Guardianships

If you are in a position to be a guardian of another person, it is important to understand what you are getting into. While it is a huge responsibility, it can be extremely rewarding knowing that you are helping someone who can not help themselves. Usually this person is a loved one. A guardian is given power by a court and is charged with the duty to care for another person, called a “ward,” who is a minor or has a disability making the ward unable to care for him/herself. The court will appoint a guardian if it determines the person is developmentally disabled, legally incapacitated or a minor in need of parental care. The guardian is responsible for the ward's care, custody, and control, but is not liable to third persons by reason of that responsibility for the ward's acts.

A developmentally disabled person has a mental and/or physical impairment that causes a substantial functional limitation in certain major life activities. This impairment must manifest itself before reaching the age of twenty-two and is expected to continue indefinitely. A legally incapacitated individual is someone who lacks sufficient understanding or capacity to make or communicate informed decisions. This impairment could have been caused by mental illness, mental deficiency, physical illness or disability, chronic use of drugs or chronic intoxication. In these types of cases, the court can either appoint a full or temporary guardianship depending on the anticipated length of time a guardian will be needed.

The need for a guardian for a minor arises when the child’s parents are unable to care for the child by reason of death, inability or unavailability. The court may appoint a full or limited guardianship. A full guardianship empowers the guardian with the ability to make all the decisions a parent of the minor could make. A limited guardianship is limited in that the guardian can not consent to the marriage of the minor, adoption of the minor or consent to the adoption of the minor. A limited guardianship requires the consent of the parent, guardian and the court, as a placement plan is established to return the minor to the parent. The court may appoint a temporary guardian during the proceedings.

Any interested party can file a petition with the court to establish a guardian for an individual. The preference of a guardian for minors age 14 years or older is taken into consideration by the court. The court will also consider the wishes of a decedent who appoints a guardian for his/her children in their Will. This appointment of a guardian in a custodial parent’s Will does not negate the rights of a noncustodial parent; however, the court will take the appointment into consideration when making its decision.

Having a Durable Power of Attorney for your finances or for health care can avoid, or at least prolong, the need for a guardian. We would be glad to discuss your options with you.

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Curtis & Curtis, P.C. is a full service law firm located in Jackson, Michigan providing superior legal services and advice to individuals, families and businesses throughout mid-Michigan since 1901.

This publication is provided for general informational purposes only and does not constitute formal legal or other professional advice. No attorney-client relationship is created with you when you read this information. The above information may be changed without notice and is not guaranteed to be complete, correct or up-to-date, and may not reflect the most current legal developments. If you have any questions or need assistance, please contact Curtis & Curtis, P.C.