Creating a comprehensive estate plan requires the nomination of agents to act for you in the event of your death or incapacity. Many questions arise when considering the appointment of agents, and often it is not clear at the outset what each of these agents may be called upon to do. For parents with minor children, choosing a Guardian and Conservator to act for the children in the event of the parents' death can be one of the most difficult decisions to make.
This article outlines the two roles, and hopefully will be helpful when nominating a Guardian or Conservator in your estate planning documents.
Guardian for Minor Children
A Guardian is a person, other than a custodial parent, who has power to make decisions on behalf of a minor. Guardians are required to act in the best interests of a minor, and have all powers and responsibilities for a minor that a parent would have. However, a Guardian is not legally obligated to provide for the minor from the Guardian's own funds and is not personally liable to third parties for the minor's actions.
In Michigan, Guardians have the following powers and duties:
Taking reasonable care of the minor's personal effects;
Receiving money payable for the minor's support under any benefit plan, insurance plan, contract, trust, custodianship or similar account and using that money for the minor's support, care and education;
Facilitating the minor's education and social activities; and
Authorizing medical care, treatment or advice for the minor.
Keep in mind that if a minor is 14 or older, the court must appoint the person nominated by the minor unless the court finds that the person nominated by the minor would not serve the welfare of the minor. Also keep in mind that a nominated Guardian has priority over a surviving parent that has no parental rights.
Whenever possible, you should nominate individual(s) who are familiar with your minor children and who are capable of ensuring that your minor children get the best upbringing possible under the circumstances. Minors dealing with the death of a parent are going to be facing a lot of uncertainty, and the best Guardians are those people who can minimize the effect of having to go live with someone else following the death of a parent.
Conservator of Minor Children
In addition to nominating a Guardian for minor children, you should also nominate a Conservator for minor children. A Conservator is responsible for managing a minor's finances. Whenever a minor has money or property that requires management or protection that cannot otherwise be provided, or needs money for support and education that cannot otherwise be provided, a Conservator is appointed and given authority to handle the minor's finances.
When there are alternatives to appointing a Conservator that ensure that the minor's property or money is properly managed, a Conservator may not need to be appointed. For example, if all of the minor's assets are held in a Trust for the benefit of the minor, a Conservator may not be necessary.
Michigan law lists over 30 powers that a Conservator can exercise without getting court authorization. These powers include things like holding and managing money and property, holding ownership interests in businesses, investing assets, leasing property, borrowing or loaning money on behalf of the minor, paying taxes, employing attorneys or accountants, and several others. However, a Conservator cannot sell or mortgage real estate owned by a minor without court approval.
A Conservator is required to consider recommendations from a minor's Guardian concerning the minor's support and education, and is required to distribute any funds reasonably necessary for the education, care or benefit of the minor, after taking into consideration other sources of support for the minor.
A person can act as both Guardian and Conservator for a minor child, but different people can be appointed for each role as well. Unlike with a Guardianship, there is no provision that allows a minor to nominate a Conservator.
At Lumbertown Law, we understand how difficult these nominations can be, and we have the experience and expertise to help you evaluate potential candidates for each role. Contact us today to implement estate planning documents that will provide for the care and support of your minor children.