by Estelle Slootmaker
This article is part of State of Health, a series about how Michigan communities are rising to address health challenges. It is made possible with funding from the Michigan Health Endowment Fund.
Courts often appoint a guardian to take over legal responsibility and
make all legal, social, financial, and health care decisions for a child
or an incapacitated adult, known as a ward. The purpose of guardianship
is to make sure that wards are protected from harm, homelessness,
neglect, or financial fraud. And while few court-appointed guardians
take intentional advantage of their wards, the guardianship system as it
works today in Michigan puts wards at risk for both unnecessary
forfeiture of all civil rights and diminished quality of life.
In some cases, family members have been passed over in favor of
professional guardians; wards have been moved from their long-time homes
into nursing homes, with their treasured personal items ending up in
the garbage; guardians have prevented visits with loved ones; and
guardians have spent wards' money in questionable ways.
"We've prosecuted a number of professional guardians in the last two
years because they siphoned off resources of the people that they were
appointed to protect," says Scott Teter, Michigan assistant attorney
general and leader of the Michigan Attorney General’s Office Elder Abuse
Task Force.
Guardianship is a hot topic for many agencies, policy advocates, and
elected officials in Michigan, who are pursuing a variety of solutions
to ensure that guardianship is judiciously applied to the benefit of
Michigan's wards and that alternatives to full guardianship are made
more available.
"A problem in the present system is there's not good education on the
alternatives to guardianship. So part of our legislative agenda this
past year was to increase the alternatives," Teter says. "We don't have
guardian certification in the state of Michigan. There are no mandatory
minimum educational requirements, background checks, criminal history
checks, bonding requirements, nothing, and no continuing education. All
that you need to be appointed to take over another human being’s life in
the state of Michigan is that the judge appointed you."
One solution to Michigan's guardianship issues, endorsed by the Elder
Abuse Task Force, is a set of bills currently making their way through
the state legislature. Michigan House Bills
4909-4912 and
5047
would require guardians to visit their wards monthly instead of
quarterly; set a caseload cap on guardians appointed to serve indigent
individuals; and ensure that guardians ad litem — the court-appointed
professionals who assist courts in determining if guardianship is
warranted — report uniform, high-quality information to probate courts.
"Judges who are assigned to appoint these guardians and make those
determinations on whether or not somebody needs one don't get the best
information," Teter says. "Part of our legislative package is to make
sure the lawyer who's appointed to represent the ward would have an
adequate time to review the report and then cross-examine on it like we
deal with any other piece of evidence submitted in court. In addition,
we have increased the requirements in medical assessment."
This means the guardian ad litem would be required to communicate with
wards at their locations, away from other interested persons, and in a
language they can understand. The guardian ad litem would be required to
explain the person’s legal rights, ask who they want or do not want as a
guardian, and take steps to ensure they are able to attend their
guardianship hearing. If they can’t, efforts could be made to move the
hearing or provide other reasonable accommodations.
"The irony is that you cannot buy a Christmas tree in the state of
Michigan without having to go through a licensed grower and a licensed
seller. We have more regulations and supervision over the people who
grow potatoes in the state of Michigan than we do the people who control
other people's lives as a guardian or conservator. That makes no sense
at all," Teter says. "Part of our legislative package is to require
guardian certification. If you're going to have that kind of power and
that kind of responsibility over another human being’s life, we believe
you ought to be properly trained to execute those responsibilities."
Guardianship and health care delivery
Sarah Milanowski, enrollment and marketing manager for
LifeCircles PACE in Ottawa County, sees firsthand how guardians sometimes drop the ball. In her work with older adults participating in a PACE (
Program of All-inclusive Care for the Elderly),
she has seen guardians who do not fully understand the rights,
responsibilities, and expectations that go along with their role. She's
also seen PACE participants who have guardians appointed in a different
county "fall off the radar."
"If we don’t know who is the person making a medical decision in a
crisis situation, we're in a pickle as a health care provider,"
Milanowski says. "Another common challenge we see is professional
guardians. Most of them have to take on a lot of cases to make the
business run financially. While those agencies are often very well
intentioned, they are usually the ones handling the most intense cases
with the most significant crises. Sometimes clients in crises aren't
able to access the services they need because the agency is putting out
fires for other people."
Milanowski notes that while more Michiganders are living longer, they
are not living better. Complicated living situations, complex health
issues, and financial constraints make it difficult to make decisions.
"Do we need a permanent guardian for every single decision?" she says.
"Or do we need alternatives so the person can make decisions based on
what matters most to them with the support of a trusted person?"
Milanowski says that while the intent of the new state legislation is
good, she would prefer to see available alternatives to guardianship
utilized more often. For example, adults can proactively appoint a
family member or loved one as a power of attorney over their financial
and health affairs, to be activated only if they are incapacitated.
Limited guardianship can preserve more of an individual’s civil rights.
She would also like to see a state office or program to help people
navigate guardianship decisions and provide education on other
alternatives.
"Professional guardians are needed. I don't want to see us create so
much legislation that we leave them out, because that creates a whole
other problem," Milanowski says. "The solution has to be multifaceted.
Support what already exists, but also educate people. The public
guardians that exist in our area now are doing the best they can with
really challenging circumstances. If we don't have a great comprehensive
plan, we might put people at more risk."
