Guardians
Appointment of Guardian for Legally Incapacitated Individual by Will or Other Writing
There is an alternate procedure for appointing a guardian of a legally incapacitated individual in a situation where a parent or spouse has already been appointed as guardian and wishes to appoint a successor guardian of the legally incapacitated individual by will or other writing pursuant to section 5301 of the Estates and Protected Individuals Code. The other writing referred to is a nontestamentary nominating instrument signed by the parent or spouse who is guardian and attested by at least two witnesses. It is important to remember that this procedure can only be used by a parent or spouse and only after the disability has been judicially determined. A testamentary appointment (naming the successor guardian in a will) or appointment by other writing (naming the successor guardian in the case of incapacity of the parent or spouse) by a parent or spouse becomes effective when, after having given 7 days' prior written notice of the intention to do so to the legally incapacitated individual and to the person having the legally incapacitated individual's care or to his or her nearest adult relative, the successor guardian files an acceptance of appointment in the court that appointed the deceased parent or spouse as guardian or, in the case of a nontestamentary nominating instrument, in the court at the place where the legally incapacitated individual resides or is present.. It should be noted that MCR 5.405 (C) differs from the statute and controls where the acceptance is to be filed in cases where the appointment is by will. Unless the court finds the person unsuitable or incompetent for the trust, the court shall issue to the testamentary guardian letters of guardianship equivalent to those that had been issued to the deceased guardian. This procedure may be used in a situation where a will is probated at the testator's domicile in another state.
In the case of a testamentary appointment, the successor guardian appointed under this procedure must notify the court in which the testamentary instrument (will) has been or will be filed of the appointment as guardian. The court probating the will shall then notify the court having jurisdiction over the guardianship if the will is denied probate. If the will is denied probate, the court having the guardianship jurisdiction shall immediately revoke the letters of guardianship.
The ward has the ability to block a testamentary appointment of a successor guardian. The ward may do so by filing a written objection to the appointment with the court in which the will was probated or, for a nontestamentary nominating instrument, the court at the place where the legally incapacitated individual resides or is present. The filing of such objection shall terminate the appointment. A couple of matters should be noted. First, apparently the ward can file the objection at any time. While there must be 7 days prior notice before the appointment becomes effective, the right to object refers to an appointment which is already made. Second, in the case of appointment by will the objection is filed in the court where the will was probated rather than the court having jurisdiction over the guardianship where the acceptance was filed and letters issued. I would suggest that the best practice would be to have an acceptance and/or objection filed in both courts.
