SENATE BILL No. 713

 

 

December 6, 2017, Introduced by Senators MARLEAU, KNOLLENBERG, KOWALL, JONES, BOOHER, EMMONS, COLBECK, ROCCA, CASPERSON, O'BRIEN, HUNE, GREEN, ROBERTSON, STAMAS, BRANDENBURG, BIEDA, GREGORY, HERTEL, MACGREGOR, NOFS, HANSEN, HORN, HILDENBRAND and SCHMIDT and referred to the Committee on Judiciary.

 

 

     A bill to amend 1998 PA 386, entitled

 

"Estates and protected individuals code,"

 

by amending sections 5101, 5305, 5306, 5306a, 5310, and 5507 (MCL

 

700.5101, 700.5305, 700.5306, 700.5306a, 700.5310, and 700.5507),

 

sections 5101 and 5310 as amended by 2000 PA 54, section 5305 as

 

amended by 2013 PA 157, section 5306 as amended by 2004 PA 532,

 

section 5306a as added by 2012 PA 173, and section 5507 as amended

 

by 2008 PA 41, and by adding part 6 to article V.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 5101. As used in parts 1 to 4 of this article:

 

     (a) "Best interests of the minor" means the sum total of the

 

following factors to be considered, evaluated, and determined by

 

the court:

 


     (i) The love, affection, and other emotional ties existing

 

between the parties involved and the child.

 

     (ii) The capacity and disposition of the parties involved to

 

give the child love, affection, and guidance and to continue

 

educating and raising the child in the child's religion or creed,

 

if any.

 

     (iii) The capacity and disposition of the parties involved to

 

provide the child with food, clothing, medical care or other

 

remedial care recognized and permitted under the laws of this state

 

in place of medical care, and other material needs.

 

     (iv) The length of time the child has lived in a stable,

 

satisfactory environment, and the desirability of maintaining

 

continuity.

 

     (v) The permanence, as a family unit, of the existing or

 

proposed custodial home.

 

     (vi) The moral fitness of the parties involved.

 

     (vii) The mental and physical health of the parties involved.

 

     (viii) The child's home, school, and community record.

 

     (ix) The child's reasonable preference, if the court considers

 

the child to be of sufficient age to express a preference.

 

     (x) The party's willingness and ability to facilitate and

 

encourage a close and continuing parent-child relationship between

 

the child and his or her parent or parents.

 

     (xi) Domestic violence regardless of whether the violence is

 

directed against or witnessed by the child.

 

     (xii) Any other factor considered by the court to be relevant

 

to a particular dispute regarding termination of a guardianship,


removal of a guardian, or parenting time.

 

     (b) "Claim" includes, in respect to a protected individual, a

 

liability of the protected individual, whether arising in contract,

 

tort, or otherwise, and a liability of the estate that arises at or

 

after the appointment of a conservator, including expenses of

 

administration.

 

     (c) "Conservator" includes, but is not limited to, a limited

 

conservator described in section 5419(1).

 

     (d) "Isolated adult" means an individual who is 18 years of

 

age or older, including a ward, and who has been denied visitation

 

with a qualified person by another person.

 

     (e) "Qualified person" means any of the following:

 

     (i) The spouse, child, grandchild, parent, or sibling of an

 

allegedly isolated adult.

 

     (ii) An individual who has a significant and ongoing

 

relationship with an allegedly isolated adult.

 

     (iii) An individual whom the allegedly isolated adult named in

 

his or her patient advocate designation with whom the allegedly

 

isolated adult would like to visit.

 

     (f) (d) "Visitor" means an individual appointed in a

 

guardianship or protective proceeding who is trained in law,

 

nursing, or social work, is an officer, employee, or special

 

appointee of the court, and has no personal interest in the

 

proceeding.

 

     Sec. 5305. (1) The duties of a guardian ad litem appointed for

 

an individual alleged to be incapacitated include all of the

 

following:


     (a) Personally visiting the individual.

