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Who is guarding the guardians?

Nov 16, 2017

I talked yesterday about two bills before the legislature that would make it more difficult for hospitals to honor “do not resuscitate” orders, especially if an individual was unconscious and their stated desire to allow someone to die was opposed by a family member.

This made me wonder about who legally has the right to make decisions in such cases, especially when there is some question about someone’s soundness of mind. Since Michigan closed most of its state hospitals in the 1990s, mental health care in this state has sometimes resembled the Wild West, with a patient’s fate dependent on a particular probate judge.

A savvy young woman named Lydia Bates from Ferndale heard me speak recently and came to my office to ask what I knew about the legal procedures surrounding guardianship in Michigan. I had to tell her not very much, other than that probate courts could and did appoint guardians for those incapable of managing their affairs.

But many others aren’t; and after some often frustrating years, Ms. Bates told me Michigan’s entire system is jury-rigged and often ripe for abuse.

Under Michigan law, a guardian is someone appointed by probate court to make decisions for “an incapacitated individual who lacks the capacity or understanding to make those decisions,” whether because of mental illness or deficiency or a wide variety of other reasons, including drug or alcohol abuse.

There are separate legally sanctioned procedures to appoint a Conservator to manage such a person’s estate while alive, or Public Administrators to handle their assets after they die.

And if you find all this a confusing array of bureaucracy, that’s because you are normal. In Oakland County, where Ms. Bates lives, she told me that Public Administrators are often assigned as guardians, even though she believes this is directly contrary to the intent of the state statute.

I am not a lawyer, and can’t say for certain she’s right. But I do know that the Oakland County treasurer and clerk believe there are abuses that allow some unscrupulous administrators to cash in on estates. They are backing two bills to fix this that have passed the house but are languishing in the senate. (HB 4821 and 4822)

Lydia Bates has decided to make preventing abuses in the guardianship process her life’s work, and is in the process of starting a non-profit called the Oakland County Community Guardianship Association, which she hopes will not only create a public option for guardianship but take more of a community than a legalistic approach.

I am impressed by her idealism and dedication, but it also really struck me that in many ways, governments at all levels are forbidding, frightening mazes that are almost impossible for an average person to navigate. What I’d like to see is every government create an interactive, user-friendly website so people can easily find out what they do and don’t do and where to go for services or problems. We live in an age of profound and growing alienation.

Making it possible to understand the system could do a lot to overcome that.

Jack Lessenberry is Michigan Radio’s Senior Political Analyst. Views expressed in his essays are his own and do not necessarily reflect those of Michigan Radio, its management or the station licensee, The University of Michigan.