David L.J.M. Skidmore: Can a Probate Court Appoint a Guardian for a Person Who Already has a Medical Decision-Maker in Place? (December 2, 2022)

David L.J.M. Skidmore, of Warner Norcross + Judd, has made available for download his article, “Can a Probate Court Appoint a Guardian for a Person Who Already has a Medical Decision-Maker in Place?”, published in JDSUPRA. The abstract is as follows:

Under Michigan law, there are two alternate roles for making medical decisions for an incapacitated person. A patient advocate is a medical decision-maker who is appointed by an individual when planning for potential future incapacity. A guardian is a medical decision-maker who is appointed by the Probate Court for a currently incapacitated individual. In the case In re Guardianship of Tyler J. Newland, the Michigan Court of Appeals considered whether a Probate Court may appoint a guardian for an individual who already has a patient advocate in place. 2022 WL 16858981, Docket No 360274 (Mich Court App Nov 10 2022) (unpublished).

In Newland, Tyler was hospitalized following a psychiatric emergency. His sister, Kristen, was serving as his patient advocate under medical durable power of attorney. There was some friction between Kristen and the hospital staff, which led to the hospital filing a petition to appoint someone other than Kristen as guardian for Tyler. The Probate Court initially appointed a professional fiduciary as temporary guardian for Tyler. However, the temporary guardian and Kristen worked so well together that the temporary guardian petitioned the Probate Court to appoint Kristen as temporary co-guardian. At the hearing on appointment of a permanent guardian, the Probate Court granted the petition and appointed the professional fiduciary and Kristen as co-guardians for Tyler.

Tyler filed an appeal, arguing that the Probate Court erred in granting the guardianship petition, because he already had a patient advocate in place. The Michigan Court of Appeals disagreed, noting that under Michigan law, the existence of a patient advocate does not necessarily prevent the Probate Court from appointing a guardian. First, a Probate Court may appoint a guardian to exercise powers not granted to the patient advocate. MCL 700.5306(2). Under that scenario, the guardian and patient advocate would work side by side, each with its designated sphere of authority. Second, a Probate Court may appoint a guardian when the patient advocate “is not acting consistent with the ward’s best interests.” MCL 700.5306(5). Under that scenario, the guardian supplants the patient advocate.

Click here to view David L.J.M Skidmore’s summary of “Can a Probate Court Appoint a Guardian for a Person Who Already has a Medical Decision-Maker in Place?”

Posted by Marin Larkin, Associate Editor, Wealth Strategies Journal.

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