A Michigan Guardian’s Power Is Immense, but Not Infinite: How and Why They May Be Removed and Replaced

By Stewart C.W. Weiner

Illness, injury, or the passage of time can take its toll on any of us. Sometimes, those circumstances or others render a previously competent, responsible adult incapable of managing their own affairs, including their health and finances. The law in Michigan, as in every other state, recognizes that such vulnerable individuals may require assistance to protect their own well-being and prevent others from exploiting their condition. That assistance usually comes in the form of guardianship or conservatorship. In a guardianship, a court appoints a third party (a guardian) to be responsible for the physical health and safety of a person (a ward or protected person). In a conservatorship, a court appoints a third party (a conservator) to manage the ward’s financial affairs.

Guardians are invested with considerable authority, essentially taking away their ward’s autonomy and control over their own lives, either entirely or in specific aspects. But as great as that power is, the power may not be permanent. Sometimes, the guardian’s conduct may call into question their competence to fulfill their responsibilities or their honesty and good faith in doing so.

That is why Michigan law provides a mechanism for removing and/or replacing a guardian who fails to act in their ward’s best interests, and the standards courts should apply in making such a decision. These standards differ from those applied when determining whether a guardianship should be modified or terminated.

Guardians Must Be Suitable and Willing to Perform Their Responsibilities

Section 5310 of Michigan’s Estates and Protected Individuals Code (EPIC) states that a ward or person interested in the ward’s welfare may petition for an order to remove the guardian. A request for such an order may be made by as simple an act as writing an informal letter to the court or judge. After the court receives a request for a guardian’s removal, it will schedule a hearing on the matter to determine whether sufficient grounds and evidence exist to remove the guardian. In addition to a hearing, the court has the authority to “send a visitor, (i.e., a guardian ad litem), to the present guardian’s residence and to the place where the ward resides or is detained to observe conditions and report in writing to the court.”

While EPIC Section 5313(2) explicitly states that a person who is “suitable and willing” to serve can be appointed a guardian in certain circumstances, it does not similarly state that the same standard applies to remove a person as guardian. However, Michigan courts have held that to be the case; that removal is justified if the appointed guardian is no longer “suitable” or “willing” to fulfill their responsibilities. 

What Might Make a Guardian “Unsuitable”?

In Redd v. Carney (In re Redd), 321 Mich App 398 (2017) a Michigan appellate court discussed the factors that would render a current guardian no longer “suitable” for the role. It held that a “suitable” guardian is “qualified and able to provide for the ward’s care, custody, and control.” With respect to whether an existing guardian remains suitable, the court stated that relevant evidence as to a guardian’s “suitability” includes both:

• Evidence on whether the guardian was still qualified and able. 
• Evidence on whether the guardian did, in fact, satisfactorily provide for the ward’s care, custody, and control in the past.

It also held that the person seeking a guardian’s removal must prove they are unsuitable by a preponderance of the evidence. 

This kind of determination requires a very fact-specific analysis, and what constitutes a failure to “satisfactorily provide for the ward’s care, custody, and control” can take many forms. In the Redd case, those failures included the guardian exerting undue influence over their ward and preventing the ward’s family members from visiting with her. Other facts that, if established, could support the removal and replacement of a guardian could include:

• Physical or mental abuse of the ward by the guardian or failure to adequately protect the ward from such abuse by others.
• Failure to establish and maintain safe and suitable living arrangements.
• Failure to arrange for or obtain needed medical care and attention.
• Inability to perform duties due to physical or mental limitations, lack of competence, or lack of time.
• Theft or misappropriation of the ward’s property or assets.

Just as the appointment of a guardian over an adult ward is an extremely consequential decision, so is the guardian’s removal. As such, it is unlikely that mere disagreements or differences of opinion about a guardian’s conduct or decisions will support a petition for removal unless those disagreements directly relate to the ward’s safety, health, or well-being. 

If you have questions or concerns about whether a guardian is “suitable” and “willing” to perform their role, please contact Stewart Weiner at Maddin Hauser.