Writing Sample: Guidance on Guardianship and Sexual Assault Nurse Exams
- chauvindee
- Nov 19, 2021
- 5 min read
Guardianship is a complex issue and the understanding, or misunderstanding of the meaning can impact how service providers interact with individuals with a guardianship.
Someone with a guardianship is someone who has been determined to need assistance in making decisions about their life and health – commonly, medical decisions, education needs, and living arrangements. A conservatorship is another type of guardianship that only applies to someone who has been determined to need assistance with financial decisions. Since sexual assault advocacy services are free to all survivors, a conservatorship will not be substantially related to DV/SA services and will not be covered in this FAQ.
In Michigan, there are two forms of guardianship. One is under the probate law, and the other is under the mental health code.
The probate law is used mostly to protect property and wealth when the person who controls them has become unable. The probate code is applied to younger people, as well as those later in life. After receiving a petition for guardianship or conservatorship, a probate judge can make a legal determination that a person is incapacitated or incompetent.
The probate code covering guardianship and/or conservatorship for people who become incapacitated, after previously being able to care for themselves, is obtained under the Estates and Protected Individuals Code (EPIC). Probate law recognizes that a person may be incapacitated temporarily, or that this condition is a new life change for someone who previously had all control over their life decisions.
Guardianship of the person (medical, education and living arrangements) and/or estate (financial) for people with intellectual and developmental disabilities is obtained under the Michigan Mental Health Code (MMHC). Typically, individuals under the mental health code came into adulthood with the knowledge that they would need a guardian to help them make life or financial decisions.
Probate and the mental health codes can both be used supportively, or may be used as ultimate power over the ward. The ward is the person under the guardianship.
Guardianship always involves some loss of autonomy; however, it is common to see partial guardianships given, and supported decision-making being used.
Supported-decision making says that you support the agency of the person best when you take the time to provide information and conversation about the pros and cons of a decision, finding community resources that will help clarify the choices. Using supported-decision making inside of a guardianship is a best practice, but does not negate the fact that there is a power dynamic between the guardian and the ward.
Public guardians are guardians assigned by the court to care for many wards, and are virtual strangers to their wards. Individuals under either type of code can have a public guardian appointed to them if they don’t have a family member or friend who is able to serve as their guardian.
Individuals who are also involved in a larger disability network and community may have more access to information about person-centered planning, and other protections for their agency through the behavioral health system. This makes it easier for the person and their natural support system to call for supported-decision making as a part of the supports process.
There are limitations on the powers of even plenary guardians, and if a guardian is breaking one of the rules about limits, the only way to stop that is to go to court.
1. What should an advocate do when the survivor says they have a guardian?
First, ask for a copy of the Letters of Guardianship which were issued by the probate court. The survivor may not have a copy, and that is ok, but you should always ask to see the documentation. If the survivor cannot provide the guardianship documentation, they can still receive supports and services at any Michigan sexual assault crisis center.
A way to know if a survivor can consent to service is to ask them if they can identify time and place, and make their wishes known. If the survivor can identify those when asked, they can consent to services. Advocates need to consider different ways of communication that many people utilize - including sign language, AAC devices, and others.
This is a very specific legal form, this is not a letter in the traditional sense. If someone gives you a typed piece of paper signed, that is NOT proof that there is a valid legal guardianship. Do not just take someone’s word for it that they are the guardian of the survivor. Remember: your job is to believe the survivor and walk with them. You are not a judge or a detective.
Obtaining letters of guardianship may be an area where the survivor would like advocacy. As an advocate, you can offer to help the survivor order these letters from their local probate court online, or call and get information from the court clerk about ordering the letters of guardianship.
2. What if the perpetrator is the survivor’s guardian?
Is the perpetrator with the survivor now? Ask to speak to the survivor separately.
Advise the survivor that they can ask the court to appoint a new guardian. This is NOT giving legal advice, you are providing information. The survivor is able to petition the court to modify or terminate the guardianship, or ask the court to appoint a new guardian.
Again, remember that you are not obligated to follow the directions of the guardian – you are there to serve the survivor.
3. Can a survivor who has a guardian consent to a SANE exam?
YES. If the survivor is oriented to time and space, and can articulate that they want to proceed with an exam, they can consent. A guardianship is no reason to deny someone access to a sexual assault forensic exam.
4. What if the survivor and their guardian disagree?
Is the survivor oriented to time and space? Are they lucid? Can they articulate their wishes?
First, our job is to believe the survivor. Again, request a copy of the Letters of Guardianship.
If the guardian disagrees with the survivor, it is not your place to make a legal decision. The guardian can ask the probate court for an order allowing or requiring their course of action. Advocates should not give the guardian legal advice regarding getting a court order or other.
Do not be intimidated into doing exactly what the guardian wants just because they have shown Letters of Guardianship – you are there for the survivor.
5. Does an advocate need a signed release in order to talk with a guardian about the services an agency offers?
Best practice would be to obtain a signed release from the survivor in order to connect with the guardian, as needed. Advocates do not need to speak to the guardian or get permission from the guardian to provide services to the survivor. The advocate should always keep in mind that they should only share necessary information, not all details of a trauma or assault, with the guardian.
Additional Resources and References:
To talk about the restrictions your guardian is putting on you, contact Disability Rights
Michigan (DRM), and see what might be done.
DRM has a whole section of their website that is about guardianship. See Guardianship
Rights & Alternatives.
You can also contact DRM to ask for information about guardianship:
Phone: (517) 487-1755 and (800) 288-5923 (Voice)
DRM also has an online contact form
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