 

     (b) Explaining to the individual the nature, purpose, and

 

legal effects of a guardian's appointment.

 

     (c) Explaining to the individual the hearing procedure and the

 

individual's rights in the hearing procedure, including, but not

 

limited to, all of the following:

 

     (i) The right to contest the petition.

 

     (ii) The right to request limits on the guardian's powers,

 

including a limitation on the guardian's power to execute a do-not-

 

resuscitate order on behalf of the ward.

 

     (iii) The right to object to a particular person being

 

appointed guardian.

 

     (iv) The right to be present at the hearing.

 

     (v) The right to be represented by legal counsel.

 

     (vi) The right to have legal counsel appointed for the

 

individual if he or she is unable to afford legal counsel.

 

     (d) Informing the individual that if a guardian is appointed,

 

the guardian may have the power to execute a do-not-resuscitate

 

order on behalf of the individual and, if meaningful communication

 

is possible, discern if discerning whether the individual objects

 

to having a do-not-resuscitate order executed on his or her behalf.

 

     (e) Informing the individual of the name of each person known

 

to be seeking appointment as guardian.

 

     (f) Asking the individual and the petitioner about the amount

 

of cash and property readily convertible into cash that is in the

 

individual's estate.

 

     (g) Making determinations, and informing the court of those


determinations, on all of the following:

 

     (i) Whether there are 1 or more appropriate alternatives to

 

the appointment of a full guardian or whether 1 or more actions

 

should be taken in addition to the appointment of a guardian.

 

Before informing the court of his or her determination under this

 

subparagraph, the guardian ad litem shall consider the

 

appropriateness of at least each of the following as alternatives

 

or additional actions:

 

     (A) Appointment of a limited guardian, including the specific

 

powers and limitation limitations on those powers that the guardian

 

ad litem believes to be appropriate.

 

     (B) Appointment of a conservator or another protective order

 

under part 4 of this article. In the report informing the court of

 

the determinations under this subdivision, the guardian ad litem

 

shall include an estimate of the amount of cash and property

 

readily convertible into cash that is in the individual's estate.

 

     (C) Execution of a patient advocate designation, do-not-

 

resuscitate order, or durable power of attorney with or without

 

limitations on purpose, authority, or duration.

 

     (ii) Whether a disagreement or dispute related to the

 

guardianship petition might be resolved through court ordered

 

mediation.

 

     (iii) Whether the individual wishes to be present at the

 

hearing.

 

     (iv) Whether the individual wishes to contest the petition.

 

     (v) Whether the individual wishes limits placed on the

 

guardian's powers.


     (vi) Whether the individual objects to having a do-not-

 

resuscitate order executed on his or her behalf.

 

     (vii) Whether the individual objects to a particular person

 

being appointed guardian.

 

     (viii) With whom the individual wishes to communicate and

 

visit, and if the individual named another individual in a patient

 

advocate designation with whom the individual would like to visit

 

and communicate, the identity of that individual.

 

     (ix) Whether it is appropriate for the individual to visit or

 

communicate with an individual described in subparagraph (viii).

 

     (2) The court shall not order compensation of the guardian ad

 

litem unless the guardian ad litem states on the record or in the

 

guardian ad litem's written report that he or she has complied with

 

subsection (1).

 

     (3) If the individual alleged to be incapacitated wishes to

 

contest the petition, to have limits placed on the guardian's

 

powers, or to object to a particular person being appointed

 

guardian and if legal counsel has not been secured, the court shall

 

appoint legal counsel to represent the individual alleged to be

 

incapacitated. If the individual alleged to be incapacitated is

 

indigent, the state shall bear the expense of legal counsel.

 

     (4) If the individual alleged to be incapacitated requests

 

legal counsel or the guardian ad litem determines it is in the

 

individual's best interest to have legal counsel, and if legal

 

counsel has not been secured, the court shall appoint legal

 

counsel. If the individual alleged to be incapacitated is indigent,

 

the state shall bear the expense of legal counsel.


