Can a Professional Guardian Delegate Their Decision-making Powers to an Employee?

Written by: Warner Norcross + Judd

Yes, as recently decided by the Michigan Supreme Court, but only if the professional guardian first executes a specific type of power of attorney document delegating authority to the employee to exercise such powers. This opinion relates to two cases: In re Guardianship of Malloy and In re Guardianship of Jenkins, Michigan Supreme Court, issued May 28, 2024 (Docket Nos. 165018, 165020) (for publication).

The facts of these cases involved billing disputes between a professional guardian and an insurance company. The same professional guardian was appointed for Dana Jenkins and Mary Malloy — both suffered serious injuries in a car accident, and both were insured by the same company. The professional guardian sought reimbursement from the insurer for guardian services performed by the guardian and the guardian’s employees. The insurance company declined to reimburse for the services of the guardian’s employees, and the guardian filed two lawsuits against them.

The Michigan Supreme Court agreed to hear these cases because of the thousands of people in Michigan who have a professional guardian.

The court held that a guardian must execute a power of attorney to delegate any decision-making powers the guardian is granted under MCL 700.5314, which includes handling of the ward’s money and medical care, establishing a residence, participating in legal proceedings, as well as an act that “alters or impairs the rights, duties, liabilities, or legal relations of the incapacitated individual.”

The court held that the power of attorney document delegating a guardian’s authority must comply with MCL 700.5103, which requires the delegation not last longer than 180 days and requires the guardian to notify the court within seven days of the delegation and provide all the contact information for the appointed agent.

However, if the employee is merely assisting the professional guardian with their powers or duties, then a power of attorney is not necessary. Stated another way, unless the professional guardian delegates the guardian’s powers through a power of attorney, the decision affecting the ward must be made by the guardian.

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Can a Professional Guardian Delegate Their Decision-making Powers to an Employee?