October 10, 2017, Introduced by Reps. Cole, Lucido, Kahle, Leutheuser, Miller, Brann, Victory, Marino, Noble and Runestad and referred to the Committee on Families, Children, and Seniors.
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending sections 5306, 5311, and 5508 (MCL 700.5306, 700.5311,
and 700.5508), section 5306 as amended by 2004 PA 532 and section
5508 as amended by 2008 PA 41.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 5306. (1) The court may appoint a guardian if the court
finds by clear and convincing evidence both that the individual for
whom a guardian is sought is an incapacitated individual and that
the appointment is necessary as a means of providing continuing
care and supervision of the incapacitated individual, with each
finding supported separately on the record. Alternately, the court
may dismiss the proceeding or enter another appropriate order.
(2) The court shall grant a guardian only those powers and
only for that period of time as is necessary to provide for the
demonstrated need of the incapacitated individual. The court shall
design the guardianship to encourage the development of maximum
self-reliance and independence in the individual. If the court is
aware that an individual has executed a patient advocate
designation under section 5506, the court shall not grant a
guardian any of the same powers that are held by the patient
advocate. A court order establishing a guardianship shall specify
any limitations on the guardian's powers and any time limits on the
guardianship.
(3) If the court finds by clear and convincing evidence that
an individual is incapacitated and lacks the capacity to do some,
but not all, of the tasks necessary to care for himself or herself,
the court may appoint a limited guardian to provide guardianship
services to the individual, but the court shall not appoint a full
guardian.
(4) If the court finds by clear and convincing evidence that
the individual is incapacitated and is totally without capacity to
care for himself or herself, the court shall specify that finding
of fact in an order and may appoint a full guardian.
(5) If an individual executed a patient advocate designation
under section 5506 before the time the court determines that he or
she became a legally incapacitated individual, a guardian does not
have and shall not exercise the power or duty of making medical or
mental health treatment decisions that the patient advocate is
designated to make. If, however, a petition for guardianship or for
modification under section 5310 alleges and the court finds by
clear and convincing evidence that the patient advocate designation
was not executed in compliance with section 5506, that the patient
advocate is not complying with the terms of the designation or with
the applicable provisions of sections 5506 to 5515, or that the
patient advocate is not acting consistent with the ward's best
interests,
the court may appoint a guardian
or modify the a
guardianship's terms to grant those powers to the guardian. The
court shall not appoint a temporary guardian under section 5312
while considering a petition under this subsection. During the
pendency of a petition under this subsection, the patient advocate
or petitioner shall not authorize or effectuate a medical treatment
decision to withhold or withdraw life-sustaining treatment. For the
purposes of this subsection, there is a rebuttable presumption that
the ward's best interests include the ward continuing to live.
Sec. 5311. (1) In a proceeding for the appointment or removal
of an incapacitated individual's guardian, other than the
appointment of a temporary guardian or temporary suspension of a
guardian, notice of hearing must be given to each of the following:
(a) The ward or the individual alleged to be incapacitated and
that individual's spouse, parents, and adult children.
(b) A person who is serving as the guardian or conservator or
who has the individual's care and custody.
(c) If known, a person named as attorney in fact under a
durable power of attorney or a patient advocate designated under
section 5506.
(d) If no other person is notified under subdivision (a), (b),
or (c), at least 1 of the individual's closest adult relatives, if
any can be found.
(2) Notice must be served personally on the alleged
incapacitated individual. Notice to all other persons must be given
as prescribed by court rule. Waiver of notice by the individual
alleged to be incapacitated is not effective unless the individual
attends the hearing or a waiver of notice is confirmed in an
interview with the visitor.
(3) In a proceeding for a guardian's appointment under
sections 5303 and 5304, a copy of the petition must be attached to
the hearing notice, and the notice to the alleged incapacitated
individual must contain all of the following information:
(a) The nature, purpose, and legal effects of the appointment
of a guardian.
(b) The alleged incapacitated individual's rights in the
proceeding, including the right to appointed legal counsel.
