Guardianship for Developmentally Disabled
This webpage is for informational purposes. It is not a substitute for legal advice. The Cass County Probate Court staff cannot give you legal advice and cannot tell you what to do. If you have legal questions, you should speak with an attorney.
- Filing Fee
- Forms Used
- Interested Persons
- Services
- Hearing Date
- Appointment of an Attorney
- Suitability of Proposed Guardian
- Terms and Definitions
- Frequently Asked Questions
No initial filing fee.
- PC 658 — Petition for Appt. of Guardian, Individual with Alleged Developmental Disability
- PC 659 — Report to Accompany Petition
- Report and Evaluation completed within one year of filing. MCL 330.1612
- Cass County Form: Testimony of Interested Persons Form
- Cass County Form: Criminal History Form for Proposed Fiduciary
- PC 661 — Notice of Right to Request Dis. of Guardian or Mod. Of Guardianship Order Must be personally served on the individual to be protected.
- PC 562 — Notice of Hearing
- PC 617 — Declaration of Intent to Give Notice by Publication Used if the address for an interested party is unknown.
- PC 563 — Publication of Notice of Hearing Used if the address for an interested party is unknown.
- PC 564 — Proof of Service PC 571 Acceptance of Appointment
- MC 97 — Personal Identifying Information Form
- MC 97a — Personal Identifying Information - Addendum
All SCAO approved forms are available at the website listed here.
The interested persons need to be listed on the petition, along with their proper address. Per MCR 5.125(C)(19), the interested persons are the individual, the individual’s attorney, the petitioner, the individual’s presumptive heirs, preparer of the report or another appropriate person who performed an evaluation, director of any facility where the individual may be residing, the individual’s guardian ad litem, if appointed, and any other person the court may determine. If an interested person is not included or is not properly served, the hearing cannot be held.
Per MCL 330.1614, the following people must be served with the Notice of Hearing:
- The respondent;
- The respondent’s presumptive heirs;
- Spouse, if no spouse then children, if none then parents, etc.
- The preparer of the report;
- The director of the facility where the respondent resides;
- The respondent’s legal counsel;
- The Respondent’s guardian ad litem, if one has been appointed.
The Petitioner must serve a copy of the Petition and Notice of Hearing on the person to be protected and all interested persons. The interested parties must be served 14 days prior to the hearing if served by mail, or 7 days prior to the hearing if served personally. The person to be protected must be served personally and must be served with PC 661 – Notice of Right to Request Dismissal of Guardian or Modification of Guardianship Order.
The Petitioner must then submit a Proof of Service (PC 564) prior to the hearing date confirming that all interested persons were served. If all interested persons did not receive proper service, the Judge may dismiss the petition or adjourn the hearing to a later date. Proper notice of the new hearing date will then have to be served on the interested persons by the Petitioner. An interested person can waive notice of a hearing and consent to the relief requested in the petition by completing PC 561 Waiver/Consent. MCR 5.104(B)(1).
Publication may be completed for interested persons whose address or whereabouts are unknown. MCR 5.105(A)(3). In such situations, the Petitioner must complete PC 617 – Declaration of Intent to Give Notice by Publication and PC 563 – Publication of Notice of hearing. The notice must be published in a Cass County newspaper once at least 14 days prior to the hearing. The publication fee is paid directly to the newspaper. For more information on publication, you may wish to contact the newspaper directly. Leader Publications is commonly used as they publish multiple papers in Cass County. The newspaper will provide the Petitioner with a Proof of Publication, which the Petitioner must file with the Court prior to the hearing.
The petition will be set for a hearing by the Court, which will typically be held within 30 days of the date of filing. The petitioner must attend the hearing or the petition will be dismissed. The preparer of the psychological report must attend the hearing and provide testimony. The subject of the proceeding and his/her counsel must also attend the hearing.
The Court must appoint an attorney for the subject of the petition. MCL 330.1615. It will be the attorney’s responsibility to visit the person and make a recommendation to the court as to whether or not the guardianship is needed. The attorney charges a fee for their service, which is the responsibility of the Petitioner to pay. This fee does not have to be paid at the time of the filing, but the Court will seek reimbursement at a later date.
To evaluate the suitability of the proposed guardian, the Court will request a criminal history check of the proposed fiduciary. Therefore, the proposed guardian will need to complete the Criminal History Authorization form and submit it to the Court along with a copy of their driver’s license. This form and the results of the search will be maintained confidentially.
Petition
The form filed with the Probate Court that tells the Court why a guardianship is needed and who should be appointed.
Petitioner
The person who signs the petition and brings the matter to the attention of the court.
Respondent
The subject of the petition who is believed to be an individual with a developmental disability for whom the practitioner is seeking a guardian.
Ward
Once the Judge determines that the Respondent has a developmental disability and is in need of a guardian, he/she is named a Ward of the Guardian.
