Right to counsel

Guardianship may be sought to due alleged mental incapacity or developmental disability. These situations are treated separately in the code. Unrepresented adults in developmental disability guardianships appear to have the greatest access to counsel, while adults in guardianship cases sought due to alleged incapacity only have the right to counsel in some circumstances, such as if they are objecting. And in conservatorship matters, the court is merely obligated to appoint a guardian ad litem (“GAL”) for certain adults. Also, it is not clear whether the GAL must be an attorney. Due to these caveats, the right to counsel is classified as “qualified.”

Due to incapacity

Guardianship: Establishment

Mich. Comp. Laws § 700.5305 addresses guardianships for an “individual alleged to be incapacitated” and provides:

If the individual alleged to be incapacitated wishes to contest the petition, to have limits placed on the guardian’s powers, or to object to a particular person being appointed guardian or designated as standby guardian and if legal counsel has not been secured, the court shall appoint legal counsel to represent the individual alleged to be incapacitated. If the individual alleged to be incapacitated is indigent, this state shall bear the expense of legal counsel.

Notice to the respondent must inform them of their right to counsel, Mich. Comp. Laws § 700.5311(3), and the guardian ad litem appointed for the respondent must also inform them of their right to an attorney and their right to an appointed attorney if indigent. Mich. Comp. Laws § 5305(1)(c).

Guardianship: Modification and Termination

Mich. Comp. Laws § 700.5310(4) states,

Before removing a guardian, appointing a successor guardian, changing the designated standby guardian, modifying the guardianship’s terms, or terminating a guardianship, and following the same procedures to safeguard the ward’s rights as apply to a petition for a guardian’s appointment, the court may send a visitor to the present guardian’s residence and to the place where the ward resides or is detained to observe conditions and report in writing to the court.  

(emphasis added).  It is unclear whether the “following the same procedures” language applies to all proceedings to modify or terminate the guardianship (such that the right to counsel is likely included) or whether it only refers to the sending of the visitor. 

However, if a petition for modification or written request for modification comes from the legally incapacitated individual and that individual does not have an attorney, the court shall immediately appoint an attorney.  If a petition for modification or written request for modification comes from some other party, the court shall appoint a guardian ad litem.  If the guardian ad litem ascertains that the legally incapacitated individual contests the relief requested, the court shall appoint an attorney for the legally incapacitated individual and terminate the appointment of the guardian ad litem. Mich. Comp. Laws § 5.408.

Involuntary commitment context

Protected persons also have the right to counsel in involuntary commitment matters.  Although a guardian has authority to consent on the protected person’s behalf for “medical, mental health, or other progressional care, counsel, treatment or service[,]” a guardian cannot consent to or approve of inpatient hospitalization unless the court has expressly granted this power in the court order. Mich. Comp. Laws § 700.5314(c).  If the protected person objects or actively refuses mental health treatment, the guardian must follow the procedures in the mental health code for involuntary mental health treatment. Id. 

Conservatorship and other protective orders

Finally, in matters related to appointment of a conservator or protective orders for reasons other than minority, the court shall appoint a guardian ad litem “to represent the person in the proceeding” unless (a) “the individual to be protected has chosen legal counsel; or (b) is mentally competent but aged or physically infirm. Mich. Comp. Laws § 700.5406(2) (emphasis added).  There is no definition of “guardian ad litem” in the Estates and Protected Individuals Code, so it is unclear whether the guardian ad litem must be an attorney. See Mich. Comp. Laws §  700.1104. Chapter 5 of the Michigan Court Rules, which govern Probate Court, also appear silent on a GAL’s qualifications.
Mich. Ct. R. Rule 5.121, found in the General Provisions and titled “Guardian ad litem; Visitor” simply states that “[t]he court shall appoint a guardian ad litem when required by law.”

Due to developmental disability

Mich. Comp. Laws § 330.1615, which governs guardianships for the developmentally disabled, specifies the following:

(1) A respondent is entitled to be represented by legal counsel.

(2) Unless an appearance has been entered on behalf of the respondent, the court, within 48 hours of its receipt of a petition together with the other documents required by section 612, shall appoint counsel to represent the respondent. Counsel may be appointed from a system or organization that provides legal counsel to indigents, or that has been established for the purpose of providing representation in the proceedings governed by this chapter.

(3) If the respondent prefers counsel other than the counsel appointed, if preferred counsel agrees to accept the appointment, and the court is notified of the preference by the respondent or preferred counsel, the court shall replace the initially appointed counsel with preferred counsel.

(4) If the respondent is indigent, the court shall compensate appointed counsel from court funds in an amount which is reasonable and based upon time and expenses.

(5) The supreme court by court rule may establish the compensation to be paid for counsel of indigents and may require that counsel be appointed from a system or organization that serves developmentally disabled or indigent people.