Parental Appointment
of a Guardian for Minor
Pursuant to section 5202 of the Estates and Protected Individuals Code
the parent of a minor may appoint by will or by another writing signed
by the parent and attested by at least 2 witnesses a guardian of an unmarried
minor. This is a good reason in and of itself for parents of minor
children to have a will or such other writing since it can avoid a possible
bitter court battle over who should be appointed guardian of a minor child.
A testamentary appointment (by will) becomes effective upon filing the
guardian's acceptance in the court in which the will is probated if before
acceptance both parents are dead or the surviving parent is adjudged legally
incapacitated. An appointment by a nontestamentary nominating instrument
(other writing) becomes effective upon filing the guardian's acceptance
in the court at the place where the minor resides or is present.
It is important to note that a parent can not will custody of a minor to
another if the minor's other parent survives and is not legally incapacitated.
Often, a divorced parent is under the mistaken belief that they can use
this procedure to keep the child away from the non custodial parent after
their death. If both parents are dead or adjudged incapacitated,
an effective appointment by the parent who died or was adjudged incapacitated
later has priority. Michigan recognizes a testamentary appointment
effected by filing the guardian's acceptance under a will probated in another
state which is the testator's domicile.
Upon acceptance of appointment, the guardian shall pursuant to Michigan
Court Rule (MCR) 5.125(C)(20) give written notice of acceptance to:
1. the minor, if 14 years of age or older,
2. the person having the minor's care, and
3. each grandparent and the adult presumptive heirs of the minor..
A minor of 14 years of age or older may prevent an appointment of a
guardian by parental appointment from becoming effective, or may cause
a previously accepted appointment to terminate by filing with the court
in which the nominating instrument is filed a written objection to the
appointment before it is accepted or within 28 days after its acceptance.
An objection may be withdrawn. An objection does not preclude appointment
by the court in a proper proceeding of the testamentary nominee or any
other suitable person.
A guardian, who is appointed by will or nontestamentary nominating instrument
whose appointment is not prevented by the minor filing an objection, has
priority over a guardian who may be appointed by the court. The court
may proceed with an appointment upon a finding that the parental appointed
guardian has failed to accept the appointment within 28 days after notice
of the guardianship proceeding. MCL 700.5204(4).
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Last Updated 12-27-01
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