     (5) If the individual alleged to be incapacitated has legal

 

counsel appointed under subsection (3) or (4), the appointment of a

 

guardian ad litem terminates.

 

     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 and to continue

 

the existing relationships with qualified persons. 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 must

 

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 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 modify the

 

guardianship's terms to grant those powers to the guardian.

 

     Sec. 5306a. (1) An individual for whom a guardian is sought or

 

has been appointed under section 5306 has all of the following

 

rights:

 

     (a) To object to the appointment of a successor guardian by

 

will or other writing, as provided in section 5301.

 

     (b) To have the guardianship proceeding commenced and

 

conducted in the place where the individual resides or is present

 

or, if the individual is admitted to an institution by a court, in

 

the county in which the court is located, as provided in section


5302.

 

     (c) To petition on his or her own behalf for the appointment

 

of a guardian, as provided in section 5303.

 

     (d) To have legal counsel of his or her own choice represent

 

him or her on the petition to appoint a guardian, as provided in

 

sections 5303, 5304, and 5305.

 

     (e) If he or she is not represented by legal counsel, to the

 

appointment of a guardian ad litem to represent the individual on

 

the petition to appoint a guardian, as provided in section 5303.

 

     (f) To an independent evaluation of his or her capacity by a

 

physician or mental health professional, at public expense if he or

 

she is indigent, as provided in section 5304.

 

     (g) To be present at the hearing on the petition to appoint a

 

guardian and to have all practical steps taken to ensure this,

 

including, if necessary, moving the hearing site, as provided by

 

section 5304.

 

     (h) To see or hear all the evidence presented in the hearing

 

on the petition to appoint a guardian, as provided in section 5304.

 

     (i) To present evidence and cross-examine witnesses in the

 

hearing on the petition to appoint a guardian, as provided in

 

section 5304.

 

     (j) To a trial by jury on the petition to appoint a guardian,

 

as provided in section 5304.

 

     (k) To a closed hearing on the petition to appoint a guardian,

 

as provided in section 5304.

 

     (l) If a guardian ad litem is appointed, to be personally

 

visited by the guardian ad litem, as provided in section 5305.


     (m) If a guardian ad litem is appointed, to an explanation by

 

the guardian ad litem of the nature, purpose, and legal effects of

 

a guardian's appointment, as provided in section 5305.

 

     (n) If a guardian ad litem is appointed, to an explanation by

 

the guardian ad litem of the individual's rights in the hearing

 

procedure, as provided in section 5305.

 

     (o) If a guardian ad litem is appointed, to be informed by the

 

guardian ad litem of the right to contest the petition, to request

 

limits on the guardian's powers, to object to a particular person

 

being appointed guardian, to be present at the hearing, to be

 

represented by legal counsel, and to have legal counsel appointed

 

if the individual is unable to afford legal counsel, as provided in

 

section 5305.

 

     (p) To be informed of the name of each person known to be

 

seeking appointment as guardian, including, if a guardian ad litem

 

is appointed, to be informed of the names by the guardian ad litem

 

as provided in section 5305.

 

     (q) To require that proof of incapacity and the need for a

 

guardian be proven by clear and convincing evidence, as provided in

 

section 5306.

 

     (r) To the limitation of the powers and period of time of a

 

guardianship to only the amount and time that is necessary, as

 

provided in section 5306.

 

     (s) To a guardianship designed to encourage the development of

 

maximum self-reliance and independence as provided in section 5306.

 

     (t) To prevent the grant of powers to a guardian if those

 

powers are already held by a valid patient advocate, as provided in


section 5306.

 

     (u) To periodic review of the guardianship by the court,

 

including the right to a hearing and the appointment of an attorney

 

if issues arise upon the review of the guardianship, as provided in

 

section 5309.

 

     (v) To, at any time, seek modification or termination of the

 

guardianship by informal letter to the judge, as provided in

 

section 5310.

