My loved one seems unable to make financial or health care decisions; what can I do?
If someone close to you is unable to make decisions regarding his or her health, finances, or property, or the decisions seem to result in harm to your loved one, it may be necessary for someone to take responsibility for those decisions. If your loved one has set up an estate plan, he or she may have designated a person to make health care decisions (often through a document called an advanced directive or medical power of attorney) or to make decisions about money and property (often through a power of attorney). If not, it may be necessary to ask the court to provide someone with the authority to make decisions. Although family members and friends are usually willing to help out, third-parties, such as hospitals and banks, will often require legal documentation before they will honor decisions made on behalf of the loved one by others. In these cases, the concerned party can file documents with the court (often including a petition) to start the process of obtaining a court order for a conservator or guardian. If no one in the family or circle of friends is able to serve in this capacity, there are professionals who can.

How are conservators and guardians alike, and how are they different?
Typically, both conservators and guardians are appointed by the court (or may be delegated to serve as part of a person’s estate plan). The difference is that a conservator is appointed to make decisions regarding money and property, and a guardian is appointed to make housing and health care decisions. Sometimes one person serves the protected person as both the conservator and guardian; sometimes, they are different people. Although a person who has a conservator often has a guardian, and vice versa, that is not always the case.

What does a trustee do?
A trustee and a conservator may have a lot in common. Typically, trustees are chosen by people when they are doing their estate planning; the trust will outline the duties of a trustee, but often a trustee is appointed to administer property and/or money. Generally, the trustee works without court supervision, as one of the purposes of trust is to keep a person’s personal finances and choices private. However, when no one who is listed in the estate plan is able or willing to serve as trustee, it may be necessary to have the court appoint a trustee. Even if the court appoints the trustee, the trustee may then continue to administer the trust without further supervision by the court. In contrast, a conservator must file regular reports with the court, and is ultimately supervised by the court.

How is a guardian or conservator appointed?
A family member or another concerned party will file a petition with the probate or family court asking it to appoint a guardian, conservator, or both, to provide services to a person in need (known as the “protected person”). Once appointed, the guardian or conservator must often provide annual reports to the court and interested parties, which may include family members and others.

What does “fiduciary duty” mean?
A fiduciary is a person who holds a relationship of trust with one or more other parties. Typically, a fiduciary takes care of money or other assets for another person. A conservator, guardian, and trustee are all examples of fiduciaries. In a fiduciary relationship, a vulnerable person places his or her confidence and faith in another. It is a fiduciary’s duty to act at all times for the sole benefit and interest of the other protected party; it may be a breach (violation) of the fiduciary duty to act in a way that is self-serving.

Are conservators, guardians, or trustees required to be licensed in Michigan?
No. There is no licensing requirement for any of these three types of fiduciaries in Michigan. There are opportunities for these fiduciaries to attend educational events and conferences, and organizations that they can join to stay up on the current law and practices.