Guardian of the Estate
The person appointed to the Court who has legal authority to manage the financial affairs of an individual with a developmental disability.
Guardian of the Person
The person appointed by the Court who has legal authority to make decisions on behalf of an individual with a developmental disability regarding the person and his/her well-being.
Guardian ad Litem
A person appointed by the Judge to investigate and represent the best interests of the respondent.
Developmental Disability
Per MCL 330.1100(a)(26), “Developmental disability means either of the following:
- If applied to an individual over than 5 years of age, a severe, chronic condition that meets all of the following requirements:
- Is attributable to a mental or physical impairment or a combination of mental and physical impairments;
- Is manifested before the individual is 22 years old;
- Is likely to continue indefinitely;
- Results in substantial functional limitations in 3 or more of the following areas of major life activity:
- Self-care, receptive and expressive language, learning, mobility, selfdirection, capacity for independent living, economic self-sufficiency.
- Reflects the individual’s need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services that are of lifelong or extended duration and are individually planned and coordinated.
- If applied to a minor from birth to 5 years of age, a substantial developmental delay or a specific congenital or acquired condition with a high probability of resulting in developmental disability as defined in subdivision (a) if services are not provided.”
- What is the reason for a guardianship?
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A guardianship establishes a relationship between the Guardian and the ward similar to that of a parent child relationship. A guardianship for a developmentally disabled person should promote and protect the well-being of the ward, as well as encourage the development of maximum self-reliance for the ward. The Guardian’s duties and responsibilities to the ward are determined by the Probate Court based on the needs and abilities of the individual with a developmental disability. MCL 330.1602
- What are the different types of guardianship?
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Depending on the needs of the respondent, the Court may appoint a guardian over the estate and/or a guardian over the person. A guardian over the estate has authority to handle the financial affairs of that individual, while the guardian over the person has authority to make decisions regarding the care and well-being of an individual with a disability.
The guardian can be appointed as plenary or partial depending on the ward’s needs and abilities. If someone is appointed as plenary guardian, he/she has all the authority of a full guardian. MCL 330.1600(d). A partial guardian possesses fewer than all of the legal rights and powers of a plenary guardian. MCL 330.1600(e). and the appointment will be for a term not to exceed five years MCL 330.1626(2). The partial guardian’s authority will be specifically listed on the Court Order and Letters of Guardianship.
Additionally, the guardian can also be appointed on a temporary basis, if necessary for the welfare or protection of the individual with a developmental disability. If a temporary guardian is appointed, his/her duties will be specifically noted on the Court’s order and the letters of guardianship. MCL 330.1607. Finally, the court can appoint a standby guardian, who can act upon the death, incapacity, resignation, or temporary absence of the guardian without a court proceeding. MCL 330.1640.
- Who can file the petition?
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The petition can be filed by the individual with a developmental disability or an interested person/entity, which includes an adult relative or friend, an official or representative of a public or private agency, corporation, or an association concerned with the individual’s welfare. MCL 330.1600(c).
- Where do you file the petition?
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The proper venue for a guardianship petition is the county in which the individual resides or is found. MCL 330.1600(b).
- What are the rights of the Respondent?
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The subject of the guardianship proceeding has a right to:
Have a trial by jury;
- Present evidence and cross-examine witnesses;
- Have a hearing that is closed to the public;
- Attend the hearing;
- Request an independent evaluation.
- What are the requirements of the hearing?
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The Petitioner must attend the hearing or the petition will be dismissed. The petitioner must provide testimony and evidence establishing that the appointment of a guardian is necessary. The Court shall appoint a guardian if satisfied by clear and convincing evidence that the statutory grounds for appointment have been met.
- What is required to report?
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The applicable statute, MCL 330.1612, requires that a report accompany the petition. If a report does not accompany the petition, the Court shall order the evaluations to be completed. Among other requirements, the report must contain a description of the individual’s developmental disability, current evaluation of his/her condition, an opinion regarding the need for guardianship, and a recommendation regarding the most appropriate rehabilitation and living plan. The psychological tests/evaluations which the report are based upon must have been performed within the last year. *The individual who completed the report must testify in person at the court hearing. (This report will not be part of the public record.)
- What if an emergency exists?
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If an emergency exists, the Judge of Probate may appoint a temporary guardian until a full hearing can be held. MCL 330.1607. The petitioner should check box #14 on the petition and state, in detail, the nature of the emergency. The Court may hear the matter on an emergency basis. If so, the court will appoint an attorney and schedule an emergency hearing. If clear and convincing evidence establishes that it is necessary, the Court may appoint a temporary guardian, whose duties will be specifically listed in the court order. The hearing on the permanent guardianship will be set by the Court within 14 days.
- Who can be appointed as guardian?
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Any person or agency that the Court deems suitable can be appointed as the guardian, and the preference of Respondent will be considered by the Court. MCL 330.1628.