Elder Law Questions


How to deal with failing capacity, mental and physical?

Are the estates planning documents up to date?

Is there a current medical directive in place, sometimes called a medical Power of Attorney?

Is there a current Durable Power of Attorney?

How to pay for the added expense of Assisted Living?

How to preserve family assets in the event a senior requires nursing home care?

Has the family revisited the management issues of family assets in the event of death or incapacity?

Who will do it, and for whose benefit will the property be managed?

Does property need to be protected from creditor claims, or claims or quarreling spouses?



Guardians and conservators are appointed by the Probate Court in the county where a person resides if the disable person (called the “ward”) resides or is physically located.


A Guardian in Michigan has authority over the person of the Ward, placement and medical decisions, for example. The ward can be incapacitated mentally, physically or both. A petition is filed by an interested person with the Probate Court to have a named person appointed, usually within the priority list established in the statute.


A Conservator in our state has authority over the money and property of the Ward. It can be the same person as the Guardian but does not have to be. A Conservator is appointed by the Probate Court after a proper petition is filed and a hearing is held.


Medical evidence in the form of doctors’ evaluations are required for both appointments to establish why the Ward cannot look out for himself or herself. This is now called “incapacity” as distinguished from “incompetence”, an older term with different connotations. Sometimes the petitions are contested, as where different siblings argue about who should fill those positions where a parent has not specified who should serve.


Handling consultation and court proceedings for Guardians and Conservators are an important part of the Elder Law Practice of Jim Modrall.



What is a Special Needs Trust?


In short, a Special Needs Trust is a unique type of trust designed to hold property or money for a disabled individual so that the individual does not lose valuable benefits such as Medicaid or supplemental security income (SSI), or both.


Where does the money or property come from?


Generally it comes from a family member through gift or inheritance, or from a third party through an insurance policy or personal injury settlement.


Are there restrictions and rules that have to be followed?


Yes, depending on the source of the funds and the beneficiary’s circumstances there are federal and state rules on the establishment of the trusts, what kind of benefit the beneficiary is getting, age, etc.


Is this something that involves a court proceeding?


Sometimes these trusts have to be ordered by the Probate Court or a guardianship established.

© 2014 James R. Modrall, III


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