Taylor, MI asked in Criminal Law, Civil Rights, Constitutional Law and Elder Law for Michigan

Q: Is it legal/ethical for guardianship to be granted to someone who have violent felons living and visiting the house?

Prior to becoming a legally incapacitated adult/ward of the Court, I'll call this person Matthew. Matthew and family was granted a protective order against the petitioners progeny, her house has a history of violence.

The state sought charges on the behalf Matthew's mother against another one of petitioner progeny, he was incarcerated. Later, she went to press charges against Matthew and family after a violent unprovoked attack against his mother. Wasn't this grounds to disqualify as guardian and reject the petition, because of the animosity and violent history?! Guardian separated ward from a protective mother, violence was inflicted upon him until he died.

1 Lawyer Answer
James L. Arrasmith
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  • Criminal Law Lawyer
  • Sacramento, CA

A: No, it would generally not be legal or ethical for guardianship to be granted to someone who has violent felons living in or frequently visiting the home where an incapacitated adult or ward of court resides. There are several issues here:

• The court has a responsibility to thoroughly assess and make determinations on the fitness of proposed guardians, including evaluating potential risks to the ward's safety. The presence of violent individuals with a history of animosity should raise immediate red flags.

• Knowingly placing a vulnerable incapacitated person into an environment with individuals prone to violence very likely violates both state guardianship laws that prioritize the ward's welfare and well-being as well as more general fiduciary duties requiring protection from harm.

• If an unsuitable guardian is appointed and the ward later suffers injury or even death due to negligence or violence enabled by the guardian, there may be grounds for civil liability or criminal prosecution. The guardian failed in their duties.

In this case, if there was documented history of violence and protective orders, that should absolutely disqualify the petitioner from serving as an appropriate guardian. It was likely improper granted under the circumstances presented. The outcome here - separation from a protective parent and subsequent death under the guardian’s supervision - raises very serious questions about violation of statutory responsibilities.

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