It took us three months, but we managed to do it; input pertinent vital information into a private database for nearly 100 individuals over whom we have responsibility in our capacity as a professional fiduciary.

The Oakland County Probate Court has seen a steady increase in the number of open guardianship and conservatorship files.  A guardianship and or a conservatorship becomes necessary when a person becomes incapacitated in some way and is no longer able to take care of their own affairs.

Here is Michigan's legal definition of an incapacitated individual as set forth in the probate code known as EPIC [Estates and Protected Individuals Code]:

Incapacitated individual means an individual who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions.

The affairs to which a fiduciary must attend are varied and often unlimited.  Tasks include paying bills, managing income, benefits and services, keeping the ward within a budget, administering medication, maintaining a safe residence, accounting for all income and expenses in the process to the probate court, and many of the other of life's routine yet collateral matters.  Since April, a guardian can also be called upon to execute a DNR for the ward.

Guardianships involve the incapacitated individual's medical issues and living arrangements, while a conservatorship is for the marshaling and conserving the individual's assets.

As one of 8 Public Administrators taking direct probate court appointments, my office staff and I manage over 100 fiduciary accounts.  While it is not rocket-science from a legal perspective [although every case is different], it is very challenging to keep track of more than 100 lives, serving as professional fiduciary and overall substitute decision maker.

Our office has implemented and trained on a software tool we learned about at a recent annual meeting of the Michigan Guardianship Association.  This software allows us to input and manage our ward's vital information in an organized efficient and digitized fashion; vital information at our fingertips needed to prosecute that fast-paced probate docket.

Our associates do not need to leave their work stations to retrieve a physical file, although, sadly, those files are still with us; we're not paperless yet, just paper redux.  We can quickly and efficiently retrieve information from our database that a hospital or doctor needs to complete an important, sometimes critical, procedure for one of our wards.

We can monitor the constantly changing details of the wards' health; of their living situation; and their physical needs.  Despite our recently accomplished digitization, we here at Clarkston Legal are mindful that our most important task is the face-to-face contact maintained with our wards.

If you have a loved one, family member or friend that is in need of fiduciary protection and would like to learn more about the process, consider contacting our office for a free consultation.  Our associates Beth Schlosser and Christopher Kelly are ready to assist.

www.clarkstonlegal.com
info@clarkstonlegal.com

By:  Timothy P. Flynn

An adult guardianship is a probate court proceeding that protects an individual that cannot take care of his own affairs by appointing a fiduciary -a guardian or conservator- to care for the incapacitated individual.  In our free-society founded on individual liberties, guardianships although disfavored as a legal status, are sometimes necessary to protect individuals made vulnerable through age or mental illness.

As a Public Administrator, I have served the Oakland County Probate Court by accepting appointments as the guardian and conservator for individuals deemed by a judge to be incapacitated, but who do not have suitable family members to serve as their fiduciary.  Currently serving as guardian for just over 75 protected individuals, and for hundreds over the past decade, I have acquired vast experience in dealing with all aspects of adult guardianships and conservatorships.

Two weeks ago, companion bills were introduced in the Michigan Senate to amend the guardianship provisions of the Estates and Protected Individuals Code -Michigan's probate code- to adopt the Uniform Guardianship Jurisdiction Act.  The companion bills seek to restrict the subject matter jurisdiction of the county probate courts by adopting a complicated three-tier test to ascertain the allegedly incapacitated individual's contacts with the forum state prior to granting a guardianship.

Under the present probate code, a guardianship can be granted for any incapacitated individual physically present in Michigan.   One benefit touted by supporters of the Senate bills is prevention of conduct known as "grannysnatching" whereby a person takes a vulnerable individual into Michigan from another state and immediately files for guardianship in order to control the person's income and assets, and to prevent contact by other family members.

