State Bar of Michigan
Volume 5, Issue 4, December 2009

Committee on Justice Initiatives and Equal Access Initiative Disabilities Project

Disabilities Project Newsletter

Guardianship—The Impact on Parents
with Special Needs

by Lisa Lepine, Associate Director, ARC Services of Macomb, Inc.

This article explores the question whether a parent with a disability, who has a legally appointed a guardian, retains parental rights and the authority to make decisions on behalf of their minor child. This article specifically focuses on issues relating to guardianship of persons covered by the Michigan Mental Health Code (MHC) and briefly touches on applicable provisions of the Estates and Protected Individuals Code (EPIC) MCL 700.5301-5318. This article is meant to engage your thoughts and creative ideas as to how best support individuals supported through guardianship who have minor children.

Foundationally, the MHC is the law applicable to guardianships of adults with developmental disabilities. EPIC outlines the law that is applied to adults who are incapacitated, as well as providing us with the law governing guardianship for minor children (MCL 700.5201 through MCL 700.5219). In recent years, the law’s focus regarding guardianship has shifted from protection and prohibition to self-direction and self-determination. Nowhere is this more important when considering the parental rights of parents with disabilities.

Historically, parents known to have disabilities have been perceived as a challenge when considering the needs of their minor children. Often, too much attention is paid to what a person cannot do rather than what can be done or what supports and services can be put in place to help a person be successful. Children have been removed from the homes of parents with disabilities for no more significant reason than that the parent has a disability. Guardianship has even been used as a tool to control such situations. The question is whether the law supports this bias.

The MHC is very clear. Guardianship “shall be utilized only as is necessary to promote and protect the well-being of the individual.” (MCL 330.1602(1)). When determining whether a guardianship is necessary, one should always use the least restrictive means available to support an individual. There are two options for guardianship of the person: partial and plenary. Guardianship is supposed to be granted based on the individual’s need for assistance. For any authority not granted to the guardian, the individual retains the authority to act for herself (MCL 330.1602(1) and (2)).

For example, where a partial guardian has been granted the authority to make legal and financial decisions, the individual retains the right to make all other decisions. This may include, but is not limited to, decisions regarding medical choices, living arrangements (short of the financial obligation), etc. A plenary guardianship is one that covers all decisions for the person—any decision affecting an individual is within the guardian’s purview.

Regardless of the scope of the guardianship, the appointment of a guardian should not remove the individual from the decision-making process. Where the MHC does not specifically address an issue, one may rely on EPIC for direction. As provided in a previous article in this series, EPIC provides that the court may give the guardian only those powers and only for the period of time necessary for the demonstrated need of the Ward, and is required to “design” the guardianship to ensure the Ward’s development of maximum self-reliance and independence within the scope of the Ward’s capacity and may even allow the Ward to function autonomously as to some matters (MCL §§ 5306(2) and 5316).

Therefore, if the scope of the guardianship does not address the relationship between the individual and the minor child, regardless whether it is a partial or plenary guardianship, arguably the authority to make decisions for the minor child remains in control of the individual. Neither the MHC nor EPIC directly addresses this question. Furthermore, where EPIC addresses guardianship of minor children, it is silent on this issue. Amazingly, case law is also surprisingly quiet on this issue. Local court interpretation appears to be the dictating factor in this circumstance.

Should you find yourself representing an individual in this situation, you should consider whether their rights regarding their minor children are at risk or in jeopardy. To reiterate, guardianship is to be utilized only “as is necessary to protect the well-being of the individual.” (MCL 330.1602(1)). If the authority to make decisions has vested in guardian, it is not inconceivable that the guardian (or those dealing with the individual and their minor children) would assume that the authority for a minor child vests in the guardian. This belief may challenge an individual’s right to parent their children.

This situation may also raise questions regarding your client’s best interests, as well as those of their minor children, which may conflict with one another. Attitudinal bias regarding disability remains prevalent in our society.1 Throughout society, including those professionals supporting individuals with developmental disabilities, opinions may vary whether an individual is able to parent a child, regardless whether a guardianship is in place. These beliefs may challenge your client’s ability to obtain and maintain supports and services necessary to help them be successful in caring for their minor children.

In closing, it appears that a person who has been appointed a guardian has not lost the right to parent his or her own child. A proceeding in the juvenile court addresses parental rights. That proceeding looks at the application of the Americans with Disabilities Act, as applicable to providing support and guidance to folks who might need additional accommodations to effectively parent their children. Therefore, in supporting folks with developmental disabilities who have minor children, it is imperative that we continue to educate, support, and provide information to those we serve and their support groups in order to provide effective tools for those who have chosen the parenting adventure.

1 Megan Kirshbaum, Daniel O. Taube and Rosalinda Lasian Baer, Parents with Disabilities—;Problems in Family Court Practice, J. of the Ctr. For Families, Children & the Courts 29, 27-48 (2003)

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