PROBATE COURT COUNTY OF CALHOUN
Justice Center
161 E. Michigan Avenue
Battle Creek, MI 49017-4066
1-269-969-6795
JUDGES
Honorable Gary K. Reed Probate Judge
Additional Resources:
A parent or guardian of a minor may execute a power of attorney delegating the parent's or guardian's powers regarding the care, custody or property of a minor for a period not to exceed 6 months. MCL 700.5103; MSA 27.15103.
The power of attorney does not include the power to release a minor for adoption or to consent to adoption or marriage. The power of attorney cannot contain an automatic renewal provision, and any renewal of the power must result from another execution of the power for each period not to exceed 6 months. The attorney general has ruled that the power of attorney may not be used to establish school residency. Op. Atty. Gen. 1979, No. 5574, p. 393.
A power of attorney is ideal for use by parents who are going on a trip. In fact, when parents leave town even for a short period of time, parental powers should be delegated to someone to make decisions regarding a child(ren), especially those decisions involving consent to medical care. The advantages of a power of attorney over guardianship are that it does not limit the power of the parent to act if the parent so chooses, and the power of attorney does not have to be established in a court proceeding.
A limited guardianship is a voluntary arrangement started in probate court when parents want someone else to assume parental duties. MCL 700.5205; MSA 27.15205. The legislature established this type of guardianship to remedy the weaknesses of the power of attorney. It was also established because the attorney general ruled that a probate court could not appoint a temporary guardian for a minor based solely on the consent of the parents without making a finding that some other basis was available to establish a guardianship. Op. Atty. Gen. 1980, No. 5782, p. 1002.
The probate court may appoint a limited guardian when the parents with custody of the minor or, in the case of only 1 parent having custody of the minor, the custodial parent consents to the appointment of a limited guardian. The parent or parents must also voluntarily consent to the suspension of their parental rights during the time of the limited guardianship.
A limited guardianship begins in probate court with the filing of a petition which must be signed by the parents with custody of the minor; or, in the case of one parent having custody, the petition must be signed by the parent having custody of the minor.
The parent(s) and person(s) who want to be appointed limited guardian(s) must develop a limited guardianship placement plan which includes the reason why a limited guardianship is being requested, the visitation and contact that will be maintained between the minor and the parent(s), the length of the limited guardianship, the arrangement for financial support for the minor, and any other provisions the parties agree to include in the plan.
Once completed, the placement plan must be attached to the petition. The parent(s) must be advised that a parent who is a party to the plan and substantially fails to comply with the plan without good cause may permanently lose his/her parental rights.
Once the petition is filed with the court together with the limited guardianship placement plan, the court conducts an investigation of the proposed guardianship to determine the suitability of the proposed guardian(s) and the justification for the guardianship.
This form of guardianship prevents the need to renew a power of attorney every 6 months, and it gives to the guardian(s) letters of authority issued by the court. As a result, persons or organizations having contact with the guardian(s), acting in behalf of the minor, will more likely accept the authority of the guardian(s) to act in the place of the parent(s).
The limited guardian(s) has all the powers that are conferred on a regular guardian except that a limited guardian may not release a minor for adoption or consent to an adoption or marriage.
If the parent(s) petitions to terminate the limited guardianship and the parent(s) has substantially complied with the limited guardianship placement plan, the court must grant the petition. The court may, however, enter orders to assist the child's return home or order the Department of Social Services to assist or supervise the child's return home. If the parent(s) has substantially failed to comply with the limited guardianship placement plan, the court may terminate the guardianship or continue the guardianship for up to 1 year. A petition may also be filed in Juvenile Court which may result in termination of parental rights.
This type of guardianship may be necessary when parental duties are not given to a person by law or court order; or, for some reason, the parent(s) is unable to effectively carry out his/her duties. MCL 700.5204; MSA 27.15204. This type of guardianship cannot be established on the consent of the minor's parents alone without making a finding that 1 or more of the reasons exists for appointment of a full guardian.
The court may appoint a full guardian when the parental rights of both parents or of the surviving parent have been terminated or suspended by prior court order, by judgment of divorce or separate maintenance, by death, by judicial determination of mental incompetency, by disappearance or by confinement in a place of detention. A basis must be established for both parents. One parent might fit under one basis, for example, death; and the other parent might fit under another basis, for example, disappearance.
If the child is born out-of-wedlock and the father's paternity has not been established in a manner provided by law, the basis for establishment of the guardianship will solely depend on the situation of the mother.
The court may also appoint a full guardian when the parent(s) has permitted the minor to reside with another person and has not provided the other person with the legal authority for the care and maintenance of the minor.
The full guardianship gives more certainty to the relationship between the guardian and the minor. It focuses on the minor's need for a substitute parent because of the parent's temporary or permanent inability to make and execute parental decisions.
This type of guardian has authority to release the minor for adoption or to consent to adoption or marriage. The guardian may not, however, execute a consent or release until the court, after notice and hearing, authorizes the guardian to execute the consent or release.
If a parent(s) petitions to terminate a full guardianship and the parent(s) does not substantially comply with a court-structured plan intended to reunite the family, a petition may be filed in Juvenile Court which may result in termination of the parent's parental rights. The court may also terminate the guardianship or continue the guardianship for up to one year.
OTHER GROUNDS FOR TERMINATION OF PARENTAL RIGHTS WHEN CHILD HAS A LIMITED OR FULL GUARDIAN:
Parental rights may also be terminated in Juvenile Court if a minor is under a limited or full guardianship and a parent has regularly and substantially failed to support, visit, contact or communicate for a period of 2 years of more.
POWERS AND DUTIES OF A GUARDIAN:
A guardian of a minor has the powers and responsibilities of a parent who is not deprived of custody of a minor, except that the guardian is not legally obligated to provide for the minor from the guardian's own funds and is not liable to third persons by reasons of the parental relationship for acts of the minor.
A guardian must take reasonable care of the minor's personal effects and begin protective proceedings, if necessary, to protect other property of the minor. The guardian may receive money payable for the support of the minor or other money that may be delivered to the minor pursuant to the statute that allows a person to pay or deliver money or personal property to a minor in amounts not exceeding $5,000 per year. Unless a conservator has been appointed for the minor, the guardian must apply this money to the current needs for support, care and education of the minor and exercise due care to conserve the excess for the minor's future needs. The guardian may not use any money for compensation for the guardian's services except as approved by an order of the court. The guardian may start proceedings to compel a person who has a duty to support the minor to pay for the welfare of the minor.
The guardian must assist the minor's education, social or other activities and authorize medical or other professional care, treatment or advice for the minor.
A guardian must report to the court each year the condition of the minor and the minor's estate which is subject to the guardian's possession or control. The report must detail the condition of the ward, any medical or sanitary treatment or care to which the minor was subjected, and what, if any, reason exists for continuation of the guardianship. The form which must be used to file the annual report is available at the probate court. The powers and duties of a guardian of a minor are found at MCL 700.5215; MSA 27.15215.
The court may order the review of any guardianship at any time; however, if the minor is under 6 years of age, the guardianship must be reviewed at least annually.
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Last Updated 4-13-07
Send your comments, questions and suggestions to Phil Harter at 161
E Michigan Avenue, Battle Creek, Michigan 49014
or e mail to pharter@calhouncountymi.gov