Guardianships, Power of Attorneys and Emancipation provide legal options for workers trying to achieve safe and permanent plans for children. Guardianship, however, should not be seen as a cure-all, nor can it be equated with termination of parental rights and adoption in terms of the legal security it offers. In some circumstances, some form of legal guardianship may offer a suitable plan for a child. The legal requirements for guardianship, power of attorney and emancipation are outlined below. This is not an exhaustive discussion of the law but is meant to provide an overview, a primer, on these legal statuses, particularly for nonlawyer caseworkers. Should one decide to pursue guardianship or emancipation, legal advice is recommended.
Parents or legal guardians can delegate their parental responsibilities to another for a limited time period, without court action, by means of a power of attorney. By a properly executed power of attorney, a parent or guardian of a minor or a guardian of a legally incapacitated individual may delegate to another person, for a period not exceeding 6 months, any of the parent's or guardian's powers regarding care, custody, or property of the minor child or ward, except the power to consent to marriage or adoption of a minor ward or to release of a minor ward for adoption. ... If a guardian for a minor or legally incapacitated individual delegate 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. A properly executed power of attorney form need not be filed with a court (unless there is an existing guardianship order). The power of attorney expires automatically after six months, though it may be repeatedly renewed by execution of another document.General Guardianship
General, permanent, regular, ordinary, or full guardianship, as it is variously known, does not require parental consent. The statute requires:
A person interested in the welfare of a minor, or a minor if 14 years of age or older, may petition for the appointment of a guardian of the minor. The court may order the Department of Human Services or a court employee or agent of the court to conduct an investigation of the proposed guardianship and file a written report of the investigation.
Note that nearly anyone, i.e. a "person interested in the welfare of a minor," may petition for the appointment of a guardian. Parents, relatives, friends and Department of Human Services (DHS) caseworkers are among those who may wish to initiate such proceedings.Grounds for Guardianship
- Prior court order does not include an order appointing a limited guardian; MCL 700.5204(2)(a)
- The court may appoint a guardian for an unmarried minor if any of the following circumstances exist:
- 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, disappearance, or by confinement in a place of detention.
- The parent or parents do 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, and the minor is not residing with his or her parent or parents when the petition is filed.
- All of the following:
- The minor's biological parents have never been married to one another.
- The minor's parent who has custody of the minor dies or is missing and the other parent has not been granted legal custody under court order.
- The person whom the petition asks to be appointed guardian is related to the minor within the fifth degree by marriage, blood, or adoption.
For the minor ward's welfare, the court may at any time, order the minor ward's parents to pay reasonable support and order reasonable parenting time and contact of the minor ward with his or her parents.Limited Guardianship
Voluntary; Requires Parental Consent; Grounds
Placement Plan Required
Limited guardianship requires voluntary consent of the parent or parents with legal custody of the child.9 It is really a court-sanctioned consent arrangement.
- The court may appoint a limited guardian for an unmarried minor upon the petition of the minor's parent or parents if all of the following requirements are met:
- The parents with custody of the minor consent or, in the case of only 1 parent having custody of the minor, the sole parent consents to the appointment of a limited guardian.
- The parent or parents voluntarily consent to the suspension of their parental rights.
- The court approves a limited guardianship placement plan agreed to by both of the following parties:
- The parents with custody of the minor or, in the case of only 1 parent having custody of the minor, the sole parent who has custody of the minor.
- The person or persons whom the court will appoint as the minor's limited guardian.
In addition to finding parental consent, the court must approve a limited guardianship placement plan agreed to by the parties.
- A minor's parent or parents who desire to have the court appoint a limited guardian for that minor and the person or persons who desire to be appointed limited guardian for that minor must develop a limited guardianship placement plan. The parties must use a limited guardianship placement plan form prescribed by the state court administrator. A limited guardianship placement plan form must include a notice that informs a parent who is a party to the plan that substantial failure to comply with the plan without good cause may result in the termination of the parent's parental rights under chapter XIIA of 1939 PA 288, MCL 712A.1 to 712A.32. The proposed limited guardianship placement plan shall be attached to the petition requesting the court to appoint a limited guardian. The limited guardianship placement plan shall include provisions concerning all of the following:
- The reason the parent or parents are requesting the court to appoint a limited guardian for the minor.
- Parenting time and contact with the minor by his or her parent or parents sufficient to maintain a parent and child relationship.
- The duration of the limited guardianship.
- Financial support for the minor.
- Any other provisions that the parties agree to include in the plan.
The court shall review the placement plan and approve, disapprove or modify the plan if the parties agree to the modified plan. A limited guardianship placement plan that has been approved by the court may be modified upon agreement of the parties and approval of the court. A modified limited guardianship plan shall be filed with the court.Temporary Guardianship
If necessary to protect the child, the probate court may appoint a temporary guardian for six months. Such an appointment may be necessary where immediate decisions affecting the child's health or welfare is required (e.g. regarding necessary medical treatment) or where the child's placement must be secured pending a full hearing on a guardianship petition. The temporary guardian has all the powers and duties of a limited guardian, except that the appointment expires after six (6) months. A temporary guardian may be appointed only in the course of a proceeding for permanent guardianship. The court rules require that the court hold a hearing and take testimony before appointing a temporary guardian, but the court may shorten the period for notice of hearing or dispense with notice altogether. A petitioner should inform the court clerk if a temporary guardian is necessary, and be prepared to proceed immediately to an emergency hearing.