If something happened to you and you were unable to care for your minor children, what would happen? If you became incapacitated or died, who would take care of your children, where would they live and who would make medical and other decisions for them?
In these situations, someone must petition the probate court for guardianship of your children. After a petition for guardianship has been filed, the court sets a hearing date. The petition and notice of hearing then must be served upon all interested parties prior to the hearing. Interested parties include each person who has had principal care and custody of your minor children during the sixty-three days preceding the filing of the petition, the nominated guardian, your minor children if they are fourteen or older and both you and the other parent of your minor children or if neither of you are living, the grandparents and the adult presumptive heirs of your minor children. The court may appoint an investigator to meet with your children and the proposed guardian and provide a report and recommendation to the court.
The court then holds a hearing on the petition for guardianship, reviews the report of the investigator and hears testimony from your children and other interested parties. The court considers a number of factors, weighs them, evaluates them and makes a determination of what is in the best interests of your children. Some of the factors the court considers include the permanence of the proposed custodial home, the moral fitness and mental and physical health of the proposed guardian and the ability of the proposed guardian to provide food, clothing, medical care and other material needs. The probate court then appoints a guardian. After the guardian is appointed, he or she then must report to the probate court on the status of the guardianship at least once each year.
If no one wants to be guardian for your children and they are orphaned, Children’s Protective Services may step in and take custody of your children. Your children then become wards of the state and part of the foster care system. Your children may be split up and/or put up for adoption.
There is a way to avoid both the long tedious court appointed guardianship process and Children’s Protective Services. You can sign a properly drafted attorney prepared parental appointment of a guardian for your children. In this document you designate the person(s) to whom you want to have guardianship over your children in the event of your incapacity or death. In that circumstance, all your appointee would need to do is present the document to the probate court along with an acceptance of guardianship and the court then issues letters of guardianship. No muss, no fuss. The person you want is guardian of your babies. The only people that need to be notified of this guardianship are the children and the person(s) in care of your children or the children’s nearest adult relative.
In the case of either a court or parental appointment of guardian, if your child is older than fourteen and does not get along with his or her guardian, your child can file a written objection with the court. The court may then schedule a hearing to determine if the continued appointment is in the best interests of your minor child.
If you are not incapacitated but will be unable to care for your children for less than six months, you can sign a properly drafted attorney prepared power of attorney to delegate your parental authority to another for that time period. That person would have all of your powers as a parent for that period of time without the need of any court appointment or filing. If you are serving in the armed forces and deployed to a foreign country, the six months can be extended to a period up to thirty-one days after the end of your deployment.
By: Matthew M. Wallace CPA, JD
Published edited December 21, 2008 in The Times Herald newspaper, Port Huron, Michigan as: Tips to protect your family if something happened to you