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)(19) give written notice of acceptance to:
- The minor, if 14 years of age or older,
- The person having the minor's care, and
- 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 will is probated a written objection to the appointment before it is accepted or within 30 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 An objection may be withdrawn.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 30 days after notice of the guardianship proceeding. MCL 700.5204(4).