POWER OF ATTORNEY for Parent going into Drug Rehab

AVVO QUESTION 10/26/13:I am on probation if I go into rehab my ex will fight for my daughter. My family stated of need be they will take my daughter.What do I do?

ANSWER: DELEGATE YOUR PARENTAL POWERS TO A FAMILY MEMBER, CALLED AN AGENT,  WHILE YOU ARE IN REHAB.

I will presume you are on a criminal probation and you have a drug problem. Since you stated your concern your” ex will fight for your daughter “ it appears your have physical custody of your daughter. If your custody is challenged the criminal probation and drug use will work against you in a Best Interest Factor analysis MCL  722.23 . On these facts  being in rehab should not. What is important is that your daughter is taken care of. Do not leave the child with a family member without  also giving them legal authority through a power of attorney as your agent.

DELEGATION OF PARENTAL POWERS

I found the following information.see sources below.

Step 1: Determine who you want to name as agent ..

An agent should be someone in whom you have  highest degree of confidence.

Step 2: Determine the extent of the powers delegated to the agent.

Most parents will wish to delegate full power to the agent to do everything required for the child’s care.

SEE-MCL.700.5103  Delegation of powers by parent or guardian

Sec. 5103.  (1) By a properly executed power of attorney, a parent or guardian of a minor or a guardian of a legally incapacitated individual may delegate to another person, for a period not exceeding 6 months, any of the parent’s or guardian’s powers regarding care, custody, or property of the minor child or ward, except the power to consent to marriage or adoption of a minor ward or to release of a minor ward for adoption.

(2) If a parent or guardian is serving in the armed forces of the United States and is deployed to a foreign nation, and if the power of attorney so provides a delegation under this section is effective until the thirty-first day after the end of the deployment.

(3) If a guardian for a minor or legally incapacitated individual delegates any power under this section, the guardian shall notify the court within 7 days after execution of the power of attorney and provide the court the name, address, and telephone number of the attorney-in-fact.

As amended by 2000 PA 54 (eff. Apr 1, 2000), 2004 PA 93 (eff. May 7, 2004).

Step 3: Include examples of the types of powers that you are  delegating.

Some examples of power delegated to the agent are the power to consent to

• any medical, diagnostic, or surgical procedure
• any dental procedure
• use of any medication or other items related to the child’s health

Step 4: Have the document signed, witnessed, and notarized.

While a delegation can be executed without  any judicial proceedings, it must be signed, witnessed, and notarized.

When to Use

A delegation of parental powers is frequently used when parents take a vacation or when a parent joins the armed forces. A delegation of parental powers may also be used to avert a guardianship proceeding if a parental surrogate is needed for a relatively short time due to a parent entering drug treatment or being sent to prison.

You should desire to vest in the agents full powers as a substitute parent  to do anything and everything required for the child’s care You should the agent as your attorney-in-fact to do any of the things you, as parent could do on behalf of your child, including, but not limited to the following:

1. Give parental consent to any medical, diagnostic, or surgical procedure and/or other treatment of any type or nature;
2. Give parental consent to any dental procedure;
3. Give parental consent to admission to any hospital or medical center;
4. Give parental consent to the use of any drugs, medication, therapeutic devices, or other medicines or items related to the child’s health; and
5. The power in general to take and authorize all acts with respect to our your health and wellbeing, the same as we could do.

Primary Sources

http://www.icle.org/modules/formbank/linked_display.aspx?ID=PRB1238&Display=HowToKit

SEE-MCL.700.5103  Delegation of powers by parent or guardian

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#GUARDIANS DENIAL OF GRANDPARENT VISITATION WRONG! by Flint Divorce Attorney Terry Bankert 810-235-1970

#TERRY TALKS “Ideas worth sharing “

#GUARDIANS DENIAL OF GRANDPARENT VISITATION WRONG!

Terry R. Bankert P.C., 810-235-1970, Ideas Worth Sharing of Flint, of the law, and by Flint Michigan People. See also Facebook Group WWW.terrytalks.com

DATE: 10/20/13

TIME:12:00 PM

Here the “Plaintiff alleges that the trial court erred by allowing defendant, the guardian, to utilize the fit parent presumption of MCL 722.27b(4)(b) to deny grandparent visitation. We  

(Michigan Court of Appeals) agree

see: www.terrytalks.com

Issues:

1. Motion for grandparent visitation (MCL 722.27b);

2. Whether the trial court properly allowed the intervening defendant (the guardian) to utilize the "fit parent presumption" of MCL 722.27b(4)(b) to deny grandparent visitation; Whitman v. City of Burton; In re Receivership of 11910 S. Francis Rd.; Johnson v. Recca; People v. Peltola; In re Hurd-Marvin Drain; Michigan Basic Prop. Ins. Ass'n v. Office of Fin. & Ins. Regulation; Maple Grove Twp. v. Misteguay Creek Intercounty Drain Bd.; Miller-Davis Co. v. Ahrens Constr., Inc.;

