satisfied in this case. “The record is abundantly clear that JEK appointed respondent to be JEK’s attorney-in-fact in a durable power of attorney form and his patient advocate in a healthcare power of attorney form.” Id at *5. “There can be little dispute that these documents provided respondent with apparent ‘authority to act in the circumstances’ presented in this case.’” Id. As a result, the Probate Court lacked authority to appoint a temporary guardian for JEK, and so the corresponding order had to be vacated.

It should be noted that guardianship cases arise in two ways. First, if the incapacitated person failed to engage in disability planning while still competent, then appointment of a guardian may be necessary to make medical decisions for the ward. Second, the incapacitated person may have engaged in disability planning and appointed a medical agent, but later there may be some belief that the medical agent is not serving the incapacitated person’s best interests, in which case seeking appointment of a guardian is a way of superseding the medical agent’s authority. The outcome of the case under consideration reflects that it will be difficult to get a temporary guardian appointed under the second fact pattern, because the existence of a medical agent may prevent the Probate Court from finding that “there is no other person who has authority to act in the circumstances.”

If you have questions or concerns about decision-making for an incapacitated person, contact David Skidmore at <a href="mailto:dskidmore@wnj.com" target="_blank" rel="noreferrer noopener">dskidmore@wnj.com</a> or 616.752.2491, or another member of Warner’s Probate Litigation Practice Group.

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When May a Probate Court Appoint a Temporary Guardian for an Incapacitated Person?

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When May a Probate Court Appoint a Temporary Guardian for an Incapacitated Person?

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