Broadly speaking, a guardian is a person who has legal responsibility for another person, and is put in charge of his or her well-being.
Under Michigan’s Estates and Protected Individuals Code (EPIC), a guardian may be needed when an individual cannot make informed general care and control decisions for themselves, whether due to their age or because of a physical or mental impairment.
For children, legal guardianship can provide a safe home and stability after the loss of a parent. Guardianship may also be an appropriate solution when the child’s parent (or parents) will be temporarily absent from his or her life, and unable to provide care. This could be due to any number of circumstances, ranging from incarceration to long-term hospitalization or in-patient mental health treatment. Guardianship may also be a way to provide suitable care for a child when a parent cannot, but there are important legal, psychological, or personal reasons to maintain family ties between the minor and their biological parent.
By definition, becoming a guardian is a legal process. Guardians are appointed by order of the court. Prospective guardians may be nominated by petition, by will, or by another written document signed by the parent and at least two other witnesses. An individual can also petition for full guardianship of a minor in some circumstances.
With that in mind, there are three types of minor guardianship available in Michigan:
- Full guardianship
- Limited guardianship
- Temporary guardianship
General Guardianship of a Minor
Variously known as “general,” “permanent,” “regular,” “ordinary,” or “full” guardianship, this type of guardian is broadly responsible for the care, custody, and supervision of a minor, including facilitating education, proper health care, and helping them protect their finances and property. In addition to caring for the minor, guardians have the responsibility to file an annual written report on their overall condition, including any medical or psychiatric treatment they were subjected to, as well as conditions of the minor’s estate in some cases.
Any person interested in the welfare of a minor can petition the court for the appointment of a guardian, including relatives, friends, caseworkers, or the minor themselves (if he or she is 14 years of age or older). In Michigan, the court may appoint a guardian for an unmarried minor in any number of circumstances.
A guardian may be appointed when the parents’ rights are terminated or suspended by a court order, judgment of divorce, separation, death, judicial determination of mental incompetency, disappearance, or confinement in a place of detention. Likewise, if the minor’s biological parents have never been married to one another and the parent who has custody of the minor dies or is missing, and the other parent has not been granted legal custody under a court order, guardianship may also be established for the minor. Guardianship may also be awarded when the parent or parents permit the minor to reside with another person, and do not provide the other person with legal authority for the minor’s care and maintenance.
Limited Guardianship of a Minor
Limited guardianship is a court-sanctioned consent arrangement between the minors’ parents and the prospective guardian. A limited guardian has all the powers and responsibilities of a full guardian, with some notable exceptions — specifically, a limited guardian cannot consent to the minor’s marriage or adoption.
Limited guardianship requires voluntary parental consent. The arrangement also requires both the parent(s) and the appointed guardian(s) to agree to a limited guardianship placement plan, which must include:
- The reason for the appointment of the limited guardian
- Arrangements made to maintain the parent/child relationship, including parenting time and means of contact
- The duration of the limited guardianship
- Financial support provided for the minor
- Any other relevant provisions that the parties agree to
Once the limited guardianship plan has been approved by the court, it may be modified upon agreement of the parties and with approval of the court. For children under six years of age, the court reviews the conditions of a limited guardianship on a yearly basis. The parent or parents can withdraw their consent or petition to terminate the limited guardianship at any time by filing the necessary documents. In this situation, the court must discharge the guardianship, but may require a hearing before doing so.
The limited guardian may also petition to be appointed as a full guardian for the minor — however, this petition cannot be based upon the suspension of parental rights that led to the initial appointment of the limited guardian.
Limited guardianship arrangements can be problematic for parents. Parents considering permitting limited guardianship should contact us immediately at (833) 469-4897 to discuss the dangers of this configuration.
In cases where a minor’s well-being is at risk and they require short-term protection, the courts may appoint a temporary guardian for a period of six months. During this time, the temporary guardian has all the powers and responsibilities of a full guardian unless otherwise restricted by the court.
The appointment of a temporary guardian may be necessary where immediate decisions about a child’s health or welfare must be made, or in situations where the child’s placement must be secured, pending the outcome of a full hearing on a guardianship petition. The court must hold a hearing and take testimony in order to appoint a temporary guardian.
Guardianship V. Conservatorship
Some states use the terms “guardian of the person” and “guardian of the estate” to refer to the division of responsibilities taken on by a guardian, with the guardian of the person handling the health and well-being of the individual, and the guardian of the estate overseeing financial matters on their behalf.
In Michigan, we use different terms — guardian and conservator.
Generally, we use guardian to refer to an individual who is legally responsible for the care, custody, and control of a minor (or an incapacitated adult). A conservator is a person appointed by a court to manage a protected individual’s estate.
In other words, conservators make decisions about the property or the finances of the person, while guardians make decisions about the person themselves, such as medical or housing decisions.
For minors, conservators may be appointed in situations where the child or young adult owns money or property that needs to be managed or protected, or if significant funds are needed for the minor’s support and education, and protection can help provide those funds. One person or group can act as both guardian and conservator to a minor. Like guardians, conservators have certain responsibilities that must be met, including filing a complete inventory of the ward’s assets promptly after being named as a conservator, and filing an annual accounting of the expenditures, disbursements, and property under their care.
Guardianship Can Be Complex and Emotional. We’re Here to Help
Guardianship can quickly become complicated and fraught — whether you are considering a power of attorney so that a third party can have temporary custody of your child; considering who to nominate as a guardian as part of your estate plan; petitioning for guardianship of a loved one; or contesting the established guardianship or conservatorship of a minor, we are here to help. Just call (833) 469-4897.
Whether contested or uncontested, guardianship matters are highly emotional, and the rules surrounding guardianship proceedings can be confusing. For these reasons, it is important to have a skilled guardianship lawyer who can guide you through this process with integrity and purpose.
Our probate and guardianship attorney Dean Patrick can help you navigate through all the legalities, so that you can rest assured that you and your loved ones will be taken care of, whatever life brings.
At the Patrick & Associates, PLLC., we put our legal experience and skills together with our commitment to excellence in representing your rights. You can depend on our firm’s ability to listen to you and our talent for creative strategies to help you get results. You and your family can rest assured knowing that our office is handling your matter with professionalism and expertise.