3. MCL 722.27b(1)(e);

4. Whether the trial court appropriately allowed the guardian to "step into the shoes" of the parent for purposes of MCL 722.27b(4)(b); MCL 700.5215;In re Beck; University Ctr., Inc. v. Ann Arbor Pub. Schs.; Hunter v. Hunter

COURTS INVOLVED

Court: Michigan Court of Appeals (Published)

FOR PUBLICATION,September 26, 2013 ,9:00 a.m. [2]

Case Name: Book-Gilbert v. Greenleaf ,No. 308755 ,[1]

PRINCIPAL SOURCE e-Journal Number: 55461

MICHIGAN COURT OF APPEALS Judge(s): Per Curiam – Fort Hood, Fitzgerald, and Ronayne Krause

THE LOCAL,LOWER,TRIAL  COURT  ERRED IN ALLOWING INTERVENING  GUARDIAN  TO STEP INTO A  FIT PARENTS  PRESUMPTION  WHEN DECIDING ON GRANDPARENT VISITATION.

The court held that the trial court erred by allowing intervening defendant-Tyndall (the guardian and relative of the minor child's deceased mother) to utilize the fit parent presumption of MCL 722.27b(4)(b) to deny grandparent visitation to intervening plaintiff-McCallister and by allowing a guardian to "step into the shoes" of a fit parent for purposes of MCL 722.27b(4)(b)."[1]

MICHIGAN COURT OF APPEALS REVERSES LOWER COURT/TRIAL COURT  ORDER  AND DENY’S THE GRANDPARENT MOTION FOR VISITATION

Thus, the court reversed the family court order [...AND...] denying plaintiff's (the minor child's paternal grandmother) motion for grandparent visitation, and remanded. "[1]

THE TRIAL COURT RELIED ON MCL 722.27b(4)9b)

The trial court held that MCL 722.27b(4)(b) provided that deference was to be given to the decision of a fit parent to deny grandparenting time, and it was presumed that the denial of parenting time "does not create a substantial risk of harm to the child's mental, physical, or emotional health.""[1]

THE LOWER COURT DID NOT DIFFERENTIATE BETWEEN A GUARDIAN AND PARENT

It acknowledged that defendant was not a parent, but a guardian. Nonetheless, it held that defendant had the right to make decisions as a fit parent, the right to deny grandparenting time, and plaintiff failed to overcome the presumption."[1]

THE LEGISLATURE DID NOT INCLUDE GUARDIAN IN THE LAW

The court held that the trial court's holding was contrary to the plain language of MCL 722.27b(4)(b), which grants "fit parents" a presumption as to the denial of grandparenting time. The Legislature could have afforded a presumption to "custodians" or "guardians" of a grandchild, but did not include such language. "[1]

GUARDIANS DO NOT GET THE SAME DEFERENCE A PARENT WOULD.

The court cannot read into a statute what the Legislature did not include, and permitting guardians or custodians to derive the benefit of the fit parent presumption would require it to rewrite the statute"[1]

Defendant contended that a guardianship encompasses parental responsibilities, and thus, the trial court appropriately allowed the guardian to "step into the shoes" of the parent for purposes of MCL 722.27b(4)(b).[1]

The court held that despite the definition of guardian found in MCL 700.5215, there was no indication that the definition may be incorporated into the provisions of MCL 722.27b(4)(b).[1]

"The statutes fail to address the same subject matter, and they cannot be read in pari materia." More importantly, the court held that there are distinct differences between a natural parent and a guardian such that it would be inappropriate to read the term guardian into the text of the fit parent presumption of MCL 722.27b(4)(b) in the absence of a legislative provision.[1]

PARENTS HAVE A FUNDAMENTAL LIBERTY INTEREST GUARDIANS DO NOT

"Specifically, parents have a fundamental liberty interest in the care, custody, and control of their children.""[1]

"The presumption to a fit parent reflects the elevated status and rights a parent has to a minor child..[1]

" Further, a fit parent has a relationship to the grandparents "such that an informed decision may be made regarding the propriety of grandparent visitation. "[1]

On the contrary, a guardian or custodian of a grandchild may or may not have a relationship with the grandparent, and, in the absence of a relationship, could not make an informed decision regarding the risk of harm to a child during visitation."[1]

SOURCE

[1]

PRINCIPAL SOURCE e-Journal Number: 55461 Mostly the incited text

[2]

STATE OF MICHIGAN  COURT OF APPEALS ,ASHLEE BOOK-GILBERT,  Plaintiff,

andHEATHER MCCALLISTER,  Intervening-Plaintiff-Appellant,  FOR PUBLICATION

September 26, 2013 ,9:00 a.m. ,JERRY RYAN GREENLEAF Defendant,

And ANGELA TYNDALL, Guardian of XXXXX, Minor,  

Intervening-Defendant-Appellee.

[trb]

TERRY BANKERT comments are in BLOCK HEADLINE  or quoted [trb]

_______________________________________________________

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