Probate Law
Probate Law

Not everything done in court involves crimes, civil suits, or traffic tickets. The courts also oversee the well-being of minors, people with developmental disabilities, legally incapacitated people, and people with mental illness, as well as various other day-to-day proceedings (such as emancipation of minors, name changes, and the execution of wills and trusts). These varied duties fall under the rubric of “probate law”, and are the domain of the probate courts.

Most of the time when people hear the term “probate”, they think of wills: family members fighting over whether a will was valid, if someone is entitled to be a beneficiary of the will, and so on. And while the probate courts do oversee that type of litigation, most of what happens in the probate courts is related to the health and well-being of people who lack the legal capacity to manage their own affairs.

Guardianships and Conservatorships

There are many people who lack the capacity to manage their own affairs. These may be minors who have lost their parents (through death, imprisonment, or other loss of custody), elderly individuals with dementia, people who have suffered incapacitating injuries, people with developmental disabilities, or others who for one reason or another are unable to manage their own affairs. In Michigan, these people are known as “protected individuals”, and the courts will appoint others to look after their well-being. These people are known as “guardians” or “conservators”.

A “guardianship” is the more comprehensive type of appointment. In a guardianship, the guardian is responsible for making all of the protected individual’s personal decisions. This includes such basic decisions as consent for medical treatment, where to live, where (and if) to attend classes, and providing adequate food, clothing, shelter, education, and medical/mental health care. Typically, the appointment of a guardian means the protected individual does not have the right to make these decisions for himself. This is a significant loss of personal freedoms. For that reason, guardianship must be approached as something of a last resort in situations where an individual is completely unqualified to make any of these decisions.

A “conservatorship” is more limited. When a protected individual has a conservator, she is still allowed to make her own personal decisions. However, the conservator manages all of the protected individual’s finances and property. Thus, she can decide for herself to consent to medical treatment, get married, and go to school but she can not enter into contracts on her own or make decisions regarding the sale of stock or land.

Both of these types of appointments require a court order, and it is important to make sure that the process is handled correctly. Too often, careless appointments result in theft and other types of abuse and exploitation of protected, vulnerable individuals. It is also often difficult for a person who has been appointed a guardian to reclaim his or her rights if a guardian is no longer needed.

Emancipation of Minors

”Emancipation” is, in some ways, the opposite of a “guardianship”. Parents are typically “guardians” for their minor children, although a guardian may be appointed. Either way, the parents or guardians are responsible for the health and well-being of minors, as well as making legal decisions for them. When a minor is “emancipated”, the minor becomes, in essence, a legal adult who is responsible for his own personal needs and decisions. Emancipation automatically happens when a child turns 18 or becomes legally married (which can happen as young as 16 years old with parental consent). Or, if a minor can demonstrate that he or she has the ability to manage his or her financial, personal, and social affairs, can support himself/herself financially, and that it is in the best interest of the minor to be emancipated, the court can order this, as well. To do this, the minor must file a petition with the court, along with affidavits from professionals who can attest to the minor’s abilities and best interests. (Although emancipation is often considered part of “probate law”, the petition must be filed in the family division of the circuit court.)

Probating Estates

When a person dies, the property must be distributed. This may happen one of two ways: through a will (where the property is distributed according to the wishes of the decedent) or through “intestate succession” (where the decedent has not made a valid will, and property is distributed according to rules set forth by law). Probating an estate is usually a simple process, but things can get complicated when there are allegations that a will is invalid (either forged or made when the decedent was not mentally competent, for example), there are questions about paternity, and so on. Under those circumstances, the proceedings can become long and complicated, and you should not attempt to handle them on your own without an attorney.

Need help with any of these issues, or with obtaining a legal name change? Contact us. Because when it comes to looking out for the people you love, you need someone on your side.

 

 

 

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