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Legal Access

The state of Michigan identifies avenues for minors to access its legal system in its statutes and court rules. In any proceeding in the juvenile division of the probate court, the court may appoint a GAL for a minor if the court thinks that the welfare of the party requires it.335 Outside of the juvenile division, a GAL can also be appointed. In fact, the court must appoint a GAL to ``appear for and represent the interests of any person in any proceeding'' where the law requires it.336

The GAL may be an attorney. However, in that case the GAL is not acting in the role of an attorney to the minor, in which he or she would represent the interests and desires of the child. Rather, a GAL is required to act in the best interests of the child, regardless of what the child may deem in her best interest.

In every case filed under the Child Protection Act in which judicial proceedings are necessary, the court must appoint a lawyer-guardian ad litem to represent the child. A lawyer-guardian ad litem represents the child's best interests in the child protection hearings.337

An important aspect of having an attorney appointed to be the GAL is that the appointment does not create an attorney-client relationship. Any information received by the GAL by any means, and any communications between that minor and the GAL, are not subject to the attorney-client privilege. This can cause a problem in getting a minor to trust their GAL. If the minor is aware that the relationship is not privileged, and that the GAL may share any information given to her with the court, the minor may not be as forthcoming, and this may therefore adversely affect her ``best interests.'' The minor should be aware of this lack of privilege, as the GAL is required to inform the minor of this issue.338

However, if that attorney has his or her appointment as GAL terminated and the court later appoints that same individual as the minor's attorney, the appointment as attorney creates an attorney-client relationship. The attorney client privilege relates back to the date of the appointment of the GAL. That means that any information learned while the attorney was the minor's GAL will now be privileged.339

In Michigan, minors can also bring suit and can be sued. They do this pursuant to Michigan Rule of Civil Procedure 2.201, which lays out the way in which any person in Michigan becomes a party to a suit. An emancipated minor may sue and be sued in the minor's own name without any adult representative bringing the suit for them.340 If a non-emancipated minor has a conservator, actions may be brought and must be defended by the conservator on behalf of the minor.341 If the minor does not have a conservator to represent her as plaintiff, the court shall appoint a competent and responsible person to appear as next friend on her behalf, and the next friend is responsible for the costs of the action.342 If the minor does not have a conservator to represent her as defendant, the action may not proceed until the court appoints a GAL, who is not responsible for the costs of the action.343

If the minor is 14 years of age or older, the court can appoint a representative based on the minor's nomination and written consent of the person she wishes to be appointed.344 If the minor is under 14 years of age the court can appoint a representative based on the nomination of the minor's next-of-kin or of another relative or friend the court deems suitable, and the written consent of the person to be appointed.345

In short, Michigan gives minors access to the legal system in much the same way that Massachusetts does, primarily through a GAL.



Footnotes

...335
Mich. R. Prob. Ct. 5.916 (West 2002).
...336
Mich. R. Prob. Ct. 5.121 (West 2002).
...337
Mich. Stat. Ann. 25.248(10) (Lexis, 2001.)
...338
Mich. R. Prob. Ct. 5.121(E)(1) (West 2002).
...339
Mich. R. Prob. Ct. 5.121(E)(2) (West 2002).
...340
Mich. R. Civ. Pro. 2.201 (West 2002).
...341
Id.
...342
Id.
...343
Id. at (E)(1).
...344
Id.
...345
Id. at (E)(2).

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Next: Shelter Restrictions Up: Michigan Previous: Mature Minor   Contents   Index
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