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George F. Bearup, J.D. Senior Legal Trust Advisor

21-Jan-21

Guardians for Minor Children

Take-Away: A parent can nominate another to act as guardian for the parent’s minor child in either a Will or another writing, which is witnessed. The minor child, if age 14 or older, can initially object to the appointment of the nominee as their guardian, but in the end the probate judge has the last word on who serves as guardian for the minor child.

Background: In Michigan, a child is treated as a minor until he/she attains age 18 years. [MCL 72.52.] While the vast majority of the states also use age 18 as their age of emancipation, there are still a couple of states that use a different age for emancipation: South Carolina and Mississippi use age 21, Nebraska and Alabama use age 19.

UTMA: Note that a Uniform Transfer to Minor’s Act (UTMA) account must terminate with the child attains age 21 years despite the age of majority being age 18 in Michigan. [MCL 554.547.]

Appointment of Guardian: The parent of an unmarried minor may appoint a guardian for the minor by a Will or by another writing, e.g. a Trust, that is signed by the parent and attested by at least two witnesses. [MCL 700.5202(1).] In either situation, the appointment is treated as revocable until the parent’s death or loss of legal capacity.

  • Effective Upon Acceptance: If both parents are dead, or have been adjudged to be legally incapacitated, or the surviving parent has no parental rights or has been adjudged to be legally incapacitated, the parental appointment of the guardian becomes effective when the guardian’s acceptance is filed in the court in which the Will containing the nomination is probated, or if the nomination is contained in another writing, or if the testator who made the nomination is not deceased, when the guardian’s acceptance is filed in the court at the place where the minor resides or is present.
  • Guardian Nominated in Will: Therefore, the nomination of a guardian in a Will can still be given legal effect even if the testator is still alive albeit incompetent. A parental appointment of a guardian for a minor child is effected by filing the guardian’s acceptance under a Will probated in the state of the testator’s domicile is effective in Michigan. [MCL 700.5202(3).]
  • Notice: A parental appointee of a guardian must be notified of the proceeding to appoint a guardian for the minor child. [MCL 700.5204(4).]
  • Acceptance: The nominated guardian must file the acceptance within 28 years after the notice of the guardianship proceeding. Otherwise, the probate court may proceed to appoint another guardian. [MCL 700.5204(5).]
  • Notice to Child: Upon acceptance of appointment, the guardian must give written notice of acceptance to the minor child and also to the person who has the minor’s care, or to the minor’s nearest adult relative. [MCL 700.5202(4).]
  • Deceased Parents and the Priority of Appointment: If both parents are dead, an effective appointment  of a guardian for a minor child by the parent who died later is given priority. [MCL 700.5202(2).]

Guardian v Parent Example: The deceased parent was survived by the other natural parent of a minor child. The deceased parent nominated someone other than the other natural parent as the minor child’s guardian.  The Court held that the third-party nominated guardian ‘with no legal connection with the child’ lacked standing to initiate a child custody lawsuit. Yet the family court judge was not obligated to immediately return the minor child to the noncustodial parent if there existed ‘legitimate and compelling indicia on the record that the noncustodial parent is unfit.’ Consequently, while the third-party nominated guardian lacked legal standing and could not become a party to the child custody dispute, the family court judge still possessed the authority to award custody to that third-party guardian. If there is no showing or evidence that the natural parent is unfit, the trial judge must return the minor child to the noncustodial parent on notice of the custodial parent’s death. In re Anjoski, 283 Mich App. 41 (2009.)

Objection by Minor Child: A minor who is age 14 years or older and who is the subject of a parental appointment of a guardian may prevent the appointment or cause it to terminate by filing with the court in which the nominating instrument is filed a written objection to the guardian’s appointment before it is accepted, or within 28 days after its acceptance by the guardian. A few states permit the filing of an objection by a minor who is age 12 years: e.g.  California, Connecticut, Colorado, and Texas.

  • Withdrawal of an Objection: An objection to the nominated guardian’s appointment that was filed by the child can later be withdrawn.
  • Court Hearing: The minor child’s objection does not preclude appointment by the probate court in a proceeding of the parental nominee guardian, or another suitable person. [MCL 700.5203.] If an objection is timely filed by the minor child, then a court hearing must be conducted by the probate judge. [MCL 700.5204.]

Powers of Minor’s Guardian: As a generalization, the minor’s guardian has the powers and responsibilities of a parent who is not deprived of custody of their minor an unemancipated child. However, the guardian is not required to provide for the minor from the guardian’s own money. Nor is the guardian liable to third persons by reason of the ‘parental relationship’ for the child’s acts. The specific statutory powers conferred on the minor’s guardian include the following [MCL 700.5215]:

  • To take reasonable care of the child’s personal effects and property, including the power to initiate a protective proceeding to sell or otherwise dispose of the child’s property or an interest in real property through the appointment of a special conservator. “ A guardian shall not otherwise sell the ward’s real property or interest in real property.”
  • To receive money payable for the child’s support. Money or property received must be applied to the child’s current needs for support, care and education. The guardian must exercise care to conserve any excess for the child’s future needs unless a conservator is appointed for the child’s estate, in which case the excess must be paid at least annually to the conservator. The guardian cannot use the child’s money or property as compensation for the guardian’s services, except as approved by the probate court, or as determined by a court appointed conservator ‘other than the guardian.’
  • To initiate legal proceedings to compel another to fulfill their duty to support the minor child or to pay money for the minor child’s welfare.
  • To facility the minor child’s education and social or other activities and to authorize medical or other professional care, treatment or advice. The guardian will not be liable by reason of this consent for injury to the minor child resulting from negligent acts of third persons unless it would have been illegal for the child’s parent to have given their consent to such acts.
  • To consent to a minor child’s marriage.
  • To consent to the adoption of a minor child or to the release of a minor child for adoption.
  • While the guardian possess considerable authority under this statute, the guardian’s opposition to a petition for grandparenting time is not the same as the authority held by a fit parent to oppose a request for grandparenting time. Book-Gilbert v. Greenleaf, 302 Mich App. 538 (2013).

The guardian must report the condition of the minor child and the child’s estate that is subject to the guardian’s possession or control as ordered by the probate court on the petition of a person who is interested in the child’s welfare, or as required by court rule. This report must detail the condition of the minor child, medical or mental health treatment or care to which the child was subjected, and what reason, if any, exists for the continuation of the guardianship. [MCL 700.5215(f).] If there is a change in the minor child’s place of residence, the guardian must give the probate court notice of the child’s new address.

Conclusion: The nomination of a guardian for a minor child in a Will or another writing attested by at least two witnesses is an important part of any estate plan. That nomination will not have much effect if the parents are divorced and the custodial parent attempts to appoint a guardian over the legal rights of the other natural parent. In those situations, it will be helpful in the nomination provision to refer to a separate legal writing and incorporate it by reference into the Will (or other nominating instrument) that expresses the deceased parent’s reasons why he/she believes that the other natural parent is unfit. That separate writing can be periodically updated to share current examples of why the other natural parent continues to be unfit. That is not to say that the family court judge will agree that the other natural parent is unfit, but it will be a helpful guide to the judge who is called upon to make a tough decision in what is in the minor child’s best interests. In those rare cases I handled in the past, when the custodial parent was adamant that the other natural parent was unfit to take custody of their child on the custodial parent’s death, I encourage several video tapes of the custodial parent explaining his/her reasons why it would not be in the minor child’s best interest to be awarded custody to their other parent.