 

     (w) To a hearing within 28 days of requesting a review,

 

modification, or termination of the guardianship, as provided in

 

section 5310.

 

     (x) To the same rights on a petition for modification or

 

termination of the guardianship including the appointment of a

 

visitor as apply to a petition for appointment of a guardian, as

 

provided in section 5310.

 

     (y) To personal notice of a petition for appointment or

 

removal of a guardian, as provided in section 5311.

 

     (z) To written notice of the nature, purpose, and legal

 

effects of the appointment of a guardian, as provided in section

 

5311.

 

     (aa) To choose the person who will serve as guardian, if the

 

chosen person is suitable and willing to serve, as provided in

 

section 5313.

 

     (bb) To consult with the guardian about major decisions

 

affecting the individual, if meaningful conversation is possible,

 

as provided in section 5314.

 

     (cc) To quarterly visits by the guardian, as provided in


section 5314.

 

     (dd) To have the guardian notify the court within 14 days of a

 

change in the individual's residence, as provided in section 5314.

 

     (ee) To have the guardian secure services to restore the

 

individual to the best possible state of mental and physical well-

 

being so that the individual can return to self-management at the

 

earliest possible time, as provided in section 5314.

 

     (ff) To have the guardian take reasonable care of the

 

individual's clothing, furniture, vehicles, and other personal

 

effects, as provided in section 5314.

 

     (gg) If the individual is able to express his or her

 

preference, to visit and communicate with individuals of his or her

 

choice. If the individual is unable to express his or her

 

preferences, and if the individual named another individual in a

 

patient advocate designation with whom the individual would like to

 

visit and communicate, the individual has the right to visit and

 

communicate with that other individual.

 

     (2) A guardian ad litem shall inform the ward in writing of

 

his or her rights enumerated in this section. The state court

 

administrative office and the office of services to the aging and

 

adult services agency created in section 5 of the older

 

Michiganians act, 1981 PA 180, MCL 400.585, shall promulgate a form

 

to be used to give the written notice under this section, which

 

shall must include space for the court to include information on

 

how to contact the court or other relevant personnel with respect

 

to the rights enumerated in this section.

 

     Sec. 5310. (1) On petition of the guardian and subject to the


filing and approval of a report prepared as required by section

 

5314, the court shall accept the guardian's resignation and make

 

any other order that is appropriate.

 

     (2) The ward or a person interested in the ward's welfare may

 

petition the court for an order removing the guardian, appointing a

 

successor guardian, modifying the guardianship's terms, or

 

terminating the guardianship. A request for this order may be made

 

by informal letter to the court or judge. A person who knowingly

 

interferes with the transmission of this kind of request to the

 

court or judge is subject to a finding of contempt of court.

 

     (3) Except as otherwise provided in the order finding

 

incapacity, upon on receiving a petition or request under this

 

section, the court shall set a date for a hearing to be held within

 

28 days after the receipt of the petition or request. An order

 

finding incapacity may specify a minimum period, not exceeding 182

 

days, during which a petition or request for a finding that a ward

 

is no longer an incapacitated individual, or for an order removing

 

the guardian, modifying the guardianship's terms, or terminating

 

the guardianship, shall must not be filed without special leave of

 

the court.

 

     (4) Before removing a guardian, appointing a successor

 

guardian, modifying the guardianship's terms, or terminating a

 

guardianship, and following the same procedures to safeguard the

 

ward's rights as apply to a petition for a guardian's appointment,

 

the court may send a visitor to the present guardian's residence

 

and to the place where the ward resides or is detained to observe

 

conditions and report in writing to the court.


     (5) A qualified person may petition the court for a finding

 

that the ward is an isolated adult and for an order of visitation

 

with the ward under section 5603. A qualified person may also

 

petition the court for an order that requires the guardian to

 

notify the qualified person in writing within 14 days after either

 

of the following events:

 

     (a) A change of the ward's residence.