Sec.
5508. (1) Except as provided under subsection (3), (6),
the authority under a patient advocate designation is exercisable
by a patient advocate only when the patient is unable to
participate in medical treatment or, as applicable, mental health
treatment decisions. The patient's attending physician and another
physician or licensed psychologist shall determine upon examination
of the patient whether the patient is unable to participate in
medical treatment decisions, shall put the determination in
writing, shall make the determination part of the patient's medical
record, and shall review the determination not less than annually.
If the patient's religious beliefs prohibit an examination and this
is stated in the designation, the patient must indicate in the
designation
how the determination under this subsection shall must
be made. The determination of the patient's ability to make mental
health
treatment decisions shall must
be made under section 5515.
(2) If a dispute arises as to whether the patient is unable to
participate in medical or mental health treatment decisions, a
petition may be filed with the court in the county in which the
patient resides or is located requesting the court's determination
as to whether the patient is unable to participate in decisions
regarding medical treatment or mental health treatment, as
applicable. If a petition is filed under this subsection, the court
shall appoint a guardian ad litem to represent the patient for the
purposes
of this subsection. The Subject
to subsection (4), the
court shall conduct a hearing on a petition under this subsection
as soon as possible and not later than 7 days after the court
receives the petition. As soon as possible and not later than 7
days after the hearing, the court shall determine whether or not
the patient is able to participate in decisions regarding medical
treatment or mental health treatment, as applicable. During the
pendency of a petition under this subsection, the patient advocate
or the petitioner shall not authorize or implement a medical
treatment decision to withhold or withdraw life-sustaining
treatment. If the court determines that the patient is unable to
participate in the decisions, the patient advocate's authority,
rights, and responsibilities are effective. If the court determines
that the patient is able to participate in the decisions, the
patient advocate's authority, rights, and responsibilities are not
effective.
(3) If a dispute arises as to whether the patient advocate is
complying with the terms of the patient advocate designation or
with the applicable provisions of sections 5506 to 5515, or whether
the patient advocate is acting consistent with the patient's best
interests, a petition may be filed with the court in the county in
which the patient resides or is located requesting the court to
determine whether the patient advocate is acting consistent with
his or her designated authority or with the patient's best
interests. If the petition is filed under this subsection, the
court shall appoint a guardian ad litem to represent the patient
for the purposes of this subsection. Subject to subsection (4), the
court shall conduct a hearing on a petition under this subsection
as soon as possible and not later than 7 days after the court
receives the petition. As soon as possible and not later than 7
days after the hearing, the court shall determine whether or not
the patient advocate is acting consistent with his or her
designated authority or with the patient's best interests. During
the pendency of the petition under this subsection, the patient
advocate or a petitioner shall not authorize or implement a medical
treatment decision to withhold or withdraw life-sustaining
treatment.
(4) The court shall provide notice of hearing under a petition
filed under subsection (2) or (3) to each of the following:
(a) The patient and the patient's spouse, parents, and adult
children.
(b) A person who has the patient's care or custody.
(c) If known, a person named as attorney in fact under a
durable power of attorney.
(d) If no other person is notified under subdivision (a), (b),
or (c), at least 1 of the patient's closest adult relatives, if any
can be found.
(5) A notice under subsection (4) must be served personally on
the patient. Notice to all other persons must be given as
prescribed by court rule.
(6) (3)
In the case of a For a patient advocate designation
that authorizes a patient advocate to make an anatomical gift of
all or part of the patient's body, the patient advocate shall act
on the patient's behalf in accordance with part 101 of the public
health code, 1978 PA 368, MCL 333.10101 to 333.10123, and may do so
only after the patient has been declared unable to participate in
medical treatment decisions as provided in subsection (1) or
declared dead by a licensed physician. The patient advocate's
authority to make an anatomical gift remains exercisable after the
patient's death.
(7) For purposes of this section, there is a rebuttable
presumption that the patient's best interests include the patient
continuing to live.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.