Guardianships Blog
Kalamazoo - Guardianship Law Blog

Avoiding a Guardianship

Posted January 5, 2017

A guardianship may be avoided by the disabled person executing a durable power of attorney appointing another person called an attorney-in-fact to handle their financial affairs and to make other decisions for them. A durable power of attorney differs from an ordinary power of attorney because it survives the incapacity of the principal. The document, to be a durable power of attorney, must contain the words "This power of attorney shall not be affected by disability of the principal," or "This power of attorney shall become effective upon the disability of the principal," or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding his or her disability, the authority of the attorney-in-fact or agent is exercisable by him or her as provided in the power on behalf of the principal notwithstanding later disability or incapacity of the principal or later uncertainty as to whether the principal is dead or alive. For this alternative to be available, the principal must be able to execute the power of attorney while still competent and able to understand what he or she is signing. If the document was validly executed, the attorney in fact may handle the principal's affairs after the principal is no longer able to do so. An attorney in fact may also act for the principal when the principal is under no disability if the documents authorize such actions. An attorney in fact may not act after they learn of the principal's death. From that point, only a personal representative has the authority to act for the deceased.

 

Guardian under EPIC

Posted December 3, 2016

Section 5103 of the Estates and Protected Individuals Code (EPIC) provides for the delegation of power by a parent or guardian. This section may be used by the parent of a minor, guardian of a minor, or the guardian of a legally incapacitated individual. It is very useful in situations when a parent or guardian is temporarily absent from the ward. For example, this method may be used when a child goes away to camp or on a trip or where the guardian of an adult goes on vacation and the disabled person remains in the home community. The power regarding care, custody or property of a minor child or disabled person may be delegated by a properly executed power of attorney. The duration of such delegation cannot exceed 6 months. If a guardian for a minor or legally incapacitated individual delegates any power under this section, the guardian shall notify the court within 7 days after execution of the power of attorney, and provide the court the name, address, and telephone number of the attorney-in-fact.

 

TYPES OF GUARDIANSHIPS AND CONSERVATORSHIPS:

Posted November 19, 2016

  • Guardian of a Minor - This guardian has the care and control of the minor much as a parent would have.
  • Limited Guardian of Minor - This guardian has the care and control of the minor. However, this guardianship differs from a regular guardianship in that the guardian cannot consent to the marriage of the minor, the adoption of the minor or the release of the minor for adoption.
  • Full Guardian of a Legally Incapacitated Individual - This guardian has the care and control of the adult much as a parent would have over their child.
  • Limited Guardian of a Legally Incapacitated Individual - A guardian of an adult who possesses fewer than all of the legal rights and powers of a full guardian and whose rights, powers, and duties have been specifically enumerated by court order.
  • Guardian Ad Litem -- This is not a guardian in the usual sense. A guardian ad litem is appointed to represent the interest of a party in a proceeding before the court where that party is unable to adequately represent them self. The guardian ad litem may make a recommendation to the court based upon what they believe to be in the best interest of the party they represent. They have no authority to make decisions for the party they represent and should not be confused with a guardian.
  • Guardian of the Person - This is the guardian of a developmentally disabled person. Such guardians are appointed under provisions of the Mental Health Code rather than the Probate Code. This guardian has the care and control of the developmentally disabled person (formerly referred to as a mentally retarded adult) much as a parent would have over their child.

 

Guardian of a Minor

Posted October 12, 2016

A full guardian has the same powers and responsibilities to a minor child as does a custodial parent, except that a guardian is not obligated to support the minor with personal funds and is not liable to third parties for the minor’s acts.  A limited guardian has all the powers and duties of a full guardian enumerated in MCL 700.5215 except that a limited guardian may not consent to the minor’s adoption, the minor’s release for adoption, or the marriage of a minor. MCL 700.5206(4).

A guardian must take reasonable care of the minor’s personal effects and start protective proceedings if necessary to protect the minor’s property. The guardian may not sell the minor’s interest in real property without court authorization.  Any money received for the minor’s support must be spent on the minor’s current needs for support, care and education.  The money is not to be used to reimburse the guardian for services rendered unless approved by court order or as determined by a duly appointed conservator other than the guardian.  The guardian is to assist with the minor’s education and social activities and authorize medical or other professional care.  A full guardian may give consent to the minor’s; marriage, adoption or release for adoption.  The guardian must file timely reports with the court.  These reports must detail the minor’s condition, including any medical treatment given to the minor; the assets in the guardian’s control; and reasons for continuing the guardianship. The guardian must serve the report on the interested persons.

The probate court has exclusive legal and equitable jurisdiction over guardianships, conservatorships, and protective proceedings, except to the extent the Revised Judicature Act confers jurisdiction on the family division of circuit court. MCL 600.841, 700.1302(c). The family division of circuit court has ancillary jurisdiction over cases involving guardians and conservators that are commenced on or after January 1, 1998. MCL 600.1021(2)(a). However, the ability of a court to exercise ancillary jurisdiction is extremely proscribed under Michigan law and can be done only under extraordinary circumstances.

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