 

     (b) The ward's admission to a hospital or skilled nursing

 

facility. As used in this subdivision, "skilled nursing facility"

 

means that term as defined in section 20109 of the public health

 

code, 1978 PA 368, MCL 333.20109.

 

     Sec. 5507. (1) A patient advocate designation may include a

 

statement of the patient's desires on care, custody, communication

 

and visitation with others, and medical treatment or mental health

 

treatment, or both. A patient advocate designation may also include

 

a statement of the patient's desires on the making of an anatomical

 

gift of all or part of the patient's body under part 101 of the

 

public health code, 1978 PA 368, MCL 333.10101 to 333.10123. The

 

statement regarding an anatomical gift under this subsection may

 

include a statement of the patient's desires regarding the

 

resolution of a conflict between the terms of the advance health

 

care directive and the administration of means necessary to ensure

 

the medical suitability of the anatomical gift. The patient may

 

authorize the patient advocate to exercise 1 or more powers

 

concerning the patient's care, custody, medical treatment, or

 

mental health treatment, the making of an anatomical gift, or the

 

resolution of a conflict between the terms of the advance health


care directive and the administration of means necessary to ensure

 

the medical suitability of the anatomical gift that the patient

 

could have exercised on his or her own behalf.

 

     (2) A patient may designate in the patient advocate

 

designation a successor individual as a patient advocate who may

 

exercise the powers described in subsection (1) for the patient if

 

the first individual named as patient advocate does not accept, is

 

incapacitated, resigns, or is removed.

 

     (3) Before a patient advocate designation is implemented, a

 

copy of the patient advocate designation must be given to the

 

proposed patient advocate and must be given to a successor patient

 

advocate before the successor acts as patient advocate. Before

 

acting as a patient advocate, the proposed patient advocate must

 

sign an acceptance of the patient advocate designation.

 

     (4) The acceptance of a designation as a patient advocate must

 

include substantially all of the following statements:

 

     1. This patient advocate designation is not effective unless

 

the patient is unable to participate in decisions regarding the

 

patient's medical or mental health, as applicable. If this patient

 

advocate designation includes the authority to make an anatomical

 

gift as described in section 5506, the authority remains

 

exercisable after the patient's death.

 

     2. A patient advocate shall not exercise powers concerning the

 

patient's care, custody, and medical or mental health treatment

 

that the patient, if the patient were able to participate in the

 

decision, could not have exercised on his or her own behalf.

 

     3. This patient advocate designation cannot be used to make a


medical treatment decision to withhold or withdraw treatment from a

 

patient who is pregnant that would result in the pregnant patient's

 

death.

 

     4. A patient advocate may make a decision to withhold or

 

withdraw treatment that would allow a patient to die only if the

 

patient has expressed in a clear and convincing manner that the

 

patient advocate is authorized to make such a decision, and that

 

the patient acknowledges that such a decision could or would allow

 

the patient's death.

 

     5. A patient advocate shall not receive compensation for the

 

performance of his or her authority, rights, and responsibilities,

 

but a patient advocate may be reimbursed for actual and necessary

 

expenses incurred in the performance of his or her authority,

 

rights, and responsibilities.

 

     6. A patient advocate shall act in accordance with the

 

standards of care applicable to fiduciaries when acting for the

 

patient and shall act consistent with the patient's best interests.

 

The known desires of the patient expressed or evidenced while the

 

patient is able to participate in medical or mental health

 

treatment decisions are presumed to be in the patient's best

 

interests.

 

     7. A patient may revoke his or her patient advocate

 

designation at any time and in any manner sufficient to communicate

 

an intent to revoke.

 

     8. A patient may waive his or her right to revoke the patient

 

advocate designation as to the power to make mental health

 

treatment decisions, and if such a waiver is made, his or her


ability to revoke as to certain treatment will be delayed for 30

 

days after the patient communicates his or her intent to revoke.

