Temporary guardianship
Temporary guardianship is a legal designation that allows someone to take care of a child or an adult for a temporary period. It authorizes the caregiver to act in the best interests of the person who needs assistance, providing them with short-term care and support. In Michigan, this type of guardianship is reserved for minors who have a need for short-term guardianship for various reasons , such as illness or temporary relocation of the parents.
It ensures that a child’s needs are met and that they are not placed in the permanent custody of the court. This type of guardianship gives temporary physical custody and some legal authority to the appointed individual without permanently transferring the legal custody of the child to them. Rights of the guardian may include making medical and educational decisions or managing day-to-day tasks for the minor, depending on what is determined necessary on a case-by-case basis.
Laws on guardianship in Michigan
Michigan is one of many states that recognize the authority of a temporary guardian without requiring the appointment of that person by a court, although these informal arrangements are typically limited to a period of 90 days. The provision is intended to offer seamless assistance to the ward, whether that person is an adult or a child.
The specific mechanism for informal guardianship in Michigan is found in the Estates and Protected Individuals Code Section 700.5310: Temporary Custody of Minor without Court Hearing. According to Michigan law, a temporary guardian can take charge of a minor for up to 90 days without going through the court system. The law allows for the grandparent or stepparent of minor children to gain guardianship for any child of the ward, who has been previously abandoned by the parents. Caretaker- relatives, guardians of the person of a minor child established in another state and people acting under licensing statutes may also be appointed. The extended responsibility given to grandparents of a minor child is a recognition of the role that grandparents play in the lives of many children today. This provision allows grandparents to have critical responsibilities in their grandchildren’s lives while they arrange for the entry of a court- appointed guardian.
The other guardian could be the spouse or parent of the ward, or anyone residing with the ward for at least 60 days, who has paid over half of the cost of the ward’s care. A caretaker relative is a person who has provided a primary source of support, substitute care, parental care, and supervision of the child. The provision allows for a conditional application of guardianship when a parent is away. An example would be a parent who is deployed in the armed forces and the minor child is left with a caregiver.
A caretaker relative must be at least 18 years of age and have lived with a minor ward for at least 60 days without being employed primarily as a caretaker for the minor.
A guardian of another state, means an individual who serves as guardian in another state except for Michigan. A person who serves as guardian of a minor child in another state.
How to establish temporary guardianship without court
In Michigan, there are basic steps that individuals should follow to arrange for temporary guardianship without going through the court system. Temporary guardianship agreements are common in cases where the parents of minor children will be out of town for an extended period of time or when a caregiver will be needed for an incapacitated person.
If you need temporary guardianship and care for minor children while traveling out of the country, finding a suitable guardian and obtaining the appropriate documents are the first steps. Start by choosing a trusted friend or family member who is willing to assume the responsibilities of guardianship. This person may be required to take care of your child’s medical and educational needs in your absence.
Formal documentation should be drawn up using the temporary guardianship form available through Legal Zoom. This document should contain the following details:
Be sure to include the date of agreement as well as the specific date when guardianship should end. If it is possible to include alternate dates in the event that travel plans should be canceled, make a note of those dates as well.
The agreement should be signed by the guardian in the presence of two witnesses, which is required under Michigan law. The signatures of the witnesses must also be notarized.
After completing this step, the next step is to provide the form to the child’s school along with copies of legal identification for yourself and the guardian. This will allow the guardian to access medical care for the child if needed.
If you are seeking temporary guardianship for an incapacitated person, the steps are similar, but you should request the assistance of an attorney before drawing up the agreement. Though this does not require court intervention, it is advisable to seek legal approval in order to avoid any future issues.
Benefits and disadvantages of bypassing court
There are obvious benefits to setting up Michigan Temporary Guardianships outside of the court. At the very least, you cut out the time delay between the request for guardianship and the court appointment, which can be significant. Even more important, many people facing a guardianship petition will seek to oppose that petition in court….which will pit family members against one another over the care of a disabled loved one. No one wants a public battle over the issues that come with an elderly parent or other loved one.
However, if the point of a guardianship is to protect an adult from their own actions, then temporarily "bypassing" the court process could be troubling – especially if the person under pressure from others to create the temporary guardian gets on the wrong side of the wrong people . We all know how complicated family disputes over inheritances, money, real estate, and other property can be. If your mother is halfway to senility, will an aggressive family member be able to manipulate her into signing paperwork for a temporary guardian, then take that document to court and turn it into a permanent placement? Or, will your attention-too long diverted by physical distance-be turned back on your family member who now has the ability to move your mother’s assets into a new bank account "for her own good"?