A new alternative: Michigan Guardianship Diversion Project
With funding from the Michigan Health Endowment Fund, the
Michigan Elder Justice Initiative
(MEJI) is collaborating with probate courts and local organizations in
Genesee, Bay, Grand Traverse, and Muskegon counties on a two-year pilot
called the Michigan Guardianship Diversion Project (MGDP). Launched in
March 2024, the project seeks to reduce unnecessary guardianship of
older adults and adults with disabilities by connecting them to
community services, public benefits, and legal alternatives to
guardianship.
MGDP staff are working with probate court staff, guardians ad litem,
lawyers, health care providers, and other community partners to
troubleshoot cases where an alternative to guardianship may exist.
Organizers say the pilot is already showing positive results.
"We hope that we can produce something that's scalable, sustainable, can
draw attention, find solutions, develop protocols, and develop
trainings and materials that can benefit lots of people all around
Michigan and beyond," says Laura Kubit, MEJI staff attorney and MGDP
co-coordinator.
Kubit brings nearly 30 years of experience with Adult Protective
Services and 10 years as a civil legal aid attorney to the project.
"We can try to craft solutions that hopefully work for everyone and
really make a difference," she says. "When you know the inner workings
of that system, you can advocate in a way that will be most effective."
The alternatives that MGDP staff facilitate for folks can include
appointing powers of attorney for health care or finances, and
representative payees for Social Security or veterans' benefits. Those
appointees can be trusted family members or friends who can also help
the person in supported decision-making. The program also connects
people to home- and community-based services like Meals on Wheels or
transition services for people in long-term care facilities who want to
reenter the community.
"The options are out there already. You don't need to create them," says
MGDP co-coordinator Rachel Richards. "I've worked with the adult
elderly and disabled populations since 1995. I think Michigan has seen
some great strides that are long overdue. This project is one of them."
Kubit says current guardianship law has the potential to work well, but
practical barriers prevent all evidence from being considered in a
guardianship appointment, while potential wards are not guaranteed the
right to communicate what’s important to them. Current law requires that
guardians communicate to the greatest extent possible with wards about
important decisions in their lives, exercise authority in the least
restrictive way, and promote autonomy.
"A lot of professional guardians, whether they're public, private,
family members, or lay guardians, don't necessarily have the knowledge,
support, resources, or time to provide all of the needs in the best
possible way that the law contemplates," Kubit says. "I do think that
most people are doing the best that they can."
Kubit also wants wards to be able to get out of guardianships more
easily. She recalls a past client who was discharged from the hospital
to a nursing home. His Medicare coverage ran out and he was trying to
apply for Medicaid. While temporarily physically incapacitated, he was
fully able to handle his own finances. His bank refused to release
needed bank statements unless he came to get them in person. With great
difficulty, Kubit was able to jump through all the hoops necessary to
enroll him in Medicaid. Without her help, the nursing home would have
had two options for addressing his growing bill: evict the man against
his will or petition for guardianship.
In other cases, guardianships are overly restrictive. Richards explains
that instead of granting limited guardianships, courts usually grant
full guardianships that take away a ward’s autonomy over decisions that
they're still capable of making for themselves. When a guardian is not a
family member or friend, they may not know the individual or their
expressed wishes. Because professional and public guardians have
multiple wards, the amount of time they can spend with the person is
limited, and it is difficult for them to determine the person's wishes
and desires.
"Where do they want to live? Who do they want to have relationships
with? What do they like to eat? What are their daily habits? Those are
some of the ways that this falls short," Richards says. "There are times
when bad actors abuse authority. For our project, that's a concern. But
individuals are coming to us before the guardianship occurs to try to
look at alternative methods to alleviate the need for guardianship."
Better enforcement, education, and certification
Former Elder Abuse Task Force member Steven Burnham worked for 17 years
as the Kalamazoo County probate register. During his tenure, he was
often asked why Kalamazoo County had fewer guardians appointed than any
other county in the state. His answer was "My diversion programs." At
Burnham’s recommendation, the county hired an investigator to look into
guardianships before, or sometimes after, they were put in place. He
also worked with a Western Michigan University Medical School program,
Active Citizenship, to send students to interview guardians and wards.
By better getting to know what was going on in prospective wards’ lives,
the court was able to come up with individual alternatives that suited
some people better than guardianship. For some, a guardian was the best
solution. Because not all Michiganders have a friend, family member, or
other trusted individual who can take on that role, public and
professional guardians will always be needed.
"Sometimes we’ve got to step in and get a substitute decision-maker to
help make decisions as to their wellbeing, their health care, who they
hang out with," says Burnham, who also serves on the board of the
Michigan Guardianship Association
(MGA). "A large and growing segment of those that need a public
guardian are much younger, [in their] 30s, 40s, 50s. It could be a
traumatic brain injury or substance abuse."
Burnham does not support the proposed guardianship legislation. He says
that the current situation in Michigan reflects poor enforcement of
existing laws and wonders if new laws will be enforced any better. Like
Milanowski, he worries that requiring guardians to spend more time with
wards without additional compensation may shrink a workforce already
squeezed by shortages. Guardians with a ward living solely on Social
Security are paid $83 a month.
However, like the Elder Abuse Task Force, Burnham and the MGA strongly
endorse more education for guardians and a state-mandated certification
process.
"To become a nail technician or dog groomer takes hundreds of hours of
training in what to do [and] what not to do," Burnham says. "And here’s
the scary thing: if I put your name on a line in a petition and a judge
decides you’re incapacitated and no family member is trying to be
appointed, you’d have a big shock. With respect to guardianship, we’re
more concerned about pets and French nails than adults."
Lead graphic by Jay Hero. All other images courtesy of the sources.
Full Article & Source:
Special report: How can Michigan fix a guardianship system that fails some kids and older adults?