If adopted, the Senate bills would revise our guardianship act, making the initial establishment of a guardianship much more difficult, and complicated.  Under the present guardianship procedures there are effective safeguards already in place.  For example, prior to the establishment of a guardianship, a Guardian Ad Litem is appointed by the probate court to function as the "eyes and ears" of the court; to investigate the guardianship petition and make a recommendation to the judge.

Also, under the present law, all "interested persons" -other family members- must be served with a copy of the petition and can appear at the hearing on the petition and object to the guardianship or to the appointment of the nominated individual.  Such notice provisions, along with the GAL's report to the probate judge, operate as an effective set of safeguards against cases of reprehensible "grannysnatching".

We here at the Law Blogger see these companion bills, SB 465 and SB 466, as more trouble than they are worth.  If adopted, probate court staffs across the state will need to absorb and digest the complex provisions of the Uniform Guardianship Jurisdiction Act and the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act; this will require staff training and increase the administrative costs associated with the delivery of these public services.

Such cost and complication will come just as the Oakland County Probate Court has managed to trim staff and control expenses to stay on-track with Oakland County's perennially-balanced budget; a rarity in this day and age, especially considering that the services provided by the probate administrative staff have remained first-rate.

For these reasons, we say "no" to the companion bills and urge the Michigan Senate to leave well enough alone.  The present guardianship system in Michigan is not broken thus, it does not need to be "fixed" by a uniform act.

Related Note:  A documentary on elder abuse titled, Last Will and Embezzlement, was profiled in today's Freep.  The film, which takes a look at the ways criminals take advantage of the elderly, is playing in Clinton Township and West Bloomfield.

www.clarkstonlegal.com
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Richard Webber & Adele of Grey's Anatomy

Dementia, always a sad development for any family, is particularly cruel in long-term marriages where one spouse is afflicted, and the other is left to pick-up the pieces.  In such cases, marriages are often stressed to the break-point.

This issue has received national attention lately, courtesy of the hit television series, Grey's Anatomy, where Dr. Webber's character is losing his wife, Adele, to Alzheimer's.

Alzheimer's disease is the most common form of progressive dementia.  Recent scientific findings, however, suggest that there may be many sub-types of dementia.

For example, frontotemporal degeneration [also known as Pick's disease] manifests itself much earlier than Alzheimer's and progresses faster.  Frontotemporal degeneration is believed to afflict between 50-60 thousand adults in the United States, compared to the 5 million Americans afflicted with Alzheimer's.

Frontotemporal disease is particularly threatening to a marriage due to the swift onset of symptoms which attack a spouse's personality directly; not just with the onset of memory loss, as in much older Alzheimer's patients.  The non-afflicted spouse often feels ignored, snubbed or maligned because of the most common characteristic of the disease: silence.

Like many diseases, frontotemporal degeneration progresses differently in individuals, taking on a life of its own.  Most cases feature a prominent and swift deterioration of the patient's overall personality; a complete breakdown in the patient's ability to communicate with and care about others.

Obviously, the patient's ability to hold down a job, or to hang onto their marriage, is put to the test.  This is because frontotemporal degeneration attacks the frontal temporal lobe of the brain; the region responsible for decision-making and judgment.  The frontal lobe actually shrinks.

Sometimes, one disease is mistaken for the other, leading to confusion among the family care providers and a confusing series of hospital stays, doctors visits and testing.

Dementia, in general, highlights the need to secure a solid estate plan early in a marriage, before the onset of any incapacity.  Once a dementia sets in, an individual could lose their mental capacity and have a guardian and conservator appointed to manage their affairs.  While this fiduciary could be, and usually is, a family member, no estate planning is possible while a loved one is under such legal incapacity.

I you or a spouse have been diagnosed with dementia, here are some local support groups that may be of use:

• Alzheimer's Association;
• National Family Caregivers Association - [developing e-communities to provide support and information]
• Association for Frontotemporal Degeneration - [referencing a support group in Grand Rapids, MI]

In the meantime, if you are enjoying the fruits of good health, do not take it for granted.  Be proactive and get an estate plan executed.

www.clarkstonlegal.com

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