When a court is involved, the watchful eye of a judge provides both parties with some level of protection, however superficial, from an aggressive strategy by the other party. If a guardian is put in place outside of a court case, however, both the new guardian and the loved one with diminished capacity are left unprotected from the less desirable elements of the situation.
Legal considerations and limitations
The key advantage to this process is that it does not require advance court approval. With an issue imminent and a decision looming, it can be very difficult to set aside the time for a court petition and hearing, usually lasting several weeks. Yet it doesn’t take long for the needs of a ward of the court to arise, and a sense of urgency can often set in. Court approval is better than nothing, but it’s far from the only way to secure the best interest of a child with an absent parent. A temporary guardianship is not recognized by Michigan law, and does not include custodial rights such as educational decisions and medical care. Parents retain all of these rights, and parents may revoke a guardian’s authority at any time. Yet there are some instances where the situation may arise outside the guardianship procedure that does not allow for recourse to the court: Many of these issues will require a more formal review by the court, particularly if the temporary guardian wants to take significant actions such as transferring or selling real estate. (Whether temporary authority also extends to certain financial transactions negotiated by the guardian should be discussed with the specific probate court.) Michigan law is extremely protective of a parent’s income, property and parental rights, including the authority of even a close family member to intervene without a court order. That said, this authority is still authorized by the court, and it is necessary to enter into the temporary guardianship understanding with the knowledge that it is not completely without oversight. Since you hold the temporary guardianship only when necessary, you must retain authority to revert fully to a non-legal role.
Frequently asked questions about guardianship without court
FAQs on Michigan Guardianship without Court or Court Opposition
Can temporary guardianship in Michigan be extended?
Yes it can if need be. The one-year order can be extended indefinitely. The temporary guardianship can be extended for only up to another year, with a court order. As mentioned above, if the temporary guardian continues acting as intended, then the temporary order continues past the initial one-year period.
Will the Michigan Court have some say in determining if/when a person’s temporary and/or permanent guardianship will end?
Not necessarily. If an individual is under both a temporary and a permanent guardianship, it’s unlikely the court will have a say in any of it; the temporary guardianship ends once the judge has issued the final ruling on the petition for the permanent guardianship. The judge can also terminate the permanent guardianship if they are satisfied that the ward is able to care for themselves. That said, the judge cannot terminate the temporary guardianship themselves.
What if the judge terminates the temporary guardianship? Is that it?
As mentioned above, the temporary guardianship continues so long as the temporary guardianship adjudication doesn’t end. In the event it does, the temporary guardian has 28 days to petition for an extension.
Can I petition for more than 28 days?
Yes. The probate court will not necessarily deny the request for anything over 28 days, your attorney needs to draft a detailed petition to show why the court should grant an extension longer than 28 days, as well as show the attached supporting evidence.
How do I replace a current temporary guardian?
A new petition with a new person nominated as the temporary guardian must be filed.
Does a temporary guardian have the right to petition for their ward’s placement in a nursing home?
No. A new temporary guardian can file for such placement , but it needs to be brought to court. Temporary guardian’s authority is limited to consent for medical care only.
Is a temporary guardian required to take care of my finances?
Not at all. While they’re not obligated to care for your finances, that doesn’t mean they can’t help you with financial decisions. They can help with consultations, so a bill does need paid, and so forth. However, the temporary guardian has no legal authority with regard to your financial affairs.
Is the temporary guardian allowed to sell my property?
Yes. The temporary guardian can petition the probate court for authority to sell your property. They can also sign any documents needed for sale or financial transactions of any kind.
Can the temporary guardian travel out of Michigan with the ward?
Yes. The temporary guardian may also take the ward with them to live out of state temporarily or permanently, assuming there is a particular reason for this; if not, the temporary guardian will have a lot of explaining to do in court.
Will the judge place a restriction on where the temporary guardian can reside?
Not without reason. There are some instances where it’s not in the best interest of the ward to live out of state away from their family, or if the ward is unable to adjust to a new living situation and has never lived out of state previously.
Will the judge place a restriction on where the ward can travel?
Not without cause, and it’s rare. It’s also uncommon in Michigan state courts for a temporary guardianship petition to be granted at a hearing without notice given to the ward. A hearing will be required prior to granting notice, and the notice must be given.
