APPOINTMENT OF A GUARDIAN FOR A MINOR

The Estates and Protected Individuals Code includes proceedings regarding guardianships and Conservatorships. This article will explain minor guardianships, including the basis and the process for obtaining a guardian for a person under age 18 years. For information on guardianships for adults, see the article titled: Appointment Of A Guardian For An Adult.

A guardian is a person appointed by a court to make personal decisions for another, called a ward. The person needing the guardian can be either a minor or an adult. To simplify this complicated area of the law, this article reviews only guardianships of minors.

The guardian of a minor has the care and control of the minor nearly the same as a parent. There are some distinctions. A parent always has more authority than a guardian and likewise has more duties and potential liabilities.

There are two types of minor guardianships, namely, “limited guardianship” and “full guardianship”. The difference between the two guardianships is the authority the respective guardian has by law.

A limited guardian has the same duties, responsibilities and authority of a full guardian except the limited guardian does not have authority to consent to a marriage or to adoption of the minor or to release the child for purposes of adoption. A full guardian can obtain court authority to consent to an adoption of the child or to release of the minor for adoption.

In a limited guardianship, only the custodial parent or parents can petition for another to be appointed as limited guardian. The petition names the person preferred by the parent to be appointed. It is filed in the probate court of the county where the unmarried minor resides or is found. MCL 700.5205

When filing the petition, a limited guardianship placement plan must accompany the petition. Both the petition and the plan are forms available in the court. The plan is completed and signed by the petitioning parent or parents and the proposed guardian. The court must approve a plan before appointing the limited guardian.

When the petition is filed with the court, a hearing date is set. The petitioner must timely serve the petition and notice of the hearing on the parents, the minor if 14 years of age or older, the proposed guardian, and each person who had the principal care and custody of the minor during the 60 days before the filing of the petition.

Sometimes there are other persons having a special interest who must be notified of the hearing. These could include an attorney who has filed an appearance for an interested person, a conservator or guardian ad litem for an interested person, and a court that has prior jurisdiction over the minor.

A full guardianship of a minor has several differences from a limited guardianship. The petition for ha appointment of a guardian can be filed by a parent, the minor if age 14 or more, or any other person interested in the welfare of the minor. The petition is filed in the county where the minor resides or is present.

A full guardian may be appointed for an unmarried minor if one of the three statutory circumstances exists. This significantly differs from a limited guardianship where only the parent requests the appointment and consents to the suspension of parental rights.

The court may appoint a full guardian if the parental rights of both parents or the surviving parent have been terminated or suspended because of a specific circumstance. The circumstances include a court order, or because of the death, disappearance, confinement in a place of detention, or a judicial determination of mental incompetency of the parent. MCL 700.5204

A second, and most common, basis for appointing a full guardian is that the parent or parents have permitted the minor to reside with another person and have not provided the other person with legal authority for the care and maintenance of the minor, and the minor is not residing with his or her parent or parents when the petition is filed with the court.

The third basis for appointing a full guardian has three requirements. First, the minor’s biological parents have never been married to one another. Second, the minor’s parent who has custody of the minor dies or is missing and the other parent has not been granted legal custody under court order.

The last requirement under this basis for appointment is that the person named to be appointed guardian is related to the minor within the fifth degree by marriage, blood, or adoption. This requirement often prevents the appointment of the guardian because the nominated person is not so related to the minor.

After the petition is filed with the court, a hearing date is set and the petitioner must serve the interested persons with the petition and notice of hearing. The interested persons are the same as with a limited guardianship.

A father whose paternity has not been established is not a parent with custodial rights under the guardianship statute until his paternity is established. Therefore, his consent is not required in a limited guardianship. Also, it is not mandated that he be served with notice of the petition and hearing in either form of minor guardianship.

The court conducts a hearing by taking testimony from the petitioner and others as may be necessary. The court then appoints the guardian and issues a document called “letters of authority.” The guardian uses this document to prove his or her authority to act on behalf of the minor.