The Probate Court can appoint a Guardian for a minor, a legally incapacitated individual (L.I.I.), or an individual with a developmental disability (I.D.D.). The process for each type of filing is different and is detailed in the following sections.
As an overview, there are standard steps that occur after a petition for guardianship is filed with all required accompanying documentation. Specifically, for a minor guardianship, the Court orders the Michigan Department of Health and Human Services (DHHS) to complete an investigation prior to the hearing. For an L.I.I. guardianship, the court must appoint a Guardian-ad-Litem to meet with the person to be protected and provide a report to the Court. For an I.D.D. guardianship, the Court must appoint an attorney for the person to be protected, unless he or she has counsel. (The appointed Guardian-ad-Litem and/or attorney will charge a fee and payment of that fee will be the responsibility of the petitioner.) Prior to the Court hearing, the petitioner must provide all interested persons with proper notice of the matter. At the hearing, the petitioner must establish the statutory grounds for a guardianship. Depending on the circumstances, the Court may appoint a Full or Limited Guardian.
Below you will find a description of each type of guardianship and the required forms for each type of proceeding. Please note that the Probate Court staff cannot tell you what type of guardianship to file based on your situation. If you have legal questions, please consult with an attorney.
LEGALLY INCAPACITATED ADULT INDIVIDUALS (LII)
If an adult is an incapacitated individual such that he or she lacks sufficient understanding or capacity to make or communicate informed decisions due to mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or another cause not including minority, the Probate Court may appoint a guardian for that individual. Depending on the circumstances, the Court may appoint a full or limited guardian.
For more information on this type of guardianship proceeding, please see the Adult Guardianship L.I.I. Handout.
GUARDIANSHIP FOR INDIVIDUAL WITH A DEVELOPMENTAL DISABILITY (DD)
Guardianship for an individual with a developmental disability must be brought under the Mental Health Code, rather that the Estates and Protected Individuals Code. For this type of guardianship, a report containing a current evaluation of the individual’s mental, physical, social, and educational condition, adaptive behavior, and social skills must accompany the petition. The evaluations must have been performed within the last year and one of the individuals who conducted the evaluations must be a physician or psychologist who is competent in evaluating individuals with developmental disabilities. In addition, one of the individuals who completed the report must testify at the court hearing.
For more information regarding the filing procedures for this type of proceeding, please see the Guardianship for an Individual with a Developmental Disability handout.
Per MCL 700.5204(2), the Court may appoint a guardian for an unmarried minor if any of the following situations exist:
- The parental rights of both parents or of the surviving parent have been terminated or suspended by death, disappearance, confinement in a place of detention, judicial determination of mental incompetency, a previous court order other than an order appointing a limited guardian of the minor, or a judgment of divorce or separate maintenance; OR
- The parent(s) have permitted the minor to reside with another person, but have not provided that other person with legal authority for the care and maintenance of the minor, and the minor is not residing with the parent; OR
- The biological parents of the minor were never married to each other, and the custodial parent has died or disappeared, and the other parent has not been granted legal custody by court order. (Under this situation, the proposed guardian must be related to the minor within the fifth degree by marriage, blood, or adoption).
Also, under MCL 700.5205, a custodial parent can petition the Court to have a Limited Guardian appointed for their minor child. In those situations, the parent is voluntarily agreeing to the suspension of parental rights and a Limited Guardianship Placement Plan must be filed.
For more information about the filing procedures for this type of guardianship, please see the Guardianship of a Minor handout.
RESOURCES FOR GUARDIANS
As a Guardian, there are statutory duties that must be completed. The following resources may be helpful in understanding those fiduciary responsibilities.