 

     9. A patient advocate may revoke his or her acceptance of the

 

patient advocate designation at any time and in any manner

 

sufficient to communicate an intent to revoke.

 

     10. A patient admitted to a health facility or agency has the

 

rights enumerated in section 20201 of the public health code, 1978

 

PA 368, MCL 333.20201.

 

                                PART 6

 

                           ISOLATED ADULTS

 

     Sec. 5601. The venue for a visitation proceeding under section

 

5603 is in the county where the allegedly isolated adult resides or

 

is present.

 

     Sec. 5603. (1) A qualified person may petition the court for a

 

finding that an individual who is at least 18 years of age is being

 

isolated from a qualified person by another individual.

 

     (2) A petition under this section must include all of the

 

following:

 

     (a) The petitioner's interest as a qualified person.

 

     (b) The residence of the allegedly isolated adult or where he

 

or she is present.

 

     (c) A statement of facts as to why the petitioner's visitation

 

with the allegedly isolated adult is being interfered with or

 

denied.

 

     (d) The identity of any person alleged to be interfering with

 

or denying visitation between the petitioner and the allegedly

 

isolated adult under subdivision (c).


     (3) In a proceeding under this section, notice of hearing must

 

be given to each of the following:

 

     (a) The allegedly isolated adult.

 

     (b) The respondent.

 

     (4) Notice must be served personally on the allegedly isolated

 

adult. Notice to all other persons must be given as prescribed by

 

court rule.

 

     (5) A copy of the petition under this section must be attached

 

to the notice of hearing.

 

     (6) On the filing of a petition under subsection (1), the

 

court shall set a date for hearing on the issue of isolation.

 

     (7) It is presumed that it is in the best interest of an

 

allegedly isolated adult to visit with a qualified person. The

 

respondent may rebut the presumption under this subsection with

 

clear and convincing evidence of any of the following:

 

     (a) That the petitioner committed mental, physical, or

 

financial abuse against the allegedly isolated adult.

 

     (b) That visitation between the petitioner and the allegedly

 

isolated adult would be harmful to the allegedly isolated adult's

 

health or mental well-being.

 

     (8) If an allegedly isolated adult who is the subject of a

 

petition under this section objects to visitation with the

 

petitioner, the petitioner must demonstrate by clear and convincing

 

evidence that the allegedly isolated adult's objection resulted

 

from the respondent's undue influence over the allegedly isolated

 

adult. If the petitioner demonstrates clear and convincing evidence

 

under this subsection, the court shall grant the petitioner


reasonable visitation and notice of change in residency as provided

 

in subsection (9).

 

     (9) If the court finds that the petitioner is a qualified

 

person, that the individual subject to a petition under this

 

section is an isolated adult, and that visitation between the

 

isolated adult and the petitioner is being denied, the court may

 

enter an order that does any of the following:

 

     (a) Establishes reasonable times for the petitioner to visit

 

the isolated adult.

 

     (b) Requires the respondent to notify the petitioner within 14

 

days after any of the following:

 

     (i) A change in the isolated adult's residence.

 

     (ii) The isolated adult's admission to a hospital or skilled

 

nursing facility. As used in this subparagraph, "skilled nursing

 

facility" means that term as defined in section 20109 of the public

 

health code, 1978 PA 368, MCL 333.20109.

 

     (10) If the court determines that a petitioner filed a

 

petition under this section in bad faith, the court may assess

 

reasonable attorney fees incurred by the respondent and any

 

guardian ad litem cost against the petitioner.

 

     (11) If the court grants the petitioner's petition, the court

 

may assess against the respondent any of the following:

 

     (a) The cost of filing and serving the petition.

 

     (b) Any cost for a guardian ad litem.

 

     (c) Reasonable attorney fees incurred by the petitioner.

 

     (12) As used in this section, "respondent" means an individual

 

alleged to have interfered with or denied visitation between an


allegedly isolated adult and a petitioner under this section.