Discretionary appointment

The court is permitted to appoint an attorney ad litem for a minor in certain guardianship and conservatorship matters.  Because the appointed attorney serves in an ad litem (best interest) and not client-directed role, and because the entitlement does not appear to apply in all proceedings, the right to counsel is classified as “qualified” (in addition to discretionary).

Guardianship

Establishment – Discretionary appointment of attorney ad litem

Mich. Comp. Laws § 700.5201 provides, “A person may become a minor’s guardian by parental appointment or court appointment.”  In terms of the procedure for court appointment, “A person interested in the welfare of a minor, or a minor if 14 years of age or older, may petition for the appointment of a guardian…” § 700.5204(1).  “If, at any time in the proceeding, the court determines that the minor’s interests are or may be inadequately represented, the court may appoint a lawyer-guardian ad litem to represent the minor, giving a consideration to the preference of the minor if the minor is 14 years of age or older.” § 700.5213(4); See also Mich. Ct. R. Rule 5.404(A)(2) (“Upon the filing of a petition, the court may appoint a guardian ad litem to represent the interests of a minor…”).

Review of guardianship – Discretionary appointment of attorney

Mich. Ct. R. Rule 5.404(G)(1) requires an annual review of the guardianship for minors less than 6 years of age.  As part of the review, an investigation is conducted by either the Department of Health and Human Services or “any other person”. Id. at (G)(2).  Within 28 days of their appointment, the investigator must file a written report with the court detailing their “recommendation regarding whether the guardianship should be continued or modified and whether a hearing should be scheduled.” Id.  After considering the report, the court shall either enter an order continuing the guardianship or schedule a hearing. If a hearing is scheduled, the court may appoint an attorney. Id. at (G)(3).

Objection to parental appointment – No right to counsel found

Although a minor who is 14 years of age or older is permitted to object to the parental appointment of a guardian, no right to counsel for an objecting minor was located. See Mich. Comp. Laws § 700.5203.

Termination – Discretionary appointment of attorney or guardian ad litem

Finally, the court is also permitted to appoint a guardian ad litem or an attorney to represent the minor if a petition to terminate the guardianship is filed. Mich. Comp. Laws § 700.5208(2)(c); see also § 700.5209(2)(d).

Conservatorship

Establishment – Discretionary appointment

Per Mich. Comp. Laws § 700.5406(1), “If, at any time in the proceeding [for appointment of a conservator or another protective order because of minority], the court determines that the minor’s interests are or may be inadequately represented, the court may appoint an attorney to represent the minor[.]”  The attorney serves in a guardian ad litem role. Id.

Termination (where sought by minor) – Discretionary appointment

In regards to the termination of a conservatorship, “[t]he protected individual, conservator, or another interested person may petition the court to terminate the conservatorship.” Mich. Comp. Laws § 700.5431. The statute goes on to provide that “[a] protected individual seeking termination is entitled to the same rights and procedures as in an original proceeding for a protective order.” Id.  Presumably, this means that the court is permitted to appoint an attorney ad litem if it “determines that the minor’s interests are or may be inadequately represented”, as is provided for under § 700.5406(1).