For any family, a traumatic brain injury (TBI) becomes a life-altering event. Usually, the beginnings are similar. We are called to a hospital after an accident and our attention is focused on the survival of a loved one.
Most of us really don't understand the meaning of the TBI diagnosis at first. Soon, it becomes obvious that changes have occurred both physically and mentally to our family member. When individuals lose the ability of "informed consent" as to their care or the ability to physically participate in their activities of daily living (ADLs), Court intervention may become necessary. In most families, the closest we have been to a Court has been for traffic related problems.
The Probate Court was established to handle cases involving incapacitated persons. Frequently, care providers will ask a family member, an outside person or an agency to become the Guardian and, in some cases, the Conservator to the injured party. Sometimes, families initiate this process. Without much understanding of the responsibilities of these positions, this can be overwhelming. The good news is that it isn't too complicated and the Probate Court is the.most family oriented Court in the legal system.
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While both guardians and conservators assume responsibilities because of the incapacity, the positions differ in their responsibilities. The guardian protects the person proper. In essence, the guardian acts like a parent to an adult. If the injured party is less than eighteen years old, and a parent is available and willing to make decisions for the minor, guardianship will be necessary until the eighteenth birthday, assuming the injury is permanent. When no parent is available or in cases where the Court believes that parents are unsuitable, the process follows the same course as adult guardianship. The only difference is the form used for the petition. To have a guardian appointed, the injured person must be adjudicated as legally incapacitated by a Probate Judge. This means that there will be a review of the case by a Court appointed lawyer called a Guardian Ad Litem (GAL), followed by a court hearing.
A conservator is the protector of the estate. In fact, the individual is not called incapacitated as in the case of a guardian but, instead, is called a protected person. When the estate is over $5,000 or is involved in litigation or includes realty, conservatorship should be considered. The job of the conservator is marshal (gather) all assets of the estate, protect those assets, invest them in prudent securities and pay the expenses of the estate. An individual may have either a separate guardian and conservator or the same individual or agency may serve in both capacities.
If there is litigation related to the accident, it is best to consult the injured party's attorney for advice and help in filing the probate petition. If no attorney is involved an interested part can go directly to the Probate Court and file a petition. One would have interest in the injured party through blood relationships, marriage, friendship, or through providing ongoing care (a facility or medical professional). Thus, the facility where an individual lives can petition to have a guardian or conservator appointed, and the process is the same. It is important to not that under the current Probate Code, a facility cannot become the guardian or conservator due to a potential conflict of interest. Recognizing this, Michigan legislators wisely ruled out this possibility.
Petitions may sound complex. In the cases of Guardianship or Conservatorship, they are very straightforward. In each case, the petitioner is asked to complete a form covering basic information regarding the injured party, the family and the estate.
Further, to file for guardianship, one must also attach a doctor's report supporting the need for a guardian. This serves as protection for the injured party. Guardianship means that the Ward (injured party) has lost certain rights, such as making decisions regarding medical care, marriage, housing, etc. The Court sets a high threshold for the petitioner to convince it that the person cannot address his/her ADLs (Activites of Daily Living).
Overall, the Probate experience can be rewarding and can relieve the stress and guilt that follows a TBI. The petitioner may be asked to talk with the Guardian Ad Litem (GAL), but if the GAL can gather enough information independently, it may not be necessary.
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