ALTERNATIVES TO COURT PROCEEDINGS TO APPOINT
A GUARDIAN OF A MINOR

EPIC has special provisions for avoiding the necessity of court proceedings for the appointment of a guardian or a conservator. This article reviews the essential requirements of these special laws that apply only to minors.

The Estates and Protected Individuals Code provides that a person may become the guardian of a minor either by parental appointment or by court appointment. Since there are alternatives to court appointment of a guardian for a minor, these should always be carefully considered before undertaking the expense of commencing a formal court proceeding.

The parent of an unmarried minor may appoint a guardian for the minor either by a will or by a special writing signed by the parent and attested by at least two witnesses. The appointment will not become effective until the nominated guardian files an acceptance with the appropriate probate court and all other statutory requirements are met. MCL 700.5202

For an appointment by will or nontestamentary writing to be effective, either both parents must be deceased or been adjudicated legally incapacitated, or if one parent survives, that parent has no parental rights or has been adjudged to be legally incapacitated.

Where the nominating document is a will, the guardian’s acceptance must be filed in the court where the will of the parent is filed for purposes of probate. For an appointment by writing other than a will, the nominating document must be filed in the probate court at the place where the minor resides or is present.

A minor between ages 14 and 18 years may file an objection to the appointment of the nominated guardian. This does not prevent the court from making the appointment but it requires the court to conduct a hearing and then decide on the nomination.

If there is no objection filed by the minor, the appointment is effective upon the filing of the acceptance with the court. No hearing is held. The court issues no letters of guardianship. The guardian uses the written instrument as proof of guardianship authority.

Note that this guardianship appointment process without a court hearing is not available unless both parents who have parental rights are deceased or have been adjudged legally incapacitated by a court. This is not a means for a divorced custodial parent to prevent the other surviving parent from getting custody after the custodial parent’s death.

EPIC also provides a second alternative to the court appointment of a guardian of a minor. A parent may delegate in writing the power of the parent regarding care, custody, or property of the minor. The delegation must be in the form of a properly executed power of attorney and cannot exceed a term of 6 months. MCL 700.5103

Note that this delegation is not the appointment of a guardian. The person to whom the authority is delegated does not file an acceptance in any court and is not a guardian of the minor. This person retains the delegated authority for the six-month period only or its revocation by the parent at an earlier date.

The delegation of power is useful for the placement of a child with a relative while a parent has an extended illness and cannot care for the child; or to permit the child to attend school in another district; or to permit the child to live in the home of a relative for several weeks or months.

There are also alternatives to adult guardianships and conservatorships under EPIC. Additionally, special authority is granted to court appointed guardians to delegate their authority. To review these special situations, see the article titled: Alternatives To Court Proceedings To Appoint A Guardian Or A Conservator Of An Adult.